Land and Environment Court New South Wales Medium Neutral Citation: Quill Holdings Pty Ltd v Wollongong City Council [2020] NSWLEC 1103 Hearing dates: Conciliation conference on 14 February 2020 Date of orders: 06 March 2020 Decision date: 06 March 2020 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders that: (1) The Applicant is granted leave to amend its Class 1 Application filed with the Court on 11 December 2018, by replacing the 'Application for Development' dated 19 October 2018 with the amended 'Application for Development' dated 16 January 2020 (to refer to stratum subdivision and the new legal description of the subject land following registration of a plan of redefinition as registered on 31 December 2019). A copy of the Applicant's amended Application for Development is provided at Annexure "A". (2) The Applicant is granted leave to rely on the amended plans referred to in condition 1 of Annexure "B". (3) The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed. (4) The clause 4.6 variation request dated 9 December 2019 prepared by Cardno, to vary the height standard provided in clause 4.3 of Wollongong LEP 2009, is upheld. (5) The appeal is upheld. (6) Development consent is granted to Development Application No. 2018/1316, seeking consent for the demolition of existing structures, stratum subdivision and construction of a new residential flat building with 13 residential apartments and 2 levels of basement on the land legally identified as Lot 4 in DP 1259855 at 2 Blacket Street, North Wollongong NSW subject to the conditions of consent annexed hereto and marked "B". Catchwords: DEVELOPMENT APPLICATION – residential flat building – 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 (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 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 Texts Cited: Apartment Design Guide Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Quill Holdings Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: S Kaoutarani (Solicitor) (Applicant) J Reilly (Solicitor) (Respondent) Solicitors: Project Lawyers (Applicant) Wollongong City Council (Respondent) File Number(s): 2018/381316 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Quill Holdings Pty Ltd (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Wollongong City Council (the Council) of Development Application No. 2018/1316 (the application). 2. The application seeks consent for the demolition of existing structures, stratum subdivision and construction of a new residential flat building (RFB) with 13 residential apartments and 2 levels of basement parking on land legally identified as Lot 4 in DP 1259855 and known as 2 Blacket Street, North Wollongong (the site). 3. The original application proposed development over 2 lots; being the site, which is zoned R1 General Residential, and an adjoining lot, which is zoned RE1 Public Recreation, pursuant to the provisions of the Wollongong Local Environmental Plan 2009 (the LEP). 4. The application was notified and 9 objections were received raising a variety of concerns with the design and scale of the development on such a prominent corner and the impacts on neighbours and the area. 5. In the Statement of Facts and Contentions (SFC) filed with the Court, contentions raised by the Council regarding the application included: that RFBs were not permitted in the RE1 zone; the height and floor space ratio (FSR) exceeded that permissible in the LEP and should not be supported under cl 4.6 of the LEP; the design's response to the site's context and streetscape; and a range of design concerns in terms of the impacts on the streetscape, foreshore opposite, and neighbours. 6. The matter was listed for conciliation under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) in August 2019 but the parties could not come to an agreement and the conciliation was terminated. However, the parties continued to work to try and resolve the outstanding contentions and revised plans were subsequently prepared. 7. The revised plans were advertised and 4 objections were received in response raising similar concerns to those raised with the original application, notwithstanding the revisions undertaken. 8. Following further modifications to the plans, the parties advised the Court that they had come to an agreement on an amended application. The matter was again listed for conciliation under s 34(1) of the LEC Act in February 2020 before me, at which time an agreement under s 34 was provided to the Court. 9. The key amendments to the application which formed the basis of the agreement confined the development to the R1 zoned land only and reduced the density, height, bulk, and scale of the development. A number of significant design changes had been undertaken to address the site's context and neighbours' concerns. 10. As the presiding Commissioner, I am required under s 34(3) to be satisfied that the decision sought by the parties is one that the Court could make in the proper exercise of its functions. Being so satisfied, I am required to dispose of the proceedings in accordance with the parties' decision; s 34(3)(a). 11. The LEC Act also requires me to set out in writing the terms of the decision; s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 12. 