Pavia v Wollongong City Council

[2023] NSWLEC 1748

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pavia v Wollongong City Council [2023] NSWLEC 1748

Hearing dates:

Conciliation Conference on 28 November 2023

Date of orders:

08 December 2023

Decision date:

08 December 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA-2021/1467 for shop top housing comprising four (4) commercial tenancies, forty two (42) residential apartments, and three (3) levels of basement parking at Lot 1 DP 612714 and Lot 20 DP 856321, commonly known as 81-85 Keira Street, WOLLONGONG NSW 2500 is determined by the granting of deferred commencement consent, subject to the conditions in Annexure “A” to these orders.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – boarding house – heritage – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 29

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.122

State Environmental Planning Policy Amendments (Land Use Zones) (No.6) 2022, cll 2, 5, Sch 1, Pt 2

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cll 28, 30, Sch 1

Wollongong Local Environmental Plan 2009, cll 4.3, 4.4A, 5.10, 7.1, 7.5, 7.18, 7.6, 8.4, Sch 1, cl 34

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

Category:

Principal judgment

Parties:

Vince Pavia (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
M Mantei (Solicitor)(Applicant)
E Kilpatrick (Solicitor) (Respondent)

Solicitors:
Madison Marcus Law Firm (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2022/387848

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA-2021/1467 for demolition of existing structures and the construction of shop top housing over seven stories comprising forty-three residential units, three commercial tenancies and car parking for fifty-seven vehicles (the Proposed Development) at 81-85 Keira Street, Wollongong legally described as Lot 1 in DP 612714 and Lot 20 in DP 856321 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 28 November 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached 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 conditions.

4. Leave was granted by the Land and Environment Court on 24 July 2023 for the Applicant to amend the architectural plans, stormwater plans and supporting reports in the appeal. The amended plans and reports are listed in condition 1 of Annexure A to the Section 34 Agreement filed on 28 November 2023.

5. The registered proprietors of the Site are Vince Pavia and Luisa Pavia. DA2021/1467 was lodged by Mr A Di Martino with the written consent of the registered proprietors as required by s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021.

6. The parties’ experts have agreed that all contentions raised in the Amended Statement of Facts and Contentions filed on 24 August 2023 have been resolved by the preparation of:

1. the Plans and Reports for which leave was granted on 24 July 2023; and

2. the agreed conditions of consent at Annexure A of the Section 34 Agreement, which include a deferred commencement condition which I come back to at par [22].

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. 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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the provisions of various environmental planning instruments and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note and orally during the conciliation conference.

10. Chapter 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that consideration must be given to whether the Site is contaminated. On the basis of the Preliminary Site Investigation prepared by Environment Consulting Services Pty Ltd dated 23 November 2021 and conditions 16 and 17 of the proposed consent, the parties agree that the requirements contained in Ch 4 of the Resilience and Hazards SEPP have been satisfied.

11. In relation to the relevant provisions of the State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) and the Apartment Design Guide (ADG), the Applicant relied on the Design Excellence Review prepared by UrbanAC dated July 2023 and the SEPP 65 Design Report prepared by ADM Architects dated June 2023 (at Tabs 8 and 9 of Ex MPM1 to the Affidavit of Michael Mantei sworn on 18 July 2023).

12. The Proposed Development includes a statement by a qualified designer, being the SEPP 65 Design Report prepared by ADM Architects dated June 2023, addressing the matters required by s 29(2) of the Environmental Planning and Assessment Regulation 2021.

13. The parties advise the Court that they are satisfied that the requirements of cl 28 of SEPP 65 have been taken into consideration in the assessment of the Proposed Development, as follows:

1. DA2021/1467 was referred to the relevant Design Review Panel for advice;

2. the advice of the relevant Design Review Panel has been considered in the assessment;

3. the design quality of the building has been evaluated in accordance with the design quality principles in Sch 1 of SEPP 65; and

4. the ADG has been considered.

