Anagnostou v Wollongong City Council

Land and Environment Court (NSW)|2021-03-19

Judgment

COMMISSIONER: This is an appeal by Michael Anagnostou (The Applicant) pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (The EPA Act) from the refusal by Wollongong City Council (The Respondent) of Development Application (DA2019/96) for an additional hotel suite on the roof of the Novotel North Beach Hotel.
The development application relies on cl 4.6 to vary the height development standard of 24m which is prescribed in the Wollongong Local Environmental Plan 2009 (Wollongong LEP 2009).

The Site

The site is bounded by Blackett Street, to the north, Cliff Road to the east, Bourke Street to the south, and Kembla Street to the west and has an area of 7,793 m2.
The site is occupied by the Novotel North Beach Hotel which was constructed circa 1980 and is part 8 storey and part 3 storey, with two levels of basement parking. There are existing built form structures at the roof level that exceed the height standard. These roof structures include lift shafts, stairwell, plant room, infrastructure, and a concrete frame, which have a maximum height at RL 43.20, which is a height of 31.55m and is 7.55m above the height development standard. The hotel contains 204 rooms a restaurant conference, function rooms, retail premises, bars, and car parking.

The Locality

The existing building is prominent in the North Wollongong context and is visible from the surrounding area and the adjacent public foreshores and recreation area.
To the east of the site on the opposite side of Cliff Road is the coastal foreshore, encompassing North Wollongong Beach, North Wollongong Surf Lifesaving Club. The foreshore also includes a number of items of environmental heritage including: The North Beach kiosk and restaurant, North Beach Pavilion, North Beach Surf Club, railway cuttings in the embankments, a group of Norfolk Island Pines and Canary Island Palm's. In addition, the shareway, which forms part of the "blue mile tram link", is a recently upgraded historic pathway linking North Beach to Belmont basin.

The Proposal

The proposal is to create an additional hotel suite with an area of approximately 179 m2. The proposed suite will be located on the northern, eastern, and southern sides of the existing roof area adjoining the plant room and have maximum RL of 43.2. The suite will have two terraces on the north- eastern and south-eastern corners. These terraces will have areas of approximately 22m2 and 32 m2. The proposed suite will have the similar material and proportions to the facade treatment at the lower levels on the northern, eastern and southern walls of the existing hotel building.
The Applicant has submitted a cl 4.6 variation statement in accordance with cl 4.6 of the Wollongong LEP 2009 in relation to the proposed hotel suite on the rooftop of the existing Novotel Hotel. The Applicants 4.6 states, inter alia: PROPOSED VARIATION Clause 4.3(2) of the WLEP 2001 prescribes the maximum height of building standard and refers to the height of buildings map. The relevant map identifies the subject site as having a maximum height of building of 24m. Building height is defined as: Building height (or height of building) means the vertical distance between ground level (existing) and the highest point on the building, including plant and lift overrun, but excluding communication devices, antennas, satellite dishes, masts, flagpoles, chimneys, flues and the like. The existing Eastern part of the 8-storey portion of the hotel has a maximum height of 31.55m. The proposed hotel room addition, indicated in figure 3 (my figure 1), has an RL of 43.20 to match the existing parapet height of the hotel and match the existing maximum building height of 31.55m. This represents a breach of 7.55 meters or 31.5% over the 24m height control. The proposed development does not result in any further height breach over the existing approved built form and therefore does not introduce a non-compliance. Rather it increases the footprint of the existing non-compliant component. See figure 1
The content of the cl 4.6 is discussed subsequently in Paragraphs 44-57 of the Judgment.

Contentions

The council argues that the development should be refused. The contentions are detailed in the Amended Facts and Contentions document. A summary of the contentions are as follows: 1. The proposed development does not comply with the maximum building height contained in cl 4.3 of the Wollongong LEP 2009; 2. The proposal fails to demonstrate design excellence; 3. The proposal will result in adverse impacts upon the setting of surrounding heritage items, precincts and landscapes; 4. The proposal is inconsistent with SEPP (Coastal Management) 2018; 5. The proposal will result in adverse and unreasonable view impacts; 6. The proposal constitutes a poor precedent and is not in the public interest.
I have been asked to determine whether the cl 4.6 should be upheld and whether the Development Application should be approved having regard to the council's contentions.

The Planning Controls

The following planning controls relate the proposal 1. State Environmental Planning Policy (Coastal Management) 2018 (SEPP) (Coastal Management) 2018); 2. Wollongong LEP 2009; 3. Wollongong Development Control Plan 2009 (Wollongong DCP 2009).

