Land and Environment Court of New South Wales CITATION : Eaglecorp Property Consultants Pty Limited v Wollongong City Council [2008] NSWLEC 1201 APPLICANT Eaglecorp Property Consultants Pty Limited PARTIES : RESPONDENT Wollongong City Council FILE NUMBER(S) : 11334 of 2007 CORAM: Murrell C KEY ISSUES: Development Application :- s 34 Conciliation Conference, mixed use development, hotel, vehicular access. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Wollongong City Centre Local Environmental Plan 2007 Wollongong City Centre Development Control Plan 2007 DATES OF HEARING: 04/03/2008 and 05/05/2008 EX TEMPORE JUDGMENT DATE : 5 May 2008 APPLICANT Mrs M-L Taylor, solicitor of Bartier Perry Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr M. Mantei, solicitor of Kells The Lawyers JUDGMENT: - 8 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 5 May 2008 11334 of 2007 Eaglecorp Property Consultants Pty Limited v Wollongong City Council This determination was given extemporaneously and it has been edited prior to publication JUDGMENT 1 The matter before the Court today initially commenced on-site as a s 34 conciliation conference. The plans were subsequently amended and are known as revision 'L' in the proceedings today. 2 The parties today have agreed to the matter proceeding to adjudication by the Court under s 34(4)(b) of the Land and Environment Court Act. This judgment is under s 34(5) of the Act. 3 The subject site is on the corner of Crown Street and Osborne Street in Wollongong and the property is known as No. 385A Crown Street being Lot 9 in DP 10704. 4 The proposal is for a mixed use development comprising the construction of a 7-storey building over three levels of basement parking containing 29 spaces ground floor retail and commercial; first floor commercial; four floors of hotel incorporating thirty hotel rooms; top floor residential containing two by two-bedroom units. 5 The vehicular access to the development is proposed via the rear of the site with an additional access point from Osborne Street. It is noted that the two vehicular access points serve different levels of the basement car parking. 6 The site is a corner site and it has a boundary to Crown Street of some 12.5 metres and a side boundary to Osborne Street. The reason why I say this is because there is a requirement in council's controls about minimum frontages and the Osborne Street boundary is some 46 metres in length. It is proposed in the development that it be set back from the rear boundary by some 6 metres to facilitate the potential at a future date possible access to other sites to the east along Crown Street. 7 The council has recently amended its planning regime and introduced the Wollongong City Centre Local Environmental Plan 2007. The subject site is within a block that is zoned under the Wollongong LEP zone No. B3 business zone. 8 The proposed development has been assessed by council's consultant planner, Mr Lindsay Fletcher, and the applicant's planner, Ms Elaine Treglown. The applicant's Statement of Environmental Effects has provided a compliance table assessed against the provisions of both council's LEP and the development control plan. The Wollongong City Centre Development Control Plan is dated 2007 and this contains a number of detailed controls for the Wollongong city centre area. The height of buildings, floor space ratios are contained within the DCP. 9 The development has been assessed against the criteria of what is known as council's planning regime. The planners today have further assessed the revision L plans in accordance with the controls and guidelines contained within the Wollongong LEP and DCP and the proposal generally complies with all of the provisions of council's controls. I am satisfied the development is one that could be contemplated under council's current planning regime. 10 The Court also heard evidence from council's traffic engineer, Mr Mitchell Lee. He is concerned that the proposed development should not be approved because there are two car parking bays that do not allow for an extension of the aisle for manoeuvring purposes. He is also of the opinion that council's development control plan in terms of access from Osborne Street should be limited to one vehicular access and not the two as shown in the plans. 11 The Court also heard evidence from two local residents. Mr Scipione of 51 Osborne Street expressed concerns to the Court in terms of inadequate parking in the area and the fact parking is at a premium in Osborne Street. He resides opposite the rear of the subject site in the dwelling house. He also expressed concern that he was of the opinion that the rear of the subject site was owned by the council to provide a future laneway. 12 The Court inquired and a certificate of title has been provided to indicate that the whole of the subject lot known as Lot 9 is in single ownership and there is no right of carriageway and there is no ownership of the rear portion of the lot or any restriction on title. 