Warrawong Greene Developments Pty Ltd v Wollongong City Council

[2024] NSWLEC 1675

Land and Environment Court

New South Wales

Medium Neutral Citation:

Warrawong Greene Developments Pty Ltd v Wollongong City Council [2024] NSWLEC 1675

Hearing dates:

Conciliation conference on 10 and 11 October 2024: submissions 16 and 21 October 2024

Date of orders:

24 October 2024

Decision date:

24 October 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Council’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA-2023/150 for the demolition of existing structures, and construction of a seven storey mixed use shop top housing development comprising 57 residential apartments (6 x 1 bedroom units, 24 x 2 bedroom units and 27 x 3 bedroom units) above ground floor commercial tenancies and 2 levels of basement comprising storage and a total of 99 car parking spaces (62 residential spaces, 25 commercial spaces, 12 visitor spaces) plus spaces for motorcycles and bicycles on land legally described as Lots 1 and 2 in DP 35455, and Lot 1 in DP 502638, known as 17-23 Greene Street, Warrawong, subject to conditions of consent in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION: Mixed use shop top housing development in E2 Commercial Centre zone – conciliation conference – agreement between parties - orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 29

State Environmental Planning Policy (Housing) 2021, ss 147, 148, Sch 9

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Wollongong Local Environmental Plan 2009, cll 4.3, 4.4, 4.6, 5.21, 7.1, 7.5, 7.6, 7.13, 7.14

Texts Cited:

Apartment Design Guide 2015

Category:

Principal judgment

Parties:

Warrawong Greene Development Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
J Reid (Respondent)

Solicitors:
Swaab (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2023/322315

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Shop top housing development is proposed above ground floor commercial uses and basement carparking on three lots of land located south of the City of Wollongong.

2. To this end, Development application DA-2023/150 was lodged with the City of Wollongong by the Applicant in these proceedings, on 23 May 2023 seeking consent for demolition of existing structures, and construction of a seven storey mixed use shop top housing development at a site known as 17-23 Greene Street, Warrawong (the DA).

3. As the DA was not otherwise determined, the Applicant filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 11 October 2023.

4. The matter was initially listed before me for hearing on 10 October 2024. However, at the commencement of proceedings, the parties advised the Court the parties had reached agreement on the matters in contention.

5. The matter was reallocated to me under s 34 of the Land and Environment Court Act 1979 (LEC Act), and the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the LEC Act, at which I presided on 10 and 11 October 2024.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

7. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

10. The site is wholly within an area identified by the Wollongong Local Environmental Plan 2009 (WLEP) as E2 Commercial Centre in which shop top housing development and commercial premises are permitted with consent, where consistent with the following objectives for development in the E2 zone:

•  To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.

•  To encourage investment in commercial development that generates employment opportunities and economic growth.

•  To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.

•  To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

•  To encourage development that is consistent with the centre’s position in the centres hierarchy.

•  To strengthen the role of the Wollongong city centre as the business, retail and cultural centre of the Illawarra region.

The height is exceeded

11. The proposed development exceeds the height standard of 24m that applies to site, according to the relevant map at cl 4.3(2) of the WLEP, and the Applicant relies on a written request authored by PPD Planning Consultants dated 11 October 2024, prepared in accordance with cl 4.6 of the WLEP.

12. The written request states the exceedance is measured at 3.1m above the height standard, being those elements of the proposal including lift and stairwell overrun, shade structures, screening devices and landscape planters.

13. I am satisfied the written request adequately addresses those matters to be demonstrated at cl 4.6(3) of the WLEP for the reasons set out in the written request, summarised as follows:

1. The objectives of the height standards at cl 4.3 are achieved, notwithstanding the non-compliance with the standard because the habitable floor space is within the height standard, with communal open space being the area of exceedance, and where an area available for floor space is instead given over to a through-site link desired by the Warrawong Town Centre Masterplan, generating two distinct towers with a high quality urban form.

2. The area of exceedance is limited to the communal open space at the rooftop, the locating of which permits setbacks to match a recently approved library development adjacent to the site and landscape setting agreed by the experts to be preferred. Additionally, the height of the development is, in part, determined by the degree of freeboard required above agreed flood levels. The resulting exceedance does not impose adverse impacts on surrounding properties. Taken together, I accept these are sufficient environmental planning grounds that justify the contravening of the height standard.

14. I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the height standard at cl 4.3 of the WLEP, and with the objectives of the E2 zone for the reasons set out in the written request.

15. I note here that the Council is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the WLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development in the E2 Zone.

16. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the WLEP.

17. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.

18. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the WLEP and I find no grounds on which the Court should not uphold the written request.

