Sales v Wollongong City Council

[2024] NSWLEC 1151

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sales v Wollongong City Council [2024] NSWLEC 1151

Hearing dates:

21 March 2024

Date of orders:

02 April 2024

Decision date:

02 April 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development application No DA-2022/67 seeking consent for construction of multi-dwelling housing comprising three units, basement car parking and three lot strata subdivision at 382-384 Lawrence Hargrave Drive, Scarborough is determined by granting development consent subject to the conditions set out in Annexure A.

(3) The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

Catchwords:

APPEAL – development application – multi-dwelling housing – rail corridor and classified road – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Land and Environment CourtAct 1979, s 34

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.98, 2.99, 2.100, 2.119, 2.120

Wollongong Local Environmental Plan 2009, cll 5.10, 7.6

Cases Cited:

SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66

Category:

Principal judgment

Parties:

Andrew Sales (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
J Reilly (Solicitor) (Respondent)

Solicitors:
Whiteacre Legal (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2022/294626

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for multi dwelling housing comprising 3 dwellings and strata subdivision at 382-384 Lawrence Hargrave Drive, Scarborough, which was made on 12 January 2022. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 was held on 21 March 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement follows the Council’s agreement to an amendment of the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amendments include the lowering of the building to reduce overall height, a reduction in the size of the roof terraces, consequential changes to the roof form as well as changes to the roof pitch to achieve consistency across the dwellings.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Jurisdictional Statement. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 3. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The proposed development is for the purpose of multi-dwelling housing, which is permissible in the R2 Low Density Residential zone in which the site is located, pursuant to the Wollongong Local Environmental Plan 2009 (WLEP).

• The proposed development complies with the development standards established by the WLEP for height, floor space ratio and minimum site width.

• The development is located in the vicinity of a local heritage item and the effect of the development on the heritage significance of the heritage item has been considered, as required by cl 5.10(4) of the WLEP. Based on the joint report of the heritage experts dated 19 July 2023 and the amendments to the architectural plans that have occurred since that date, I am satisfied that the proposed development does not unacceptably impact the heritage significance of the heritage item.

• The development application includes earthworks for the provision of the basement level for car parking. Based on the Geotechnical Assessment dated 2 November 2021 and the Preliminary Site Investigation Contamination Report dated 6 July 2022, I have considered the matters set out in cl 7.6(3) of the WLEP.

• The proposed development is adjacent to a rail corridor, and cll 2.98, 2.99 and 2.100 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) therefore apply. The rail authority, Sydney Trains, was notified pursuant to cll 2.98(2) and 2.99(2), and granted their concurrence in accordance with cl 2.99(3), subject to conditions which are included in the conditions of development consent. Clauses 2.98, 2.99 and 2.100 of the SEPP TI require that, before determining a development application for development on land adjacent to a rail corridor, “the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this section and published in the Gazette”. The Noise Intrusion Assessment dated 8 December 2021 and the addendum dated 21 July 2023 considers those guidelines. Based on the acoustic report and the agreed conditions of consent which require compliance with the assessment dated 8 December 2021, I am satisfied that appropriate measures will be taken to ensure that the LAeq levels in cl 2.100(3) are not exceeded.

• The site has frontage to Lawrence Hargrave Drive, which is a classified road, and cll 2.119 and 2.120 of the SEPP TI apply. Whilst vehicular access is obtained from the classified road, I am satisfied that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development. Consistent with the requirements of cl 2.119(2)(c) and cl 2.120(3), the proposed development has been designed to prevent or reduce the impacts associated with road traffic noise and will be carried out in accordance with the recommendations in the Noise Intrusion Assessment dated 8 December 2021 that will ensure a suitable degree of amenity for residents and other occupants of the proposed development, including compliance with the LAeq levels in cl 2.120(3).

• The development application in the Class 1 Application was accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000. The amended development application requires an updated BASIX certificate, and a deferred commencement consent condition is proposed to require the production of such a certificate prior to the consent becoming operative. Such an approach is consistent with the decision in SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 (at [82]).

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Preliminary Site Investigation Contamination Report dated 6 July 2022, the site is suitable for the development provided that soil removed from the site is classified appropriately and a site specific Unexpected Finds Protocol is made available and utilised.

• The development application was notified between 20 January and 3 February 2022, and no submissions were received.

• The proposal is integrated development pursuant to s 100B(3) of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, 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 of the EPA Act.

8. The Court notes:

1. The applicant has amended Development Application No DA-2022/67 with the agreement of the respondent, Wollongong City Council, as the relevant consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 to rely on the amended plans and documents set out below:

Item	Document	Rev	Date
1.	Architectural Plans	Rev D: Hearing	01.12.2023

9. The Court orders that:

1. The appeal is upheld.

2. Development application No DA-2022/67 seeking consent for construction of multi-dwelling housing comprising three units, basement car parking and three lot strata subdivision at 382-384 Lawrence Hargrave Drive, Scarborough is determined by granting development consent subject to the conditions set out in Annexure A.

3. The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979 as agreed or assessed.

J Gray

Commissioner of the Court

294626.22 Annexure A

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Decision last updated: 02 April 2024