State Environmental Planning Policy (Coastal Management) 2018

The SEPP (Coastal Management) 2018 applies to the subject site and the land to the east. The relevant clauses identified by council include: 1. Clause 3 - outlines the aims of the SEPP (Coastal Management) 2018; 2. Clause 13 - relates to land within the coastal environment area and includes the site and lists a number of matters which must be considered by the consent authority; 3. Clause 14 - relates to the land in the coastal area which includes the site and a consideration of any adverse impacts identified in cl 14(a) and 14(c); 4. Clause 15 - Relates to the development in the coastal zone generally and requires that consent must not be granted to the development unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land.

Wollongong Local Environmental Plan 2009

Under the Wollongong LEP 2009 the site is zoned SP3 Tourist. The objective of the zone states: To provide for a variety of tourist- oriented development and related uses.
The existing use as a hotel with a restaurant and shops provides tourist accommodation and facilities, satisfies the objective of the zone and is a permissible use.
Clause 4.3 states: 4.3 Height of buildings (1) The objectives of this clause 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.
The maximum height of building on the height map accompanying the Wollongong LEP (2009) is 24m. 4.4 Floor space ratio (1) The objectives of this clause are as follows - (a) to provide an appropriate correlation between the size of a site and the extent of any development on that site, (b) to establish the maximum development density and intensity of land use, taking into account the availability of infrastructure to service that site and the vehicle and pedestrian traffic the development will generate, (c) to ensure buildings are compatible with the bulk and scale of the locality. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
The Wollongong LEP 2009 accompanying maps prescribe a maximum floor space ratio (FSR) the subject side of 3:1. The parties agree that the existing building complies with that FSR.
Clause 4.6 of the Wollongong LEP 2009, states: 4.6 Exceptions to development standards 1) The objectives of this clause are as follows - a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) 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 development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if - (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following - (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated.
Clause 5.10 of the Wollongong LEP 2009 states, interalia: 5.10 Heritage conservation Note Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5. (1) Objectives The objectives of this clause are as follows - (a) to conserve the environmental heritage of Wollongong, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance.
The clause identifies matters for consideration and that certain development requires consent in the vicinity of a heritage item or land that is within a heritage conservation area.
Clause 7.18 of the Wollongong LEP 2009 states: 7.18 Design excellence in Wollongong city centre and at key sites (1) The objective of this clause is to deliver the highest standard of architectural and urban design. (2) This clause applies to development on any of the following land involving the construction of a new building or external alterations to an existing building - (a) land within the Wollongong city centre, (b) land shown edged heavy black and distinctively coloured on the Key Sites Map (a key site). (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.
Clause 8.1 of the Wollongong LEP 2009 states: 8.1 Objectives for development in Wollongong city centre The objectives of this Part and (in so far as it relates to the Wollongong city centre) clause 7.18 are as follows - (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.
This clause identifies the matters that the consent authority must consider.
I am satisfied that for the purpose of cl 8.1 of the Wollongong LEP 2009 that the application is acceptable.
Clause 8.2 of the Wollongong LEP 2009 states: 8.2 Wollongong city centre - land to which Part applies (1) This Part applies to land within the Wollongong city centre.
I am satisfied that for the purpose of cl 8.2 of the Wollongong LEP 2009 that the application is acceptable.

Wollongong Development Control Plan (DCP) 2009

The Wollongong DCP 2009 applies to the site and the surrounds and is comprised of the number of chapters which embrace: ecologically sustainable development, character statements, the Wollongong city centre and a number of controls.
The Application was notified to residents in the area and I have considered the submissions received in making my determination.

