Vanovac Tuon Architects Pty Ltd V Wollonong CC [2015] NSWLEC 1323

Land and Environment Court New South Wales

Medium Neutral Citation: Vanovac Tuon Architects Pty Ltd V Wollonong CC [2015] NSWLEC 1323 Hearing dates: 15 July 2015 Date of orders: 11 August 2015 Decision date: 11 August 2015 Jurisdiction: Class 1 Before: Brown ASC Decision: By consent: 1. The appeal is upheld. 2. Development consent is granted to Development Application no. DA2014/512 for a residential flat building at 28-30 Staff Street Wollongong subject to conditions in Annexure" A". 3. There be no orders as to costs. 4. The exhibits are returned with the exception of exhibits 2, 3, B and C. Catchwords: CONSENT ORDERS: demolition of the existing two dwellings and associated structures and the construction of a nine storey mixed use development –resident objectors Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Wollongong Local Environmental Plan 2009 Texts Cited: Practice Note Class 1 Development Appeals Category: Principal judgment Parties: Vanovac Tuon Architects Pty Ltd (Applicant)

Wollongong City Council (Respondent) Representation: Mr J Fan, solicitor (Applicant) Pikes & Verekers

Mr J Reilly, solicitor (Respondent) Wollongong City Council File Number(s): 10043 of 2015 Publication restriction: No

Judgment 1. COMMISSIONER: This appeal originally related to the demolition of the existing two dwellings and associated structures and the construction of a nine storey mixed use development incorporating 34 residential units and a 'health services facility' at 28 - 30 Staff Street, Wollongong (the site). Three levels of car parking that accommodate 40 car spaces, 4 motorcycle spaces and 15 bicycle spaces. Areas for storage, waste management and services are also located within the parking levels. 2. The site is Lots 32 and 33 in DP 8682. It is irregular in shape with a width of 24.45m at the Staff Street boundary and depth of 37.51m along the eastern boundary, 33m along the western boundary and a northern boundary width of 35.76m giving an area of 1,181sq.m. 3. The council raised a number of issues with the proposal, including: * excessive height, * excessive floor space ratio (FSR), * inadequate building separation, * inadequate setbacks, * loss of visual and acoustic privacy, * lack of car parking, and * inadequate open space. 1. The proceedings commenced on site as a Conciliation Conference under s 34 of the Land and Environment Court Act 1979 on 14 April 2015 where the Conciliation Conference was adjourned to allow the applicant to further address the matters raised by the council and residents who provided evidence on the site inspection. 2. Following the submission of amended plans and the re-advertising of the amended plans, the council were satisfied that the amended plans addressed their previous concerns and sought to enter into consent orders. Generally, the amended plans provided for the deletion of the 'health services facility', the number of units is reduced to 23 with a range of different sizes with a consequent reduction in floor area and an improved presentation to Staff Street. 3. Prior to the hearing the council decided to enter into Consent Orders. In this regard the Court's Practice Note Class 1 Development Appeals (the Practice Note) relevantly provides [at 46]: 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 1. In summary, the Practice Note requires: * evidence to show that approval is lawful and appropriate including whether any statutory provisions have been complied with; * whether any objection has properly been taken into account; and * whether reasonable notice has been given to all persons who objected to the proposal, the date of the hearing and the opportunity to be heard at the hearing. 1. On the first matter, the council provided a helpful document that identified the original contentions and particulars and then added the reason why the contention was no longer pressed. The main features of this document identified amendments that provided a design that: * complies with the maximum height requirement in Wollongong Local Environmental Plan 2009 (LEP 2009), * complies with the maximum FSR of 1.5:1 in LEP 2009, * generally complies with building separation requirements in State Environmental Planning Policy No 65 (SEPP 65) and where there were variations, the variations were minor and could be supported, * provides adequate setbacks at the street frontage, rear and side, * addresses visual and acoustic privacy through rearrangement of the floor plan and balconies with rendered and glass balconies and louvered sun shades , * car parking satisfies the required amount in accordance with Wollongong Development Control Plan (the DCP) and Australian standard AS2890.3:1993. * private and common open space complies with the requirements in the DCP. 1. The second matter requires that any objection has properly been taken into account. The council provided copies of the submissions that were sent to the council when the amended proposal was re-advertised. The applicant provided a response to the matters raised by the objectors. The submissions raise concern over the height, bulk and scale of the development and the impact a building of the size proposed will have on the enjoyment of their residence. Impact on local traffic was also raised as a concern. 2. In response, I accept the position of the council in that the area is, through the allowable form of development in LEP 2009, undergoing a change in character from a largely single storey residential character to a much denser form of residential development. While some in the area prefer the original form of development, the council has determined, through the LEP process that the character of the area is to change. The council and the Court must acknowledge this process in determining applications that reflect the anticipated character through compliance or general compliance with council's LEP 2009 and DCP. 3. On the third matter, I accept that reasonable notice has been given to all persons who objected to the proposal, the date of the hearing and the opportunity to be heard at the hearing. Two owners of properties in Staff Street provided evidence at the consent order hearing. 4. For the reasons above, there is no basis to refuse the consent orders and accordingly, the orders of the Court, by consent, are: 1. The appeal is upheld. 2. Development consent is granted to Development Application no. DA2014/512 for a residential flat building at 28-30 Staff Street Wollongong subject to conditions in Annexure" A". 3. There be no orders as to costs. 4. The exhibits are returned with the exception of exhibits 2, 3, B and C. __________________ G T Brown Acting Senior Commissioner 10043 of 2015 Brown (C) (228 KB, pdf)