The Churches of Christ Property Trust ATF Churches of Christ Community Care v Wollongong City Council

Case •

[2025] NSWLEC 1153

•

14 March 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: The Churches of Christ Property Trust ATF Churches of Christ Community Care v Wollongong City Council [2025] NSWLEC 1153
Hearing dates: 23, 24 October and 16 December 2024
Date of orders: 14 March 2025
Decision date: 14 March 2025
Jurisdiction:Class 1
Before: Porter C
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application number 2023/113, as amended, for the demolition of existing buildings, tree removal, earthworks, and the construction of a two to three storey seniors housing building comprising 20 independent living units over basement car parking at 19-23 Tasman Parade, Thirroul, is determined by the grant of development consent subject to the conditions at Annexure A.

(3) The exhibits are returned, except for Exhibits A, B, C and 3.

Catchwords:

DEVELOPMENT APPEAL – seniors living – independent living units – all contentions resolved – community objections – easement – deferred commencement

Legislation Cited:

Conveyancing Act 1979, s 88E

Environmental Planning and Assessment Act 1979, ss 4.15

Environmental Planning and Assessment Regulation 2021, s 27

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

State Environmental Planning Policy (Housing) 2021, Chs 2, 3, Pt 5, ss 85, 87, 88, 93, 94, 95, 97, 98, 99, 100, 101, 102, 103, 104, 105, 108, 144, 145, 147, Schs 4, 9, 7A

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, s 4.6

Wollongong Local Environmental Plan 2009, cll 4.3, 4.4, 5.10

Cases Cited:

CKDI Pty Ltd as trustee for CKDI Unit Trust v Ku-ring-gai Council [2023] NSWLEC 1018

Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1; [2001] NSWLEC 70

Georges River Council v Eskander [2024] NSWLEC 98

Texts Cited:

Austroads, Austroads Guide

Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy

NSW Department and Planning and Environment, Apartment Design Guide

NSW Fire and Rescue, Fire and Rescue Guidelines

NSW Planning & Environment, Seniors Housing Design Guide (November 2023)

Standards Australia, AS/NZS 2890.1:2004

Wollongong Development Control Plan 2009

Category:Principal judgment
Parties: The Churches of Christ Property Trust ATF Churches of Christ Community Care (Applicant)
Wollongong City Council (Respondent)
Representation:

Counsel:
H Grace (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
K&L Gates (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2023/236555
Publication restriction: Nil

JUDGMENT

  1. COMMISSIONER: These proceedings are about a proposed seniors living development that has attracted strong objections from the community. There are no remaining contentions raised by Council.

  2. This is a Class 1 appeal of the deemed refusal of DA-2023/113 for the demolition of existing buildings, tree removal, earthworks, easement and the construction of a part two, part three storey seniors housing development comprising 20 independent living units over basement car parking (DA) at 19-23 Tasman Parade, Thirroul.

  3. This appeal is associated with DA-2023/112 at 8-10 Tasman Parade Thirroul, also for a seniors living development which was also strongly objected to. Both appeals were heard concurrently. The two developments propose to share communal open spaces areas between both sites.

  4. Through the joint conferencing of the experts and further information and amendments made to the DA by the Applicant, the parties confirmed to the Court that there were no remaining issues in contention, except for some conditions of consent. Notwithstanding, in standing in the shoes of the consent authority, the Court is required to determine if consent should be granted with consideration of the provisions of s 4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  5. I accept the parties’ agreement and find that there are no remaining issues. I find that development consent should be granted for the reasons I set out. I accept the evidence that the proposed development demonstrates a high level of architectural design that is responsive to the context and consistent with the vast majority of applicable planning controls. I have considered the detailed submissions of the community and accept that the amended DA has satisfactorily addressed the concerns raised.

Amended Application

  1. During the hearing, the Applicant sought and was granted leave to make minor amendments to the DA. The amendments were unopposed by Council. The amendments were primarily in relation to documentation considered and recommended by the experts in joint reporting. Further information was provided including a response to submissions, an amended Statement of Environmental Effects prepared by Robinson Urban Planning dated 24 October 2024 (SEE), a Detailed Site Investigation Report dated 27 November 2024 (DSI) and a Remediation Action Plan dated 10 December 2024 (RAP) all prepared by Alliance Geotechnical Pty Ltd.

  2. Following the amendments, the parties provided mostly agreed conditions of consent (substituted Ex 8) on 23 December 2024. The conditions in dispute are similar to 8-10 Tasman Parade, Thirroul.

Site description and locality

  1. The subject site is known as 19, 21 and 23 Tasman Parade, Thirroul (legally known as Lot 3 DP 375983, Lot 4 DP 375983 and Lot 4 DP 544605) (site). The site has a frontage of 55.685 metres and total site area of 3,659.6m2. The site is essentially located at the highest part of Tasman Parade with a northern aspect and the topography slopes to the south. The site itself has a cross-fall north-west to south-east. Significant tree vegetation adjoins the site to the north and west.

  2. The site is occupied by an existing seniors living facility and two dwellings, which are proposed to be demolished. Existing development surrounding the site is low density development, primarily dwelling houses. Opposite the site is a large, closed seniors living development that is subject to concurrently heard proceedings, also known as DA-2023/112. The site is in close walking distance to public reserves, walkways and the beach.

  3. The site is located near local heritage item 6170, described in the Wollongong Local Environmental Plan 2009 (WLEP) as a ‘group of fig and turpentine at 12-14 Tasman Parade, Thirroul’.

  4. The site is zoned R2 low density residential under the WLEP where seniors housing is permitted with consent. Permissible uses in this R2 low density residential zone include residential flat buildings and shop top housing.

Expert Evidence

  1. The following experts provided written or oral evidence in the proceedings.

Applicant

Respondent

Expertise

Gabrielle Morrish and Mark Curzon

Alexandra McRobert

Architect and Urban Design

Sandra Robinson

Brigit Mathai

Town Planning

Lachlan McNab

John Madry

Landscape Architect

Phillip Lambley

Andrew Heaven

Stormwater Engineering

Thomas Yang

Charlie Bevan

Traffic Engineering

Contentions

  1. In opening, Council confirmed that the issues raised in the amended Statement of Facts and Contentions (ASOFAC) have been resolved. After consideration of the evidence, I accept the parties’ agreement that the contentions have been resolved as set out below.

Housing Diversity

  1. Council contended that Objective 4K of the Apartment Design Guide (ADG) for housing diversity had not been met. Council raised that eleven x one-bedroom units existed on 23 Tasman Parade, whilst the proposed development provided one x one bedroom unit.