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. 13. In this regard, the Applicant provided a summary of jurisdictional matters with the agreement addressing the pre-conditions. The following summarises those jurisdictional matters. 14. The original application was for development over both lots. On 16 January 2020 an amended 'Application for Development' form was lodged with the consent in writing of Nabroc Pty Ltd, the owner of the site, to confine the development to Lot 4 only. A copy of this amended application accompanied the agreement. 15. The development is required to comply with the requirements of the LEP and the associated Wollongong Development Control Plan 2009 (the DCP). It must also have regard to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and the associated Apartment Design Guide (ADG). 16. The development for the purposes of an RFB is permitted with consent within the R1 zone under the LEP. Consideration was given to the objectives of the R1 zone in assessing the application, as amended. 17. Pursuant to cl 5.10 of the LEP, the site is not a listed heritage item nor is it within a heritage conservation area. It is however, located within the immediate vicinity of the Wollongong Harbour Precinct State Heritage Area, as well as the North Beach Kiosk, North Beach Bathers Pavilion, North Beach Surf Lifesaving Club and Stuart Park landscape heritage area, all of which are listed in the LEP as heritage items. The site is also adjacent to the Wollongong Harbour Heritage Conservation Area. The proposed development will have a level of impact on the heritage significance of these areas and items which is considered satisfactory. 18. The proposed development breaches the Height of Buildings development standard set out in cl 4.3 of the LEP. The maximum height permissible is 16m. The maximum height proposed is 16.59m. This is a 3.69% variation to the height control. 19. The Applicant lodged a written request based on the amended application accordingly, seeking approval to vary the height standard pursuant to the provisions of cl 4.6 of the LEP. 20. I am satisfied that the cl 4.6 written request demonstrates that compliance with the building height is unreasonable and unnecessary in the circumstances, as required by cl 4.6(3)(a) as, despite the non-compliances, the development meets the objectives of the height standard in the LEP. 21. The cl 4.6 written request also adequately establishes that there are sufficient environmental planning grounds to justify the height breach, as required by cl 4.6(3)(b). 22. In this regard, the following is a summary of the justification provided: 1. The height breach is minor and solely associated with accommodating a life overrun. The lift is required to provide universal access to a rooftop communal open space terrace and common amenities and pool area. The terrace is an essential element in a high quality, architecturally-designed building and provides all of the communal open space for the RFB. It is separated, for privacy and security purposes, from the high-traffic publicly accessible spaces in Cliff Road and the adjoining public car park. 2. The lift overrun will not be visible from the publicly accessible spaces of surrounding streets or from neighbouring residential properties being recessed from the edges of the rooftop and integrated with the rooftop facilities which include access stairs and a covered outdoor dining and BBQ area. 3. The position of the single lift and stair core within the building footprint is the most functional location for access, services, plant and equipment. 4. The height is also a result of the specific slope and dimensions of the site and the level of the vehicle crossing point in Blacket Street. 5. Under the LEP, a variety of heights apply in the site's vicinity, including the Novotel immediately to the south which is a substantially higher building than the proposed development and sits on higher ground. 6. There are no detrimental consequences as the portion of the lift overrun that exceeds the height standard does not contribute to additional floor space, bulk, scale, overshadowing or overlooking. 7. The development is now FSR compliant and complies with the deep soil and landscaping controls. 8. The non-compliant height will be imperceptible and will not have any significant negative consequences for: 1. the streetscape and desired future character of the North Wollongong foreshore area and heritage items nearby, 2. the amenity of adjacent residential neighbours to the west in terms of overshadowing and privacy, visual scale and bulk, 3. the amenity and enjoyment of public open spaces to the east and north in terms of overshadowing and privacy, visual scale and bulk, or 4. the visual appearance of the building as viewed from a variety of public places and from the neighbouring Novotel hotel. 