Evidence

The Court heard from Mr. Green of 3-5 Corrimal Street who was objecting to the proposed development. Mr. Green stated that the proposal would impact on his view. Mr. Green also informed the Court that he represented six other owners.
The Court also heard joint expert planning evidence from Ms Welsh representing the Respondent and Mr Mead on behalf of the Applicant. The Experts had undertaken a view impact assessment from Levels 6, 7 and 8 at 3-5 Corrimal Street Wollongong. Two photographs from the joint report taken from Level 7 show the agreed view impact and the view available from that level (See Figures 2 and 3). Figure 2 Figure 3
In their assessment the Experts disregarded the views blocked by existing trees and the existing framework in the vicinity of the proposed suite. The experts agreed that the view impact was in the order of 3%, which Ms Welsh described as minor, and Mr Mead described as negligible. I accept the assessment of the experts that the view impact is in the order of 3% and the opinion of Mr Mead that the view impact is negligible.
The Court heard expert Heritage evidence from Mr. Thompson on behalf of the Respondent and Mr Vale on behalf the Applicant.
Mr. Thompson stated that the proposal would impact on the heritage precinct, heritage items, the pavilion, the shared walkway and the trees to the east. Mr. Thompson was concerned at the visual impact the proposal would have from the walkway and he stated that the additional overshadowing in midwinter was unacceptable. He took the Court to the shadow diagrams, that were quite extensive, and the additional shadows were shown in yellow. The shadow diagrams were prepared at two-minute intervals and the additional shadow on the pavilion Mr Thompson's, stated that occurred at 2:34 pm in midwinter was unacceptable. Mr. Thompson also stated that the additional shadow that would fall on the beach approaching 3:00pm in midwinter was unacceptable. Mr. Thompson stated that the visual and shadow impact on the heritage precinct and heritage items would be significant.
Mr Vale's stated, that the Novotel North Beach Hotel, which was erected circa 1980, was part of the existing character of the area. Mr Vale stated that the Novotel North Beach Hotel formed a complementary element in the locality. Mr Vale agreed that the development would be above the height limit, but concluded that the form of the proposal would not increase the overall height of the building and would not have an adverse impact on heritage items in the vicinity or the heritage precinct.
Two letters from the Heritage Council were tendered to the Court. There was disagreement between the parties whether these letters, referred to previous or the amended development application.
Although the Applicant expressed concern that the letters did not form part of the joint report the Respondent informed the Court that the letters should be given little weight.
The planning experts also gave evidence on the shadow impact on the public domain and the heritage items. The experts also referred to the shadow diagrams and the additional shadow shown after 2:30pm in winter solstice. Ms Welsh stated that shadow impact from the proposal was "not insignificant". Mr Mead stated that the additional shadow was minor or negligible.

Applicant's Summation

The Applicant's summation for the cl 4.6 variation request, states, inter alia "The Applicant has demonstrated that the proposal will result in negligible view loss and negligible additional shadow. The additional visual bulk caused by the proposal is minimal and would not be a reason for the clause 4.6 to not be upheld. The merits of the clause 4.6 variation request are set out in Mr Mead's request of 15 December 2020. The Applicant submitted that the Applicant's adequately addresses the matters required by cl 4.6(3), as held to be required in Initial Action Pty Ltd V Woollahra Municipal Council [2018] NSWLEC 118, [25]. Conversely, The Applicant rejects the Respondent's criticism that the clause 4.6 request fails to adequately address clause 4.6(3) of the LEP, and therefore does not warrant rejection analogous to that in Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191."
In addition, the Applicant states, inter alia: "It is not unusual, inappropriate or contrary to the principals established by this Court to refer to the assessment made by other technical experts in relation to an application, in this case to work undertaken by the Applicant's heritage advisors. What is important is that work constitutes consideration of matters in the clause 4.6 variation request and this has occurred. The Applicant concludes that: (a) The Court will be satisfied with the cl 4.6 variation request regarding environmental matters; (b) The Court will be satisfied that the structural form of the cl 4.6 variation request meets the threshold requirements of caselaw; (c) The cl 4.6 variation request will be upheld; and (d) Consent for the development is granted pursuant to the conditions of consent, which are agreed."

Respondent's Summation

The Respondent's summation stated, inter alia: "The assessment bar is incredibly high, but that is as it well should be, given a wider context to the proposal that includes: 1. A state heritage-listed precinct (North Beach precinct). 2. Two separate state heritage-listed items (North Beach pavilion and North Beach Kiosk). 3. A local heritage item (North Beach surf club). 4. A local heritage item of Norfolk Island Pines extending from Stuart Park and past the subject site."
The Respondent directed the Court to the Jurisdictional Gate of cl 4.6 of the Wollongong LEP 2009 and the provisions contained therein. The Applicant's submission is critical that the objectives of the height standard at cl 4.3 are not justified. These objectives state, inter alia: (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.
The Respondent's summation is also critical that the cl 4.6 does not clearly recognise or assess the heritage assessment in context or the heritage precinct and the items in that locality.
The Respondent is also critical that the Applicant's evidence is that there was a lack of consideration of alternative designs and locations. The respondent also opined that the cl 4.6 variation by the Applicant did not suitably address cl 4.6(4)(a)(ii) of the LEP in respect of the public interest, the zone objectives and the objectives of the standard.
The Respondent was critical of the lack of design excellence and the failure of the proposal to satisfy cll 7.18 and 8.1 of the Wollongong LEP and the provisions in the Coastal Management SEPP. The Respondent's conclusion was critical that the works estimated at $80,000 could not result in high quality design.
Also, the Respondent advised, that the letters from the Heritage Council which occupied a considerable amount of time in evidence. The Respondent advised that, "very little weight should be given to the views of the Heritage Office".

