Pallone v Wollongong City Council

[2024] NSWLEC 1711

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pallone v Wollongong City Council [2024] NSWLEC 1711

Hearing dates:

Conciliation conference on 28 October 2024

Date of orders:

06 November 2024

Decision date:

06 November 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA-2023/360 seeking consent for the demolition of the existing structures and construction of a dual occupancy development over one level of basement carparking at 3 Harbour Street, Wollongong NSW is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION: dual occupancy development in R1 General Residential zone -

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, 2.6

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13, 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Wollongong Local Environmental Plan 2009, cll 2.1, 4.3, 4.4, 5.10, 5.21, 6.1, 7.6, Sch 5

Texts Cited:

Wollongong Development Control Plan 2009

Category:

Principal judgment

Parties:

Umberto Pallone (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
M Bawden (Solicitor) (Applicant)
J Reilly (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2023/306943

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Wollongong City Council of development application DA‑2023/360 seeking consent for the demolition of existing structures and the construction of dual occupancy development at 3 Harbour Street, Wollongong.

2. The matter was initially listed before me for conciliation under s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 30-31 October 2024. However, prior to the hearing, the parties advised the Court that they had reached agreement on all issues in contention in these proceedings. The matter was listed before me under s 34AA on 28 October 2024.

3. At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties.

4. This agreement between the parties involves the Court upholding the appeal and granting development consent to the development application subject to those agreed conditions of consent.

5. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 28 October 2024.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [26], as follows:

8. The site is located within an area identified by the Land Use Table at cl 2.1 of the Wollongong Local Environmental Plan 2009 (WLEP) as R1 General Residential, in which dual occupancy development is permitted with consent, where consistent with the following objectives of the R1 zone:

•  To provide for the housing needs of the community.

•  To provide for a variety of housing types and densities.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

9. The proposed development complies with the height of buildings standard at cl 4.3 of the WLEP, and with the floor space ratio standard at cl 4.4 of the WLEP.

10. The subject site adjoins the site of the Old Wollongong Court House that is identified in Sch 5 of the WLEP for its state heritage significance, and also adjoins the Belmore Basin Heritage Conservation Area (HCA). The site itself is also identified as an archaeological item. Parties agree that consideration has been given to the heritage significance of the site by the following supporting documents:

1. Heritage Impacts Statement prepared by Weir Phillips Heritage and Planning dated April 2023.

2. Aboriginal Cultural Heritage Assessment prepared by Austral Archaeology dated 20 August 2024.

3. Historical Investigation Assessment prepared by Austral Archaeology dated 17 July 2024.

4. Heritage Management Plan prepared by Austral Archaeology dated 16 October 2024.

11. The parties agree the proposal does not impose an unreasonable impact on the Old Wollongong Courthouse, heritage items in the vicinity or the Belmore Basin HCA, pursuant to cl 5.10 of the WLEP. Furthermore, the parties submit evidence that the Heritage Council and Heritage NSW have been notified in accordance with cl 5.10(7) of the WLEP. The response from Heritage NSW dated 3 October 2023 makes certain recommendations that are incorporated into the Appendices of the Amended Aboriginal Cultural Heritage Assessment.

12. The site is located in a flood planning area, and part of the site is below the flood planning level. The Flood Impact Statement prepared by ATB Consulting Engineers dated 10 April 2024 (Flood Report) identifies the Fairy and Cabbage Tree Floodplain and its relevant flood behaviour that encroaches on the site by 9m² in the event of a Probable Maximum Flood. As the proposed building envelope is outside the Floodways, Flood Storage and Flood Fringe Areas, it will not cause any blockage or change in distribution of flood waters or the levels, and will not adversely affect flood behaviour. So understood, safe occupation or evacuation will likewise not be adversely impacted by the proposal. The Flood Report also demonstrates conformity with the provisions of Floodplain Management at Chapter E13 of the Wollongong Development Control Plan 2009 to argue that appropriate measures to manage risk to life are adopted, and that the proposed development will not affect the environment in terms of erosion, siltation or destruction or reduction in vegetation or watercourses. As such I am satisfied of those matters about which the Court must be satisfied at cl 5.21(2) of the WLEP.

13. The site is located within an area identified on the relevant map at cl 6.1(2) of the WLEP as Class 5 Acid Sulfate Soils. The site is within 500m of Class 3 soil, and excavation is proposed below 5m Australian Height Datum. However, an assessment by Reditus dated 16 October 2024 concludes the works are unlikely to lower to watertable below 1m AHD on adjacent land due to the distance from the Class 3 soil nearby and the depth of the basement in relation to the level of the Class 3 soil. As such an Acid Sulfate Soils management plan is not required.