1. Numeric compliance with the height standard of 16m is therefore unreasonable or unnecessary because the height of the building is consistent with the objectives of the standard and of the R1 zone. 2. In terms of the objectives of the height standard, the FSR standard is met and the revised design was considered by the Council to be of high architectural value, important given the prominence of the site. 3. The development meets the solar access requirements of the ADG and the rooftop terrace provides access to sky views for residents and visitors and year round exposure to sunlight. The mid-winter overshadowing of the non-compliant element will be confined to the service driveway of the Novotel hotel and the street, or overlaps with overshadowing from retaining walls on the foreshore pathway. 4. In terms of the applicable objectives of the R1 zone, 13 apartments are proposed with a variety of configurations and sizes. The density and types of dwellings are diverse within the local neighbourhood. The locality is undergoing a transition to taller buildings at higher density as is appropriate for the high amenity location at the north-eastern gateway to the Wollongong City Centre, and the development will reflect the desired and intended future character of this area. 1. In summary, the revised design resulted from a concerted effort by the parties to achieve a design that optimises compliance with all relevant controls, objectives, guidelines and development standards as well as considers the visual prominence of the site, the setting at the gateway to Wollongong City Centre, and the variety in building bulk, scale and height in the locality. 2. The minor variation to the height standard is therefore well founded. The lift overrun height has been minimised within the site's constraints including existing ground levels of the site and surrounds, the location of the vehicle crossing, the broader local topography, stepping in the built form, compliant grades and levels for access, required floor to ceiling heights, and a scale of development consistent with the desired streetscape. The architectural treatments and layout respond well to the setting and context and will result in positive environmental planning outcomes. 3. As I have already indicated, the development meets the applicable objectives of the R1 zone and of the height standard. The development will therefore be in the public interest. 4. In addition to compliance with cl 4.6, the other applicable pre-conditions to consent contained in the LEP have been satisfied. 5. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been submitted by the Applicant, and compliance with it is required by the conditions of consent. 6. Pursuant to the State Environmental Planning Policy (Coastal Management) 2018, the proposed development is not likely to cause increased risk of coastal hazards on the site or other land. A Coastal Engineering Report was submitted with the development application to demonstrate this. 7. The site has a long history of residential uses and there is no evidence within the site of contaminating activities. Accordingly, the site is unlikely to have been used for potentially contaminating activity. The Council did not raise a contention in relation to State Environmental Planning Policy No 55 – Remediation of Land and I am satisfied that site contamination is unlikely. 8. Pursuant to SEPP 65, the proposed development demonstrates that adequate regard has been given to the design quality principles at Schedule 1 of the SEPP 65, and the objectives specified in the ADG for the applicable design criteria are met. A SEPP 65 Design Report was submitted with the application and the Council was satisfied that the amended application complied with the design requirements of SEPP 65, the ADG and the DCP. 9. Finally, I am satisfied that the issues raised by objectors were considered in the amendments made to the application and, as I have already determined, I am satisfied that the development, as amended, is therefore in the public interest. 10. Accordingly, the Court orders that: 1. The Applicant is granted leave to amend its Class 1 Application filed with the Court on 11 December 2018, by replacing the 'Application for Development' dated 19 October 2018 with the amended 'Application for Development' dated 16 January 2020 (to refer to stratum subdivision and the new legal description of the subject land following registration of a plan of redefinition as registered on 31 December 2019). A copy of the Applicant's amended Application for Development is provided at Annexure "A". 2. The Applicant is granted leave to rely on the amended plans referred to in condition 1 of Annexure "B". 3. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed. 4. The clause 4.6 variation request dated 9 December 2019 prepared by Cardno, to vary the height standard provided in clause 4.3 of Wollongong LEP 2009, is upheld. 5. The appeal is upheld. 6. Development consent is granted to Development Application No. 2018/1316, seeking consent for the demolition of existing structures, stratum subdivision and construction of a new residential flat building with 13 residential apartments and 2 levels of basement on the land legally identified as Lot 4 in DP 1259855 at 2 Blacket Street, North Wollongong NSW subject to the conditions of consent annexed hereto and marked "B". ……………………….. Jenny Smithson Commissioner of the Court Annexure A (562 KB) Annexure B (167 KB) ********** 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: 09 March 2020