Consideration of the cl 4.6 Variation to the Height Standard

In accordance with cl 4.6(4) of the Wollongong LEP development consent must not be granted for development that contravenes the height development standard, unless the consent authority is satisfied that the provisions of that clause have been satisfied.
In assessing the preconditions and enlivening powers of the cl 4.6, I am assisted by Judgments by His Honour Preston CJ including, but not limited to, Initial Action Pty Ltd V Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118, and Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827.
The permissive power in cl 4.6(2) of Wollongong LEP 2009 to grant development consent for a development that contravenes the development standard is subject to conditions. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a development standard.
His Honour Preston CJ explains in the decision of Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [14]-[15] that there are two preconditions as follows: "The first precondition, in cl 4.6(4)(a), is that the consent authority, or the Court on appeal exercising the functions of the consent authority, must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii). … The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant's written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters."
I am satisfied that the applicant's written request prepared by Planning Ingenuity dated 15 December 2020 (the Written Request) seeking to justify the contravention of the development standard in cl 4.3 of the Wollongong LEP 2009 has adequately addressed the matters required to be demonstrated by cl 4.6(3) of Wollongong LEP 2009 for the following reasons.
The Written Request has considered unreasonable or unnecessary as established in five ways in Wehbe v Pittwater Council [2007] NSWLEC 827, Preston CJ . Although the Written Request has addressed the five ways which establish unreasonable and unnecessary contained in Wehbe, only one needs to be established. In Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, Preston CJ, states, interalia: "An applicant does not need to establish all the ways. It may be sufficient to establish only one way, although if more ways are applicable, an applicant can demonstrate that compliance is unreasonable and unnecessary in more than one way."
Accordingly, in assessing the 4.6, the first opinion of satisfaction is under cl 4.6(4)(a)(i) whether the Applicant's written request has adequately addressed the two matters required to be demonstrated by cl 4.6(3). The first matter, cl 4.6(3)(a), that compliance with the height development standard is unreasonable or unnecessary in the circumstances of the case. 1. The Written Request has stated that the Proposed Development is consistent with the objective of the SP Tourist zone and the objectives of the height standard. The sole objective of the SP3 zone, is To provide for a variety of tourist- oriented development and related uses. This is articulated in the Written Request and I accept the proposal would be consistent with this objective. 1. In considering the height objectives, the Written Request has included shadow diagrams and the view impact assessment, which demonstrate the impacts. I am satisfied that those impacts have been addressed and are acceptable. 2. The Respondent has stated that the Applicant has not considered alternative designs. The design before the Court is an alternative to an earlier proposal, which has two corner terraces. Providing terraces reduces the leading edge on the eastern elevation, reduces shadow impacts to the foreshore, and promotes good design. I find that the design minimises the loss of view and solar access to existing buildings and open space and is therefore acceptable. 3. In relation to the second precondition, the Written Request does make the case that there are sufficient environmental planning grounds, which include the potential for significant direct and indirect economic benefits for the Wollongong City Centre. 4. I accept that the proposal has the potential to broaden the type of accommodation in the City Centre. The proposal also has the potential to promote the orderly and economic use and development of land where the relatively building height non-compliance results from the existing built form which already exceeds the height standard. I accept that where the Proposed Development is compliant with the FSR standard, strict compliance with the height standard could result in an outcome significantly compromising the design quality, and amenity of the development.
The second opinion of satisfaction, as described by Preston CJ in Initial Action at [26] is as follows: "The second opinion of satisfaction, in cl 4.6(4)(a)(ii), is that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. The second opinion of satisfaction under cl 4.6(4)(a)(ii) differs from the first opinion of satisfaction under cl 4.6(4)(a)(i) in that the consent authority, or the Court on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the applicant's written request has adequately addressed the matter in cl 4.6(4)(a)(ii)."
I am satisfied that the Proposed Development would be in the public interest because it is consistent with the objectives of the standard and the objective for development within the zone in which the development is proposed to be carried out. My conclusion is that the proposal is consistent with the zone objective and may provide direct or indirect social and economic benefits to the centre and therefore is in the public interest.
Having addressed the two opinions of satisfaction as required by the first precondition in cl 4.6(4)(a) I now address the second precondition in cl 4.6(4) that must be satisfied before the consent authority can exercise the power to grant development consent for development that contravenes a development standard, namely that the concurrence of the Secretary (of the Department of Planning and Infrastructure) has been obtained. Council have been granted concurrence from the Secretary for the purposes cl 4.6(4)(b of the Wollongong LEP 2009. Preston CJ states in Initial Action at [29] that: "On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the Court Act. Nevertheless, the Court should still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100; Wehbe v Pittwater Council at [41]."
I have considered the matters in cl 4.6(5) and I am satisfied the that the concurrence of the Secretary can be assumed.
Although the proposed development does not comply with the maximum building height contained in cl 4.3 of the Wollongong LEP 2009, I am satisfied that the height development standard is unreasonable or unnecessary in the circumstances of the case. I am also satisfied the Written Request has addressed the relevant matters and that the cl 4.6 has identified sufficient environmental planning grounds. I am satisfied that the proposal is in the public interest.
In relation to the remaining council's contentions my conclusions are as follows.

