Hughes v Wollongong City Council [2016] NSWLEC 1042

Land and Environment Court New South Wales

Medium Neutral Citation: Hughes v Wollongong City Council [2016] NSWLEC 1042 Hearing dates: 9 February 2016 Date of orders: 09 February 2016 Decision date: 09 February 2016 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld – see [46] Catchwords: CONSENT ORDERS: Multi-dwelling housing; stormwater; flooding; landscaping and tree retention Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Wollongong Local Environmental Plan 2009 Category: Principal judgment Parties: Steven Hughes (Applicant) Wollongong City Council (Respondent) Representation: Applicant: Mr K Webber (Solicitor) Respondent: Mr J Reilly (Solicitor)

Solicitors: Applicant: Wiltshire Webb Staunton Beattie Lawyers Respondent: Wollongong City Council File Number(s): 10649 of 2015

Judgment 1. COMMISSIONER: In October 2014 the applicant lodged development application DA 2014/1329 for the demolition of an existing dwelling and the construction of five town houses, and associated works, on Lot 16 DP 29745, otherwise known as 50 Squires Crescent, Coledale (the site). 2. In May 2015 Wollongong City Council refused the Development Application. The applicant appeals the council's decision pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

The site and relevant background 1. The site is on the southern side of Squires Crescent and has an irregular shape with an area of 1408m2. The land slopes from the street to a culvert and then rises relatively steeply to the rear of the site. There is a two storey dwelling located towards the rear, which is accessed from a bitumen driveway on the western side of the site; a portion of the driveway adjoins the creek and a mature Port Jackson Fig (identified as Tree 15) growing on its bank. The site is well-vegetated with many planted and remnant local and exotic species of trees. 2. The site is located within a low-density residential area, characterised by large lots with single dwellings. Surrounding development ranges from older single storey fibro cottages to more contemporary two storey dwellings. The South Coast rail line is approximately 100m upslope and to the west of the site. 3. The site is mapped as being flood prone land and also as containing riparian land. 4. Of significance is the watercourse which traverses the site; this is part of the Carrick's Creek system. Water is discharged from a culvert underneath the railway line to an open channel and to a headwall on the upstream (western) boundary of the site. The watercourse is then piped via a 1200 mm diameter concrete pipe beneath and across the site and through the adjoining property to the east before it re-forms an open channel. 5. Council's Statement of Facts and Contentions raised a number of contentions including: unacceptable flood impacts on adjoining properties, unacceptable impact on vegetation of the site including loss of significant trees, poor setbacks and inadequate private open space for future residents, over-development of the site, and technical matters concerning flood modelling, and stormwater design. 6. The matter commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act). Many local residents made oral submissions opposing the extent, and possible impacts, of the proposed development. The matters raised echoed council's contentions but many people voiced concerns about increased traffic and potential pedestrian safety. 7. The conciliation was terminated at the request of the parties. The parties seek consent orders from the Court.