Neate v Wollonong City Council

[2006] NSWLEC 164

Land and Environment Court

of New South Wales

CITATION:	Neate v Wollonong City Council [2006] NSWLEC 164
PARTIES:	Applicant: David Neate Respondent: Wollongong City Council
FILE NUMBER(S):	11377 of 2005
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- Seniors Living, impact on flooding
DATES OF HEARING:	03/04/2006 and 04/04/2006
EX TEMPORE JUDGMENT DATE:	04/04/2006
LEGAL REPRESENTATIVES:	Applicant: Mr J Maston, barrister, instructed by Mr K Webber of Wilshire Webb Respondent: Mr M Mantei, solicitor of Kells the Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

4 April 2006

11377 of 2005 David Neate v Wollongong City Council

JUDGMENT

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1

: This is an appeal against the deemed refusal by Wollongong City Council (the council) of a development application to demolish the existing structures and erect a housing development for seniors containing 80 dwellings on lot 51 DP 554443 and lot 4 DP 1078687, known as 47 Boronia Avenue, Windang.

The site

2 The site is on the south side of Boronia Avenue. It has an area of 1.44 ha and a frontage to Boronia Avenue of 118m. It is flat, low-lying and close to Lake Illawarra. There are squash courts and tennis courts on the site. The RLs on the site range between 1.12m and 1.72m AHD. The anticipated 1% Annual Exceedence Probability flood level is 2.26m AHD.

The proposal

3 The applicant proposes to demolish the existing buildings on the site and to erect a housing development for seniors containing 80 self-care apartments.

4 The applicant lodged the development application in September 2005. Following notification, the council received six letters of objection. The applicant lodged the appeal in November 2005. The council has not yet determined the application.

Relevant planning controls

5 The application is made under State Environmental Planning Policy – Seniors Living. The Wollongong Local Environmental Plan 1990 zones the major part of the site Private Recreation 6(b) and a minor portion Medium Density Residential 2(b). Development Control Plan 54 – Managing Our Flood Risks sets out criteria for assessing applications on flood-prone land.

The issues

6 The council submitted a Statement of Issues containing eight issues. Issue 8 (Electric radiation) was resolved to the council’s satisfaction following the applicant’s submission of a letter by THL Australia. Issues 5, 6 and 7 were planning issues, which were resolved through the report of the Court-appointed planning expert, Mr S Layman, an architect and planner. Issues 1, 2 3 and 4 related to flooding. These were resolved through a joint meeting between Mr P Nichols, the applicant’s hydrological engineer, Mr P Silveri, the council’s expert on flooding, and Mr S Opper, the director of Emergency Risk Management, State Emergency Service. The agreement resulted in several conditions of consent including one deferred commencement condition.

7 The result of the above was that the council did not press any issues at the hearing.

The objectors’ concerns

8 The court heard the evidence of four objectors:

· Mrs K Doyle of 46 Boronia Avenue,

· Mr W and Mrs J Griffith of 43 Boronia Avenue,

· Mr S Doerong of 45 Boronia Avenue, and

· Mrs J Buckley of 13 Oakland Avenue.

9 The objectors had three major concerns:

· the development would increase the effect of floods on their properties;

· the movement of cars from the development during floods would create wave action affecting their properties; and

· increased traffic.

10 The concern about increased effect of flooding related to the proposed filling of the development site. However, the applicant changed its plans and agreed to leave the unbuilt-upon portions of the site at the existing levels. It was common ground between the experts that with this design there would be no effect on the severity of flooding of other properties.

11 The second concern relating to wave action was resolved by a condition of consent requiring the applicant to offer to construct protective measures to eight affected properties. The owners of the properties may choose between several options, such as protective walls, gates or raised driveways.

12 As regards the concern about increased traffic, the applicant submitted a traffic report with the application. The report indicated that the traffic impact would be minor. The council accepted this and did not raise traffic as an issue.

Conclusion

13 Since all eight issues raised in the council’s Statement of Issues, as well as two of the three issues raised by the resident objectors were resolved satisfactorily to both parties, no issue remains that would justify refusal. The appeal is therefore upheld.

Orders

1. The appeal is upheld.

2. Development application to demolish the existing structures and erect a housing development for seniors containing 80 dwellings on lot 51 DP 554443 and lot 4 DP 1078687, known as 47 Boronia Avenue, Windang is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 9, 10, A and B.

__________________
Dr John Roseth
Senior Commissioner