Fikkers v Wollongong City Council [2021] NSWLEC 1044

Land and Environment Court New South Wales

Medium Neutral Citation: Fikkers v Wollongong City Council [2021] NSWLEC 1044 Hearing dates: Conciliation conference on 2 and 9 December 2020 Date of orders: 25 January 2021 Decision date: 25 January 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders – See [14] Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Wollongong Local Environmental Plan 2009 Texts Cited: Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020) Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Matthew Dominic Fikkers (First Applicant) Rachel Fikkers (Second Applicant) Wollongong City Council (Respondent) Representation: Counsel: O Yeatman (Solicitor) (Applicants) D Loether (Solicitor) (Respondent)

Solicitors: RMB Lawyers (Applicants) Bartier Perry Lawyers (Respondent) File Number(s): 2020/23457 Publication restriction: No

Judgment 1. COMMISSIONER: Matthew and Rachel Fikkers (the Applicants) have appealed the refusal by Wollongong City Council (the Respondent) of their development application (DA 2018/1412) which seeks consent for alterations and additions to retaining walls and continued use of unauthorised structures in the rear yard (the Proposed Works) of 163 Mount Kiera Road, Mount Keira (the Subject Site). 2. The Subject Site is zoned R2 Low Density Residential under the provisions of Wollongong Local Environmental Plan 2009 (WLEP), and the Proposed Works are permissible within that land use zone. The development application for the Proposed Works is made with owners' consent. 3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 2 and 9 December 2020, and I presided over the conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy), and a site view was undertaken at the commencement of the conciliation conference. 6. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 7. 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. 8. The Parties have advised that there are jurisdictional matters that must be satisfied in order for the Court to have power to grant consent to the Proposed Works, and that these requirements have been satisfied as follows: 1. in relation to the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), the Parties have confirmed that: 1. pursuant to clause 7(1) of SEPP55, the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. 2. the Subject Site has always been used for residential purposes; 3. because fill had been previously imported on to the Subject Site, a Preliminary Site Investigation was undertaken by Terra Insight on 26 October 2018 and this document accompanied the Applicant's development application; 4. the Preliminary Site Investigation concluded that although small fragments of asbestos were present in the fill on the Subject Site, these materials were non-fibrous in nature and so unlikely to generate asbestos fibres. Further, no samples of asbestos detected above laboratory limits. 5. the Respondent, having considered whether the land is contaminated, is satisfied, and I accept, that the Subject Site is suitable or will be made suitable for its proposed use; 6. the Applicant's Preliminary Site Investigation Report provides recommendations for the management of any contaminated materials that may be found on the Subject Site and these have been incorporated into the conditions of consent that form Annexure "A" to this judgment. 1. in relation to the provisions of WLEP, the Parties have confirmed, and I accept, that the Applicant's development application (as amended) satisfies all applicable provisions of WLEP, and where required, this satisfaction is supported through the imposition of conditions of consent within Annexure "A" to this judgment. In particular, the Parties have confirmed that the matters identified in cl 7.6 of WLEP concerning earthworks have been considered in the assessment of the Proposed Works. 2. in relation to the provisions of Wollongong Development Control Plan 2009 (WDCP), the Parties have confirmed, and I accept, that the Proposed Works comply with all relevant controls within WDCP, or where they do not, the Proposed Works represent a reasonable alternative that achieves the objectives of those controls, particularly in relation to the provisions of: 1. Chapter B1 concerning residential development, which contains residential development objectives and controls of relevance to the Proposed Works; and 2. Chapter E14 concerning stormwater management, which contains objectives and controls relating to stormwater management of relevance to the Proposed Works. 1. the Respondent confirmed that: 1. the Applicant's development application was notified between 16 November 2018 to 3 December 2018 and received three submissions in response to that notification; and 2. matters by the resident objectors have been satisfactorily addressed either through the Applicant's development application, as amended, or through the imposition of the conditions of consent that form Annexure "A" to this judgment. 1. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act. 2. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 3. I am further satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 4. 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. 5. 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 Court orders that: 1. The Applicant is granted leave to amend Development Application Number 2018/1412 and to rely on the following amended plans and documents prepared by SF Plan & Design and dated 17.12.20: 1. Sheet 05/09 (Elevations showing demolished areas and remaining structures); 2. Sheet 06/09 (Site Analysis Plan – Proposed New Building Works); 3. Sheet 07/09 (Proposed Elevations - new work when completed); 4. Sheet 08/09 (Proposed Sections); 5. Sheet 09/09 (Site Management Plan). 1. The Appeal is upheld. 2. Development Application Number 2018/1412 for "Residential- alterations and additions to retaining walls and continued use of unauthorised structures in the rear of the yard" on Lot 8 in Deposited Plan 31238 and Lot 5 in Deposited Plan 260969 otherwise known as 163 Mount Keira Road, Mount Keira, as amended, is approved subject to the conditions set out at Annexure "A". 3. The Applicants are to comply with Conditions 5, 30, 31, 32, 33, 34, 35 and 36 of Annexure "A" within 24 months of the date of these Orders.