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Architecture Urbaneia Pty Ltd v Wollongong City Council [2025] NSWLEC 1845 | Case summary | Zoe

NSWNSWLEC

Architecture Urbaneia Pty Ltd v Wollongong City Council

[2025] NSWLEC 1845

Land and Environment Court (NSW)|2025-12-02|Before: Gray C

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-12-02

Before

Gray C

Catchwords

APPEAL – development application – multi-dwelling housing
– conciliation conference – agreement reached –
orders
made

Source

Original judgment source is linked above.

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Catchwords

APPEAL – development application – multi-dwelling housing– conciliation conference – agreement reached –ordersmade

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Architecture Urbaneia Pty Ltd v Wollongong City Council [2025] NSWLEC 1845

Hearing dates: Conciliation conference 25 November 2025

Date of orders: 02 December 2025

Decision date: 02 December 2025

Jurisdiction: Class 1

Before: Gray C

Decision: The Court orders that:
(1) The appeal is upheld.
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the Amended Application as agreed or assessed.
(3) Development Application No DA2022/1205 for construction of multi dwelling housing at 42 Bassett Street, Fairy Meadow is approved subject to the conditions in Annexure A.

Catchwords: APPEAL – development application – multi-dwelling housing – conciliation conference – agreement reached – orders made

Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 7.7, 7.13
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Water Management Act 2000 (NSW), s 91
Biodiversity Conservation Regulation 2017 (NSW), cl 7.2 Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 37, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 4.2, s 4.9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 Wollongong Local Environmental Plan 2009, cll 5.21, 7.1, 7.4, 7.6

COMMISSIONER: This appeal concerns a development application for the construction of multi-dwelling housing at 42 Bassett Street, Fairy Meadow. The development application was refused by the respondent, Wollongong City Council, on 4 June 2024. The applicant appeals against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The development application, as amended, seeks consent for the construction of a multi-dwelling housing development comprising 8 dwellings. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
Following an adjournment of the hearing of the appeal, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 25 November 2025. I presided over the conciliation conference.
At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed the same day, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021). The amendments include a reduction in height of some of the dwellings to comply with the height development standard, a reduction in the size of the truck turning area within the northern area of the site, reduction in the driveway length so that it does not extend beyond the dwellings, changes to the garbage collection arrangements, and an extension of the stormwater outlet from the onsite detention area to the channel of the watercourse. The amendments also increase the number of trees to be retained on the site.
The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the joint report filed on 25 November 2025, the assessment report of the Council dated 4 June 2024, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:
The development is for the purpose of multi-dwelling housing, which is a nominated permissible use in the R2 Low Density Residential zone in which the site is located, pursuant to the Wollongong Local Environmental Plan 2009 (WLEP).
The proposed development complies with the height and floor space ratio development standards in the WLEP.
Clause 5.21 of the WLEP, concerning flood planning, applies to the site, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2). The amended development application is accompanied by a Revised Flood Study dated 26 October 2025. Based on the Revised Flood Study, the accompanying maps and the location of the dwellings above the probable maximum flood level, I have considered the matters in cl 5.21(3) of the WLEP and I am satisfied of the matters in cl 5.21(2).
Clause 7.1 of the WLEP concerns public utility infrastructure. Given that the site contains an existing dwelling that has access to all services necessary for residential development, I am satisfied that all of the public utility infrastructure that is essential for the proposed development is already available, as required by cl 7.1(2).
Clause 7.4 of the WLEP concerns riparian land and applies the proposed development. Based on the design of the proposed development, as amended, the Biodiversity Diversity Assessment Report dated October 2025 (the BDAR) and the Amended Vegetation Management Plan by Harris Environmental dated 13 November 2025 (the VMP), I have considered the impact of the proposed development on the land, and consider that the development will result in rehabilitation of riparian vegetation and habitat on the land.
The development application includes earthworks. Based on the Preliminary Geotechnical Report dated 17 August 2022, the Revised Flood Study dated 26 October 2025 and the Due Diligence Report for Aboriginal Objects dated October 2025, I have considered the matters set out in cl 7.6(3) of the WLEP.
The proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(1) of the Biodiversity Conservation Regulation 2017 (NSW) (BC Regulation) and a biodiversity development assessment report is therefore required pursuant to the Biodiversity Conservation Act 2016 (NSW) (the BC Act). Consistent with s 7.7 of the BC Act, the development application includes the BDAR. The BDAR concludes that the site does not contain threatened species or any areas of biodiversity values, that most the site contains managed land that lacks an understorey or groundcover and provides minimal habitat, that the VMP will restore and protect the riparian corridor, and that biodiversity credits will offset any residual impacts. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR. The proposed dwellings and associated built form will be sited on the elevated central and southern parts of the site, outside the designated riparian zone, with a large number of the mature canopy trees to be retained. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act.
Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. A Remedial Action Plan, dated 21 March 2023 (RAP), has been prepared to deal with asbestos impacted fill material that was located on the site in the shallow profile. There being no other contamination on the site, I am satisfied that the site can be made suitable for the development, subject to the carrying out of the steps outlined in the RAP.
Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which concerns koala habitat protection, applies to the site. Based on the letter by Hayes Environmental dated 17 September 2023, there are no historic records of koalas on the site and there is no potential impact on koala habitat. Therefore, I am satisfied that development consent can be granted in accordance with s 4.9(3) of Part 4.2 of the SEPP B&C.
Consistent with the requirements of s 27 of the EPA Regulation 2021, the amended development application is accompanied by the BASIX certificate dated 21 November 2025. Based on the BASIX certificate, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.
The development application was initially notified between 7 December 2022 and 27 January 2023. It was notified again following amendments, between 15 September and 2 October 2023, and again between 4 and 22 September 2025. Written submissions were received in response to each of these periods of notification, and have been provided to the Court. I have considered the issues raised in those written submissions.
The proposal is integrated development as it requires approval under s 91 of the Water Management Act 2000 (NSW). The Department of Planning and Environment has provided general terms of approval under s 91 of the Water Management Act, dated 7 November 2025, and those terms of approval are incorporated into the conditions, at condition 2.
Having reached the state of satisfaction that the decision is one that the Court could have made 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” (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.
The Court notes:
Wollongong City Council, as the relevant consent authority, has agreed, pursuant to s 38 of the EPA Regulation 2021, to the Applicant amending Development Application DA2022/1205 to rely upon the following amended plans and documents (Amended Application):

