PC Infrastructure Pty Ltd v Wollongong City Council

[2023] NSWLEC 1479

Land and Environment Court

New South Wales

Medium Neutral Citation:

PC Infrastructure Pty Ltd v Wollongong City Council [2023] NSWLEC 1479

Hearing dates:

Conciliation conference held on 3 August 2023

Date of orders:

24 August 2023

Decision date:

24 August 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA-2021/776, as amended, which seeks demolition of existing structures, tree removal and construction of a service station, carwash, signage and a convenience store, landscaping and associated site works on Lot 220 DP 1114277, Lot B DP 163980 and Lot 2 DP 157440, known as 178-182 Princes Highway, Dapto, is determined by the grant of consent, subject to the conditions of consent contained at Annexure A.

(3) The applicant is to pay the respondent’s costs thrown away in the agreed amount of $1580, payable within 28 days of these orders, as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

Catchwords:

DEVELOPMENT APPLICATION – service station – impact considerations – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, s 34

Roads Act 1993, s 138

State Environment Planning Policy (Industry and Employment) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, ss 2.119, 2.121, 2.122, 2.48

Wollongong Local Environmental Plan 2009, cl 2.3

Texts Cited:

Wollongong Development Control Plan 2009

Category:

Principal judgment

Parties:

PC Infrastructure Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
R Pleming (Solicitor) (Applicant)
J Reilly (Solicitor) (Respondent)

Solicitors:
Allens (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2023/66992

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA 2021/776 (the DA) by the Wollongong City Council (hereafter the Council) which, as amended, seeks demolition of existing structures, tree removal and construction of a service station, carwash, signage and a convenience store, landscaping and associated site works on Lot 220 DP 1114277, Lot B DP 163980 and Lot 2 DP 157440, known as 178-182 Princes Highway, Dapto (together the site).

Background

2. The DA was lodged with Council on 13 July 2021. The original DA was notified to residents, with 14 submissions received. The DA was referred to Transport for NSW (TfNSW), Office of Environment and Heritage, Endeavor Energy and Lake Illawarra Police, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. After review and referral to the Wollongong Local Planning Panel (the Panel), the DA was refused, as determined by the Panel on 30 August 2022. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced with a site view and then held in person.

5. During conciliation, the Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amendments to the DA and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The Court is advised that the contentions of Council have been considered and are resolved, and as described in their jurisdictional assessment, all relevant jurisdictional matters are addressed. The issues raised by objectors have been considered by the Council. The Panel have considered the amended DA and given the Council authority to enter into an agreement. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA-2021/776, with conditions as described in Annexure A.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to Development Application DA-2021/776, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically assessed and are addressed:

1. Roads Act 1993:

1. The site has frontage to a classified road, being the Princes Highway. Access to the site requires a s 138 Roads Act 1993 approval. The conditions of consent reflect the requirements of the Roads Act 1993.

2. Wollongong Local Environmental Plan 2009 (WLEP):

1. The site is located on land zoned as E3 Productivity Support, pursuant to cl 2.3 of the WLEP. A strip of land parallel to the Princes Highway is zoned SP2 Infrastructure, to be acquired by the Council for public purpose. The proposed construction of the service station and other uses, with associated civil works is permissible with consent in this zone. The amended DA is supported by relevant documents, together with agreed conditions of consent which sufficiently address all the relevant objectives, aims, standards and requirements of the WLEP. 

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The Council has assessed that the site is suitable for the proposed use, based on its historic use and documents that support the DA, including a Detailed Site Investigation by Fyfe Pty Ltd dated 28 June 2023, which together with the agreed conditions of consent, address the requirements of s 4.6 of the SEPP Resilience.

4. State Environment Planning Policy (Industry and Employment) 2021 (SEPP Industry)

1. Based on the proposed use of the site and signage, the DA is subject to consideration of the provisions of the SEPP Industry. The amended DA, including agreed design of signage and conditions of consent address the relevant provisions.

5. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The site fronts to the Princes Highway, a classified road, which engages Ch 2 of the SEPP Infrastructure. Pursuant to s 2.119, suitable access to the site is required and s 2.121, the DA was referred to TfNSW. Pursuant to s 2.122(4), the development is traffic generating. On 28 July 2023, TfNSW advised they had no objections to the (amended) DA.

2. Endeavour Energy were notified and are satisfied that no works are proposed within proximity of powerlines, pursuant to s 2.48(2) of the SEPP Infrastructure.

3. Council’s engineers have assessed the DA and consider that the proposed access and traffic loads are acceptable.

6. Wollongong Development Control Plan 2009 (WDCP):

1. The original DA was publicly notified in accordance with the WDCP, with 14 submissions received. These submissions were considered by Council in their merit assessment of the application. Specifically, the issues of noise abatement and light pollution have been considered in the design of the development and conditions of consent, to mitigate amenity impacts.

2. The relevant requirements of the WDCP are generally complied with.

9. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from all landowners relevant to the amended DA.

