Rod Zoby Group Pty Ltd trading as ZTA Group Pty Ltd v Wollongong City Council

[2022] NSWLEC 1393

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rod Zoby Group Pty Ltd trading as ZTA Group Pty Ltd v Wollongong City Council [2022] NSWLEC 1393

Hearing dates:

Conciliation conference on 13 May 2022, 3 and 21 June 2022, 14 July 2022

Date of orders:

22 July 2022

Decision date:

22 July 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant is to pay the Respondent’s costs that have been thrown away as a result of the amendment of the application for development consent under s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3) Development consent is granted to development application 2021/1058, as amended, for the construction of a 2 storey mixed-use development (shop-top housing) comprising lower ground floor services and parking, ground floor retail/food and drink premises, first floor residential dwelling with roof open space access at Lot 2 Short Lane, Helensburgh, subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – shop top housing - conciliation conference – agreement between the parties - orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Interpretation Act 1987, s 30A

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

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

Wollongong Local Environmental Plan 2009, cll 1.4, 2.3, 4.3, 4.4, 5.10, 5.21, 7.1, 7.5, 7.6, 7.13

Category:

Principal judgment

Parties:

Rod Zoby Group Pty Ltd trading as ZTA Group Pty Ltd ABN 56164632517 (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Bartier Perry (Respondent)

File Number(s):

2022/43492

Publication restriction:

No

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 2021/1058, as amended, for the construction of a 2 storey mixed-use development (shop-top housing) comprising lower ground floor services and parking, ground floor retail/food and drink premises, first floor residential dwelling with roof open space access (the Proposed Development) at Lot 2 Short Lane, Helensburgh (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 13 May 2022, 3 and 21 June 2022, 14 July 2022. 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. The amended plans, materials and conditions of consent agreed between the parties and annexed to the s 34 agreement filed on 15 July 2022 resolve the Respondent’s merit concerns and the parties submit that the Court would be satisfied that the development application should be approved.

5. The amended Development Application has taken into consideration the written and oral submissions made by the residents, and the amendments go towards addressing those concerns raised by residents, particularly in terms or traffic safety and privacy concerns.

6. 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 the function under s 4.16 of the EPA Act to grant consent to the development application.

7. 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 and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note which I summarise below.

8. Owner’s consent has been given to the Applicant for lodgement of the Development Application, filed with the Court on 15 July 2022.

9. A number of State Environmental Planning Policies (SEPPs) that applied to the Proposed Development have since been repealed during the appeal process of these proceedings. The relevant old SEPP provisions were transferred into the new SEPPs. Pursuant to s 30A(2) of the Interpretation Act 1987, where provisions are transferred, the “transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred.” The new and old SEPPs, where applicable, have been dealt with below, noting the relevant provisions that apply in the assessment of the Amended Application.

10. An amended BASIX Certificate was filed on 14 July 2022, as required by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, which reflects the Amended Architectural Plans has been provided by the Applicant,

11. The Development Application was lodged under the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). On 1 March 2022, SEPP 55 was repealed, and its provisions, including cl 7, were transferred to the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The relevant provision of the Resilience and Hazards SEPP is s 4.6. As part of the Class 1 Appeal filed with the Court, the Applicant provides a Geotechnical Investigation prepared by Morro Geotechnics Pty Ltd dated 18 December 2020 and a Preliminary Site Investigation prepared by eiaustralia dated 13 July 2021 (PSI). The PSI concludes on page 20 that there is a low risk of widespread contamination existing on the site and that accordingly, the site is suitable for the Proposed Development. The Respondent, and the Court, is satisfied that the Applicant has complied with s 4.6 of the Resilience and Hazards SEPP.

12. The parties then address the relevant provisions of the Wollongong Local Environmental Plan 2009 (WLEP) as follows:

1. The site is located in the B2 Local Centre Zone and ‘shop top housing’ is permissible with consent within the B2 Zone. Pursuant to cl 1.4 of the WLEP, shop top housing means one or more dwellings located above ground floor retail premises or business premises. The Respondent is satisfied that the Amended Application filed with the Court on 14 and 15 July 2022 complies with the definition of shop top housing.

2. The Amended Application meets the objectives for development in the B2 zone for the purposes of cl 2.3(2) of the WLEP by providing retail premises to the community, and in a location that is capable of supporting increased employment opportunities and adding to the cultural aspects of the Town Centre (Statement of Environmental Effects prepared by Rod Logan Planning dated 2 September 2021 (SEE), Tab 3 to the Class 1 Application.)

3. The Proposed Development is compliant with the building height control of 12m pursuant to cl 4.3 of the WLEP, with a proposed building height of 10m as depicted in the Elevation Plans DA-06, DA-07 and DA-08 filed on 15 July 2022.

4. The Proposed Development is compliant with the maximum Floor Space Ratio (FSR) limit of 1:5:1 pursuant to cl 4.4 of the WLEP, with a proposed FSR of 0.68:1. This is comprised of a retail space of 92sqm and residential space of 121sqm (GFA Calculations Plans DA-01 filed 15 July 2022).

5. The Site is not listed as a heritage item in Schedule 5 of the WLEP and is not located within a Heritage Conservation Area. The site is located in the vicinity of the following listed Heritage Items:

1. Helensburgh Post Office (WLEP Heritage Item 6114);

2. Charles Harper Park (WLEP Heritage Item 6124); and

3. Hanley Hotel (WLEP Heritage Item 6115).

6. The Applicant has included a Heritage Impact Statement (HIS) prepared by John Oultram Heritage and Design dated May 2022 (filed 14 July 2022) which assessed the heritage significance of the site and likely impact of the Proposed Development on the nearby Heritage Items. The HIS concludes at page 23 that the Amended Application will have no impact in the setting and significance of the Heritage Items. As such, the Respondent is satisfied the considerations of cl 5.10 of the WLEP have been met.

