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[2025] NSWLEC 1788
General information, not legal advice.
Land and Environment Court (NSW)
2025-11-11
Horton C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: 101 Keira Street Pty Ltd v Wollongong City Council [2025] NSWLEC 1788
Hearing dates: Conciliation conference on 31 October 2025
Date of orders: 11 November 2025
Decision date: 11 November 2025
Jurisdiction: Class 1
Before: Horton C
Decision: The Court orders that:
(1) The request pursuant to clause 4.6 of the Wollongong Local Environmental Plan 2009 (LEP) to vary the development standard for building height contained in clause 4.3 of the LEP as prepared by MMJ Planning dated August 2025 is upheld.
(2) The request pursuant to clause 4.6 of the LEP to vary the development standard for building separation contained in clause 8.6 of the LEP as prepared by MMJ Planning dated August 2025 is upheld.
(3) In accordance with section 8.15(3) of the Environmental Planning & Assessment Act 1979 (NSW), the Applicant is to pay the Respondent's costs thrown away as a result of the amendments made to the application for development consent, in the agreed sum of $12,000.00, payable within 28 days from the date of the order.
(4) The appeal is upheld.
(5) Development Application DA-2024/818 for the demolition of existing structures, lot consolidation and construction of a 7-storey shop top housing development over 1 level of basement parking at 101-113 Keira Street, Wollongong is determined by the grant of consent subject to conditions contained in Annexure A.
Catchwords: DEVELOPMENT APPLICATION: residential apartment development – shop top housing development in MU1 Mixed Use zone – conciliation conference – agreement between parties - orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW) , s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 29, 38
State Environmental Planning Policy (Housing) 2021, ss 147, 148, Sch 9
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119
Wollongong Local Environmental Plan 2009, cll 2.1, 4.3, 4.4A, 4.6, 7.5, 7.6, 7.18, 8.4, 8.6, 8.7
Texts Cited: NSW Government, Apartment Design Guide, July 2015
Category: Principal judgment
Parties: 101 Keira Street Pty Ltd (Applicant)
Wollongong City Council (Respondent)
Representation: Counsel:
M Bawden (Solicitor) (Applicant)
E Kilpatrick (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Wollongong City Council (Respondent)
File Number(s): 2025/93839
Publication restriction: Nil
COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) following the deemed refusal by Wollongong City Council of development application DA-2024/818 seeking development consent for the demolition of existing structures, lot consolidation and construction of a 7-storey shop top housing development over 1 level of basement parking (the DA) at 101-113 Keira Street, Wollongong, identified formally as 101 Keira Street - Lot A DP 89130; 103-107 Keira Street - Lot C DP 398161; and 109-113 Keira Street - Lot D DP 398161.
The DA was lodged by the Applicant in these proceedings, 101 Keira Street Pty Ltd (101 Keira) on 12 November 2024 and was publicly notified by the Council from 14 November 2024 to 28 November 2024 in response to which three submissions were received.
On 10 March 2025, 101 Keira filed an appeal in Class 1 of the Court’s jurisdiction.
On 31 October 2025, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), at which I presided.
At the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 28 October 2025, in accordance with s 34(10) of the LEC Act.
The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by 101 Keira, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.
Firstly, I note the site is located within a zone designated by the Land Use Table at cl 2.1 of the Wollongong Local Environmental Plan 2009 (WLEP) as MU1 Mixed Use in which shop top housing development is permitted with consent, where consistent with the following objectives of development in the zone:
• To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.
• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.
• To minimise conflict between land uses within this zone and land uses within adjoining zones.
• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.
• To support adjacent and nearby commercial centres and minimise adverse impacts on the viability of the centres.
• To encourage development that is compatible with the centre’s position in the centres hierarchy.
According to the relevant map at cl 4.3(2) of the WLEP, a height standard of 24m applies to the site. As the proposal is for development with a maximum height of 24.63m, 101 Keira sets out grounds to justify the contravention of the standard in a Clause 4.6 Variation Statement prepared by MMJ Planning dated August 2025 (Height Request).
The exceedance is described on p 3 of the Height Request as arising due to two “roof window pop ups”, as well as the leading edge of the parapet and lift overrun.
The Height Request asserts compliance with the height standard is unnecessary or unreasonable because the objectives of the height standard at cl 4.3 of the WLEP are achieved notwithstanding the non-compliance.