Grant of consent

10. In consideration of the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed subdivision and works. The Court is advised that the issues raised in contention have been addressed by the amendments made and supporting documents to the application.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA-2021/776 should be granted consent, as it addresses the relevant requirements of the EPA Act and Roads Act 1993.

13. 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.

14. The Court notes that:

1. Wollongong City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application DA 2021/776, as follows:

No.	DOCUMENT	DATE
1.	Revised Architectural Drawings prepared by Richmond & Ross Pty Ltd, comprising: • Cover Page, Drawing DA000 Issue DA10, dated 12 July 2023. • Perspectives, Drawing DA001 Issue DA11, dated 4 August 2023. • Locality Plan, Drawing DA002 Issue DA9 dated 29 June 2023. • Notification Plan, Drawing DA003 Issue DA11, dated 4 August 2023. • Shadow Diagram Analysis, Drawing DA004 Issue DA9, dated 29 June 2023. • Site Demolition Plan, Drawing DA005 Issue DA9, dated 29 June 2023. • Existing Shadow Diagram, Drawing DA006 Issue DA9, dated 29 June 2023. • Neighbour Shadow Diagram, Drawing DA007 Issue DA9, dated 29 June 2023. • Overall Site Plan, Drawing DA010 Issue DA11, dated 4 August 2023. • Car Turn Path, Drawing DA011 Issue DA10, dated 12 July 2023. • Truck Turn Path, Drawing DA012 Issue DA9 dated 29 June 2023. • Rubbish Truck Turn Path, Drawing DA013 Issue DA9, dated 29 June 2023. • Building Perspectives, Drawing DA050 Issue DA11, dated 4 August 2023. • OTR Store Floor Plan, Drawing DA100 Issue DA9, dated 29 June 2023. • Car Wash Floor Plan, Drawing DA101 Issue DA11, dated 4 August 2023. • Car Wash Section, Drawing DA150 Issue DA11, dated 4 August 2023. • Elevations, Drawing DA200 Issue DA9, dated 29 June 2023 • Elevations, Drawing DA201 Issue DA9, dated 29 June 2023. • Elevations Car Wash, Drawing DA202 Issue DA11, dated 29 June 2023. • External Finishes, Drawing DA203 Issue DA11, dated 4 August 2023. • Elevation Canopy, Drawing DA204 Issue DA9, dated 29 June 2023. • Bin Enclosure Elevation, Drawing DA205 Issue DA9, dated 29 June 2023. • Signage Plan, Drawing DA800 Issue DA9, dated 29 June 2023. • Signage Details, Drawing DA801 Issue DA12, dated 7 August 2023.	Various
2.	Revised Civil Plans prepared by Richmond & Ross Pty Ltd, comprising: • Stormwater Plan, Drawing C01 Rev A. • Stormwater Schedule and Details, Drawing C02 Rev A. • Erosion and Sediment Control Plan, Drawing C03 Rev A. • Erosion and Sediment Control Details, Drawing C04 Rev A. • OSD Plan and Section, Drawing C05 Rev A. • OSD Plan and Section, Drawing C06 Rev A. • External Works Existing & Proposed Pipe Plan, Drawing EW01 Rev A. • External Works Pipe Long Section, Drawing EW02 Rev A.	20 June 2023
3.	Revised Landscape Plans prepared by Site Image, comprising: • Coversheet, Drawing 000 Issue F dated 11 July 2023. • Landscape Plan, Drawing 101 Issue F dated 11 July 2023. • Landscape Details, Drawing 501 Issue E dated 10 July 2023. • Landscape Elevation, Drawing 601 Issue C dated 17 July 2023.	Various
4.	Arboricultural Comment prepared by Tree Wise Men Pty Ltd, including: • Attachment A: Updated Tree Schedule & Definition of Terms • Attachment B: Tree Protection Plan.	17 July 2023
5.	Acoustic Impact Assessment prepared by Marshall Day Acoustics.	18 July 2023
6.	Traffic Review prepared by Colston Budd Rogers & Kafes Pty Ltd.	11 July 2023
7.	Town Planning Memorandum - Response to issues raised by public objectors prepared by SLR Consulting.	18 July 2023
8.	Signage Review prepared by SLR Consulting.	18 July 2023
9.	Detailed Site Investigation (Stage 2 Assessment) prepared by FYFE.	28 June 2023
10.	Construction Environmental Management Plan prepared by FYFE.	28 June 2023

2. Amendments to the DA were filed with the Court on 15 August 2023.

15. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-2021/776, as amended, which seeks demolition of existing structures, tree removal and construction of a service station, carwash, signage and a convenience store, landscaping and associated site works on Lot 220 DP 1114277, Lot B DP 163980 and Lot 2 DP 157440, known as 178-182 Princes Highway, Dapto, is determined by the grant of consent, subject to the conditions of consent contained at Annexure A.

3. The applicant is to pay the respondent’s costs thrown away in the agreed amount of $1580, payable within 28 days of these orders, as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (293289, pdf)

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Decision last updated: 24 August 2023