13 The other objector who owns a property at 36 Osborne Street, Mr Pelaknas, also expressed concern about the proposed development. He indicated that parking is at a premium in Osborne Street and he is opposed to the proposed development of the site. He also expressed concern about water/drainage onto his land which is at the rear of the subject site. The land is relatively steeply sloped and his land is at a lower level. He also indicated that he is concerned that there had been fill placed against the fence on the common boundary. He expressed concern about people reversing onto the street and that this was dangerous given the traffic in the area. 14 Mr Lee, council's traffic engineer, as I stated is opposed to the development on traffic grounds. He indicated that a four or five point turn would be required to exit space number one. Space number one on the plans is identified as being for hotel staff and he considered that the aisle should be extended by one metre in compliance with the Australian Standard. The other space where he expressed concern about is No. 14 attached to unit 2. It is noted that unit 2 has two car parking spaces as does unit 1. It is proposed that in accordance with council's controls that there be half a car parking space per hotel room and that equates to some fifteen within the proposed development. 15 The section of the Australian Standard that Mr Lee referred to is that contained at 2.42 and as I said he is of the opinion that the Australian Standard should be strictly complied with. It is noted that the Australian Standard states minimum requirements and the standards cannot be taken as a textbook for the design of parking stations, the services of qualified persons designing facility should be sought and it does not remove the need to comply with council's own requirements. 16 The Court inquired as to the rear portion of the land and the Court understands that the use of the 6 metre wide portion of land would be subject to future negotiations of adjoining landowners. It was also pointed out on behalf of the applicant that the properties to the east would not necessarily be denied access from Crown Street because where access is currently available from Crown Street then that access is not necessarily denied. Clearly from a planning point of view it is preferable to have access to the rear of the sites as opposed to Crown Street Wollongong. There is also the possibility as submitted on behalf of the applicant that there can be access gained to properties east of the subject site along Crown Street if there are amalgamations with other sites and that could be via Mount Street or via properties to the south that have frontage to Parkinson Street. 17 The proposed development is on a relatively narrow block and council had initially raised urban design concerns about the height of the proposal that previously was before the Court in these proceedings at the commencement of the s 34 conference. At that time the proposed development was some nine storeys and exceeded council's height controls. The proposal now generally complies with the council's requirement in terms of height being about 25 metres and the floor space ratio complies with council's recently adopted controls. It is noted that a BASIX certificate is required for the amended proposal. 18 The council and the applicants have not at this stage had the opportunity to finalise the conditions. A draft set of conditions has been provided to the Court which was prior to the further amendment shown in the revised L version of the plans. The setbacks are generally in accordance with the council's controls as shown in the compliance table. 19 It would appear that the objectors' concerns go more to the zoning of the subject site, that is, the commercial mixed use nature of the site in zone B3 which clearly contemplates commercial or mixed development on the subject site at a height and at a floor space ratio as shown in the proposed development application. It is to be expected that the generation of traffic in a business zone is higher than in a residential area but the site is zoned to permit the proposed development. I am satisfied that in accordance with the development contemplated by council's recently adopted LEP and DCP the proposal is one that is satisfactory for the site. In this regard the Court also has the benefit of the development application being assessed by council's consultant urban designer and amendments to the proposed plans have been accommodated consistent with her recommendations. 