Paragon Illawarra Pty Ltd v Wollongong City Council

[2024] NSWLEC 1216

Land and Environment Court

New South Wales

Medium Neutral Citation:

Paragon Illawarra Pty Ltd v Wollongong City Council [2024] NSWLEC 1216

Hearing dates:

Conciliation conference held on 8 March 2024

Date of orders:

24 April 2024

Decision date:

24 April 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent's costs 'thrown away' as a result the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $4,300.00 and payable within 28 days of this order.

(2)   The appeal is upheld.

(3)   Development consent is granted to DA-2023/50 for the demolition of the existing structures and construction of a residential flat building comprising of 11 units over basement car parking, removal of trees, associated landscaping and drainage works at 4-6 Blacket Street, North Wollongong, subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15

Land and Environment Court Act1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 30

State Environmental Planning Policy (Housing) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, ss 2.10, 2.11, 4.6

Wollongong Local Environmental Plan 2009, cll 2.7, 7.1, 7.5, 7.18, Pt 8

Category:

Principal judgment

Parties:

Paragon Illawarra Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

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

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

File Number(s):

2023/271510

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Wollongong City Council (Council) of Development Application No DA-2023/50 (DA).

2. The DA seeks consent for demolition of the existing structures and construction of a residential flat building comprising 11 units over basement car parking, removal of trees and associated landscaping and drainage works on land identified as Lot 3 in DP 18332 and Lot 2 DP 18332, commonly known as 4-6 Blacket Street, North Wollongong (site).

Agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 8 March 2024, and at which I presided.

4. After more time was given, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to certain agreed amendments and conditions.

5. 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.

Amendments

6. The parties’ agreement involved certain amendments to the DA, which have been approved by Council under s 38 of the Environmental Planning and Assessment Regulation 2021. These amendments are specified later.

Pre-requisites to undertaking the function to grant consent

7. There are certain statutory pre-requisites which require attention before this function of granting consent to the amended DA, in accordance with the parties’ agreement, can be exercised. The parties outlined matters of statutory relevance in an agreed jurisdictional statement provided to the Court on 19 April 2024. Noting the advice from the parties, I address the statutory pre-requisites below.

State Environmental Planning Policy (Resilience and Hazards) 2021

8. Chapter 2 Coastal Management applies to the proposed development as it is mapped within the Coastal Environment Area and Coastal Use Area. The parties advise that the Court can be satisfied with respect to relevant matters, including those matters listed at s 2.10(2) with respect to development in the coastal environment area and s 2.11(1)(b) with respect to development on land within the coastal use area. The parties base this reasoning on the site location (not immediately adjoining the site or foreshore) and the technical analysis involved in the Applicant’s statement of environmental effects (Tab 3 of the Class 1 Application filed 25 August 2023) and identified geotechnical analysis (Tab 11 s 34 Agreement Bundle provided to the Court on 19 April 2024). I accept this advice.

9. Chapter 4 concerned with contamination and remediation. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), a consent authority must not grant consent to a development unless it has considered whether the site is contaminated, and if the land is contaminated, is satisfied that the site is suitable in its contaminated site (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. The parties advise that the site has been used for residential uses for many decades and there are no known historic land uses which would deem the site unusable for the proposed development. I accept the advice of the parties and am satisfied that the proposed development is not contaminated. The requirements of s 4.6 have been met.

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

10. The parties advise that, the DA was lodged on 25 January 2023, and that under the savings provisions of State Environmental Planning Policy (Housing) 2021 (Housing SEPP), it is the repealed State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) which applies to the evaluation of this DA. The parties advise that the required documentation has been lodged with the application including an amended design verification statement prepared by a registered architect (Tab 8 of the s 34 agreement bundle).

11. The parties further advised (Jurisdictional Statement par 35):

“…there has been adequate regard to the design quality matters for consideration under Housing SEPP, the design quality principles and the Apartment Design Guide”.

12. I accept this advice, and I am satisfied cl 30(2) of SEPP 65 is not triggered to otherwise prevent the grant of consent in this instance.