  2. I accept the agreement of the urban designers and planners that Objective 4K has been met and adopt their reasoning set out in the Architecture, Urban Design and Town Planning Joint Expert Report (UD JER). The Applicant, through undertaking a Demand and Supply Assessment prepared by Marketability dated April 2019, perhaps uncontroversially, identifies a need for units that are attractive to downsizers. The experts agree and I accept that whilst one-bedroom units will be lost as a result of demolition of the existing development, the proposed mix of primarily two and three bedroom units will provide attractive aging in place unit stock for downsizers living in larger dwellings. This may include singles or couples, who would be downsizing from a dwelling with 3 or more bedrooms who would be attracted to a two- or three-bedroom unit that would also be suitable for visitors and pets. I accept that there is no minimum requirement for any size unit or number of bedrooms for seniors living and that Objective 4K has been met by the proposed mix.

Building Design

  1. Council’s remaining issues with building design related to the use of modern materials, particularly render, and understandable concerns with the long term maintenance of these materials.

  2. The Applicant provided further details on the proposed rendering, which I accept resolves the contention. The proposed external finishes are rough cast acrylic render, which is easier to maintain than painted finish render. On my viewing of the plans and street, I accept that the proposed finishes are not incongruous with the streetscape.

Residential Amenity (internal / onsite amenity)

  1. The remaining particulars of this contention raised concerns with accessible areas within the units, wardrobe sizes and security concerns with accessing communal facilities at 8-10 Tasman Parade.

  2. I accept and adopt the evidence of the urban designers and planners in the UD JER. The amendments to the apartments provide adequate accessibility and wardrobe sizes. The conditions of consent and the Plan of Management dated 24 July 2024 (PoM) provide measures to manage safety concerns for use of the communal areas including authorised swipe cards. I accept that the contention has been resolved.

Stormwater

  1. Council contended that adequate stormwater measures were not proposed and an easement to drain stormwater was required. The contentions raised concerns that the proposed development was inconsistent with Chapter E14 Stormwater Management of the Wollongong Development Control Plan 2009 (WDCP), s 102 of the Environmental Planning Policy (Housing) 2021 (Housing SEPP) and section 1 of the Seniors Living Policy. The parties agree and I am satisfied that the contention has been resolved based on the following evidence and submissions.

  2. The parties made the same submissions for this issue in the concurrently heard proceedings for 8-10 Tasman Parade. I have reproduced my reasoning and findings on the ability to impose a deferred commencement condition for an easement in these proceedings below:

“The parties provided detailed submissions that an easement can be obtained post development consent. In these circumstances, there are no preconditions in the planning controls requiring that stormwater management arrangements must be made prior to granting development consent. I accept the parties’ submissions that the circumstances here are distinguished from Georges River Council v Eskander [2024] NSWLEC 98, where His Honour found that the relevant LEP required that consent must not be granted unless the consent authority was satisfied that adequate arrangements had been made prior to the grant of consent. There is no equivalent clause in the WLEP or Housing SEPP regarding stormwater. Similarly, the circumstances are also distinguished from CKDI Pty Ltd as trustee for CKDI Unit Trust v Ku-ring-gai Council [2023] NSWLEC 1018, in relation to a precondition about stormwater prior to granting development consent in the relevant LEP and works being undertaken on adjoining land for stormwater. There is no similar clause in the WLEP or Housing SEPP and the proposed development seeks to utilise existing pipes on adjoining sites. Therefore, there is no legal impediment to granting development consent through the proposed deferred commencement condition, which requires the Applicant to obtain a legal point of discharge through an easement or easements.”

  1. The community objections from adjoining residents detailed previous flooding events and the impacts on the surrounding properties, which I have considered. Amongst other issues raised, put simply, the community submissions are concerned about increased flood impacts and damage to property from a larger development.

  2. The parties and their experts agree that the environmental impacts on the proposed stormwater management system have been assessed and that the proposed system discharging to Woodland Avenue is both practical and improves the existing situation, subject to securing an easement. The Civil Engineering Stormwater Design Report prepared by Enstruct dated 16 August 2024 (Stormwater Report) details the MUSIC modelling for pre and post development scenarios and use of the existing pipe through 18 Woodland Avenue, to a discharge catchment into Woodland Avenue. The Stormwater Report states that this was verified through on-site testing. The stormwater experts gave evidence that the proposed on-site detention system will be able to discharge through the existing stormwater pipes (Ex 5 and Ex D). The experts agreed that an easement for this drainage through the pipes on 18 Woodland Avenue is required.

  3. The agreed evidence is that the proposed stormwater system and on-site detention system is designed to cater for storm events and has been appropriately modelled to consider a 1% annual exceedance period. The evidence is that as a result of the proposal, post development overland flow will be less than the current pre-development levels. In the post-development scenario, the flow rate will be reduced and there will be no overland flow from the development site. In relation to the concerns raised about the size of the pipe through 18 Woodland Avenue, I accept the expert’s evidence that the reduced pipe size has been modelled and that the benefit of the proposed sizeable on-site stormwater detention is that stormwater will effectively be held on site and discharged in a controlled manner through the stormwater pipes. In oral evidence, the expert’s maintained this position after hearing from residents on site and further site inspections.

  4. I accept and adopt the evidence of the stormwater experts. I am satisfied that the proposed development has incorporated sufficient stormwater and overland flow management systems to mitigate the impacts of the proposed development, and will improve the current stormwater management situation. I accept that the Stormwater Report demonstrates how the proposal meets the requirements of Chapters E14 and E15 of the WDCP, including Water Sensitive Urban Design through water capture, storage, landscaping filtration and other measures.

  5. I accept that there are no works proposed on adjoining land, as the amended DA seeks to utilise the existing pipes. I find that the proposed deferred commencement condition is a lawful and appropriate mechanism to obtain the required legal access to discharge water through an easement on adjoining land.

Traffic, Carparking and Access

  1. Council contended that the basement carparking traffic signalling would result in safety and vehicular manoeuvring impacts and that some car spaces created viewing concerns. I accept the parties’ agreement and the evidence of the experts (Ex 4) that the contention has been resolved for the following reasons.

  2. Traffic modelling of the morning and afternoon peak periods is estimated to be eight vehicular trips per hour. In the morning, being two vehicles in and six out in peak hours and the reverse in the afternoon, six vehicle in and two vehicles out per peak hour. The experts agreed that a two-way driveway was not required on the basis of the queuing analysis undertaken by the Applicant and consideration of Section 4.4 of the Austroads Guide and Clause 3.5 of AS 2890.1(2004). The traffic experts agree, and I accept, that the low queueing probability of 0.015% and low probability of more than one car entering and exiting at the same time of 0.045% would not necessitate a waiting bay. There is a waiting bay provided further within the basement and the experts agree that there is very little chance of the waiting bay conflicting with any parked cars. The experts agree that the proposed traffic lights are acceptable and suitable conditions of consent have been included for various details of the traffic lights and other basement signage. I accept the evidence that this contention is resolved.

