Legal Business Centre Pty Ltd v Wollongong City Council [2005] NSWLEC 595

Land and Environment Court of New South Wales

CITATION : Legal Business Centre Pty Ltd v Wollongong City Council [2005] NSWLEC 595

APPLICANT Legal Business Centre Pty Ltd PARTIES : RESPONDENT Wollongong City Council

FILE NUMBER(S) : 10183 of 2005

CORAM: Tuor C

Development Application :- Mixed use residential/commercial building KEY ISSUES: SEPP 1 objection to floor space ratio control

Environmental Planning and Assessment Act 1979 Wollongong Local Environmental Plan 1990 LEGISLATION CITED: State Environmental Planning Policy No. 1 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development Illawarra Regional Environmental Plan No. 1

DATES OF HEARING: 21/09/2005 EX TEMPORE JUDGMENT DATE : 09/23/2005

APPLICANT Mr P Moggach, solicitor SOLICITORS Kearns & Garside LEGAL REPRESENTATIVES: RESPONDENT Mr M Mantei, solicitor SOLICITORS Kells the Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

23 September 2005

10183 of 2005 Legal Business Centre Pty Ltd v Wollongong City Council

PRELIMINARY JUDGMENT

1 This is an appeal against a refusal by Wollongong City Council (council) of a development application (1803/03) under the Environmental Planning and Assessment Act (the Act) for a mixed use commercial/residential development at 385A Crown Street, Wollongong (the site). The issues between the parties have been resolved and they are seeking consent orders from the Court. 2 I visited the site and heard from a number of residents who raised objections to the proposal including that it is too high, the site is too narrow, the lack of parking and traffic impacts, overlooking and overshadowing. The site and its context 3 A detailed description of the site and its context, history of the development and details of the relevant planning controls is contained in the assessment report of Mr R Zwicker, Assistant Manager Development and Compliance, for the council. 4 Briefly, the site is 569.1 sq m with a frontage of 12.52 m to Crown Street and a depth of 37.15 m to Osborne Street with a fall of about 5.5 m from Crown Street. It is developed with a single storey commercial building which adjoins a two storey commercial building to the east on Crown Street. Other development along Crown Street to the east is predominantly one to two storeys. Development to the south is mainly single storey detached dwellings. To the west, on the opposite corner of Osborne Street and Crown Street, is a three storey residential flat building above ground floor parking. Diagonally opposite the site is the nine-storey Wollongong Hospital. Background 5 The application was lodged on 21 October 2003 and proposed a seven storey commercial/residential building with a floor space ratio (FSR) of 2.2:1. The application was notified and a number of objections were received. The application was recommended for refusal by council staff and council refused the application on 21 May 2004. 6 A s 82A Review for an amended scheme was lodged. The amended scheme was a part six/ part seven storey commercial/residential building with a FSR of 2.06:1. The s82 application was recommended for refusal by council staff and was refused by council on 11 October 2004. Neither of these schemes or the assessment reports were tendered into evidence. 7 The application was then further amended and the proposal before the Court is for a part five/part six storey residential/commercial development with an FSR of 1.7:1. Basement parking for ten residential cars is accessed off a proposed 6 m wide laneway, which forms part of the southern part of the site. Parking for ten commercial car spaces is accessed off Osborne Street. Five of these spaces are within a basement area, the remainder are provided as surface parking. The building projects over part of the surface parking and due to the slope of the land this parking becomes elevated at the southern part of the site. 8 The amended application was notified and further objections were received. Mr Zwicker assessed the application and, under delegation, recommended it for approval. On this basis the parties agreed to seek consent orders from the Court. As I understand, despite the previous versions of the application and the s 82 application being determined by council, it did not consider the amended application before the Court. 9 A statement of issues does not appear to have been filed but I presume the issues before the Court are the reasons for refusal of the previous versions of the application. These raised a number of issues including non-compliance with the FSR control, height, response to context, setbacks, car parking and deep soil planting. Mr Zwicker has provided an assessment under s 79C of the Act of the current proposal which addresses these issues within the planning framework. Planning Framework 10 The planning framework is complex but in summary the site is zoned 3(a) (General Business) under Wollongong Local Environmental Plan 1990 (LEP 1990). Commercial premises and residential flats are both permissible with consent in this zone. The site is at the edge of the 3(a) zone. Development to the west and to the south along Osborne Street is zoned 2(b) (Medium Density Residential). 11 Clause 12 of LEP 1990 permits a maximum FSR of 1.5:1 for the 3(a) zone and 0.5:1 for the Residential 2(b) zone. There are no objectives for the FSR control contained within LEP 1990. The proposal has a FSR of 1.7:1 and therefore does not comply with the FSR specified in cl 12 of LEP 1990. The applicant has submitted an objection under State Environmental Planning Policy No.1 (SEPP 1) to this standard. 12 The other relevant clause in LEP 1990 is cl 32 which requires an assessment of the aesthetic appearance of development when viewed from a main road and parking and traffic impacts. 13 Illawarra Regional Environmental Plan No.1 (REP 1) is also relevant. Clause 138 of REP 1 includes the following objectives for high rise buildings in the Wollongong urban area: