The House of Planning Pty Ltd v Wollongong City Council

[2025] NSWLEC 1099

Land and Environment Court

New South Wales

Medium Neutral Citation:

The House of Planning Pty Ltd v Wollongong City Council [2025] NSWLEC 1099

Hearing dates:

Conciliation Conference held 4 and 5 February 2025

Date of orders:

21 February 2025

Decision date:

21 February 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA-2023/976 for the demolition of existing dwelling house and associated structures including garage, decking, stairs and hardstand area and construction of a 3 storey dwelling house, retaining walls, earthworks and landscaping at Lot 69 in DP9233, known as 63 Lawrence Hargrave Drive, Austinmer, subject to conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPEAL – residential development - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, Sch 1

Land and Environment Court Act 1979, ss 34, 34AA

Coastal Management Act 2016, ss 4, 5

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, 4, ss 2.10, 2.11, 2.12, 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

Wollongong Local Environmental Plan 2009, cll 2.7, 4.3, 4.4, 7.1, 7.5, 7.6

Category:

Principal judgment

Parties:

The House of Planning Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
M Staunton (Respondent)

Solicitors:
Heard McEwan Legal (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2024/282462

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-2023/976 seeking consent for the demolition of existing dwelling, garage, decking, stairs and hardstand area and construction of a three storey dwelling house (Proposed Development) at 63 Lawrence Hargrave Drive, Austinmer legally described as Lot 69 in DP 9233 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 and 5 February 2025. I presided over the conciliation conference.

3. The Parties agree that all contentions raised in the Amended Statement of Facts and Contentions filed by the Respondent on 18 November 2024 have been resolved by the:

1. amended plans and documents referred to at [29]; and

2. agreed conditions of consent at Annexure A.

4. 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.

5. 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.

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

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be Chapter 2 (Coastal Management) and Chapter 4 (Remediation of Land) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and the Wollongong Local Environmental Plan 2009 (WLEP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement.

8. The Council publicly notified the Development Application between 18 December 2023 and 23 January 2024 in accordance with the Council’s Community Participation Plan and the requirements of cl 7 of Pt 1 of Sch 1 to the EPA Act. During the public notification period, the Council received 2 submissions by way of support.

9. The amended plans for which leave was granted on 6 November 2024 were placed on public exhibition between 21 November 2024 and 5 December 2024. No submissions were received.

10. The Site is mapped as being within both the Coastal Environment Area and the Coastal Use Area as defined in Ch 2 of the Resilience and Hazards SEPP and by reason of s 5 of the Coastal Management Act 2016, the Site is within the coastal zone.

11. Section 2.10(1) of the Resilience and Hazards SEPP sets out matters which a consent authority must consider and at s 2.10(2) sets out matters of which the consent authority must be satisfied prior to granting development consent to development on land within the Coastal Environment Area.

12. Those matters were considered and assessed by Council as set out in the Planner’s Assessment Report which was provided to the Court at Tab 7 of the Respondent Council’s Bundle of documents filed 28 January 2025, at pp 160-162. The Parties agree that the identified adverse impact on existing public open space (s 2.10(1)(e), Resilience and Hazards SEPP) in terms of view impacts from Tuckerman Park and from the beach to the Illawarra Escarpment, has been adequately addressed through the provision of amended plans which reduce the height and extent of the roof elements which impact on that view.

13. I find that consent can be granted to the Proposed Development because I am satisfied that as the impact on the existing public open space, namely the existing view corridor of the rocky outcrop on a portion of the Illawarra Escarpment from some limited locations within Tuckerman Park and from the adjoining beach cannot be reasonably avoided, the Proposed Development is designed, sited and will be managed to minimise that impact because the view corridor described above is substantially retained.

14. Section 2.11(1)(a) and (c) of the Resilience and Hazards SEPP sets out matters which a consent authority must consider and at s 2.11(1)(b) the matters of which the consent authority must be satisfied prior to granting development consent to development on land within the Coastal Use Area.

15. Those matters have been addressed in the Development Application, Statement of Environmental Effects Class 1 Application, pp 48; Coastal Engineering Advice, Class 1 Application, pp 132-133. The Parties agree that those matters have been satisfied in the present case. For the same reasons I am also satisfied.

16. Section 2.12 of the Resilience and Hazards SEPP provides that development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the Proposed Development is not likely to cause increased risk of coastal hazards on that land or other land. The Parties agree that the Proposed Development is not likely to do so. In that regard, I note that coastal hazards is defined in s 4 of the Coastal Management Act 2016 to include, relevantly, “coastal cliff or slope instability” and to address this hazard, the Applicant relies on the Geotechnical Assessment Report prepared by Terra Insight dated 3 September 2024 (Geotechnical Assessment Report). I am satisfied that the Proposed Development is not likely to cause increased risk of coastal hazards on that land or other land for the reasons set out in the Geotechnical Assessment Report.

17. Section 4.6 of the Resilience and Hazards SEPP provides that the consent authority must consider if the land is contaminated and, if the land is contaminated, it is satisfied that the land is suitable in its contaminated state or will be made suitable with appropriate remediation.

18. The Site is currently used for domestic residential purposes. The Development Application does not propose a change in use, and there are no known previous uses that would lead to the Site being contaminated or unsuitable for the proposed development: Tab 7, Council’s Bundle, folio 162. Accordingly, I am satisfied that it is not necessary to consider a report specifying the findings of a preliminary investigation of the Site carried out in accordance with the contaminated land planning guidelines: s 4.6(2), Resilience and Hazards SEPP.

19. The Development Application is accompanied by a BASIX certificate in accordance with s 27 of the Environmental Planning and Assessment Regulation 2021 and filed with the Class 1 Application. The BASIX certificate for the Proposed Development accords with the requirements of State Environmental Planning Policy (Sustainable Buildings) 2022.

20. The Proposed Development seeks consent for demolition of existing structures pursuant to cl 2.7 of the WLEP.

21. The height of the proposed development is below the 9m maximum height of building development standard applicable to the Site pursuant to cl 4.3 of the WLEP.

22. The floor space ratio (FSR) of the Proposed Development is agreed to be 0.495:1 which complies with the maximum FSR of 0.5:1 for the Site pursuant to cl 4.4 of the WLEP. The parties note that the GFA and FSR calculations on the amended plans have been superseded by the calculations undertaken by the Respondent’s expert town planner which has been provided to the Court.

23. The Proposed Development is for a replacement dwelling on the Site and I am satisfied that public utility infrastructure (which includes (i) the supply of water, (ii) the supply of electricity, and (iii) the disposal and management of sewage) is available to the Site: cl 7.1 WLEP.

24. The Site is shown on the Acid Sulfate Soils Map as being Class 5 land. Clause 7.5(2) of WLEP provides that development consent is required to carry out on Class 5 land, works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum and by which the water table on that land is likely to be lowered below 1m Australian Height Datum, and for which works an Acid Sulfate Soils Management Plan needs to have been prepared and provided to the consent authority. However, the Geotechnical Assessment Report prepared by Terra Insight dated 3 September 2024 provides at Section 3.5 that the nearest ‘adjacent’ Class 1, 2, 3 or 4 land is more than 1 km from the Site. Accordingly, an Acid Sulfate Soils Management Plan is not required.

25. Development consent is sought for earthworks pursuant to cl 7.6 of the WLEP. The Parties agree that these matters set out in cl. 7.6(3) of the WLEP have been addressed satisfactorily as set out in the letter from the Terra Insight dated 2 February 2025.

26. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties.

27. 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:

1. The Respondent has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant’s application for an amendment to Development Application No. DA/2023/976 to rely on the following plans and documents:

Architectural Plans prepared by House of Planning dated 5 February 2025
Plan No.	Description		Date
A.1	Area Calculations, Location Map and Drawing List		05/02/2025
A.2	Site Analysis Plan, Site Plan, Site Management Plan		05/02/2025
A.3	Ground floor site plan		05/02/2025
A.4	Ground floor plan		05/02/2025
A.5	Lower ground floor plan		05/02/2025
A.6	1st floor plan		05/02/2025
A.7	Roof plan		05/02/2025
A.8	Lower ground floor FSR computation		05/02/2025
A.9	Ground floor FSR computation		05/02/2025
A.10	1st floor FSR computation		05/02/2025
A.11	West & East elevation		05/02/2025
A.12	North & South elevation		05/02/2025
A.13	Section through “A” & “B”		05/02/2025
A.14	Section through “C” & “D”		05/02/2025
A.15	LGF section detail		05/02/2025
A.16	Driveway section, door & window schedule		05/02/2025
A.17	Site coverage plan		05/02/2025
A.18	Demolition plan		05/02/2025
A.19	Basix requirements		05/02/2025
A.20	Winter Shadow diagram-proposed		05/02/2025
A.21	Summer Shadow diagram-proposed		05/02/2025
A.22	Winter Shadow diagram-existing		05/02/2025
A.23	Summer Shadow diagram-existing		05/02/2025
A.24	Winter hourly Shadow diagram-proposed		05/02/2025
A.25	Summer hourly Shadow diagram-proposed		05/02/2025
A.26	Winter hourly Shadow diagram-existing		05/02/2025
A.27	Summer hourly Shadow diagram-existing		05/02/2025
A.28	Landscape plan		05/02/2025
A.29	Colours & finishes schedule		05/02/2025
A.30	West fence detailed		05/02/2025
Stormwater Engineering Plans prepared by AE Consulting Engineers dated 3 February 2025
Plan No.	Revision No.	Plan Title
SW10	D	Stormwater Drainage Plan Lower Ground Floor Level
SW20	D	Stormwater Drainage Plan Ground Floor Level
SW30	D	Stormwater Drainage Plan First Floor Level
SW40	D	Stormwater Drainage Plan Roof Level
SW50	D	Erosion and Sediment Control Details
SW60	D	Stormwater Sections and Details Sheet 1
SW70	D	Stormwater Sections and Details Sheet 2
SW80	D	Stormwater Sections and Details Sheet 3
Structural Engineering Plans prepared by AE Consulting Engineers dated 3 February 2025
Plan No.	Revision No.	Plan Title
S000	E	General notes
S100	E	Ground Floor XXX Plan
S110	E	Ground Floor Sections and Details.
S120	E	Ground Floor Sections and Details
S130	E	Ground Floor Sections and Details
S140	E	Ground Floor Sections and Details
S150	E	Ground Floor Sections and Details
S160	E	Concrete Retaining Wall Details
Report prepared by Terra Insight dated 2 February 2025 (Ref: TERRA23-314 Let1.Rev1).
Statement of Environmental Effects, updated 18 January 2025.

Orders:

28. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-2023/976 for the demolition of existing dwelling house and associated structures including garage, decking, stairs and hardstand area and construction of a 3 storey dwelling house, retaining walls, earthworks and landscaping at Lot 69 in DP9233, known as 63 Lawrence Hargrave Drive, Austinmer, subject to conditions set out in Annexure “A”.

E Espinosa

Commissioner of the Court

Annexure A

**********

Decision last updated: 21 February 2025