14. Accordingly, I am satisfied that adequate regard has been given in the final design to the design quality principles in Sch 1 of SEPP 65 and the objectives specified in the ADG in accordance with cl 30(2) of SEPP 65. In addition, the Proposed Development satisfies cl 7.18 of the Wollongong Local Environmental Plan 2009 (WLEP) relating to Design Excellence in Wollongong City Centre and at key sites, as demonstrated by the Design Excellence Review prepared by UrbanAC dated July 2023.

15. The parties agree that the Proposed Development is BASIX affected development for the purposes of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The Proposed Development was accompanied by a BASIX certificate dated 30 November 2021 which has since been revised to reflect the amended plans, by a Basix Certificate dated 13 November 2023 and filed with the Court on 28 November 2023.

16. I am satisfied that, as required by s 2.48(2) and s 2.122 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), written notice to the relevant electricity supply authority was given by the Respondent, inviting comments about potential safety risks, and written notice to Transport for New South Wales (TfNSW) was provided by the Respondent, and that the responses have been taken into consideration because:

1. On 25 January 2022, DA2021/1467 was referred to Endeavour Energy inviting comments. On 15 February 2022, Endeavour Energy advised the Respondent it has no objection to the proposed development subject to conditions.

2. DA2021/1467 was accompanied by a Traffic Impact Statement prepared by JN Engineering dated Rev B dated 15 November 2021. On 25 January 2022, DA2021/1467 was referred to TfNSW inviting comments. On 14 September 2022, TfNSW advised the Respondent it has no objection to the proposed development subject to conditions. Those conditions form Attachment 1 to the proposed conditions of consent. The parties also agree that the matters in s 2.122(4)(b) of Transport and Infrastructure SEPP have been taken into consideration.

17. The Site is currently located within E3 Productivity Support Zone pursuant to the WLEP. However, at the time of lodgement of DA2021/1467 on 9 December 2021 the Site was located within zone B6 Enterprise Corridor under WLEP 2009. The change in zoning was brought about by State Environmental Planning Policy Amendments (Land Use Zones) (No 6) 2022 (Amending SEPP), which commenced on 26 April 2023.

18. The Proposed Development is characterised as ‘shop top housing’ for the purposes of the zoning provisions in the WLEP. Shop top housing is permitted on certain land in the E3 Productivity Support zone under cl 34 of Sch 1 Additional permitted uses, which is entitled “Use of certain land in Zone E3’. (Emphasis added.) The Additional Permitted Uses Map (WLEP 2009, Sheet APU_025) identifies the Site as being land to which cl 34 applies and I am satisfied that cl 34 permits development for the purpose of shop top housing with development consent.

19. In addition, the Amending SEPP was accompanied by a savings provision in cl 5, Sch 1, Pt 2 of the Standard Instrument (Local Environmental Plans) Order 2006. The savings provision provides as follows:

5   Continuation of permitted development

Development that is permitted with development consent on land in a former zone under a local environmental plan, as in force immediately before 26 April 2023, continues to be permitted with development consent on the land until 26 April 2025.

20. The expression “former zone” is defined in cl 2(1) Sch 1, Pt 2 of the Standard Instrument (Local Environmental Plans) Order 2006 as including zone B6. Shop top housing was permitted in zone B6 and continues to be permitted with zone E3. While the parties agree that the savings provision applies to DA2021/1467, the Proposed Development is permitted with development consent under cl 34 in any event.