Those objectives are as follows:
(a) to establish the maximum height limit in which buildings can be designed and floor space can be achieved,
(b) to permit building heights that encourage high quality urban form,
(c) to ensure buildings and public areas continue to have views of the sky and receive exposure to sunlight.
I am satisfied that compliance with the development standard is unreasonable or unnecessary pursuant to cl 4.6(3)(a) of the WLEP because the development is substantially within the height standard but for isolated elements depicted with Reduced Levels (RLs) on Figure 11 of the Height Request and because the areas of exceedance do not give rise to additional floor space or intensification of the development, and arise largely due to the fall of the land and the desire to achieve sunlight and cross ventilation in a manner that is consistent with the Apartment Design Guide (ADG).
In respect of objective (c), the height exceedance does not impose additional overshadowing beyond those generated by a compliant building envelope due to the particular location of the exceedances on the rooftop.
I am also satisfied that there are sufficient environmental planning grounds to justify the non-compliance for the reasons set out in the Height Request, summarised as follows:
The exceedance is minor in scale and extent, does not generate additional habitable floor space, bulk or density and will be perceived from the public domain as complying with the height standard.
The exceedance arises, in part, due to the topography of the site that falls to the south, while needing to retain flush finish to upper floors over.
The roof window pop ups serve the function of ensuring natural daylight and cross ventilation into apartments, consistent with guidance found in the ADG.
The proposal optimises the use of a site that is well located within the Wollongong City Centre, is consistent with the objectives of the height standard and delivers housing that is in the public interest.
As I am satisfied the Height Request demonstrates those matters required to be demonstrated at cl 4.6(3) of the WLEP, I find the Height Request should be upheld.
The proposed development is within an area having a street frontage height of two storeys to both Keira Street and Smith Street. The proposal provides no separation within this street frontage height, consistent with cl 8.6(2)(a) of the WLEP. However, the separation between the proposal and adjoining buildings at 69 Smith Street and 6 Thomas Street above the street frontage height is less than 16m, as required by cl 8.6(3)(b) of the WLEP.
101 Keira sets out grounds to justify the contravention of the standard in a Clause 4.6 Variation Statement for Building Separation prepared by MMJ Planning dated August 2025 (Separation Request).
The proposed horizontal separation is tabulated on p 15 of the Separation Request showing separation distances from 69 Smith Street of between 1m and 10m, and between 10.9m to a complying distance of more than 16m to 6 Thomas Street.
The Separation Request asserts compliance with the Building Separation standard is unnecessary or unreasonable because the objectives of the standard at cl 8.6 of the WLEP are achieved notwithstanding the non-compliance.
The one objective of the standard is to ensure sufficient separation of buildings for reasons of visual appearance, privacy and solar access.
I am satisfied that the proposal is consistent with the objective for the reasons that follow:
The objective of achieving sufficient separation for reasons of visual appearance is achieved by the development above street frontage height appearing slender when read from Smith Street. The reduced separation at the interface with 69 Smith Street occurs primarily between non-habitable spaces used for circulation and communal areas where landscape planting and screening visually soften the interface, rather than sensitive habitable rooms.
The objective of achieving sufficient separation for reasons of privacy is achieved by orienting living spaces in the proposed development toward the public domain or internal communal areas to avoid or reduce overlooking of adjoining buildings. Where there is non-compliance with the building separation standard to 6 Thomas Street, the proposal mitigates the potential for overlooking through screening, balustrade treatment, ensuring that any overlooking is oblique.
The objective of achieving sufficient separation for reasons of solar access to apartments within the proposed development is demonstrated by 100% of the apartments achieving at east 2 hours of direct sunlight to living areas and private open space in mid winter. In respect of solar access to adjoining buildings, the development at 69 Smith Street is non-residential and the parties agree that there is no requirement for solar access. In respect of the residential development at 6 Thomas Street, the separation tabulated at [20] ensures that no overshadowing occurs before 1pm, as demonstrated by Sun Eye Diagrams in the architectural drawings Dwg No. 32-33.
I am also satisfied that there are sufficient environmental planning grounds to justify the non-compliance for the reasons set out in the Separation Request, summarised as follows:
The proposal ensures sufficient separation for reasons of residential amenity in terms of privacy and solar access, notwithstanding the non-compliance. Those uses at the interface where compliance is not achieved are either non-habitable spaces or secondary balconies where privacy and overshadowing impacts are negligible.
