MP Park Lane Pty Ltd v Wollongong City Council [2019] NSWLEC 1197

Land and Environment Court New South Wales

Medium Neutral Citation: MP Park Lane Pty Ltd v Wollongong City Council [2019] NSWLEC 1197 Hearing dates: Conciliation conference on 26 February 2019; 28 March 2019 Date of orders: 07 May 2019 Decision date: 07 May 2019 Jurisdiction: Class 1 Before: Smithson C Decision: See orders at [27] below Catchwords: DEVELOPMENT APPLICATION: Stage 1 concept plan application – conciliation conference –agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Wollongong Local Environmental Plan 2009 Category: Principal judgment Parties: MP Park Lane Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: S Duggan SC (Respondent)

Solicitors: D Sachs, Sachs Gerace Broome Lawyers (Applicant) Wollongong City Council (Respondent) File Number(s): 2017/265994 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by MP Park Lane Pty Ltd (the applicant) lodged under then s 97(1), now s 8.7(1), of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Wollongong City Council (the Council) of Development Application DA-2016/1811 (the application). 2. The application is for development on Lots 1 to 12 in Section 62 DP 3773 and Lot 101 in DP 1111861, known as 91A Byamee Street, Dapto (the site). 3. The site previously contained the former Dapto Public School and has access to two streets and a site area of 1.9387 hectares. It is now vacant other than containing a number of trees. 4. The application as lodged with the Council, but subsequently amended, sought consent under the EPA Act to a Stage 1 concept application comprising: site and road layout; 7 residential building envelopes to accommodate residential flat buildings (RFBs) ranging from 2 to 6 storeys; a gross floor area (GFA) of 22,760m²; 159 indicative apartments and 32 indicative townhouses (multi dwelling housing); and civil works. 5. The Council notified the application and nine submissions were received, including two in support of the proposal. 6. On 31 August, 2017, the applicant commenced the appeal against the deemed refusal of the application. 7. In response, the Council filed a Statement of Facts and Contentions (SFC) raising a series of contentions. 8. In May 2018, a conciliation conference, over which I presided, was held pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act) but was terminated as the parties could not come to an agreement. 9. Nevertheless, the parties continued to confer and, on 15 February 2019, leave was granted by the Court to amended plans which sought to respond to the Council's contentions. 10. However, in an amended SFC lodged on 22 February, 2019 the Council advised that contentions remained. These included that: a number of building envelopes could not be developed to achieve the principles of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and site specific controls had not been developed to guide future development; there was non-compliance with the height limit in the Wollongong Local Environmental Plan 2009 (the WLEP); and the development failed to retain trees on the site. 11. The appeal was listed for hearing before me. However, prior to the hearing, the parties continued to confer with respect to amendments to the application and agreed that amendments could be undertaken, supported by both parties, which addressed the contentions and relevant concerns raised by objectors. 12. The parties therefore requested that the hearing be adjourned and the matter be listed as a further s 34 conciliation conference at which to present an agreement. I presided over that conciliation after which an agreement under s 34(3) of the LEC Act was filed by the parties, and the hearing vacated. 13. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 14. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 15. In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met. 16. It is therefore relevant, firstly, to note the details of the amended application the subject of the agreement. 17. The amended application seeks approval of the development as a concept application comprising: site and road layout; 6 envelopes for RFBs ranging from 3 to 4 storeys (Buildings A to F) and 2 envelopes for townhouses with a 2 storey street wall and 9 metre maximum height (Buildings G and H); and 17,348 square metres of GFA with a floor space ratio (FSR) of 0.893:1 facilitated within the building envelopes. The heights and setbacks of the proposed building envelopes are shown on the amended architectural plans. 18. The application was lodged under the provisions of the WLEP and the development is permissible in the R3 Medium Density Residential zone in which the site is located. 19. A number of the proposed building envelopes in the amended application do not comply with the 11m height limit under cl 4.3 of the WLEP with the highest exceedence being to 14.9m. In support of these height non-compliances, and as required in order for consent to be granted where variations to the height standard are sought, a written request under cl 4.6 of the WLEP was prepared. 20. The cl 4.6 request is referenced in the agreement and was filed with the agreement. I have considered the request as I am required to do and am satisfied that it demonstrates that compliance with the maximum height limit required by the WLEP is unreasonable or unnecessary in the circumstances of this application and that there are sufficient environmental planning grounds to justify the contraventions sought. Further, that the development will be in the public interest because it is consistent with the objectives for development in the R3 zone in which the site is situated for the reasons outlined in the request. 21. The concurrence of the Secretary of the Department of Planning can be assumed pursuant to cl 4.6(4)(c) and having considered the requirements of cl 4.6(5), also for the reasons outlined in the request. 