Land and Environment Court New South Wales Medium Neutral Citation: Lumos International Pty Ltd v Wollongong City Council [2020] NSWLEC 1021 Hearing dates: 27 November 2019 Date of orders: 16 January 2020 Decision date: 16 January 2020 Jurisdiction: Class 1 Before: Morris AC Decision: The Court orders: (1) The appeal is dismissed. (2) DA-2019/113 which sought consent to a two lot Torrens Title subdivision of Lot 703 DP 954202 Thomas Street, Wollongong is refused. (3) The exhibits, other than Exhibits A and 4, are returned. Catchwords: DEVELOPMENT APPLICATION: subdivision Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Wollongong Local Environmental Plan 2009 Texts Cited: Apartment Design Guide Building Code of Australia National Construction Code Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Lumos International Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: M Mantei (Solicitor) (Applicant) J Riley (Solicitor) (Respondent) Solicitors: Planning Law Solutions (Applicant) Wollongong City Council (Respondent) File Number(s): 2019/255234 Publication restriction: No Judgment 1. COMMISSIONER: Lumos International Pty Ltd (Lumos) lodged Development Application DA-2019/113 with Wollongong City Council on 11 February 2019 seeking consent to a two lot Torrens Title subdivision. The council refused consent on 9 May 2019 and Lumos is appealing that decision pursuant to the provisions of s 8.8(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act). 2. The matter commenced as a conciliation conference pursuant to the provisions of s 34 of the Land and Environment Court Act 1979 however no agreement was reached and the matter proceeded directly to hearing. 3. The contentions in the case go to the suitability of Proposed Lot 1 for future development and the uncertainty associated with the location of the proposed boundary of the lots in relation to fire safety of the existing residential flat building contained on the proposed Common Property Lot. The site and its context 1. The site comprises one allotment located on the western side of Thomas Street, Wollongong. It is legally described as Lot 703 DP 954202 and is within SP98483. 2. It is an irregular shaped allotment, stepping in at the rear corners and with a frontage of 35.435m to Thomas Street and site area of 1148.9m2. 3. The site slopes generally from the east to west (front to rear) with a fall of approximately 3m from Thomas Street. 4. An eight storey mixed use development comprising two levels of basement parking, a ground level commercial tenancy and twenty-five residential units currently occupies the site approved under development consent DA-1998/275/B. 5. A 5.5m Right of Carriageway to the north of the building provides vehicular access to an open car park on the adjoining northern lot owned by the owner of Lot 704 DP 854202. That lot is also an irregular shaped allotment with its primary frontage to Kiera Street and parking at the rear accessed off Thomas Street via the right of way (ROW). 6. The existing lot is burdened by a number of easements and restrictions as identified in the Statement of Facts and Contentions (Exhibit 4). Those easements include the 5.5m ROW and easements for drainage, access and services. All of those easements would be contained within Proposed Lot 1. 7. The Residential Flat Building (RFB) component of the mixed use building's basement podium and level 2 terraces are located adjacent to the 5.5m ROW benefitting Lot 704 and on the southern boundary of Proposed Lot 1. 8. The northern portion of the site, (Proposed Lot 1) is a bitumen area accessed from Thomas Street and acts as a carpark for Lot 704. Fire egress from the basement carpark is provided over the northern open area of the existing lot. 9. The site is within the Wollongong City Commercial Centre and is surrounded by commercial and retail development, carparks and in close proximity to a church. 10. To the north of the Thomas Street portion of Lot 704 is a site that is subject to a deferred commencement development consent for a shop top housing development (Consent DA-2017/730). That consent was not operative at the time of the hearing. The proposed subdivision 1. It is proposed to subdivide the existing strata allotment into two lots. Proposed Lot 1 would be located to the north of the existing RFB and have a width of 5.5m and frontage to Thomas Street and area of 173.3m2. Depth of the lot varies from 31.49m to 31.565m. 2. The subdivision will reduce the area of the site that contains the RFB from 1148.9m2 to 976.6m2. 3. According to the Statement of Environmental Effects, the intention of the subdivision is for the Owners Corporation to dispose of Proposed Lot 1. There is more commentary on this matter later in the judgment. Background 1. As stated above, the site contains a mixed use development with an open area to the north of the site subject of the ROW and easements and also providing fire egress from the basement carparking area and northerly aspect to a number of apartments along the northern side of the building. 2. The applicant in these proceedings is the former owner and developer of the site. The site is now owned by the Owners Corporation SP 98483. 3. Lumos has entered into an agreement with the owner of Lot 704 to sell Proposed Lot 1. Whilst not part of the application, the applicant says the lot would then be consolidated with Lot 704. The owner of that lot is not party to either the application or the proceedings. The Council says the Court should give no weight to the agreement and must consider the application on its merits. 