14. I have considered the extent of earthworks proposed on the site in accordance with cl 7.6 of the WLEP, and conclude, on the basis of the recommendations of the Geotechnical Investigation prepared by Fortify dated March 2020, the letter prepared by ATB dated 21 October 20204 and amended stormwater plans prepared by ATB dated 16 January 2024, that there is unlikely to be any detrimental impact on the drainage patterns in the locality, or on the future development of the land, the amenity of adjoining properties or any other aspects of a kind identified at subcl (3). In respect of subcl (3)(f), I consider the recommendations contained in the Amended Aboriginal Cultural Heritage Assessment cited at [11] sufficient to address the likelihood of disturbing Aboriginal objects of other relics.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. As the Site is identified as being within the “Coastal use area” and “Coastal Environment Area”, Ch 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies.

16. The site is within the Coastal environment area, and s 2.10 of the Resilience and Hazards SEPP precludes the grant of consent unless those matters at subcl (1) are considered. I accept that the site is not identified with high ecological value and that agreed conditions of consent impose requirements for the monitoring and management of groundwater. I also accept that the location of the site behind the Old Wollongong Courthouse is well set back so as not to impact natural coastal processes, and is not in the vicinity of the marine estate as defined at subcl (1)(c) so will not adversely impact water quality, marine vegetation, fauna or their habitats, and will not impede access along the foreshore, beach, headland or any other topographical feature of the coast. I consider aboriginal cultural heritage to be appropriately addressed at [11]. Accordingly, I am satisfied that the proposed development is suitably designed and sited to avoid any of those adverse impacts identified above.

17. Similarly, I have considered those matters at s 2.11(1) of the Resilience and Hazards SEPP in respect of the Coastal use area and I am satisfied that the proposal will have no impact on access to the foreshore or any part of it, will not overshadow or result in the loss of views from public places to the foreshore. On the basis of the photomontage prepared by Ross Caddaye dated April 2024, I also accept that the proposal does not adversely affect the scenic qualities of the coast nor the built environment heritage, being located as it is behind the Old Wollongong Courthouse and in the Belmore Beach HCA. As stated above, I consider aboriginal cultural heritage to be appropriately addressed at [11]. As such, I am satisfied as to those matters at s 2.11(1)(b) of the Resilience and Hazards SEPP, including the surrounding coast and built environment with which I consider the proposal compatible.

18. Sections 2.12 and 2.13 of the Resilience and Hazards SEPP provide that a consent authority must not grant development consent to development in costal zones generally unless it is satisfied that the proposed development is not likely to cause increased risk of coastal hazard, and has taken into consideration the relevant provisions of any certified coastal management program.

19. I am satisfied, as I am required to be by s 2.12 of the Resilience and Hazards SEPP that the significant setback and elevation of the site from the shoreline and beach features to the east of the site precludes the likelihood of increased risk of coastal hazards. Further, that in respect of s 2.13, I understand there to be no certified coastal management program applicable to the site.

20. I have considered whether the site is contaminated in accordance with s 4.6 of the Resilience and Hazards SEPP. On the basis of the detailed historical chronology set out in the Heritage Impact Statement prepared by Weir Phillips dated April 2023, I accept that the Site has historically been used for residential purposes since 1930 with no former (non-indigenous) use known prior to this period, no known history of contamination applicable to the Site and no known prior use of the property that would suggest potential contamination.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The development application is accompanied by an Arboricultural Impact Assessment prepared by Allied Tree Consultancy dated February 2023 that assesses 9 existing trees, and proposes the retention and protection of 5 trees, and the transplantation of 3 trees. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

22. The application is accompanied by a BASIX certificate (Cert No 1356089M_04 prepared by Greenperch Pty Ltd) dated 18 October 2024 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004).

23. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Conclusion

24. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

25. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

26. The Court notes that:

1. Wollongong City Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application DA-2023/360 to incorporate the documents listed below:

Drawing No.	Issue	Drawing Title		Dated
Amended Architectural Plans
011	Z	Demolition Plan		Design Workshop Australia
020	Z	Site / Roof plan		Design Workshop Australia
021	Z	Floor Plans		Design Workshop Australia
022	Z	Floor Plans		Design Workshop Australia
030	Z	North Elevation		Design Workshop Australia
031	Z	South Elevation		Design Workshop Australia
032	Z	East Elevation and West Elevation		Design Workshop Australia
040	Z	Sections		Design Workshop Australia
Document Title			Prepared by		Dated
Aboriginal Cultural Heritage Assessment			Austral Archaeology		10.10.2024
Heritage Management Plan			Austral Archaeology		16.10.2024
BASIX Certificate No. 1356089M_04			Greenperch Pty Ltd		18.10.2024

2. The Applicant filed the Amended plans and other documents listed above with the Court on 28 October 2024.

Orders

27. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-2023/360 seeking consent for the demolition of the existing structures and construction of a dual occupancy development over one level of basement carparking at 3 Harbour Street, Wollongong NSW is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

T Horton

Commissioner of the Court

306943.23 Annexure A

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Decision last updated: 06 November 2024