22. Those reasons, on which my findings of satisfaction on the proposed height exceedences are based, are reflected in the grounds justifying the variation found in the cl 4.6 request summarised as follows at p6 of the request: "The proposed approach towards height for the subject site involves significant open space areas of the site where no height is proposed (including a future public park), a large proportion of the development where the townhouses are located being significantly under the height control, 3 storeys flat buildings which marginally exceed the height control, and some 4 storey flat buildings which exceed the height control by a greater extent. The areas of the development that are under the height control are offset by other buildings towards the western part of the site which are above the height control. The proposed alternative approach to height provides a more specific and considered response to the distribution of scale across the site, in preference to a homogenous 11 metre building height across the entire site." 1. Other environmental planning grounds or reasons for varying from the height limit given in the request, which I am satisfied result in a development that meets the objectives of the zone and the standard, are: 1. The proposed distribution of built form and massing of the building envelopes across the site was based on a detailed analysis, including an Urban Design Report supporting the masterplan for the development, referred to as "Park Lane". It will deliver a higher quality urban form than that which would be achieved strictly complying with the height control. 2. A diversity of housing product will be provided with various building typologies and scales. This will generate a high level of visual interest with modulation to the skyline and meet the various housing needs of the community. 3. The building envelopes have been designed with inherent flexibility to enable a high quality urban form to be accommodated on the site. The proposed development will reinvigorate this area of Dapto and will contribute to the vibrancy, economic success, quality of urban form, and public facilities within Dapto. 4. The proposed distribution of height across the site provides a gradual increase in scale from east to west and achieves an appropriate visual transition to the Dapto Mall to the west which is permitted to have buildings up to 30 metres in height. 5. The proposed distribution of built form and massing allows solar access to the taller buildings and open space behind them as well as greater areas of open space, and thus sky views, than would otherwise be accommodated strictly complying with the height control. 6. The Council has granted approval to a development of the site up to 14.6m therefore has already acknowledged that compliance with the height limit is unreasonable or unnecessary across the site. The Council has also indicated a willingness on other sites to consider redistribution of heights in such circumstances where this facilitates an improved urban design outcome. 7. The proposed development would have a lower density, with an FSR of 0.893:1, than compliant buildings to 11m across the site which could have an FSR of 1.2:1. 8. The proposed areas of variation do not result in any adverse impacts to adjacent properties. 9. The proposed variations allow for the most efficient and economic use of the land. 10. Strict compliance with the development standard would result in an inflexible application of the control that would not deliver any additional benefits to the owners or occupants of the surrounding properties or the general public. 1. In addition to compliance with cl 4.6, the other applicable pre-conditions to consent contained in the WLEP have been satisfied. In particular, the development complies with, being substantially less than, the maximum FSR of 1.2:1 permissible at cl 4.4 and seeks to retain trees, including within the proposed park, as required by cl 5.9. 2. On the basis of the documentation provided, the building envelopes proposed in the amended application are capable of being developed compliant with the provisions of SEPP 65. 3. The development is also required to comply with the provisions of State Environmental Planning Policy No 55—Remediation of Land. I note that the site was formerly a school and the Council was satisfied that the site has not been developed or used for activities that may cause contamination. 4. Accordingly, the Court orders that: 1. The Applicant is granted leave to rely on the following amended plans and documents: 1. Turner Masterplan Envelope Plan – MP-105-010; 2. Turner Elevations – MP-250-010 & MP-250-020; 3. Urban Design Report, 25 March 2019; and 4. Clause 4.6 variation request, 26 March 2019. 1. The Court is satisfied that the Applicant's written request under clause 4.6 of the Wollongong Local Environmental Plan 2009: 1. has adequately addressed the matters required to be demonstrated by clause 4.6(3), and 2. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the proposed development is to be carried out. 1. The appeal is upheld. 2. DA-2016/1811 for: 1. site and road layout; 2. 6 envelopes for residential flat buildings ranging from 3 to 4 storeys (Buildings A, B, C, D, E & F), and 2 envelopes for multi dwelling housing with a two storey street wall and overall building height up to 9 metres (Buildings G & H), with heights and setbacks as shown on the Turner architectural plans referenced in Annexure A; and 3. 17,348 square metres of gross floor area within those building envelopes (0.893:1 Site FSR); at Lots 1-12 DP 3773 and Lot 101 DP 1111861, otherwise known as 91A Byamee Street Dapto, is determined by the grant of consent, subject to the conditions at Annexure "A".