Community and Safety Matters

  1. Council raised concern about the intended usage of the storage areas and location lacking clear line of sight. I accept and adopt the evidence of the urban designers and planners that the storage areas have been redesigned with partial meshing for passive surveillance and will be restricted by security passes. I accept that the concerns have been addressed.

Public Interest

  1. The public interest contention relates to the number of community objections and contentions raised. There are no separate public interest issues raised. I find that all contentions have been resolved and I consider the community submissions from [32].

Insufficient Information

  1. The amended DA contains architectural plans that are adequately detailed and resolve the contention.

Public Submissions

  1. The development application lodged to Council was notified by the Respondent from 1 March 2023 to 15 March 2023 where 58 submissions were received. A previous amended development application was notified from 12 September 2024 to 27 September 2024 and 18 submissions were received.

  2. The hearing commenced on site and with firstly hearing oral evidence from objectors. The Court and parties were also invited to inspect a number of the objector’s properties to gain a better understanding of the concerns raised.

  3. All written submissions were tendered to the Court. I have carefully considered the extremely detailed and educated written and oral concerns that have been raised. For the reasons set out below, I find that the relevant concerns expressed have been addressed by the amended DA.

Location requirements of the Housing SEPP are not met

  1. Section 93(1) of SEPP Housing requires that development consent must not be granted unless residents will have adequate access to certain facilities and services. Due to its location in the Wollongong Local Government Area, the proposed development is subject to s 93(2)(a)-(c) and s 93(3) of the Housing SEPP. Through the proposed use of a private minibus with on site collection on an accessible pathway, the amended DA meets all the requirements of both planning controls. The Operational Plan of Management describes that the private bus will take residents to all of the required facilities and services required s 93(5) of the Housing SEPP including shops, community services, recreation facilities and general medical practitioners.

  2. As discussed far below, the private minibus will be registered on the property title and a condition of consent has been included to enforce these requirements. These are enforceable by Council through the life of the development, unless a separate application is made to Council for their approval. I am satisfied that the location requirements have been met and that the location of the minibus pick up area on site is accessible to residents.

Incompatible with the area

  1. A number of submissions raised issues with the proposed development’s contextual fit in the streetscape.

  2. Many objections raised that a more recent planning policy, the 2023 Seniors Housing Design Guide (2023 Guide), should be considered and has been omitted from the amended DA. The 2023 Guide arises from amendments made to State Environmental Planning Policy (Housing) 2021 (Housing SEPP). The DA was lodged to Council prior to 14 December 2023. There is a savings provision in Sch 7A of the Housing SEPP that provides that the 2023 Guide does not apply to any undetermined lodged before 14 December 2023, which is the case here. The 2023 Guide is therefore unable to be considered as the legislation states it does not apply.

  1. During the hearing, the urban design and town planning experts prepared a written document and presented oral evidence responding to the oral and written concerns raised by objectors.

  2. I accept and adopt the evidence of the experts that the proposed development, as amended, contextually fits within the existing streetscape for the following reasons:

  1. The proposed development is highly compliant with the key built form controls under the Housing SEPP and ADG including height, floor space ratio (FSR), setbacks and visual privacy.

  2. The architectural plans, expert evidence of the urban designers and town planners and Architectural Design Report prepared by Curzon + Partners (Design Report) demonstrates that the proposed development has been based on a detailed contextual analysis of the area, including topography, natural conditions, building typologies and other environmental factors. The Design Report sets out that the development has been designed to consider its topography and has further setback the built form to minimise the bulk and amenity impacts of the development to the rear. I accept the detailed explanation in the Design Report and the evidence of the urban design and planning experts that the proposed development has responded to the existing dwellings and is compatible with the two storey character of the area. As a result of the extent of the rear setback, the recessive third storey to the rear does not impose on the properties located to the rear at a lower level than the site. I accept that the modulation of the building length seeks to visually emulate the separation distances between detached dwelling house buildings.

  3. I accept and adopt this evidence and find that the increased setbacks, location of the third storey, two storey built form and built form modulation minimises bulk and amenity impacts to the adjoining dwellings and is compatible with the streetscape. The development will introduce some modern elements to the streetscape, which I find are a well-designed consideration of the site’s proximity to the nearby beaches.

  1. Some submissions raised concerns with views and view loss, as the proposed development is larger than the existing single storey development. Any purported views lost from front yards or ancillary structures are acceptable in this context, where the development substantially complies with the built form controls and the purported views lost are not from main living areas. I find that any views lost are reasonable.

Excessive car parking proposed

  1. SEPP Housing contains a non-discretionary development standard for car parking, where if met, an application cannot be refused on the basis of that control. The proposed development provides the minimum required. On this basis, the proposed additional car parking provided on site cannot be a reason to refuse development consent.

Overshadowing

  1. The amended DA provided detailed over shadowing diagrams and the urban design and planning experts provided oral and written evidence on this issue. The evidence shows that there will be overshadowing impacts to adjoining properties.

  2. It is important to set out that I am required to consider the proposal against the applicable planning controls. I cannot apply more onerous requirements. I set out these controls below, which are similar in their terms.

  • The Seniors Living Policy, Section 4 Impacts on Neighbours seeks to minimise overshadowing of existing dwellings and their private open space. To the extent that they apply, the WDCP, Chapter B1, control 6.18.2 solar access requires 50% of adjoining private open space areas and windows to living areas are to retain three hours solar access between 9am to 3pm on 21 June. In lower density areas, a greater emphasis on retaining sunlight is required.

  1. Addressing the accuracy of the overshadowing plans, I accept the expert evidence that the amended overshadowing plans are accurate. It was agreed by the experts that additional over shadowing diagrams were prepared on the basis of further survey work, which considered the topography of the area and buildings on adjoining properties. I accept that the overshadowing plans do not need to show the full property boundary, but adequately show the areas of impact.

  2. I accept and adopt the evidence of the urban designers and planners that the proposed overshadowing of these properties is reasonable when considered against the requirements of the planning controls.

  3. Firstly, I accept there will be overshadowing impacts from the proposed development to the adjoining properties to the west, south and east. This is a natural consequence of the topography of the site (being elevated), the orientation of the development (located north and thereby causing shadows to the south-west, south and south-east) and the scale of the development.