The site is a prominent corner within Wollongong City Centre with Controls found in Chapter D13 that prioritise continuity at the podium level.
The proposal conforms to Part 3F of the ADG, and the distribution of building mass across the site creates a balanced built form.
The redevelopment of a consolidated site is an orderly and economic use of land with impacts described at [24(1)] mitigated.
While I regard a number of the environmental planning grounds advanced above to promote the development as a whole, I note the Council is satisfied that the Separation Request demonstrates the matters required to be demonstrated by cl 4.6(3) of the WLEP. Accordingly, the Council raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 8.6 is justified.
As I am also satisfied the Separation Request demonstrates those matters required to be demonstrated at cl 4.6(3) of the WLEP, I find the Separation Request should be upheld.
The floor area of the proposed development, when expressed as a floor space ratio (FSR) is 2.58:1, according to the calculation shown on architectural drawing No. 22, which complies with the FSR permitted by the relevant formula at cl 4.4A of the WLEP.
The site is identified within an area of Class 5 Acid Sulfate Soils (ASS) according to the relevant map at cl 7.5(2) of the WLEP, and within 250m of another class of ASS. While excavation is proposed, I am satisfied that when regard is had to the Reduced Levels (RLs) on the survey prepared by Jonathan Keen dated 21 March 2024, the depth of excavation is unlikely to lower the water table.
Relatedly, the excavation proposed is considered by the Preliminary Geotechnical Investigation report prepared by Douglas Partners, dated 28 June 2024, noting that groundwater levels are substantially below the depth that is proposed to be excavated. Support for the proposed excavation, the disposal of excavated material, monitoring and further investigation are matters for comment and recommendation, that I note are the subject of agreed conditions of consent and which satisfactorily address those matters for consideration at cl 7.6 of the WLEP.
Clause 8.4 of the WLEP, at the time of lodgement of the DA, provides for minimum street frontage to at least one frontage of 20m with which the proposal complies.
The area of the ground floor retail spaces complies with the provision at cl 8.7 of the WLEP.
As the proposed development is residential apartment development, the Court is required by s 147 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) to consider the quality of the design of the development, evaluated in accordance with the design principles at Sch 9.
I am assisted by a statement dated 31 October 2025 and prepared in accordance with s 29 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) that attests Mr Peter Couvaras (Arch Reg No. 7344) directed the design of the proposal, and sets out the means by which the design principles have been applied in the proposed development, and how the objectives in Parts 3 and 4 of the ADG are addressed.
The Council’s Design and Sustainability Advisory Panel has considered the proposal and provided advice on the design. Whether or not that Panel is a panel constituted in a manner to which s 147(1)(c) is directed, the parties agree that the proposal demonstrates design excellence in accordance with cl 7.18 of the WLEP, for reasons that are set out in the statement prepared by Mr Couvaras and on the basis of which the Court is able to form an opinion of satisfaction that the proposed development exhibits design excellence.
On the basis of the statement at [33], I am also satisfied the development as proposed meets the requirements set out in s 148 of the Housing SEPP.
Vehicular access is proposed via Keira Street, which is a classified road. The width of the site’s frontage to Smith Street, as the alternative location for access, precludes access within an acceptable distance of the intersection. A Traffic and Parking Impact Assessment prepared by McLaren dated 22 August 2024 concludes that any driveway connection to Smith Street would be unsafe due to the proximity of the signals at the intersection and interaction with the Smith Street bicycle path. Transport for NSW require a median to be installed in Keira Street to direct vehicles entering and exiting the site, and impose Condition 172, accompanied by Attachment 2 of the agreed conditions of consent. On this basis, I am satisfied that the operation of Keira Street will not be adversely affected by the development as a result of vehicular access, emissions or dust, or the nature, volume or frequency of vehicles using Keira Street, in accordance with s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP).
An Acoustic Report prepared by Pulse White Noise Acoustics dated 2 August 2024 (Acoustic Report) proposes design mitigation measures to address potential impacts from traffic noise, and the potential impact of noise from other sources such as plant and equipment on neighbouring properties. I note the Acoustic Report concludes that acceptable levels will be achieved, although I regard reference to the rail line to the north of the site to be erroneous as it is clearly not. Those conclusions are subject to measures that are incorporated into the agreed conditions of consent. On this basis I am satisfied that the development includes measures of a kind likely to ameliorate traffic noise in accordance with s 2.119(2)(c) of the Infrastructure SEPP.