| SHEET NO | SHEET NAME | REVISION NO | REVISION DATE | | A.0012 | SITE PLAN | G | 24/11/25 | | A.0016 | GFA CALCULATION | I | 24/11/25 | | A.0017 | SITE CALCULATION | E | 24/11/25 | | A.0018 | DEMOLITION PLAN | C | 24/11/25 | | A.0019 | STREETSCAPE | E | 24/11/25 | | A.0024A | RIPARIAN CORRIDOR PLAN | H | 24/11/25 | | A.1001 | GROUND FLOOR PLAN | T | 24/11/25 | | A.1002 | LEVEL 1 PLAN | P | 24/11/25 | | A.1003 | ROOF PLAN | J | 24/11/25 | | A.1004 | Waste Management & Garbage Truck Swept Path Plan | B | 24/11/25 | | A.1500 | NORTH-SOUTH SECTION TH01 | L | 24/11/25 | | A.1501 | NORTH-SOUTH SECTION TH02 | J | 07/11/25 | | A.1502 | NORTH-SOUTH SECTION TH03 | I | 07/11/25 | | A.1503 | NORTH-SOUTH SECTION TH04 | J | 07/11/25 | | A.1504 | NORTH SOUTH SECTION TH 05 | F | 07/11/25 | | A.1505 | NORTH-SOUTH SECTION TH06 | K | 24/11/25 | | A.1506 | NORTH-SOUTH SECTION TH07 | K | 24/11/25 | | A.1507 | NORTH-SOUTH SECTION TH08 | K | 24/11/25 | | A.1510 | NORTH SOUTH SECTION CENTRAL STAIRS | H | 22/10/25 | | A.1601 | TOWNHOUSE 01 - 08 SOUTH & NORTH ELEVATION | I | 24/11/25 | | A.1603 | WEST&EAST ELEVATION | I | 24/11/25 | | A.1604 | MATERIAL ELEVATION TYPE A,B&C | F | 24/11/25 | | A.1606 | MATERIAL ELEVATION TH TYPE D&E | F | 22/10/25 | | A.1701 | HEIGHT PLANE DIAGRAM | H | 24/11/25 | | A.1702 | HEIGHT PLANE DIAGRAM 2 | H | 24/11/25 | | A.1703 | HEIGHT LIMIT STUDY @TH03,TH04 | B | 24/11/25 | | A.1800 | SHADOW STUDY MID WINTER | H | 24/11/25 | | A.1801 | VIEW FROM SUN-9am | H | 24/11/25 | | A.1802 | VIEW FROM SUN- 10am | H | 24/11/25 | | A.1803 | VIEW FROM SUN-11am | H | 24/11/25 | | A.1804 | VIEW FROM SUN-12 pm | H | 24/11/25 | | A.1805 | VIEW FROM SUN-1pm | H | 24/11/25 | | A.1806 | VIEW FROM SUN-2pm | H | 24/11/25 | | A.1807 | VIEW FROM SUN-3pm | H | 24/11/25 | | A.2000 | TOWNHOUSE TYPE | E | 24/11/25 | | A.2001 | TOWNHOUSE 01 TYPE A - ADAPTABLE | D | 24/11/25 | | A.2002 | TOWNHOUSE TYPE B | E | 24/11/25 | | A.2002 B | TYPE B' TH03 | C | 24/11/25 | | A.2003 | TYPE C TH04 | D | 24/11/25 | | A.2004 | TOWNHOUSE TYPE D | E | 24/11/25 | | A.2005 | TOWNHOUSE TYPE E | D | 24/11/25 | | A.2006 | COMMUNAL AREA | B | 24/11/25 |