  4. The overshadowing plans (drawings DA404, DA404a, DA404b and DA404c, 405 and 405b) demonstrate that most of the adjoining properties living areas will receive at least three hours solar access and that 50% of most of the private open space areas also receive at least three hours solar access, between 9am and 3pm on 21 June.

  • 22 Woodland Avenue’s dwelling, private open space and its adjoining garage/studio building (9 Amy Street) with solar panels are mostly not overshadowed by the proposed development between 12 to 3pm on 21 June. Less than 50% of the private open space is overshadowed by existing structures from 12 to 3pm. The dwelling is not overshadowed by the proposed development or existing structures from 11am to 3pm. There is no overshadowing of the solar panels from 11am onwards on 21 June located on the garage/studio. The solar panels on the dwelling receive solar access after 11am and onwards. The closest solar panels (indicated as solar pool heating) are not overshadowed from around 11am to 12pm on 21 June, however shadows from the retaining walls/fencing partly cover that area until 2pm. Shadows caused by existing development still maintain the minimum solar access requirements, except for the solar pool heating panels. I accept that control has been met and that the portion of additional shadows to the swimming pool solar panels is acceptable having regard to the orientation and topography of the two sites.

  • 20 Woodland Avenue retains three hours of solar access to the dwelling and solar panels from 11am onwards on 21 June. Over 50% of the rear private open space area receives 3 hours of solar access from 11am onwards on 21 June.

  • 18 Woodland Avenue is predominantly overshadowed by its own rear structure. The proposed development contributes additional shadows up to 10am and from 2pm. The proposed development itself provides the minimum three hours of solar access to the dwelling and private open space between 10am to 2pm on 21 June. I accept the impact as reasonable, as there is very little additional overshadowing caused by the proposed development and the impacts are a result of orientation, topography and existing structures on the affected site.

  • 16 Woodland Avenue retains three hours of solar access to the dwelling between 9am to 2pm. 50% of the private open space receives three hours solar access between those hours on 21 June. Most overshadowing impacts are from existing structures on the affected site.

  • 14 Woodland Avenue is unaffected by the proposed development until 2pm. The overshadowing shown on the diagrams is from existing structures on the affected site and not as a result of the proposed development.

  • 17 Tasman Parade is unaffected by the proposed development until 1pm. The dwelling on 17 Tasman Parade overshadows its own rear yard from 9am to 2pm. Whilst it does not receive the three hours solar access, I accept that the affected dwelling primarily overshadows itself and that the proposed development has minimised its overshadowing impacts, which commence at 1pm but have more impact from 2pm. The overshadowing is also a result of the orientation of the sites, not from unreasonable or poor design. The impacts are therefore reasonable in these circumstances.

  1. To the extent that concerns were raised about solar access to the proposed communal open space, I accept on the basis of the urban design and planners evidence and architectural plans that three hours of solar access is achieved to 50% of the area as required by the planning controls.

Privacy

  1. A number of objections raised privacy concerns to 17 Tasman Parade, 12 Tasman Parade (front yard and granny flat), 16 Woodland Avenue (backyard and house), 18 Woodland Avenue (courtyard, living area and first floor bedroom), 20 Woodland Avenue (kitchen, living area, bedrooms, bathrooms), 22 Woodland Avenue (swimming pool, backyard, entertaining areas, bedrooms, study, bathrooms).

  2. The ADG requires a visual privacy separation distance of 6m. The Seniors Living Guidelines require development to be designed to not directly overlook neighbours private open space or into the dwellings.

  3. Chapter B1, Control 6.6 Visual Privacy of the WDCP requires development to off-set windows to avoid overlooking and includes a number of mechanisms for windows positioned less than 12m that aren’t offset and privacy impacts from balconies.

  4. I accept the evidence of the urban design and planning experts that the amended DA has a rear setback of 11m, nearly double the ADG requirement which minimises both privacy and the bulk of the building as perceived from adjoining dwellings. Windows and balconies along the eastern side setback (towards 17 Tasman Parade) have mostly been fitted with 1.8m screens or high level windows. The western side setback has limited privacy impacts to the Amy Street property given the differences in topography and extent of the large garage/studio structure on that adjoining site. Regarding the more sensitive rear setback, in addition to the additional 5m rear setback, the balconies have been fitted with partial screens. I accept that this is a reasonable balance between the privacy of the Woodland Avenue properties (being views into their private open spaces, swimming pools, living areas, bedrooms and bathrooms), the privacy measures incorporated into the design of the development, and the amenity of the proposed dwellings (including outlook).

  5. Lastly, I accept that the proposed landscaping along the rear and retention of the existing rear boundary hedge supplements reasonable privacy between the developments. I accept that the proposed development has minimised its privacy impacts to adjoining development.

Lighting (external lights, hallway lights and car lights from basement ramp)

  1. A number of objections raised concerns about light spill from the proposed outdoor lighting to adjoining neighbours and impacts on local wildlife. For the reasons given below under ‘noise’, I accept that the communal open space should not be used after 9pm. The impacts of the light spill to wildlife after 9pm have not been adequately considered in the amended DA package and I accept Council’s evidence about the impacts of external lighting poles on adjoining neighbours, particularly as the space can be utilised by two developments. I therefore accept that the main external lighting poles should be switched off after 9pm (condition 140). The lighting assessment plans show the other lights as low, bollard lights, which I accept would not cause a nuisance. In addition, a condition of consent about nuisance lighting has been included, which I accept will mitigate unreasonable lighting impacts in a residential area (condition 96).

  2. Council submitted that louvres should be fitted to minimise the impacts to adjoining properties from the development’s lobby and hallway lights. I appreciate the Applicant’s evidence that the proposed louvres may diminish the recessive effect on these inset areas and are common in many developments. I find that in these site specific circumstances, the design implications of the louvres are minor when considered against the benefits gained for adjoining neighbours from the light spill that would be caused from what would be sporadic lighting of the lobby and stairwell when in use. Proposed condition 1A to provide louvres to the rear elevations along the lobby and stairwell areas is to be implemented.

Noise

  1. Many submissions raised concerns about a variety of noise related matters, being acoustic impacts from the seniors living dwellings, communal open space and driveway/roller door. The amended DA is accompanied by a Noise and Vibration Impact Assessment Report prepared by E-LAB Consulting dated 11 April 2024 (acoustic report) that considered construction and operation acoustic impacts.

  2. In relation to operational noise, the acoustic report has considered noise generated from car parking, traffic and the communal areas. I accept that the car parking noise will occur in the basement and not impact adjoining properties. I deal with traffic and communal areas further below.

  3. Regarding the dwellings themselves, there is nothing extraordinary about the design or density of the dwellings that would interfere with the acoustic amenity anticipated within a residential zone.

