Sorace Constructions Pty Ltd v Wollongong City Council

[2021] NSWLEC 1284

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sorace Constructions Pty Ltd v Wollongong City Council [2021] NSWLEC 1284

Hearing dates:

Conciliation conference on 4 May 2021

Date of orders:

25 May 2021

Decision date:

25 May 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders (see [15])

Catchwords:

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

Legislation Cited:

Conveyancing Act 1919, s 88

Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 4.47, 8.7

Environmental Planning and Assessment Regulation 2000, cll 77 and Schedule 1

Wollongong Local Environmental Plan 2009, ss 2.3, 2.6(2), 4.3, 4.4, 7.3, 7.4

Land and Environment Court Act 1979, ss 34, 34(3)

State Environmental Planning Policy No 55 -Remediation of Land, cll 7(1)

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

Water Management Act 2000, s 91

Texts Cited:

COVID-19 Pandemic Arrangements Policy (December 2020), Land and Environment Court of New South Wales

Wollongong Development Control Plan 2009

Category:

Principal judgment

Parties:

Sorace Constructions 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):

2020/24746

Publication restriction:

No

Judgment

1. COMMISSIONER: Sorace Constructions Pty Ltd (the Applicant) has appealed the refusal by Wollongong City Council (the Respondent) of its development application (DA-2019/575), made with owner’s consent, seeking consent for the subdivision of land for residential, multi-dwelling, development and associated works (the Proposed Development) at 7 Dawson Street, Fairy Meadow (the Subject Site).

2. The Proposed Development as depicted on the Revision X Amended Architectural Plans prepared by DWA Architects referred to in the s 34 agreement has been amended to delete 5 townhouses and add a suspended driveway and balconies along the south/south western extent of the Subject Site.

3. The Subject Site is zoned R2 Low Density Residential under the provisions of cl 2.3 of Wollongong Local Environmental Plan 2009 (WLEP). The Proposed Development is permissible with consent on the Subject Site.

4. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

5. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 4 May 2021, and I presided over the conciliation conference.

6. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken at the commencement of the conciliation conference. The Respondent communicated written submissions from five (5) objectors made in lieu of oral submissions that might otherwise have been delivered during a site view.

7. 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 consent to the Applicant’s development application, subject to conditions.

8. 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.

9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy No 55 - Remediation of Land (SEPP55), the Parties have confirmed, and I accept:

1. the Applicant has provided following documentation:

1. a Detailed Site Contamination Report prepared by Douglas Partners dated May 2019;

2. a Supplementary Site Investigation Report prepared by Environmental Consulting Services dated 16 September 2019; and

3. a Remediation Action Plan prepared by Environmental Consulting Services Pty Ltd dated 16 March 2021;

2. the above documentation:

1. includes an assessment of the Subject Site and the Proposed Development in relation to Coal Washery Reject material and has provided recommendations in relation to the treatment of same;

2. confirms that the Subject Site can be made suitable for the Proposed Development, subject to remediation works being completed, as recommended in the above reports, in satisfaction of the provisions of cl 7(1) of SEPP55;

3. compliance with these recommendations for remediation of the Subject Site is supported through the incorporation of agreed conditions of consent (specifically conditions 69, 70, 89 and 90) that are proposed by the Parties for imposition with any grant of consent;

2. in relation to provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), the Applicant has provided an amended BASIX Certificate 101569M_02 to accompany the development application to satisfy the requirement in Schedule 1 of the Environmental Planning and Assessment Regulation 2000, and SEPP BASIX;

3. in relation to the provisions of WLEP, the Parties have confirmed, and I accept, that the Applicant’s development application (as amended) satisfies all applicable provisions of WLEP, and where required, this satisfaction is supported through the imposition of conditions of consent within Annexure “A” to this judgment. In particular, the Parties have confirmed, and I accept, that the following specific provisions of WLEP have been addressed by the Applicant’s Proposed Development (as amended):

1. the Proposed Development complies with the provisions of cl  2.6(2) of WLEP concerning the subdivision of land;