Wollongong Local Environmental Plan 2009

13. The parties advise the site falls within Zone R1 General Residential under Wollongong Local Environmental Plan 2009 (WLEP), and the proposed development is permissible in this zone with demolition permissible under cl 2.7.

14. I accept the parties advise the proposal does not breach any development standard in WLEP.

15. Further in regard to WLEP, I note the following:

1. Clause 7.1 is concerned with public utility infrastructure. The parties have advised me that all public utility infrastructure essential for the proposed development is available or that adequate arrangements have been made to make it available when required, including via the agreed conditions. I am satisfied on that front.

2. Clause 7.5 is concerned with acid sulphate soils. The site is identified as Class 5 land under WLEP. While there is Class 4 land within 500m, the parties advise there is no likelihood the watertable would be lowered below 1m in these Class 4 land. The clause is not triggered in this instance.

3. Clause 7.18 of WLEP is concerned with design excellence in Wollongong city centre areas including the subject site. Clause 7.18(3) provides as follows:

Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

1. There are then a series of specific matters nominated which a consent authority must have regard to in considering whether a positive finding can be made in regard to cl 7.18(3).

2. It is noteworthy that in the jurisdictional statement the parties have responded directly to each of the particulars which require considerations under cl 7.18(4), providing details or making cross reference to support their view that the proposal exhibits design excellence.

3. There has been an appropriate evaluation of the question of design excellence under the cl 7.18 framework. I accept the advice of the parties and can express the opinion that the proposal exhibits design excellence in the terms of cl 7.18(3).

4. Part 8 applies to Wollongong City Centre, an area the site falls within. The parties have demonstrated that each of the development standards in this part of WLEP have been complied with.

Other matters

16. The parties have advised me of the notification of the proposal to nearby properties and that a number of objections were received. An explanation has been provided to the Court on how these objecting submissions have been considered.

Conclusion

17. On the basis of the above, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, under s 34(3) of the LEC Act, I am required to dispose of the proceedings in accordance with the parties’ decision. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

Notation

18. In regard to the amendments to the application, the Court notes:

1. the Respondent, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending DA-2023/50 in accordance with the documents listed below:

Amended Architectural Plans
Plan name	Drawing Ref	Revision	Date	Prepared by
Site/Development Summary	A-001	G	9 April 2024	ADM Architects
Site Analysis-01	A-002	D	26 March 2024	ADM Architects
Site Analysis-01	A-002a	C	26 March 2024	ADM Architects
Contextual Analysis	A-003	F	9 April 2024	ADM Architects
Proposed Building Separation 01	A-003a	E	9 April 2024	ADM Architects
Proposed Building Separation 02	A-003b	D	9 April 2024	ADM Architects
Street Context Elevations	A-003c	D	9 April 2024	ADM Architects
Contextual Streetscape	A-004	E	9 April 2024	ADM Architects
Site/Roof Plan	A-101	G	9 April 2024	ADM Architects
Basement 02 Floor Plan	A-102	F	26 March 2024	ADM Architects
Basement 01 Floor Plan	A-103	F	26 March 2024	ADM Architects
Ground Floor Plan	A-104	F	26 March 2024	ADM Architects
Level 01 Floor Plan	A-105	F	26 March 2024	ADM Architects
Level 02 Floor Plan	A-106	G	9 April 2024	ADM Architects
Level 03 Floor Plan	A-107	G	9 April 2024	ADM Architects
North Elevation	A-201	F	9 April 2024	ADM Architects
East Elevation	A-202	F	9 April 2024	ADM Architects
South Elevation	A-203	F	26 March 2024	ADM Architects
West Elevation	A-204	F	9 April 2024	ADM Architects
Section A-A	A-205	F	9 April 2024	ADM Architects
Interface Sections 01	A-206	F	26 March 2024	ADM Architects
Sections	A-207	E	9 April 2024	ADM Architects
Interface Sections 02	A-208	E	26 March 2024	ADM Architects
Façade Design Section	A-209	D	26 March 2024	ADM Architects
Pre and Post Adaptation Plan 01	A-301	E	26 March 2024	ADM Architects
Pre and Post Adaptation Plan 02	A-302	B	26 March 2024	ADM Architects
Shadow Analysis 01	A-401	E	9 April 2024	ADM Architects
Shadow Analysis 02	A-402	E	9 April 2024	ADM Architects
Sun Eye View Study 01	A-403	E	9 April 2024	ADM Architects
Sun Eye View Study 02	A-404	E	9 April 2024	ADM Architects
Communal Area – Solar Access Diagram	A-405	C	9 April 2024	ADM Architects
Height Plane Diagram	A-501	E	26 March 2024	ADM Architects
Colour & Material Schedule	A-601	E	26 March 2024	ADM Architects
Demolition & Site Management Plan	A-701	D	26 March 2024	ADM Architects
Deep Soil Zone ID Plan	-	F	26 March 2024	ADM Architects
C.O.S ID Plan	-	F	26 March 2024	ADM Architects
Basement 01 FSR ID Plan	-	G	9 April 2024	ADM Architects
Basement 02 FSR ID	-	F	26 March 2024	ADM Architects
Ground Floor FSR ID Plan	•	F	26 March 2024	ADM Architects
Level 01 FSR ID Plan	•	F	26 March 2024	ADM Architects
Level 02 FSR ID Plan	-	F	26 March 2024	ADM Architects
Level 03 FSR ID Plan	-	F	26 March 2024	ADM Architects
Amended Landscape Plans
Plan name	Drawing ref	Revision	Date	Prepared by
Landscape Plan Ground Floor	4490-F201 F	F	27 March 2024	DSB Landscape Architects
Landscape Sections	4490-F301 C	C	27 March 2024	DSB Landscape Architects
Landscape Details – Podium Planters	4490-F401 A	A	27 March 2024	DSB Landscape Architects
Amended Stormwater Plans
Plan name	Drawing ref	Revision	Date	Prepared by
Basement 2 Stormwater Plan	C300C	C	27 March 2024	JN Responsive Engineering
Basement 1 Stormwater Plan	C301D	D	27 March 2024	JN Responsive Engineering
Ground Stormwater Plan	C302E	E	27 March 2024	JN Responsive Engineering
Amended Manoeuvring Plans
Plan name	Drawing ref	Revision	Date	Prepared by
Basement 2 Manoeuvring Plan	C500D	D	27 March 2024	JN Responsive Engineering
Basement 1 Manoeuvring Plan	C501D	D	27 March 2024	JN Responsive Engineering
Ground Floor Manoeuvring Plan	C502A	A	27 March 2024	JN Responsive Engineering
BASIX Plans
BASIX Stamped Plans	0008252810	16 April 2024	Greenview Consulting Pty Ltd
Reports
Report name	Ref	Revision	Date	Prepared by
Arboricultural Impact Assessment	AIA	Revision B	23 November 2023	DJD Tree Consultancy
Proposed Tree Planting Statement	dsb4490 4-6 Blacket Street, North Wollongong - Tree Statement	-	April 2024	DSB Landscape Architects
Addendum to Statement of Environmental Effects – Design Excellence Statement	-	-	27 March 2024	MMJ Town Planning and Advisory
Design Report	-	Revision D	3 April 2024	ADM Architects
Preliminary Geotechnical Report	GF2020-A	Revision 1	31 March 2024	Geofirst Pty Ltd
Amended BASIX Certificate	Certificate number: 1351729M_02	-	16 April 2024	Greenview Consulting Pty Ltd
Amended NatHERS Certificate	Nathers Certificate No. 0008252810	-	16 April 2024	Greenview Consulting Pty Ltd

Orders

19. The Court orders that:

1. The Applicant is to pay the Respondent's costs 'thrown away' as a result the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $4,300.00 and payable within 28 days of this order.

2. The appeal is upheld.

3. Development consent is granted to DA-2023/50 for the demolition of the existing structures and construction of a residential flat building comprising of 11 units over basement car parking, removal of trees, associated landscaping and drainage works at 4-6 Blacket Street, North Wollongong, subject to conditions contained in Annexure A.

P Walsh

Commissioner of the Court

Annexure A

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Decision last updated: 24 April 2024