  4. What is novel is the proposed shared communal open space with the residents of 8-10 Tasman Parade. I accept that there would potentially be increased acoustic impacts on the basis of a higher demand of use generated by two developments utilising the space. Council seeks to include conditions of consent to restrict use of the communal open space to 9pm, not 10pm, on the basis of impacts of the communal open space area on adjoining residential neighbours from a space used by two developments. The applicant opposes the reduction of hours of operation as the acoustic report found that the communal open space is capable of complying with the relevant noise requirements.

  5. The acoustic report found that use of all areas of the communal open space, including the lawn area, community garden, BBQ area, ping pong and outdoor gym area and miniature lawn bowls green would be within the acceptable noise criteria. This was on the basis of no amplified music and speakers in the communal areas, fencing as shown on the architectural plans and restriction of hours.

  6. I accept Council’s submissions and evidence that the impact will be greater as two developments rely on this communal open space area. The proposed novel situation will have a higher demand on its use and therefore its impacts than if it was used by one development. Those impacts would be endured by surrounding residents for both noise and lighting. Based on the evidence currently in the proceedings, I accept that use of the communal open space should be limited to 9pm. I am also separately satisfied that the size of communal open space on site is adequate, should the other development not proceed.

  7. In relation to traffic and the location of the driveway adjoining 17 Tasman Parade, I find that there will be very little impact to the acoustic amenity of the streetscape and 17 Tasman Parade. I find that the proposed driveway is adequately setback from the boundary of 17 Tasman Parade by 6-7m which provides suitable separation from the noise of vehicles and the roller door. I have expanded the conditions of consent relating to mechanical plant to include the roller door so that any acoustic measures can be implemented (condition 150). Concerns were also raised about the pathway alongside 17 Tasman Parade. This area is a pathway and there is no evidence to suggest that residents walking along this pathway to the communal open space or to the street would be any noisier than any other reasonably anticipated residential noise along a side passage.

  8. Air conditioning units have been considered and conditions of consent included (condition 150) to ensure that appropriate acoustic treatment is provided to the units and positioning mechanical plant away from residential receivers.

  9. Other acoustic concerns raised do not rise to the level of needing an acoustic impact assessment, including the noise of the bins taken to and from the kerb.

  10. In relation to traffic, the increase of two cars per hour in peak times was considered acceptable by the acoustic report, which I accept given the minor increase in traffic and associated noise.

  11. The acoustic report considered the likely impacts from construction and found that the noise levels would exceed the recommended management level when certain tools would be used or when all tools are used at the same time. The acoustic report includes a number of mitigation measures including periods of respite, noise screening between sites, silences on diesel generators and measures to reduce reversing and warning alarms from equipment and vehicles. I accept that measures will somewhat mitigate the unavoidable acoustic impacts during demolition and construction. Conditions of consent enforcing these recommendations have been included at Annexure A (including conditions 23, 99 and 121).

  12. I am satisfied that the proposed development has adequately addressed acoustic noise for demolition, construction and ongoing use.

Vibration and structural risks

  1. It was submitted to the Court that Council’s civil engineers have considered a Geotechnical Report prepared by Alliance Geotechnical and Environmental Solutions, who raised no concerns. Relevant conditions of consent regarding excavation, protection adjoining structures, soil conditions, foundations and works to be undertaken pre-construction have been included in the conditions of consent (conditions 57 to 59, 88 and others). Dilapidation reports form part of the conditions of consent (condition 57). The acoustic report has considered potential vibration impacts from construction and found that the highest levels of vibration impacts would likely occur during excavation. The acoustic report makes recommendations about vibration monitoring to sensitive receivers and respite periods for an hour a day. I have included that detail within the conditions of consent (condition 23(c)). I am satisfied that construction vibrations, earthworks and basement excavation works have been adequately addressed by the amended DA and conditions of consent.

Trees / heritage and native birds and animals

  1. A number of submissions raised concerns about the heritage listed Fig Trees, existing trees / vegetation on site and on adjoining properties and native birds, mammals and reptiles.

  2. In relation to the Fig Trees, the proposed development is not in proximity to the heritage listed trees and will have no impact. The suite of Arboricultural reports including the Arboricultural Impact Assessment Report dated October 2022 and Root Mapping Investigation Report dated May 2024 prepared by Allied Tree Consultancy and Tree Root Mapping Report dated 1 May 2024 prepared by GBG Group (Aboricultural Reports).

  3. I accept the evidence in the Arborist Reports that the proposed works, particularly the basement, building and servicing, will not impact on the stability of any adjoining tree. I accept that the Moreton Bay Fig in the north western corner of the site can withstand the minor encroachment without impacts to its vitality and stability, subject to the tree protection measures set out in the conditions of consent. I accept that the extent of tree removal proposed by the development is reasonable on the basis of the Arboricultural Reports. I am satisfied that the remaining trees will be protected through construction works as set out in the conditions of consent at Annexure A.

  4. There is no evidence that native birds, animals or reptiles would be impacted on the trees to be removed or that there would be any detrimental impact on any habitat in the area. Some submissions requested prohibiting domestic animals from the development, such as cats and dogs. Observed at the site viewing, many surrounding properties enjoy the benefits of domestic animal companionship and I find that it would be inappropriate to restrict domestic companionship here.

  1. Stockpiling of soil under trees will not be permitted as tree protection fencing will be erected around the tree’s protection zones (condition 38).

  2. In relation to other potential heritage raised by objectors, there is no evidence to suggest any Indigenous or other heritage significance to the site. An unexpected archaeological finds condition has been included in Annexure A (condition 90). The proximity to the heritage trees has been considered as set out in the Class 1 application and meets the requirements of cl 5.10 of the WLEP.

Stormwater and sewer

  1. I have addressed stormwater management at [20] - [26].

  2. There is access to sewer provided on site. I recognise that adjoining neighbours have experienced severe and traumatic events from the sewer system in the past. However, detailed sewer matters are dealt with post consent and prior to construction certificate. Approval from Sydney Water is required at that stage to Sydney Water’s sewer system (conditions 49 and 50).

FSR

  1. I deal with the additional FSR available to the development through the Housing SEPP at [117].

  2. The proposed additional car spaces have been correctly excluded from FSR calculations. This is due to the Housing SEPP provision being a minimum control, not a maximum.

Parking and traffic/congestion

  1. The majority of submissions raised concerns about underestimated traffic impacts, excessive and inadequate car parking provided on site, and traffic impacts.

