Araiji v Wollongong City Council

Cases Cited: Bettar v Council of the City of Sydney [2014] NSWLEC 1070
Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Wollongong Community Participation Plan 2023
Wollongong Development Control Plan 2009

Category: Principal judgment

Parties: Rene Araiji (Applicant)
Wollongong City Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
D Loether (Solicitor) (Respondent)
Solicitors:
Miller Prince (Applicant)
Bartier Perry (Respondent)

File Number(s): 2024/416380

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of development application DA 2024/712. The development application seeks consent for alterations and additions to an existing dual occupancy to introduce rooftop terraces and first floor balconies at 1 Surfers Parade, Thirroul (Lot 1 in DP 204068).

2. The Court arranged a conciliation conference between the parties on 6 May 2025, pursuant to s 34AA of the Land and Environment Court 1979 (LEC Act). I presided over the conciliation conference. At the conciliation conference the parties reached agreement on the basis of amended plans and materials. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. This agreement meets the first condition to the exercise of the power and obligation of a Commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (“McMillan”) at [51].

3. As the presiding Commissioner, I am satisfied that the second condition is met, that being that the decision is one that the Court can make in the proper exercise of its functions (McMillan at [51]). I form this state of satisfaction on the basis that:

4. The development application is lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

5. The development application was notified in accordance with the Wollongong Community Participation Plan 2023 between 2 October and 16 October 2024. Five submissions were received. The amended development application was renotified from 14 to 28 April 2025. A further five submissions were received. At the commencement of the proceedings on site the Court was addressed by members of the public who explained their concerns with the development. I am satisfied that the issues raised in the submissions have been considered in the determination of the development application by either the amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

6. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site pursuant to s 4.4 and Sch 2 of SEPP BC. The proposed development does not include clearing of native vegetation. The parties agree and I accept that there is no potential impact on Koala habitat. I am satisfied that development consent can be granted in accordance with Pt 4.2 of SEPP BC.

7. Pursuant to s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to development unless it has considered whether the land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The development application is accompanied by a Statement of Environmental Effects (SEE) which details the historical residential use of the site. There is no suggestion of a historic use of the site for a purpose that would have contaminated the land. Further, there are no immediate site conditions which would require remediation of the site. The amended development application seeks to continue the residential use of the site. The parties agree and I accept that the provisions of s 4.6 of SEPP RH are satisfied.

8. Further, Ch 2 (Coastal Management) of SEPP RH applies to the site as it is mapped on the Coastal Environmental Area Map and the Coastal Use Area Map. The development application includes an addendum SEE which addresses each of the relevant matters for consideration in Ch 2 of SEPP BC. The parties agree and I accept, in accordance with the reasons detailed in the addendum SEE, that the requirements of SEPP BC are met.

9. The Wollongong Local Environmental Plan 2009 (LEP 2009) applies to the site. The site is zoned R2 Low Density Residential under LEP 2009. Development for the purpose of alterations and additions to the existing dual occupancy is permissible with consent in the R2 zone. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2009. In determining the development application, I have given consideration to the zone objectives: cl 2.3 of LEP 2009.

10. Clause 4.3 (Height of buildings) in LEP 2009 applies to the site. The provision, and the building height map, prescribes a maximum building height of 9m for the site. The existing building has a height of 8.85m. I accept the submission of the parties that the proposed development (including the erection of new glazed balustrade) is within the maximum height plane for the reasoning detailed in: Bettar v Council of the City of Sydney [2014] NSWLEC 1070 at [37]-[39] and Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174.

11. Clause 4.4 (Floor space ratio) applies to the site and prescribes a maximum floor space ratio (FSR) of 0.5:1. The addendum SEE notes that the proposed alterations and additions will result in an FSR of 0.73:1, notwithstanding that the additional floor space proposed will be contained within an existing void space. The development application is accompanied by a written request to vary the FSR standard. I have read the written request prepared by Think Planners, dated 6 May 2025, and in accordance with cl 4.6 of LEP 2009, I am satisfied that:

(a) The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the FSR control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2009). I find that the objectives of the FSR standard are met, notwithstanding the variation to the standard for the reasons detailed in the written request which I adopt. (b) I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standard (cl 4.6(3)(b) of LEP 2009). In particular, that the additional floor area is able to be accommodated within the existing building envelope and, as amended, can provide additional amenity without adverse impacts, which is consistent with the objective of the EPA Act to promote the orderly and economic use and development of land. These are sufficient grounds. (c) The state of satisfaction required by cl 4.6 of LEP 2009 has been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the FSR control.

9. Clause 5.10 (Heritage conservation) and Sch 5 of LEP 2009 applies to the site as it is in the vicinity of two heritage items: “Wyewurk” (LEP 2009 Item 5925) and “Wyuna” (nominated as a potential item in Wollongong Development Control Plan 2009 (DCP 2009)). The development application is accompanied by a Heritage Impact Assessment that confirms that the proposed development will have a minimal and acceptable impact on those items.

10. DCP 2009 applies to the site. The SEE and addendum SEE filed with the application details the compliance of the proposed development with DCP 2009. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

11. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (subs 34(3)(b)).

12. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

13. The Court notes that:

14. The Respondent, as the relevant consent authority, has approved under s 38(1) of the EPA Regulation, to the Applicant amending Development Application DA-2024/712 in accordance with the following amended plans:

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1. | Drawing No. F0, Revision F | Cover Page | Designcorp Architects | 8 April 2025 | | Drawing No. F1, Revision F | Site Analysis | | Drawing No. F2, Revision F | First Floor Plan Existing | | Drawing No. F3, Revision F | First Floor Plan Proposed | | Drawing No. F4, Revision F | Roof Plan Existing | | Drawing No. F5, Revision F | Roof Terrace Plan Proposed | | Drawing No. F6, Revision F | GFA Calc Plans | | Drawing No. F7, Revision F | Elevations | | Drawing No. F8, Revision F | Streetscape | | Drawing No. F9, Revision F | Sections | | Drawing No. F10, Revision F | Shadows - Jun | | Drawing No. F11, Revision F | Materials & Finishes | | Reports | | 2. | Addendum Statement of Environmental Effects and Clause 4.6 Variation request | Think Planners Pty Ltd | 6 May 2025 | | 3. | Statement of Heritage Impact | Weir Phillips Heritage | 18 March 2025 | | 4. | Visual Privacy Assessment | Think Planners Pty Ltd | 18 March 2025 |

2. The Applicant's clause 4.6 written request dated 6 May 2025 prepared by Think Planners Pty Ltd seeking to grant consent in contravention of cl 4.4 of the LEP 2009 is upheld.

3. The Court orders that:

4. The appeal is upheld.

5. Development consent is granted to Development Application No DA-2024/712, as amended, for alterations and additions to an existing dual occupancy to introduce rooftop terraces and first floor balconies, on land legally described as Lot 1 DP 204068, subject to the conditions at Annexure A.

D Dickson

Commissioner of the Court

Annexure A (188 KB, pdf)

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Amendments

01 July 2025

Correction made to typographical error at para 8 (c).