Additional jurisdictional issues - Wollongong Local Environmental Plan

19. The proposal complies with the floor space ratio of 2.5:1, at cl 4.4 of the WLEP.

20. The site is located within the Kully Bay Catchment, and is unaffected by the 1% AEP flood. However, in the event of a Probable Maximum Flood (PMF), the site is affected by flood at a level of less than 300mm. The proposal provides an area of freeboard at ground floor that is agreed by the experts to be acceptable, and a number of flood protection elements such as flood gates to prevent the ingress of floodwater into ground floor and basement areas of the building. Accordingly, I am satisfied of those matters about which the Court must be satisfied at cl 5.21(2) of the WLEP.

21. On the basis of a written offer from Endeavour Energy to provide energy, and the written consent of the owner of adjoining land for disposal of stormwater across neighbouring land dated 15 July 2024, and consent for the necessary arrangements in respect of an easement for the same, I am satisfied that adequate arrangements have been made for public utility infrastructure in accordance with cl 7.1 of the WLEP.

22. The site is located within an area identified by the relevant map at cl 7.5(2) of the WLEP as Class 5 Acid Sulfate Soil (ASS), and is within 500m of Class 2 and 3 ASS. The Report on Geotechnical Investigation and ASS prepared by Terra Insight dated 13 March 2022 concludes, on the basis of field screening, that acidity on site is low, and far field affects due to dewatering are unlikely. Nevertheless an ASS Management Plan, prepared by Envirotech dated 21 April 2020 accompanies the development application.

23. Assisted by the Stormwater Plans prepared by DT Civil dated 25 July 2023, the amended Landscape Plans prepared by Conzept Landscape Architects dated 9 October 2024, and the amended architectural plans prepared by PTI Architecture that depicts the extent of basement excavation proposed, I have considered those matters at cl 7.6(3) of the WLEP in respect of earthworks, and conclude those matters to be satisfactorily addressed.

24. The proposal complies with the requirements at cl 7.13 of the WLEP by ensuring that no residential accommodation is contained on the ground floor or the proposal, and that at least one entrance and one other door or window is proposed facing Greene Street.

25. The site frontage to Green Street measures 70.25m, which exceeds the minimum site width of 24m at cl 7.14 of the WLEP.

The design of residential apartment development

26. As the proposal is for shop top housing development, s 147 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP), requires an evaluation in accordance with the design principles for residential apartment development set out in Sch 9 of the Housing SEPP.

27. I am assisted in so doing by a statement finally prepared in the correct form and dated 21 October 2024, in accordance with s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) that attests Mr Peter Israel (Arch Reg No. 5064) directed the design of the proposal, and sets out the means by which the design principles at Sch 9 of the Housing SEPP have been applied in the proposed development, and how the objectives in Pts 3 and 4 of the Apartment Design Guide are addressed.

28. I have also considered those non-discretionary standards at s 148 of the Housing SEPP and accept that as those standards are complied with, no more onerous standards may be imposed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

29. As development is proposed in close proximity to electrical powerlines, written notice was provided to the electricity supply authority, Endeavour Energy, in accordance with s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP).

30. Endeavour Energy provided a response to the development application dated 20 January 2023, in the form of a connection offer.

State Environmental Planning Policy (Resilience and Hazards) 2021

31. The site is located within an area identified as the Coastal Environment Area, within Ch 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

32. Having considered those matters at s 2.10(1) of the Resilience and Hazards SEPP, I am satisfied that adequate provision is made for excavation and earthworks, and the collection, on site detention and disposal of stormwater, such that the development can said to be designed, sited and be managed to avoid adverse impacts on the environment.

33. Section 4.6(2) of the Resilience and Hazards SEPP requires the consent authority, or the Court on appeal, to consider whether the land on which development is proposed, is contaminated.

34. On the basis of the Amended Preliminary Site Investigation with Soil Sampling, prepared by Terra Insight, dated 10 February 2023, which concludes the site is suitable for the proposed development without remedial works, I am also satisfied that the site will be made suitable for the purpose for which development is proposed before the land is used for that purpose.

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

35. The application is accompanied by BASIX certificate (Certificate No. 1768894M dated 15 October 2024), prepared by Elias Aboutannous in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022.

Conclusion

36. 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.

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

38. The Court notes that:

1. The Council has approved, pursuant to s 38 of the EPA Regulation, the Applicant amending the Development Application to rely on the plans and other documents set out in Annexure A.

2. The Applicant filed with the Court those documents at Annexure A on 11 October 2024, 16 October 2024, and 21 October 2024.

Orders

39. The Court orders that:

1. The Applicant is to pay the Council’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA-2023/150 for the demolition of existing structures, and construction of a seven storey mixed use shop top housing development comprising 57 residential apartments (6 x 1 bedroom units, 24 x 2 bedroom units and 27 x 3 bedroom units) above ground floor commercial tenancies and 2 levels of basement comprising storage and a total of 99 car parking spaces (62 residential spaces, 25 commercial spaces, 12 visitor spaces) plus spaces for motorcycles and bicycles on land legally described as Lots 1 and 2 in DP 35455, and Lot 1 in DP 502638, known as 17-23 Greene Street, Warrawong, subject to conditions of consent in Annexure B.

T Horton

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 24 October 2024