  2. The Housing SEPP requires a minimum of one car space per five dwellings. As the minimum is met, the application cannot be refused on the basis of car parking. There are no restrictions on the maximum amount of car parking. The traffic engineering experts agree that there are no impacts arising from the additional on-site car parking spaces and that peak hour traffic will increase by two cars per hour. The experts agree that the street can accommodate the increase. Residents have the opportunity to store their bicycles in their storage containers, parking spaces or units. There are no requirements for visitor parking, staff parking, tradespeople or the like.

  3. The community submissions and site viewing demonstrate that there is considerable traffic traversing this part of Thirroul. I accept these conditions are exacerbated by the road’s configuration to the Thirroul centre and frequent car, bicycle and walking traffic accessing the regional walkways (bicycles and walkers) as well as nearby beaches. Notwithstanding, I accept the agreed expert traffic evidence during the proceedings that the traffic generated by the proposed development can be accommodated by the existing road infrastructure.

  4. The amended DA is supported by a Traffic Impact Report prepared by Traffix dated 19 October 2022 (Traffic Report) that utilises RMS guidelines for Independent Living Units (as proposed in the amended DA). The Traffic Report finds that two additional vehicles per hour in the peak period are generated by the development from the previous use. The result is eight vehicle trips per hour in the peak morning and afternoon periods. Council does not press any issue and has not raised any contested evidence on the traffic assumptions, methodology or traffic congestion for the site, area or Lawrence Hargrave Drive. There are no issues raised by Council or emergency authorities about an inability to access the site for emergency services. I therefore accept and adopt the uncontested evidence that the increased traffic of an additional two vehicles per hour generated by the proposed development is acceptable and can be accommodated by the road network.

  5. In response to the objections raised, a further Traffic Letter prepared by Traffix dated 25 October 2024 (Construction Traffic Impact Statement) was tendered. The Construction Traffic Impact Statement briefly considers that both developments, when operating together, are able to be accommodated by the road network. Noting that each development is to be considered on its own merits, I accept that the minor cumulative increase of vehicles per hour in peak periods from both developments will not detrimentally impact the existing road network.

  6. Concerns were also raised about construction traffic, which I deal with below under ‘construction and ongoing impacts’.

Construction and ongoing impacts

  1. Many submissions raised concerns about construction traffic and risk management, based on one or both sites redeveloping concurrently in an area with high pedestrian/vehicular/bike traffic and local/narrow roads.

  2. The DA details that the construction impacts for an approximately 16-18 month period will be managed through the following mechanisms:

  • Construction Site Management and Staging Plan prepared by Icon Project Management dated August 2022 (Construction Management Plan).

  • Acoustic Report.

  • A Community Consultative Committee, to be formed for the duration of the construction period to manage issues that arise during construction with the community.

  • Condition 23 requires a further detailed information to be provided for the construction site management plan, approved by Council and kept on site at all times.

  1. I accept that the demolition and construction phase of the development will have some temporary impacts from dust and noise. The amended DA details how these impacts will be mitigated as much as reasonably achievable. The Construction Management Plan details dust, air and odour management measures including covered stockpiling, water sprays to suppress dust, covering and washing of trucks, daily monitoring of odour and dust, frequent monitoring during adverse weather conditions, and installation of air monitoring equipment on site. The Construction Management Plan details that when air quality or odours reach an unacceptable level (which will be monitored during works), works will stop until the levels are controlled. I have addressed construction ‘noise’ and ‘acoustic’ issues elsewhere.

  2. The Construction Traffic Impact Statement estimates that traffic generation is estimated at 50 vehicles per day (with 40 being heavy vehicles and 10 light vehicles), with 10 two-way truck movements in peak hour. The Construction Traffic Impact Statement states that construction traffic from workers is generally outside of the road network peak periods. It concludes that the impacts of construction traffic volumes to the road network will be negligible.

  3. The impacts from construction will impact on the amenity of residents, particularly from noise, dust, parking and traffic. These impacts will be temporary and I accept will be appropriately managed in accordance with the documents and measures listed at [87] and conditions of consent (conditions 54 to 123B). These conditions cover various demolition and construction management issues including traffic and truck management, pedestrian and bicycle safety, site management, sediment control, noise, dust, soil erosion, safety, tree protection, dilapidation reports of adjoining properties, public infrastructure protection, public liability insurances, hazardous materials, and more. I am required to presume that the conditions of consent will be complied with, which includes the Construction Management Plan. I accept that the proposed measures in the amended DA and the conditions of consent adequately address potential construction impacts. The preparation of a final Construction Management Plan, including traffic, is consistent with the WDCP.

  4. The Court benefited from hearing the traffic impacts experienced by local residents. In considering the Construction Traffic Impact Statement, I accept that the impacts can be absorbed by the road network. It is important in these circumstances that ongoing consultation with residents who have detailed knowledge of the local traffic conditions should be considered in the preparation of the detailed construction management plans. The applicant has proposed a Community Consultation Committee and this is to include representatives from the community, council, construction management team and developer to ensure that construction issues, including traffic, are further detailed with knowledge from local residents (condition 23(d) and (e)).

  5. Some submissions requested to limit construction to 8am to 4pm Monday to Friday, excluding public holidays and weekends. Condition 100 restricts hours of construction to 7.00am to 5.00pm, Monday to Saturday. No work is permitted on public holidays or Sundays. There are further restrictions for high impact periods (condition 99). These are generally standard construction hours, that will allow the overall construction period to finish in a shorter period. I accept these as reasonable hours.

Asbestos

  1. The amended DA is supported by a Remedial Action Plan (RAP) that details the remediation methods for managing identified bonded asbestos on site. Conditions of consent have also been included that require any asbestos waste to be ‘prepared, contained, transported and disposed of in accordance with SafeWork NSW and NSW Environment Protection Authority requirements’ (conditions 102 and 103). I am satisfied that the RAP and conditions of consent will ensure that any asbestos found will be appropriately managed.

Work Health and Safety (WHS)

  1. These are matters for the construction certificate and management of the construction site.

Garbage collection

  1. The amended DA is accompanied by a Site Waste Minimisation Management Plan prepared by MRA Consulting Group dated 10 April 2024 (Waste Management Plan). The Waste Management Plan details waste management during demolition (including reusing and recycling waste where possible and use of skip bins). The Waste Management Plan details ongoing procedures including storage within the basement and collection from the street. Whilst the development will generate more waste than a detached dwelling, the proposed waste collection method proposed is standard practice and consistent with the WDCP. The concerns bin washing is an operational matter for the development. I accept that waste management during both the construction and operation of the development is sufficiently dealt with and as stated in the Waste Management Plan in accordance with the WDCP.