20 I need to go back in terms of the two car parking spaces. I am of the opinion that the additional manoeuvring required for the spaces, that is one attached for staff of the hotel (space N. 1) and one attached to a (space No. 14) unit would not warrant refusal of the application. And Mr Lee conceded that in fact these spaces would be one where there is not a high turnover, such as in a commercial car parking area. I acknowledge that it would be more difficult to manoeuvre, in particular out of the space for No. 1 and the space for No. 14, but nonetheless I am satisfied that the difficulty is not of a such significance given the use assigned to the spaces that it warrant refusal of the application. I am satisfied that given the use of these two car parking spaces that the people using such spaces would become accustomed to their configuration and therefore on balance the car parking is satisfactory. It is noted that the DCP requires a maximum of two spaces per residential unit as opposed to a minimum. Nonetheless the proposed development provides for thirty car parking spaces allowing for the maximum number in the DCP of two per unit. 21 With respect to the two vehicle access points from Osborne Street, I am persuaded that the proposed development will not create unreasonable impacts. The configuration of the car parking is such that the two access points are required because of the difference in levels gradient of the land. I am also of the opinion that the 6 metre wide area of land at the rear of the subject site for vehicle access to the development could use facilitate access to the rear of the properties to the east of the subject site but this would be a matter for future private negotiations. I note at this point that council's development control plan and the LEP does not show a laneway as such and therefore the provision of a laneway in term of council's instruments is not provided for in a s 94 plan. 22 The council and the applicant have indicated to me that I would be erring in law by requiring an easement or burdening the subject property in favour of the lots to the east if I were to require a s 88 instrument on the title of the subject site. On this basis I do not make it a requirement but clearly the development plans show that because of the driveway at the rear of the subject site this can facilitate future negotiations to gain rear access for the properties to the east on Crown Street. 23 On the issue of drainage I note that there is a requirement in the conditions of consent, and the conditions of consent forwarded to the Court will need to clearly identify that there is a drainage concept plan relevant to the subject plans. 24 Furthermore, I will not issue the orders in respect of this application until the markings that have been shown in exhibit D are provided on a set of plans, and that further amendments in terms of other conditions such as parking and a number of the conditions that refer to minor amendments to the plans need to be incorporated into a final set of plans before the formal orders and conditions are issued. 25 Where possible the amendments referred to in conditions should be incorporated into the plans, including a revised landscape plan. This process will mean a number of conditions can be deleted once these matters are picked up in the final set of plans; including the revised landscape plan. For example a rainwater tank for irrigation purposes needs to be shown in the plans. Wherever possible to provide for greater certainty or clarity in the planning process the plans should incorporate conditions contained within exhibit 1 that require changes to the plans. (This is a relatively simple exercise to go through the conditions and where appropriate incorporate minor and more significant amendments within a revised set of plans). Similarly a schedule of materials, colours and finishes needs to be provided and a BASIX certificate is required with final set of plans. 26 From an urban design point of view the Court will note that the council now raises no issues with the revised plans, and that it is satisfied, on advice from a consultant urban designer that the proposed building is appropriate for the subject site. The subject site is relatively narrow and therefore sensitivity in terms of the design is important, in particular also for the corner location which it will occupy. 27 Therefore on the basis of my assessment and on the receipt of an amended final set of plans and the amended conditions to reflect the amended plans, I will issue orders in chambers for the appeal to be upheld. 28 The applicant has seven days in which to amend the plans and the council has an additional seven days in which to finalise the conditions, which are to be referred to the applicant such that by the 12th the plans shall be submitted to the council and referred to the Court, and by the 19th the conditions are to be referred to the Court after discussions with the applicant that they reflect the final set of plans. _____________________ J S Murrell Commissioner of the Court ljr In accordance with the above the Court received a final set of plans, basix certificate and amended conditions and therefore the following orders are now made. Orders 1. The appeal is respect of the property known as No. 585A Crown Street, Wollongong is upheld. 2. The development application submitted to Wollongong City Council, and as amended and shown in the plans prepared by Technical Architects, Job No. 07026 revision 'M' drawing No's: 01 to 07 inclusive; and No. 09 to 15 inclusive, are approved subject to the conditions contained in Annexure 'A'. 3. The exhibits with the exception of the above plans and conditions are returned to the parties. 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.