4. An issue that arose during the hearing and also discussed below goes to owner's consent. The applicant relies of a Bylaw passed at the first meeting of the Owners Corporation. Clause 27 of that Instrument is relevant to the matter and those sections relevant to the case are in the following form: "A. The Owners Corporation is empowered following registration of the Strata Plan to excise from the Strata Scheme Common Property of the Strata Scheme that portion of the area defined as the right of carriageway (subject to any easements) being an area of 5.5 metres wide located on the northern side of the Strata Plan to the Vendor being Lumos International Pty Ltd ACN 139 891 133 ("the Vendor") for the consideration amount of $1 and that the Owners Corporation shall do all acts and things and sign all deeds and documents to effect this without any entitlement of any Purchaser who exchanged contracts for sale within the Strata Scheme to claim compensation or any damages from the Vendor. … D. The Owners Corporation will consent to and pass a resolution at the first annual general meeting to sell the proposed right of way to the Vendor for the sum of $1.00 and will sign all documents required to facilitate such sale. E. The Owners Corporation will consent to pass a resolution at the first annual general meeting to create any easements and create any other documents required to comply with any Development Application and Development Approval to enable the right of way being subdivided and transferred to the Vendor. F. In complying with this By-Law 27, the Owners of the lots of in the Strata Scheme and the Owners Corporation agree not to create a situation which will prevent the vendor from applying for Development Consent and any other Consent required to satisfy requirements of Wollongong City Council. G. The Owners Corporation will not be obliged to complete this transfer of the subdivided land to the Vendor if Wollongong City Council does not approve the application for the plan of subdivision. H. The Vendor shall be liable and responsible for all costs associated with the registration of the plan of subdivision and or any other expenses associated with completing registration of the plan of subdivision and the transfer." 1. It is agreed that the terms of the by-law require the Owners Corporation to authorise lodgement of the application however, it does not give any rights to enter the property, carry out works to the property or commit the Owners Corporation to any ongoing costs associated with works that may be required in the event that consent is granted. This matter is relevant to the proposal both in terms of the final form in which the application is made and any conditions that may be necessary to be imposed. It is discussed in relation to those issues later in the judgment. The issues 1. The contentions in the case are: 1. The proposed subdivision would result in a poor urban and streetscape outcome; 2. The proposed subdivision, by moving the boundary of the site against the building, is likely to create adverse impacts upon internal amenity; 3. The proposed subdivision will require upgrade and other work to the existing building in order to comply with the National Construction Code. 4. The proposed subdivision will constitute a poor precedent, and is not in the public interest. The planning controls 1. The site is B4 Mixed Use under the provisions of Wollongong Local Environmental Plan 2009 (LEP). The proposed subdivision is permissible with consent in that zone pursuant to the provisions of cl 2.6. 2. Clause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the B4 Zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To support nearby or adjacent commercial centres without adversely impacting on the viability of those centres. 1. The maximum floor space ratio (FSR) for the site is 1.5:1 pursuant to the provisions of cl 4.4 however cl 4.4A provides for additional FSR where a site has a frontage of greater than 20m depending on particular land uses. 2. Clause 7.18 – Design excellence in Wollongong city centre and at key sites contains the following relevant provisions: … (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters— (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) whether the proposed development detrimentally overshadows an area shown distinctively coloured and numbered on the Sun Plane Protection Map, (e) how the proposed development addresses the following matters— (i) the suitability of the land for development, (ii) existing and proposed uses and use mix, (iii) heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access, circulation and requirements, (x) impact on, and any proposed improvements to, the public domain. … 1. Part 8 of the LEP contains specific provisions for the Wollongong City Centre and contains the following objectives at cl 8.1: (a) to promote the economic revitalisation of the Wollongong city centre, (b) to strengthen the regional position of the Wollongong city centre as a multifunctional and innovative centre that encourages employment and economic growth, (c) to protect and enhance the vitality, identity and diversity of the Wollongong city centre, (d) to promote employment, residential, recreational and tourism opportunities within the Wollongong city centre, (e) to facilitate the development of building design excellence appropriate to a regional city, (f) to promote housing choice and housing affordability, (g) to encourage responsible management, development and conservation of natural and man-made resources and to ensure that the Wollongong city centre achieves sustainable social, economic and environmental outcomes, (h) to protect and enhance the environmentally sensitive areas and natural and cultural heritage of the Wollongong city centre for the benefit of present and future generations. 