Land and Environment Court New South Wales Medium Neutral Citation: Cosmar Enterprises Pty Ltd v Wollongong City Council [2021] NSWLEC 1637 Hearing dates: Conciliation conference on 25 August 2021 Date of orders: 22 October 2021 Decision date: 22 October 2021 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed. (2) The Applicant's written request under cl 4.6 of the Wollongong Local Environmental Plan 2009 (WLEP), prepared by ePlanning town planning services and dated 13 October 2021 seeking a variation of the development standard for minimum site width under cl 7.14 of the WLEP, is upheld. (3) The appeal is upheld. (4) Development consent is granted to development application DA 2020/823 for the demolition of existing structures, construction of multi-dwelling housing and subdivision strata title – three lots at 5 Ryan Street, Balgownie, subject to the conditions annexed hereto and marked "Annexure A". Catchwords: APPEAL – development application – multi-dwelling housing – breach of the site width development standard – conciliation conference – agreement reached – development consent granted Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000 cl 55, Sch 1 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy No 55—Remediation of Land cl 7 Wollongong Local Environmental Plan 2009 cll 4.6, 7.14 Environmental Planning and Assessment Regulation 2000 Texts Cited: Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Cosmar Enterprises Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: K Huxley (Solicitor) (Applicant) J Reilly (Solicitor) (Respondent) Solicitors: Holding Redlich (Applicant) Wollongong City Council (Respondent) File Number(s): 2021/123115 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings are an appeal against the refusal of a development application for the construction of multi-dwelling housing at 5 Ryan Street, Balgownie. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 August 2021. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on 30 September 2021, although an amended written request to vary the site width development standard is dated 13 October 2021 and was filed on 18 October 2021. Each of the amendments to the development application was lodged on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amended application was lodged on the NSW Planning Portal on 27 September 2021, and the amended written request to vary the site width development standard was lodged on the NSW Planning Portal on 18 October 2021. The development application, as amended, is for the construction of multi-dwelling housing containing 3 single-storey dwellings, each with at grade car parking, and strata subdivision. 4. The signed agreement filed on 30 September 2021 is supported by a joint note on jurisdictional issues that outlines the history of the appeal and sets out the relevant jurisdictional matters. The parties agree that a reference in the signed agreement to the date of the written request can be amended to reflect the date of the amended written request of 13 October 2021. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: 1. The development works are for the purposes of multi dwelling housing, which is a permissible use in the R2 Low Density Residential zone pursuant to the Wollongong Local Environmental Plan 2009 (WLEP). 2. I am satisfied that consent should be granted notwithstanding the contravention of the development standard for the minimum site width for multi dwelling housing. The development standard establishes a minimum site width of 18m, pursuant to cl 7.14 of the WLEP. The site width of 16.3m represents a shortfall of 1.7m, which is a percentage variation of 9%. In accordance with cl 4.6(4)(a) of the WLEP, I am satisfied that: 1. The written requested dated 13 October 2021, lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach of the minimum site width by demonstrating that the breach allows the site to be developed for multi dwelling housing in circumstances where its potential is limited by the multi dwelling housing on the adjacent sites either side. As such, adherence to the minimum site width would mean that development for a use consistent with the adjoining properties could not be achieved. This promotes the orderly and economic use and development of land, consistent with the objects of the EPA Act. 2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard expressed in the Wollongong Development Control Plan 2009 (WDCP), and achieves all of the relevant controls expressed therein, notwithstanding the non-compliance. Additionally, there is no impact caused by the breach of the standard. 3. Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard (as expressed in the development control plan). 1. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. As the site has a history of use for the purpose of a dwelling house, it is unlikely to be contaminated. 2. The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court Notes: 1. That Wollongong City Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application DA 2020/823. 2. That Wollongong City Council has uploaded the amended application on the NSW planning portal on 27 September 2021. 3. That the applicant has subsequently filed the amended application with the Court on 28 September 2021. 1. The Court orders that: 1. The Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed. 2. The Applicant's written request under cl 4.6 of the Wollongong Local Environmental Plan 2009 (WLEP), prepared by ePlanning town planning services and dated 13 October 2021 seeking a variation of the development standard for minimum site width under cl 7.14 of the WLEP, is upheld. 3. The appeal is upheld. 4. Development consent is granted to development application DA 2020/823 for the demolition of existing structures, construction of multi-dwelling housing and subdivision strata title – three lots at 5 Ryan Street, Balgownie, subject to the conditions annexed hereto and marked "Annexure A". ………………………. J Gray Commissioner of the Court Annexure A (225731, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2021