Zaki Property Pty Ltd v Wollongong City Council [2022] NSWLEC 1526

Land and Environment Court New South Wales

Medium Neutral Citation: Zaki Property Pty Ltd v Wollongong City Council [2022] NSWLEC 1526 Hearing dates: 5, 6 April and 1 June 2022, final submissions 4 July 2022 Date of orders: 27 September 2022 Decision date: 27 September 2022 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The appeal is dismissed. (2) Development Application No.2021/286 for a childcare centre at 42 and 44-46 Hopetoun Street Woonona is determined by way of refusal. (3) The exhibits are returned except for Exhibits 1, A-G, which are retained. Catchwords: DEVELOPMENT APPLICATION – centre-based childcare centre – flood prone land – childcare centres as an "unsuitable land use" in the site circumstances – appropriateness of adopted "Manning's coefficient" or "n value" (roughness factor) in flood modelling – whether the proposed development would result in an unacceptable increase in flooding on-site or off-site – adequacy of proposed Flood Emergency Response Plan as responses to flood risk – appropriateness of "shelter in place" during flood events – applicability of clause 5.21 of standard instrument Legislation Cited: Environmental Planning and Assessment Act 1979, ss 3.20, 4.15, 8.7 Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021, cl 5.21 Standard Instrument (Local Environmental Plans) Amendment Order 2007 Standard Instrument (Local Environmental Plans) Order 2006, cll 8, 9, 10 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cl 23 State Environmental Planning Policy (Transport and Infrastructure) 2021, Sch 9 State Environmental Planning Policy Amendment (Flood Planning) 2021, cl 7.3 Wollongong Local Environmental Plan 2009, cll 4.3, 4.4, 5.21, 7.21, 7.3 Cases Cited: Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 Northern Beaches Council v Tolucy Pty Ltd [2020] NSWLEC 76 OM Vinayak Pty Ltd v Central Coast Council [2022] NSWLEC 1269 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315 Texts Cited: NSW Planning and Environment, Child Care Planning Guideline (2017) Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022) Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Zaki Property Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: M Staunton (Applicant) T To (Respondent)