2. in relation to cl 4.3 of WLEP, the Proposed Development complies with the height of buildings development standard of 9m applicable to the Subject Site;

3. in relation to the provisions of cl 4.4 of WLEP, the Proposed Development complies with the maximum floor space ratio (FSR) applicable to the Subject Site which is 0.5:1. The Proposed Development has a FSR of 0.3:1;

4. in relation to the provisions of cl 7.3 of WLEP concerning flood planning:

1. the results of the amended flood study have informed the amendments to the design of the Proposed Development and extent of the suspended portions;

2. the amendments made by the Applicant to its Proposed Development (see above at [2]), have been made in response to the amended flood planning levels as modelled in the post development model scenario in the flood study prepared by Rienco Consulting titled ‘Detailed Flood Study Proposed Development at 7 Dawson St, Fairy Meadow’ (Rienco Ref: 19017 Report 001 Rev 5 Flood Study.doc, Version 5 dated 29/01/2021);

3. this amended flood study was prepared by the Applicant’s flood consultant and is included in the documentation for which leave is sought in the Amended Application as referred to in the terms of the s 34 agreement;

4. Condition 41 of the agreed conditions of consent require the detailed design of the development to be in accordance with the amended flood study;

5. as a result of the amendments made, the Proposed Development satisfies the matters raised in cl 7.3 being:

all habitable floor levels of the development will be above the flood planning level,

the development will not adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties,

the development will not significantly alter flow distributions and velocities to the detriment of other properties or the environment of the floodplain,

the development will not affect evacuation from the land,

the development will not significantly detrimentally affect the floodplain environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses,

the development will not result in unsustainable social and economic costs to the community as a consequence of flooding,

if located in a floodway area—the development will not be incompatible with the flow conveyance function of, or increase a flood hazard in, the floodway area.

5. under cl 7.4 of WLEP, the Subject Site is identified as containing riparian land, and a Vegetation Management Plan (VMP) was lodged with the Applicant’s original development application. In relation to this:

1. an amended VMP dated 23 February 2021 has been prepared as part of the Amended Application which responds to the amended form of the development and flood planning levels in the amended flood study to ensure the vegetation can be adequately implemented;

2. conditions 14, 117 and 118 require the implementation of the amended VMP, which includes, pursuant to the provisions of s 88 of the Conveyancing Act 1919, the submission of an instrument with the subdivision certificate application which incorporates a restriction as to use of the site in the areas the subject of the VMP;

3. accordingly, the amendments to the proposed development and amended VMP have been prepared to ensure that the impact of the proposed development on the land and any opportunities for rehabilitation of aquatic and riparian vegetation and habitat on the land has been considered;

4. as the Proposed Development includes works within waterfront land located within 40m of a watercourse, it is integrated development under the provisions of s 4.46 of the EP&A Act and the Water Management Act 2000 (WM Act). The concurrence of the Natural Resource Access Regulator (NRAR) is required under the provisions of s 91 of the WM Act. The Applicant’s development application, along with submissions received following notification of the Proposed Development, were referred to the NRAR which has provided General Terms of Approval for the Proposed Development pursuant to s 4.47 of the EP&A Act. These have been included within the agreed conditions of consent that formed part of the Parties’ agreement. I am satisfied that the relevant provisions of the WM Act, and the EP&A Act and EP&A Regulation concerning approval of integrated developments, have been addressed by the Parties;

5. in relation to the provisions of the Wollongong Development Control Plan 2009 (WDCP):

1. the Proposed Development as depicted in amended architectural plans is compliant with the latest flood planning controls in the WDCP;

2. the amended flood model and study was required to be updated to respond to the latest controls in Chapter E13: Management of Floodplain in force in WDCP as at 25 March 2020, and this requirement has been satisfied;

3. the Proposed Development provides a compliant number of car parking spaces for the development as required by WDCP;

6. the Proposed Development has been notified consistent with the provisions of WDCP and cl 77 of the EP&A Regulation. The Parties advise, and I accept, that they have given consideration to the submissions made in response to notification of the Proposed Development, and those referred to above at [6], in reaching agreement in this appeal.

10. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act.

11. Having considered the advice of the Parties, provided above at [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

12. I am further 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.

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. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

15. The Court orders that:

1. Leave is granted to the Applicant to rely upon the following amended documentation:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural plans
Demolition plan	006	X	19/02/2021	Design Workshop Australia
Site plan – master plan	007	X	19/02/2021	Design Workshop Australia
Ground floor – master plan	008	X	19/02/2021	Design Workshop Australia
Ground floor – block A	008A	X	19/02/2021	Design Workshop Australia
Ground floor – Block B	008B	X	19/02/2021	Design Workshop Australia
Ground floor – Block C & D	008C	X	19/02/2021	Design Workshop Australia
Level 1 -master plan	009	X	19/02/2021	Design Workshop Australia
Level 1 – Block A	009A	X	19/02/2021	Design Workshop Australia
Level 1 – Block B	009B	X	19/02/2021	Design Workshop Australia
Level 1 – Block C & D	009C	X	19/02/2021	Design Workshop Australia
Unit type 1 Elevations	011	X	19/02/2021	Design Workshop Australia
Unit type 2 elevations	013	X	19/02/2021	Design Workshop Australia
Unit type 3 elevations	015	X	19/02/2021	Design Workshop Australia
Sections A-B-C	030	X	19/02/2021	Design Workshop Australia
Sections D-E-F	031	X	19/02/2021	Design Workshop Australia
Sections H-I-J	032	X	19/02/2021	Design Workshop Australia
Unit 1 & 2 sections	033	X	19/02/2021	Design Workshop Australia
Unit 3 & 16 sections	034	X	19/02/2021	Design Workshop Australia
Unit 17 & 18 sections	035	X	19/02/2021	Design Workshop Australia
Unit 19 & 20 sections	036	X	19/02/2021	Design Workshop Australia
Unit 1,2,3,16,17,18 courtyard sections	038a	X	19/02/2021	Design Workshop Australia
Unit 19,20 courtyard sections	039	X	19/02/2021	Design Workshop Australia
East and west elevations	040	X	19/02/2021	Design Workshop Australia
North elevation	041	X	19/02/2021	Design Workshop Australia
South elevation	042	X	19/02/2021	Design Workshop Australia
Internal elevations	043	X	19/02/2021	Design Workshop Australia
Landscape Plans
Cover sheet	LC00	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Planting list	LC001	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Concept plan	LC100	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Concept plan	LC101	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Cross sections	LC102	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Section elevation	LC103	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Section elevation	LC104	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Cross sections	LC105	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Cross sections	LC106	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Cross sections	LC107	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Cross sections	LC108	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Section elevation	LC109	F	3/12/2020	Taylor Brammer Landscape Architects Pty Ltd
Reports
Remediation Action Plan prepared by Environmental Consulting Services Pty Ltd dated 16 March 2021
Subdivision plan prepared by C. Robson & Associates Pty Ltd dated 31 March 2021
BASIX Certificate no 101569M_02 prepared by EPlanning dated 18 March 2021
Vegetation Management Plan prepared by Biosis dated 23 February 2021
Access report prepared by Accessible Building Solutions dated 16 February 2021
Detailed flood study prepared by Rienco Consulting dated 29 January 2021
Arboricultural Impact Assessment Report prepared by Allied Tree Consultancy dated September 2020

2. The applicant is to pay the respondent’s costs thrown away in accordance with s8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,000 within 28 days of the Court’s determination.

3. The appeal is upheld.

4. Development Consent is granted to DA-2019/575 for Torrens Title subdivision into 2 lots, retention of an existing dwelling on one lot, construction of a multi- dwelling housing development comprising 27 townhouses and strata subdivision at 7 Dawson Street, Fairy Meadow subject to conditions contained in Annexure ‘A’.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (631953, pdf)

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Decision last updated: 25 May 2021