Swinnerton v Wollongong City Council

[2022] NSWLEC 1737

Land and Environment Court

New South Wales

Medium Neutral Citation:

Swinnerton v Wollongong City Council [2022] NSWLEC 1737

Hearing dates:

Conciliation Conference 15 December 2022

Date of orders:

29 December 2022

Decision date:

29 December 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. 2021/796, as amended during Land and Environment Court Proceedings No. 2022/134096, for alterations and additions to an existing dwelling house and installation of an inground swimming pool, subject to the conditions of consent annexed hereto and marked "Annexure A".

Catchwords:

DEVELOPMENT APPEAL – residential - alterations and additions – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

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

State Environment Planning Policy (Resilience and Hazards) 2021, Chs 2, 3

Wollongong Local Environmental Plan 2009, cll 2.3, 4.3, 4.4, 4.4A, 5.10, 5.21, 7.1, 7.5, 7.6, 7.7

Texts Cited:

Wollongong City Council Community Participation Plan (2019)

Category:

Principal judgment

Parties:

Mark Swinnerton (First Applicant)
Marnie Phillips (Second Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
A Hemmings (Applicant)
E Kilpatrick (Solicitor)(Respondent)

Solicitors:
Holding Redlich (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2022/134096

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 DA-2021/796 for alterations and additions to an existing dwelling house and installation of an inground swimming pool (the Proposed Development) at 2 Weaver Terrace, Bulli 2516 legally described as Lot 16 in DP285763 (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 was held on 15 December 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. 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.

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

6. 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 various provisions of state environmental plans and the Wollongong Local Environmental Plan 2009 (WLEP).

7. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement which I have considered and adopt the reasons as set out below.

8. A BASIX Certificate pursuant to the State Environment Planning Policy (Building Sustainability Index: BASIX) 2004 is filed with the Class 1 Application and an updated BASIX certificate dated 13 October 2022 was filed with the Court on 17 October 2022 and uploaded onto the NSW Planning Portal on 21 October 2022.

9. The Court is required to consider coastal management and whether the Site is contaminated and suitable for the Proposed Development pursuant to the State Environment Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), Ch 2 and Ch 3. The parties have agreed that the Proposed Development satisfies al of the applicable provisions of C 2 of the SEPP Resilience and Hazards for the following reasons which I adopt:

1. The Proposed Development is unlikely to cause an adverse impact on the matters identified in s 2.10(1);

2. The Respondent has considered and is satisfied with the matters identified in s 2.10(2);

3. The Respondent has considered whether the Proposed Development is likely to cause an adverse impact on those matters identified in s 2.11(1)(a) and is satisfied as to the matters set out in s 2.11(1)(b);

4. The Respondent has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the Proposed Development (s 2.11(1)(c));

5. The Respondent is satisfied that the Proposed Development is not likely to cause increased risk of coastal hazards on the Site or other land (s 2.12);

6. The Respondent has taken into consideration the relevant provisions of any certified coastal management program that applies to the land (s 2.13).

7. I have read the Statement of Environmental Effects (SEE) at Tab 4 of the Class 1 Application and note at p 16 of the SEE that the Site is suitable in its current state for the purpose for which the development is proposed to be carried out.

10. The Wollongong Local Environmental Plan 2009 contains a number of provisions which are jurisdictional prerequisites in relation to which the Proposed Development complies as follows:

1. The Site is Zone R2 Low Density Residential in the Land Use Table and dwelling houses are permitted with consent;

2. The Proposed Development meets the objectives for development in the R2 zone for the purposes of cl 2.3(2) by providing for the housing needs of the community while maintaining a low density residential environment;

3. The Proposed Development complies with the applicable development standards relating to height of buildings (cl 4.3) and floor space ratio(cll 4.4 and 4.4A);

4. The Site does not contain a heritage item, is not in a heritage conservation area, and is not in the immediate vicinity of a heritage item or heritage conservation area for the purposes of cl 5.10.

5. The Site is not within a flood planning area shown on the Flood Planning Map for the purposes of cl 5.21;

6. The Respondent is satisfied that any public utility infrastructure that is essential for the Proposed Development is available (cl 7.1);

7. The Site is mapped Class 5 on the Acid Sulfate Soils Map for the purpose of cl 7.5. The Proposed Development is not within 500m of adjacent Class 1, 2, 3, or 4 land that is below 5, Australian Height Datum and by which the water table is likely is likely to be lowered below 1 m Australian Height Datum on adjacent Class 1, 2, 3, or 4 land, and so an acid sulfate soils management plan is not required to be provided by the Applicant;

8. In relation to earthworks (cl 7.6(3)) I am satisfied that the relevant matters have been considered by the Respondent and note that there is no cut and fill plan because any earthworks relating to the swimming pool is negligible and I have referred to architectural drawings DA02 and DA08, pages 30 and 34 of the Statement of Environmental Effects filed with the Class 1 Application and note that there is no work proposed to the existing retaining wall.

9. No developed is proposed within the foreshore area, apart from a transparent fence. Fences are nominated as a form of development permissible within the foreshore area and I am satisfied that the matters outlined in cl 7.7(3) are satisfied.

11. The Respondent has taken into consideration submissions in accordance with s 4.15(1)(d) of the EPA Act in relation to the Proposed Development which was notified in accordance with the Community Participation Plan (2019) on two separate occasions. The parties agree that the matters raised by the resident objectors have been considered by the Respondent, and the Respondent considers that the matters raised, where relevant, have been satisfactorily addressed through the Applicant’s amendments to the Proposed Development and the conditions of consent at Annexure A to this judgment.

12. 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.

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.

Notations:

14. The Court notes:

1. That the Respondent, under delegation from the relevant consent authority, the Wollongong Local Planning Panel, has agreed, under clause 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicants further amending Development Application No. 2021/796, to include the further and amended material as follows (Further Amended Application):

1. Architectural Plans prepared by PRO Architects dated 27 October 2022;

2. Visual Impact Assessment prepared by AE Design Studio dated October 2022

2. That the Further Amended Application was uploaded to the NSW Planning Portal on 2 November 2022.

3. That the Applicant has subsequently filed the Further Amended Application with the Court on 15 November 2022.

Orders:

15. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 2021/796, as amended during Land and Environment Court Proceedings No. 2022/134096, for alterations and additions to an existing dwelling house and installation of an inground swimming pool, subject to the conditions of consent annexed hereto and marked "Annexure A".

……………………….

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 29 December 2022