Fire safety

  1. I do not disregard the detailed concerns expressed by some submissions for emergency access and fire safety risks for the site and in the area. However, the site is not located in a mapped bush fire prone area. The amended DA has incorporated a range of fire related equipment including fire tanks, fire boosters, water facilities and fire stairs. The conditions of consent require the development to undertake a fire safety certificate prior to an occupation certificate, which is a standard approach. Condition 142 also requires that a copy of the fire safety certificate must be provided to the NSW Fire Brigade, and a copy must be displayed on the building, along with a current fire safety schedule. The referenced Fire and Rescue Guidelines are not called up by an application planning policy or legislation. I am, therefore, satisfied that fire safety has been adequately addressed by the proposed development.

Use as residential and bedroom numbers

  1. In relation to the concerns raised about use of the dwellings for uses other than seniors living, development consent would need to be sought by Council to change the use. There are no restrictions on the numbers of bedrooms for this type of seniors living development or the number of dwellings that an owner can hold.

  2. In relation to concerns raised about resident’s use of stairs or emergency access during black outs or similar events, I accept that for the most part, residents of this facility can reasonably evacuate the low scale building via the fire stairs. Residents that require assistance with the fire stairs would be able to be evacuated by emergency services in a similar manner as would usually be the case for less mobile residents.

Property values

  1. The current use of the site is for seniors living and that there is no evidence of potential impacts on property values. There will be reasonably anticipated impacts during demolition and construction and those impacts are not a reason to refuse development consent.

Displaced residents, reduction in on-site employment and reduction in residential aged care facilities

  1. At the time of the hearing, the Court was advised that there are no current occupants on site. The proposed development is for independent seniors living units. There are no requirements to mandate a certain type of seniors / aged care facility or to consider employment on the site.

Solar panels, electric vehicle charging and energy efficiency

  1. The amended DA incorporates solar panels on the roof and is accompanied by BASIX certificates that meet the energy efficiency requirements. There are no requirements for electric vehicle or bike charging for this development.

Cumulative impacts

  1. The proposed development is supported by a range of technical reports that consider the potential impacts and demonstrate how these have been mitigated or how they are manageable during ongoing use. Each development application needs to be considered on its own merits, however, there is no evidence of any detrimental cumulative impacts from redevelopment in the area that would warrant refusal.

Inconsistent plans and documentation

  1. The amended DA, when read as a whole, is generally consistent in what it seeks development consent for. Minor inconsistencies are resolved through the conditions of consent, particularly condition 1 and its notes.

Inadequate community consultation

  1. Council’s bundle of documents (Ex 7) and amended Statement of Facts and Contentions (Ex 3) details that the development application was publicly notified twice.

Broader road and community infrastructure investment / upgrades

  1. This is a matter for Council and not relevant to this application.

History of the site

  1. The history of the site is not a relevant consideration.

Pool fencing

  1. No concerns have been raised by Council about the proposed pool fencing. Swimming pools are required to be registered with Council and must hold a current pool certificate. Any issues with the pool fencing will be dealt with at that time.

Profit

  1. Consideration of the potential sale value or profits from the development are not a relevant consideration.

Smoking on site

  1. This is not a relevant consideration in the circumstances of this development.

General

  1. There were other remarks made about the social housing status and the religion of the organisation. The information accompanying the application demonstrates that the organisation, Fresh Hope, is a registered social housing provider. Disparaging remarks made about any religious affiliation are irrelevant.

Jurisdiction

  1. Having found that there are no contentions or community concerns that would warrant refusal of the amended DA, the following sets out the Court’s jurisdiction to grant consent. To this end, I am grateful for the detailed evidence of the experts, the detailed SEE and detailed architectural set.

State Environmental Planning Policy (Housing) 2021

  1. Chapter 3 Part 5 of the Housing SEPP applies to the proposed development. The former version of SEPP Housing applies to the amended DA due to the savings provision at Sch 7A(8)(1)(a) and lodgement date of the DA. I am satisfied that the preconditions to grant consent are met and the merit matters have been addressed as follows.

  2. Section 84 contains development standards that must be met. On the basis of all the documentation in the Class 1 application, particularly the architectural plans and SEE, I am satisfied that:

  • Section 84(2)(a) and (b) do not apply as the Applicant is a social housing provider. Section 84(2)(c) does not apply as residential flat buildings are permitted in the zone.

  • The proposed servicing equipment has been integrated into the roof, is limited to 4.6% of the roof area and is less than the maximum permitted 11.5m in height (s 84(3)) (Ex F, SEE, p 42 and Ex A, Drawings DA202, 250-251)).

  • Section 85(1) requires compliance with the standards in Sch 4, with some exceptions stated in s 85(2). For the reasons that I have set out throughout this judgment and also adopting the reasons in the SEE and Accessibility Design Review Report, I am satisfied that the relevant provisions of Sch 4 are met.

  • Section 87(1) is engaged as residential flat buildings are permitted. The proposed development is on a site over 1,500m2, at 3,659.6m2 and relies on the additional FSR and building height allowances under 87(2)(b) and (c). The proposed development does not exceed the additional 15% FSR permitted by s 87(2)(b)(i), being independent living units, with a proposed FSR of 0.56:1. The proposed development complies with the additional 3.8m allowed under s 87(2)(c), with a proposed maximum height less than 9.5m as shown on the architectural plans.

  • Section 88 restricts who may occupy a seniors housing development. Consistent with s 88, the amended DA’s stated purpose is for seniors housing, and this is operationally enforced through a restriction under s 88E of the Conveyancing Act 1979 (condition 141).

  • Sections 93 and 94 requires independent living units to provide adequate access to facilities and services to and from the site once each weekday during daylight hours. The Applicant has satisfied the provisions by providing a minibus service that is located on ground floor of the site. The PoM for Site B sets out that the proposed minibus will take residents to services at least once a day. The PoM details that these services include a general medical practitioner, shops, banks, retail, commercial, community and recreation services and Thirroul Train Station. The architectural plans show the minibus parking on site, which meets the requirements of s 94 and subsections 93(1)(b), 93(3) and 93(4).

  • The SEE confirms that the site is connected to a reticulated water system and has adequate facilities for the removal/disposal of sewage (s 95), agreed by Council.

  • Sections 97 and 98 require consideration of the Seniors Living Policy 2004 and design principles set out in ss 99-105. I have previously set out my consideration of the evidence for some of these requirements under the responses to community objections. For the remaining design matters, I accept and adopt as my reasoning the evidence of the urban designers and town planners in the SEE, JER (Ex 6) and Design Report. I am satisfied that the proposed development meets the provisions of the Seniors Living Policy, design principles and ss 97 and 98.

