MH Property No 2 Pty Ltd v Wollongong City Council [2024] NSWLEC 1568

Land and Environment Court New South Wales

Medium Neutral Citation: MH Property No 2 Pty Ltd v Wollongong City Council [2024] NSWLEC 1568 Hearing dates: 18-20 December 2023, 4-7 March 2024 Date of orders: 16 September 2024 Decision date: 16 September 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) By consent, leave is granted to the applicant to rely on the note received on 19 March 2024 concerning the definition of "floodway areas". (2) The appeal is upheld. (3) The development application (DA-2022/1023) for the demolition of existing surfaces and infrastructure, tree removal, earthworks and the construction of 26 townhouse dwellings with basement parking, landscaping and stormwater management works, at Lot 101 DP 1279511, known as 15 Nicholson Road, Woonona, is determined by the grant of development consent subject to the conditions in Annexure A. (4) The exhibits are returned with the exception of exhibits A-H, P, R, U, 5 and 8, which are retained. Catchwords: APPEAL – development application – multi dwelling housing – impact on flood behaviour and flood function of the site Legislation Cited: Environmental Planning and Assessment Act 1979, ss 3.43, 4.15, 8.7 Land and Environment Court Act 1979, s 39 Roads Act 1993, s 138 Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38 Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021, cl 73 Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2023 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Wollongong Local Environmental Plan 2009, cll 4.3, 4.4, 5.21, 7.4, 7.5, 7.6, 7.14 Standard Instrument (Local Environmental Plans) Order 2006, cl 8 Cases Cited: Gales Holdings Pty Ltd v Tweed Shire Council (2003) 85 NSWLR 514 Gartner v Kidman (1962) 108 CLR 12 Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 Macdonald v Mosman Municipal Council (1999) 105 LGERA 49 Micro Nest No 1 Pty Ltd on behalf of Micro Nest Ashfield Trust v Inner West Council [2019] NSWLEC 1320 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 TL & TL Tradings Pty Ltd v City of Parramatta Council [2019] NSWLEC 160 Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited (2008) 160 LGERA 20; [2008] NSWLEC 185 Texts Cited: Apartment Design Guide Australian Rainfall and Runoff Methodology 1987 Collins Creek Flood Study (Catchment Simulation Solutions, 2019) Floodplain Development Manual (ISBN 0 7347 5476 0) (NSW Government, April 2005) Wollongong Development Control Plan 2009 Category: Principal judgment Parties: MH Property No 2 Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: T Robertson SC (Applicant) R White (Respondent)