I have considered whether the land is contaminated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.
On the basis of the Preliminary Site Investigation authored by Douglas Partners dated 22 August 2024, and the Detailed Site Investigation prepared by EI Australia dated 28 October 2025 (the DSI), and its addendum of the same date and author, I am satisfied that the site represents a low risk of contamination and is suitable for the development proposed, subject to the recommendations contained in the DSI that are incorporated in the agreed conditions of consent at Conditions 25 and 165).
The application is accompanied by a BASIX certificate for 27 dwellings (Cert No. 1760733M_02 prepared by Jensen Hughes Pty Ltd and dated 11 September 2025) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP), supported by NatHERS Certificate prepared by Cadence Efficiency dated 11 September 2025.
An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.
I note that in addition to the notification cited at [2], the amended proposal was publicly advertised from 12-16 September 2025, in response to which two further objections were received, and filed with the Court on 31 October 2025.
As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The Court notes that Wollongong City Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the amendment of Development Application DA-2024/818 to incorporate the documents listed below:
| No. | Drawing No | Rev | Drawing Title | Prepared By | Dated | | Architectural Plans | | 1. | 02 | R | Site Plan | Couvaras Architects | 20.09.2025 | | 03 | R | Basement 1 Plan | Couvaras Architects | 20.09.2025 | | 04 | R | Ground Floor Plan | Couvaras Architects | 20.09.2025 | | 05 | R | Ground Floor mezzanine floor plan | Couvaras Architects | 20.09.2025 | | 06 | R | Level 1 Floor Plan | Couvaras Architects | 20.09.2025 | | 07 | R | Level 2 Floor Plan | Couvaras Architects | 20.09.2025 | | 08 | R | Level 3 Floor Plan | Couvaras Architects | 20.09.2025 | | 09 | R | Level 4 Floor Plan | Couvaras Architects | 20.09.2025 | | 10 | R | Level 5 Floor Plan | Couvaras Architects | 20.09.2025 | | 11 | R | Level 6 Floor Plan | Couvaras Architects | 20.09.2025 | | 12 | R | Roof Plan | Couvaras Architects | 20.09.2025 | | 13 | R | Liveable Plans | Couvaras Architects | 20.09.2025 | | 13B | R | Adaptable | Couvaras Architects | 20.09.2025 | | 14 | R | Elevations – Keira Street | Couvaras Architects | 20.09.2025 | | 15 | R | Elevations | Couvaras Architects | 20.09.2025 | | 16 | R | Elevations | Couvaras Architects | 20.09.2025 | | 17 | R | Streetscape Elevation | Couvaras Architects | 20.09.2025 | | 18 | R | Sections | Couvaras Architects | 20.09.2025 | | 19 | R | Sections | Couvaras Architects | 20.09.2025 | | 20 | R | Sections | Couvaras Architects | 20.09.2025 | | 21 | R | Sections | Couvaras Architects | 20.09.2025 | | 25 | R | External Finishes Plan | Couvaras Architects | 20.09.2025 | | 29 | R | Detailed Façade Section | Couvaras Architects | 20.09.2025 | | 30 | R | Demolition Plan | Couvaras Architects | 20.09.2025 | | 38 | R | Commercial Signage Strategy | Couvaras Architects | 20.09.2025 | | Landscape Plans | | 2. | L-00 | D | Cover Sheet | NewScape | 22.09.2025 | | L-101 | D | General Arrangement Plan : Level 1 | NewScape | 22.09.2025 | | L-102 | D | General Arrangement Plan : Level 2 | NewScape | 22.09.2025 | | L-103 | D | General Arrangement Plan : Level 3 | NewScape | 22.09.2025 | | L-104 | D | General Arrangement Plan : Level 6 | NewScape | 22.09.2025 | | L-105 | D | General Arrangement Plan: Level 1 | NewScape | 22.09.2025 | | L-106 | D | General Arrangement Plan: Level 2 | NewScape | 22.09.2025 | | L-107 | D | General Arrangement Plan: Level 6 | NewScape | 22.09.2025 | | L-108 | D | GRC specs : Level 6 | NewScape | 22.09.2025 | | L-301 | D | Planting Plan : Level 1 | NewScape | 22.09.2025 | | L-302 | D | Planting Plan : Level 2 | NewScape | 22.09.2025 | | L-303 | D | Planting Plan : Level 3 | NewScape | 22.09.2025 | | L-304 | D | Planting Plan : Level 6 | NewScape | 22.09.2025 | | L-305 | D | Planting Palette | NewScape | 22.09.2025 | | L-400 | D | Details and Specification Notes | NewScape | 22.09.2025 | | Stormwater Plans | | 8. | C001 | 4 | Notes & Legend | JN Responsive Engineering | 21.08.2025 | | C050 | 6 | Typical Details | JN Responsive Engineering | 24.08.2025 | | C051 | 4 | Typical Details | JN Responsive Engineering | 10.07.2025 | | C052 | 3 | Typical Details - Misc | JN Responsive Engineering | 10.08.2025 | | C053 | 3 | Typical Details - Misc | JN Responsive Engineering | 10.08.2025 | | C0054 | 3 | Water Sensitive Urban Design | JN Responsive Engineering | 21.08.2025 | | C110 | 4 | Basement 1 Stormwater Plan | JN Responsive Engineering | 20.08.2025 | | C111 | 4 | Erosion & Sediment Control Basement Plan | JN Responsive Engineering | 21.08.2025 | | C200 | 5 | Ground Stormwater Plan | JN Responsive Engineering | 20.08.2025 | | C201 | 4 | Erosion & Sediment Control Ground Plan | JN Responsive Engineering | 21.08.2025 | | C210 | 6 | Ground Mezzanine Stormwater Plan | JN Responsive Engineering | 24.09.2025 | | C300 | 4 | Site Catchment and OSD Drains Model Summary | JN Responsive Engineering | 24.09.2025 | | C400 | 3 | Site Catchment & DRAINS Model Result for Pipe | JN Responsive Engineering | 21.08.2025 | | C001 | 4 | Notes & Legend | JN Responsive Engineering | 21.08.2025 | | Supporting Documentation | | No. | Document | Prepared By | Date | | 9. | Design Verification Statement and ADG Compliance Checklist | Peter Couvaras | 31.10.2025 | | 10. | Clause 4.6 Request (Building Height) | MMJ Planning | 08.2025 | | 11. | Clause 4.6 Request (Building Separation) | MMJ Planning | 08.2025 | | 12. | Hazardous Material Survey | EI Australia | 10.07.2025 | | 13. | Detailed Site Investigation | EI Australia | 28.10.2025 | | 14. | Detailed Site Investigation - Addendum | EI Australia | 28.10.2025 | | 15. | BASIX Certificate No. 1760733M_02 | Jensen Hughes Pty Ltd | 11.09.2025 | | 16. | BASIX stamped plans certificate #HR-YDUU7B-01 | Jensen Hughes Pty Ltd | 11.09.2025 | | 17. | Amended BASIX Report | Jensen Hughes Pty Ltd | 11.09.2025 | | 18. | Amended NaTHERS certificate #HR-YDUU7B-01 | Jensen Hughes Pty Ltd | 11.09.2025 | | 19. | Preliminary Historical Archaeological Assessment and Research Design | Austral Archaeology | 02.10.2025 | | 20. | Owners Consent Letter | 101 Kerira Street Pty Ltd | 14.11.2023 |
The Court orders that:
The request pursuant to clause 4.6 of the Wollongong Local Environmental Plan 2009 (LEP) to vary the development standard for building height contained in clause 4.3 of the LEP as prepared by MMJ Planning dated August 2025 is upheld.
The request pursuant to clause 4.6 of the Wollongong Local Environmental Plan 2009 (LEP) to vary the development standard for building separation contained in clause 8.6 of the LEP as prepared by MMJ Planning dated August 2025 is upheld.
In accordance with section 8.15(3) of the Environmental Planning & Assessment Act 1979 (NSW), the Applicant is to pay the Respondent's costs thrown away as a result of the amendments made to the application for development consent, in the agreed sum of $12,000.00, payable within 28 days from the date of the order.
The appeal is upheld.
Development Application DA-2024/818 for the demolition of existing structures, lot consolidation and construction of a 7-storey shop top housing development over 1 level of basement parking at 101-113 Keira Street, Wollongong is determined by the grant of consent subject to conditions contained in Annexure 'A'.
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101 Keira Street Pty Ltd
Wollongong City Council [2025] NSWLEC 1788