1. Clause 8.4(2) prohibits the grant of consent for the erection of a building in the B4 zone unless the land has a street frontage of 20m. 2. Clause 8.6 is in the following form: 8.6 Building separation within Zone B3 Commercial Core or Zone B4 Mixed Use (1) The objective of this clause is to ensure sufficient separation of buildings for reasons of visual appearance, privacy and solar access. (2) Buildings on land within Zone B3 Commercial Core or B4 Mixed Use must be erected so that— (a) there is no separation between neighbouring buildings up to the street frontage height of the relevant building or up to 24 metres above ground level whichever is the lesser, and (b) there is a distance of at least 12 metres from any other building above the street frontage height and less than 45 metres above ground level, and (c) there is a distance of at least 28 metres from any other building at 45 metres or higher above ground level. (3) Despite subclause (2), if a building contains a dwelling, all habitable parts of the dwelling including any balcony must not be less than— (a) 20 metres from any habitable part of a dwelling contained in any other building, and (b) 16 metres from any other part of any other building… 1. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP65) and the associated Apartment Design Guide (ADG) are also relevant to the application, particularly in relation to building separation and setbacks. 2. The provisions of Wollongong Development Control Plan 2009 (DCP) apply to the application with Chapters B1: Residential Development and D13: Wollongong City Centre particularly relevant to the application. The evidence 1. A Statement of Evidence in relation to the contention on the National Construction Code was prepared by Ms C Gissel for the Council. The applicant had not engaged an expert in this field until the day of the hearing so no joint conferencing had occurred. Mr Boyce represented the applicant at the site view. 2. Ms Gissel's written evidence is provided in Exhibit 3. It is her evidence that Proposed Lot 1 creates an allotment boundary closer to the northern side of the existing high rise building on Lot 703. Proposed Lot 1 is absent any buildings and is presently used as an open carpark. The existing building has not been designed regarding the proposed adjustment to lot boundaries and, to ensure continued compliance with the Building Code of Australia (BCA), consideration of fire resistance levels, fire protection of openings, ventilation, fire services and measures, and egress from exist doors along the path of travel to the public road is required. 3. If the proposed subdivision is approved, the wall/s of the existing building will be exposed and closer to the fire source feature of the site boundary. This would require a higher fire resistance level (FRL). In addition, the openings in those walls that are within 3m of the boundary would have to be protected so as to comply with the provisions of clause C3.4. This affects windows and doors in the northern façade of the building and also the ventilation panels to the basement along that wall. 4. The proposed subdivision also creates another important issue in terms of fire safety and that is the need to provide a path of travel from the basement fire exits to a public road. The creation of Proposed Lot 1 will cause the open space on the existing allotment that caters for this path to be no longer available on the lot that will contain the building. 5. Both experts agreed that a pathway a minimum 1m in width would be required to the north of the existing building to ensure compliance with the relevant BCA provisions. 6. The plans before the Court do not provide for such pathway and to ensure compliance, the application would require amendment through a reduction in the width of Proposed Lot 1 from 5.5m to 4.5m. No such application was made to the Court. 7. There is no authority from the Owners Corporation for such an amendment not to enter onto the common property or to carry out any works to the building that may be required to comply with the conditions of any consent that may be granted. 8. Expert town planning evidence was heard from Ms R Harrison for the applicant and Ms R Welsh for the Council. 9. They agree that the purpose of the proposed subdivision is to sell Proposed Lot 1 to the owner of Lot 704 and that the Statement of Environmental Effects lodged with the application suggested the lot would then be consolidated with that lot. The Court notes that the owner of that land is not a party to the application nor has that owner lodged any advice to indicate that land would be consolidated if Proposed Lot 1 was created. 10. Because the application is for subdivision and not the erection of a building, the experts agree that the subdivision of itself would not create any issues in relation to building separation. They also note that the site to north is subject to a deferred commencement consent and that the issue of building separation had been considered in the assessment of that application. 11. Ms Welsh says the proposed subdivision would result in the site's northern boundary being adjacent to eh existing building and says this places an unreasonable burden on the lots to the north having to provide suitable separation distances when redevelopment occurs. Despite Lot 703's Right of Carriageway (RoC) not containing any landscaped area or visual qualities, it does provide a separation distance to the northern boundary that reasonably responds to the mechanism for achieving adequate building separation between adjoining sites. 12. MS Harrison says that the footprint of the basement podium of the existing building on the site is constructed adjacent to the southern boundary of the 5.5m RoC and the result is that the existing level 2 terraces would have a zero to 0.5m setback to the proposed northern site boundary with Proposed Lot 1, levels 3-8 balconies would have a minimum 0.5m setback and habitable rooms a minimum 2m setback which result is substantial non-compliance with the minimum setback requirements anticipated under the consent for that building and therefore compromises the objectives of protecting amenity and would lead to potential adverse impacts. 