  • Section 108 contains non-discretionary development standards that, if complied with, cannot be grounds for refusal. I am satisfied on the basis of the architectural plans, SEE and landscaping plans prepared by Context (landscaping plans) that the amended DA complies with the non-discretionary standards as:

• The proposed building is less than 9.5m (s 108(2)(a) and (b)).

• The amended DA provides more than 35m2 of landscaping per dwelling, proposing 67.12m2 per dwelling (s 108 (2)(d)).

•  The amended DA provides more than 15% deep soil, at 21.5%, with over 65% located to the rear (drawing L-002-03) (s 108 (2)(f)).

•  The solar access diagrams, drawings DA406-407, demonstrate that 70% of the dwellings’ living areas will receive at least two hours of solar access consistent with s 108(2)(g). I accept that the variation of 60% private open space areas receiving the minimum solar access is a natural consequence of the site’s orientation and design mitigation measures to protect privacy to adjoining dwellings.

• The SEE states and the architectural plans demonstrate that the proposed dwellings achieve the minimum private open space and balcony requirements consistent with s 108(2)(h) and (i).

•  The architectural plans demonstrate that the amended DA provides more than the minimum car parking spaces (4 spaces), proposing 20 (s 108(j)).

  1. The parties agree that Ch 4 of the Housing SEPP applies pursuant to s 144(2), (3) and (5). Sections 145 and 147(1)(c) apply in relation to consideration by the Wollongong Design Review Panel, which has been tendered. I have considered the advice and accept that the amended DA has considered and responded to the advice. The amended DA better responds to the surrounding lower density development through its modulation, recessive third storey and predominant two storey appearance.

  2. Section 147 of the Housing SEPP states that consent must not be granted unless the quality of design and design principles in Sch 9, and the ADG have been considered. I have previously addressed some of these matters in addressing the contentions and community objections. Further, I accept and adopt the reasoning set out in the Architectural Design Report and Design Verification Statement prepared by Curzon + Partners and the SEE that the provisions of s 147 have been met regarding the ADG, quality of design and design principles.

State Environmental Planning (Resilience and Hazards) 2021 (SEPP RH)

  1. Chapter 2 Coastal management applies to the subject site, mapped within the coastal environmental area only. I accept that the provisions of Ch 2 have been satisfied as demonstrated in the SEE, including that adequate water management has been demonstrated by the development through the suite of stormwater management plans and there will be no impact on coastal views or water ways.

  2. The subject site has been identified as being contaminated through the PSI and DSI reports. A RAP has been prepared and the recommendations to remediate the contaminated materials on site have been incorporated into conditions of consent. I am satisfied that implementation of the RAP will render the site suitable for the proposed use and satisfies s 4.6 of SEPP RH.

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

  1. Due to the lodgement date of the DA, the now repealed version of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies. The amended DA is accompanied by an amended BASIX Certificate that satisfies the provisions as well as s 27 of the Environmental Planning and Assessment Regulation 2021.

Wollongong Local Environmental Plan 2009 (WLEP)

  1. The proposed development is permissible in the zone and I have had regard to the objectives of the zone. I am satisfied that the provisions of the WLEP have been met based on the documentation accompanying the class 1 amended DA on the basis of the SEE. I note that some development standards are overridden by the Housing SEPP (being cll 4.3 height and 4.4 FSR).

Wollongong Development Control Plan 2009 (WDCP)

  1. I have considered the Applicant’s detailed amended DA, the SEE and written and oral evidence of the experts in the proceedings. On this basis, I accept that the WDCP has been met by the amended DA as set out in the SEE.

Conditions

  1. The parties have mostly agreed to the proposed conditions of consent. The primary conditions that remain in dispute are in relation to operational noise, light mitigation and a covenant for the bus.

  2. I have previously made findings about the communal open space and lighting in the public submissions section of this judgment. I accept the submissions and evidence of Council that the communal open space should be limited to 9pm and that louvres should be applied to the lobby and hallway areas to the rear of the development.

  3. In relation to the proposed minibus restrictive covenant, I firstly accept should be called a minibus for consistency with the DA documentation.

  4. The submissions were consistent across both appeals. I reproduce the following submissions and findings from 8-10 Tasman Parade. The finding is equally applicable to this development and I adopt the same finding and reasoning.

“Council submits that the imposition of a positive covenant for the bus service and plan of management is warranted in these circumstances. Registration on title ensures that any future owner will be aware of the obligations of the development. A condition of consent would unlikely be noticed at the time of purchasing or occupying the building. Council submits that the circumstances here are similar to Fortunate Investments Pty Ltd v North Sydney Council 114 LGERA 1; [2001] NSWLEC 70 (Fortunate Investments), where Pearlman J found that whilst positive covenants are generally not encouraged, the obligations of that particular plan of management and subdivision should be known to prospective owners.

The Christ Property Trust submits that the conditions of consent for the minibus and plan of management are sufficient and achieve the same enforceable outcome sought by Council. Registration of a covenant on title is unreasonable and not justified.

I accept and adopt the reasoning of Council that the mini bus and plan of management should be included as a covenant on title and for Council to be the party to release the covenant. I accept that the circumstances are similar to Fortunate Investments and the obligations of the minibus and plan of management are significant enough to warrant prospective purchasers to be made acutely aware. Should any changes be needed or wanted, the Applicant is able to apply to Council to modify the restriction at that time.”

  1. In relation to the other minor disagreements, I have accepted the following:

  1. Condition 4 - Council’s exact measurement adopted as it removes ambiguity about tree management and accessible pathways. Tree management and protection has been a critical issue throughout and accessible pathways are necessary for this type of development.

  2. Conditions 37 and 37A - Council’s wording is adopted. The final landscape plan should be approved by Council prior to the issue of a construction certificate as part of the site planning upfront. I also accept Council’s condition that the pathway along the western boundary should be accessible, noting the development type.

  3. Condition 60, Council’s wording is adopted. The drafting does not restrict the staging of works.

Conclusion

  1. I am satisfied after consideration of the matters under s 4.15 of the EPA Act that development consent should be granted to the amended DA.

Orders

  1. The Court orders that:

  1. The appeal is upheld.

  2. Development application number 2023/113, as amended, for the demolition of existing buildings, tree removal, earthworks, and the construction of a two to three storey seniors housing building comprising 20 independent living units over basement car parking at 19-23 Tasman Parade, Thirroul, is determined by the grant of development consent subject to the conditions at Annexure A.

  3. The exhibits are returned, except for Exhibits A, B, C and 3.

S Porter

Commissioner of the Court

Amended Annexure A (504 KB, pdf)

**********

Amendments

03 July 2025 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”),


a corrected version of the conditions of consent are uploaded as “Amended Annexure A” with condition 1 of Schedule B amended.

Decision last updated: 03 July 2025

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