21. The following jurisdictional prerequisites in the WLEP have been satisfied as follows:

1. the proposed building has a maximum overall height of 23.95m which is less than the maximum height standard of 24m shown on the Height of Building Map under cl 4.3 of the WLEP;

2. the proposed building has a floor space ratio (FSR) of 2.553:1 which does not exceed the maximum FSR permitted for the combined Commercial and Residential FSR development standard calculated to be 2.55325:1 applying to the Site under cl 4.4A of WLEP (Residential FSR permitted 2.5:1 and Commercial FSR permitted 3.0:1). The development mix is 89.35% residential and 10.65% commercial and the total permitted FSR calculation is derived from drawing A-001 Development Summary as follows:

1. 10.65% of 3.0 = 0.3195

2. 89.35% of 2.5 = 2.23378

3. Total permitted FSR = 0.3195 + 2.23378

        = 2.55328

3. The parties are satisfied the requirements of cl 5.10 (Heritage Conservation), as they apply to the adjoining heritage item at 90 Smith Street and the potential archaeological significance of the Site, have been adequately addressed having regard to:

1. the requirements of the proposed deferred commencement condition and conditions 69 and 70 in Annexure A of the Section 34 Agreement;

2. Statement of Heritage Impact prepared by Russell Lee Architects Pty Ltd dated 14 July 2023, and

3. Historical Archaeological Assessment prepared by Austral Archaeology Pty Lt dated 26 June 2023.

4. the proposed development satisfies cl 7.1 (Public Utility Infrastructure) as all public utility infrastructure essential for the Proposed Development is available;

5. the Proposed Development satisfies cl 7.5 regarding Acid Sulfate Soils (ASS) as the Site is unlikely to be land that would comprise ASS, having regard to the Geotechnical Report prepared by Geofirst Pty Ltd dated 9 August 2022. Condition 122 of Annexure A requires neutralisation of excavated material in the event that ASS is encountered.

6. the parties have considered the matters set out in cl 7.6 regarding Earthworks and they are satisfied that the proposed earthworks are unlikely to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land having regard to the deferred commencement condition and conditions 4, 5 and 20 in Annexure A and the Geotechnical Report prepared by Geofirst Pty Ltd dated 9 August 2022 referred to in condition 4.

7. the Proposed Development satisfies cl 8.4 requiring a minimum building street frontage of 20m by providing a building street frontage onto Kiera Street of approximately 42m.

22. The parties agree, and I am satisfied that the Court has power to determine DA2021/1467 subject to the proposed deferred commencement condition pursuant to s 4.16(3) of the EPA Act because there is no deferral of consideration of any relevant impacts. The Respondent has assessed the impacts and there is sufficient certainty. The proposed deferred commencement condition in Annexure A refers to specific works and sequencing as shown on a ‘Demolition, Drainage and Staging Plan’ annexed to the conditions of consent. The effect of the deferred commencement condition is to bring about extinguishment of the existing drainage easement burdening the Site and benefiting the adjoining land at 90 Smith Street and creation of a new drainage easement that is consistent with the approved building design prior to the commencement of an operational development consent for the Proposed Development. (Emphasis added.)

23. Finally, in relation to the requirement to notify the public of the Proposed Development, the parties advise as follows:

1. DA2021/1467 was publicly notified between 27 January 2022 to 10 February 2022. A total of 8 submissions were received.

2. The Amended Plans were notified again from 23 August 2022 until 7 September 2022 and 1 submission was received.

3. The further amended application was notified to both objectors and adjoining landowners between 11 to 25 August 20023. No submissions were received.

24. The parties agree that the submissions and the public interest have been considered in the assessment of DA2021/1467 and the preparation of the Section 34 agreement.

25. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as I have set out in this judgment.

26. 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.

Orders:

27. The Court orders:

1. The appeal is upheld.

2. Development Application DA-2021/1467 for shop top housing comprising four (4) commercial tenancies, forty two (42) residential apartments, and three (3) levels of basement parking at Lot 1 DP 612714 and Lot 20 DP 856321, commonly known as 81-85 Keira Street, WOLLONGONG NSW 2500 is determined by the granting of deferred commencement consent, subject to the conditions in Annexure “A” to these orders.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (1362397, pdf)

Architectural Plans (25773428, pdf)

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Decision last updated: 08 December 2023