13. Ms Welsh says that a 5.5m wide easement commencing from the façade of the subject building over proposed Lot 2 could be created in favour of the Council and, coupled with the terms of cl 8.6 of the LEP would ensure that the setbacks are still achieved and maintained. Whilst she says the creation of Proposed Lot 1 would not immediately materially result in a change in streetscape along Thomas Street because no works are proposed, the subdivision may facilitate the future consolidation and redevelopment of adjoining lots to the north of the site in some form. She considers that this outcome has the potential to interrupt the desired (and approved) 'pattern of spaces' between buildings. Noting that if Proposed Lot 1 and Lot 704 were consolidated, there will be no need for the existing RoC to remain on the title, Ms Welsh says this opens up opportunities for redevelopment to occur within the minimum setback areas required by the ADG which does not currently exist. 14. Ms Harrison says the urban and streetscape outcome is already established and will remain unchanged from the current arrangement. Regardless of the application of the DCP or ADG as viewed from the street the appearance of the parking and access arrangement already exist and will remain unchanged. The building separation approved as part of the adjoining development to the north via DA-2017/730 in affect has sterilised future development potential and will maintain the existing appearance of Proposed Lot 1 together with the access handle to Lot 704. In addition, a restriction can be placed on the 5.5m width from the façade of the subject building which, coupled with cll 8.4 and 8.6, the setbacks will remain unchanged. 15. Ms Welsh says relying on restrictions over the use of Proposed Lot 1 under the Conveyancing Act 1919 as a mechanism to satisfy relevant planning controls indicates that the proposed subdivision is unsuitable for the site. 16. Ms Welsh says the proposed subdivision results in the existing building having a nil setback to the northern boundary. The resultant siting of the building on that boundary does not reasonably respond to the objectives of the ADG or design quality principles in Schedule 1 of SEPP65. She says the siting of an eight-storey building adjacent to the northern boundary results in an undesirable outcome and removal of setbacks required under the current planning controls would set a poor precedent and is not in the public interest. 17. Ms Harrison reiterates her view that the context of the site will not change. She says the grant of consent to the subdivision does not invite a development closer to the existing building and relies on the deferred commencement consent for the site to the north in providing adequate separation distance and the terms of cll 8.4 and 8.6 of the LEP to ensure that no development of Proposed Lot 1 could occur. 18. There is no agreement as to whether the amenity of residents of the existing development will be adversely affected. Ms Welsh says it will as it does not guarantee maintenance of existing setbacks, solar access and outlook and may provide a more intense form of development, particularly from carparking or access whereas Ms Harrison says there will be no opportunity to construct any building on Proposed Lot 1 so there will be no change in amenity. Conclusions and findings 1. Having regard to the evidence, I am not satisfied that consent should be granted. That is because there is no planning purpose to the proposed subdivisions. Proposed Lot 1 is of inadequate size to satisfy the Council's planning controls for development of a range of built forms however, may be capable of some form of development. That potential is likely to adversely impact the amenity of residents of the existing RFB. 2. The proposed subdivision does not promote the orderly and economic use and development of land consistent with objective 1.3(c) of the EP&A Act. The existing subdivision pattern provides for necessary pedestrian and vehicle access to those sites currently served and importantly fire egress to residents of the RFB. The proposed subdivision cannot maintain that access. 3. It is not appropriate to rely on restrictions on the use of the land preventing certain development opportunities. If the allotment was of suitable size, location and configuration, such restrictions would not be necessary. To impose such restrictions is poor planning and contrary to orderly use of land. The existing allotment pattern allows for the servicing needs of the carpark and guarantees adequate views, light, ventilation and amenity to residents of the RFB. Maintenance of the existing lot pattern will ensure this amenity is retained as the land that provides this is owned and controlled by the owners who enjoy those services and amenity. The land which requires that amenity should provide that amenity rather than rely on adjoining land to provide it. 4. There is no evidence that the deferred commencement consent will become operative nor that Proposed Lot 1 would definitely be consolidated with Lot 704. For that reason, it is not appropriate to create an allotment that prejudices the continuation of that amenity currently enjoyed by the RFB. 5. There is no certainty that the conditions sought to be imposed can be affected as the Owners Corporation has not granted its consent to allow entry onto its land or to carry out any works on the land/building. 6. To ensure that proper egress from the building is maintained, a 1m wide path along the northern face of the building is required. The application does not provide for this necessary travel path. Failure to address this important element further demonstrates the site is unsuitable for the proposed development. 7. For the reasons outlined, it is not appropriate to grant consent to the application. 8. The orders of the Court are: 1. The appeal is dismissed. 2. DA-2019/113 which sought consent to a two lot Torrens Title subdivision of Lot 703 DP 954202 Thomas Street, Wollongong is refused. 3. The exhibits, other than Exhibits A and 4, are returned. …………………………… S Morris Acting Commissioner of the Court ********** 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. Decision last updated: 17 January 2020