Design Excellence

The proposal has been amended in response to previous concerns identified by council. A large terrace has been included on the north-eastern and south-eastern corners of the proposed suite, reducing the eastern elevation facing the Heritage Area. Also, the design and materiality of the proposal will be consistent with the existing building. Although the council is concerned about the stated cost of the work, which may or may not be correct, this is a matter between the parties. The design excellence provisions are identified in cl 7.18 of the Wollongong LEP 2009 and I have considered the relevant sub-clauses. From the north, plant and equipment will be transformed and the external appearance of the development will improve the quality and amenity of the public domain, when viewing the development from that location. I am satisfied for the purposes of cl 7.18, that the application demonstrates design excellence and this precondition is met.

Heritage items, precincts and landscapes

Clause 5.10 of the Wollongong LEP, 2009, requires consideration of the impact of the proposal on the heritage area. Heritage evidence has been provided by Mr Thompson and Mr Vale, on the impact of the proposal on the heritage precinct, the heritage items, the shared walkway and the trees. I accept the evidence of Mr Vale that the hotel is complimentary part of the character of the area and that the proposal will not have adverse effect on the locality. Also, I accept the evidence of Mr Mead and Mr Vale the shadows resulting from the proposal will not have an unacceptable impact on the heritage area. I am satisfied for the purposes of cl 5.10, that the application is acceptable, and this precondition is met.

SEPP (Coastal Management) 2018;

I have considered the relevant clauses in the SEPP (Coastal Management) 2018, which applies to the subject site and the land to the east. I am satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land. I am satisfied for the purposes of the SEPP (Coastal Management) 2018, that the application is acceptable, and this precondition is met.

View impacts

The planning experts assessed the view impact of the proposal. The experts agreed that the view impact was in the order of 3%, which Ms Welsh described as minor, and Mr Mead described as negligible. I accept the opinion of Mr Mead that the view impact is negligible. I am satisfied the view impact resulting from the proposal is not significant.

Poor precedent and is not in the public interest

I do not accept that the proposal would be a poor precedent in the area. I accept the evidence of Mr Mead the proposal is consistent with the zone objective and is a permissible use. I also, accept that the proposal has the potential to broaden the type of accommodation available in the City Centre.
I am satisfied that the proposed development would be in the public interest and may provide direct or indirect social and economic benefits to the centre and therefore is in the public interest.
I have considered the potential impact of the proposed development in accordance with relevant provisions in SEPP (Coastal Management) 2018; the Wollongong LEP 2009; and the Wollongong DCP 2009 and conclude that the proposal is acceptable subject to conditions.

Orders

The Court orders: 1. The Applicant's written request under clause 4.6 of the Wollongong Local Environmental Plan 2009 ("Wollongong LEP 2009") seeking a variation of the height of buildings development standard under clause 4.3 of the Wollongong LEP 2009 is upheld. 2. The Appeal is upheld. 3. Development Application No. DA-2019/96 to construct an additional hotel suite with an area of approximately 179m2 on the eighth floor of the Novotel North Beach Hotel at 2-14 Cliff Road North Wollongong is approved subject to the conditions in Annexure A.

Acting Commissioner of the Court Annexure A (157901, pdf) Plans (10889974, pdf)

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: 26 May 2021

(2018) 236 LGERA 256

(2007) 156 LGERA 446

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Judgment (21 paragraphs)

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Cases Cited (9)