7. Clause 5.21 of the WLEP relates to flood planning and the Site is mapped as being flood prone land. The Applicant has prepared updated Stormwater Plans filed 14 July 2022 to meet the requirements of this clause.

8. Clause 7.1 of the WLEP relates to the availability of public utility infrastructure. Due to the location of the site within the Helensburgh Town Centre, no issues with access to public utility infrastructure is anticipated and this is further addressed in the SEE.

9. Clause 7.5 of the WLEP relates to disturbance, exposure or drainage of acid sulfate soils which can cause environmental damage. The Site is within the map class description of “No Known Occurrence” of the Appin/Otford Acid Sulfate Soil Risk Map. Accordingly, acid sulfate soils assessment was not considered necessary due to the underlying sandstone and further addressed in the PSI.

10. Clause 7.6 of the WLEP relates to development comprising earthworks and the mandatory considerations of a consent authority. The proposed development proposes minor earthworks. The SEE originally submitted with the Development Application confirms the proposed works will not disrupt or have any detrimental effect on existing drainage patterns and soil stability in the locality. A Geotechnical Investigation prepared by Morrow Geotechnics dated 18 December 2020 and Geotechnical Declaration and Verification prepared by Morrow Geotechnics dated 18 December 2020 were both submitted originally with the Development Application confirming the site is suitable. To mitigate any further concern, Council has also provided conditions on earthworks.

11. Clause 7.13 of the WLEP relates to the promotion of active uses at street level in the B2 Local Centre zone. To address this clause, the Applicant had previously included a written request pursuant to cl 4.6 of the WLEP in relation to residential use of the rear area of the ground floor. However, in response to without prejudice discussions between the parties and the s 34 conciliation conference, amendments to the layout of the proposed development have been made including the removal of the residential rumpus room from the ground floor level to provide for retail use only at ground level. Accordingly, the Respondent is satisfied that the ground floor of the building will not be used for residential accommodation and has at least one entrance and one other door or window on the front of the building facing the street other than a service lane.

13. 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.

14. 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.

Notations

15. The Court notes that:

1. Wollongong City Council, as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application 2021/1058 in accordance with the documents listed below:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural plans
Cover Sheet	DA-00	E	7 June 2022	ZTA Architects
GFA Calculations	DA-01	E	7 June 2022	ZTA Architects
Location Plan & Analysis	DA-02	E	7 June 2022	ZTA Architects
Site Plan	DA-03	E	7 June 2022	ZTA Architects
Ground/First Floor/Roof Plans	Da-04	E	7 June 2022	ZTA Architects
Second Floor Plan/Roof Plan	DA-05	E	7 June 2022	ZTA Architects
Elevations	DA -06	E	7 June 2022	ZTA Architects
Elevations	DA -07	E	7 June 2022	ZTA Architects
Elevations	DA 08-	E	7 June 2022	ZTA Architects
Long Section	DA-09	E	7 June 2022	ZTA Architects
Cross Section	DA-10	E	7 June 2022	ZTA Architects
Winter Shadow Diagrams	DA-11	E	7 June 2022	ZTA Architects
Winter Shadow Diagrams	DA-12	E	7 June 2022	ZTA Architects
Summer Shadow Diagrams	DA-13	E	7 June 2022	ZTA Architects
Summer Shadow Diagrams	DA-14	E	7 June 2022	ZTA Architects
Sun Eye Diagram – 21st June	DA-15	E	7 June 2022	ZTA Architects
Sun Eye Diagram – 21st June	DA-16	E	7 June 2022	ZTA Architects
3D Street View 1	DA-17	E	7 June 2022	ZTA Architects
3D Street View 2	DA-18	E	7 June 2022	ZTA Architects
3D Street View 3	DA-19	E	7 June 2022	ZTA Architects
Streetscape	DA-20	E	7 June 2022	ZTA Architects
Building Finishes	DA-21	E	7 June 2022	ZTA Architects
Landscape Plans	DA-22	E	7 June 2022	ZTA Architects
BASIX	DA-23	E	8 June 2022	ZTA Architects
Stormwater plans
Cover Sheet	D00	D	14 June 2022	Sydney Structural & Civil Engineering
Stormwater Drainage Plan -Basement	D01	D	14 June 2022	Sydney Structural & Civil Engineering
Stormwater Drainage Plan - Ground	D02	D	14 June 2022	Sydney Structural & Civil Engineering
Stormwater Drainage Details	D03	D	14 June 2022	Sydney Structural & Civil Engineering
Reports
BASIX Certificate no 1146380S_03 prepared by msconsult dated 8 June 2022
Heritage Impact Statement prepared by John Oultram Heritage & Design dated May 2022
Updated Owner’s Consent from MJH Corp Pty Ltd dated July 2022

2. The amended development application documents listed above were lodged on the NSW planning portal on 8 July 2022, 13 July 2022 and 15 July 2022.

3. That amended development application was filed with the Court on 14 July 2022 and 15 July 2022.

Orders

16. The Court orders that:

1. The appeal is upheld.

2. The Applicant is to pay the Respondent’s costs that have been thrown away as a result of the amendment of the application for development consent under s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. Development consent is granted to development application 2021/1058, as amended, for the construction of a 2 storey mixed-use development (shop-top housing) comprising lower ground floor services and parking, ground floor retail/food and drink premises, first floor residential dwelling with roof open space access at Lot 2 Short Lane, Helensburgh, subject to the conditions of consent in Annexure ‘A’.

……………………….

E Espinosa

Commissioner of the Court

(Annexure A) (280293, pdf)

(Architectural Plans) (3214691, pdf)

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Decision last updated: 22 July 2022