Calabro v Wollongong City Council

Texts Cited: Acid Sulfate Soils Manual
NSW Department of Planning and Environment, Flood Risk Management Manual, 2023

Category: Principal judgment

Parties: Maria Calabro (Applicant)
Wollongong City Council (Respondent)

Representation: Counsel:
C Gough (Solicitor) (Applicant)
J Reilly (Solicitor) (Respondent)
Solicitors:
Storey and Gough (Applicant)
Wollongong City Council (Respondent)

File Number(s): 2024/291276

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA-2024/85 seeking consent for the demolition of existing structures and construction of a dwelling house and secondary dwelling (Proposed Development) at 207 Lawrence Hargrave Drive, Thirroul legally described as Lot 5 in DP 18513 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, over which I presided on 11 April 2024.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. 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.

5. The Respondent has approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Applicant amending the Proposed Development in accordance with the amended plans and documents as set out at [35]. The Amendments were not renotified as the Respondent formed the view that the amendments did not increase environmental impacts of the Proposed Development, in accordance with Sch 1, Pt 2, s 23 of the EPA Act.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be various provisions of the Wollongong Local Environmental Plan 2009 (WLEP), the terms of s 2.1 of the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) in relation to the matters to be included in a BASIX certificate, the terms of Ch 2 and s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) regarding development on land in a coastal zone and consideration of the contamination status of the Site, and the terms of ss 52 and 53 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) regarding secondary dwellings. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court.

8. The Applicant is the owner of the Site.

9. The Site is zoned R2 Low Density Residential and “Dwelling houses” are permitted with consent in the zone. As a secondary dwelling is prohibited in the R2 zone under the WLEP, the application for a secondary dwelling is assessed under the Housing SEPP because s 52 of the Housing SEPP provides that if development for the purposes of a dwelling house is permissible on the land under another environmental planning instrument, development for the purposes of a secondary dwelling on land in a residential zone may be carried out with consent. In that regard, s 52(2) of the Housing SEPP requires the satisfaction of a number of concurrent prerequisites and the parties explain as follows:

10. no dwellings, other than the principal dwelling and the secondary dwelling, will be located on the land, and

11. the total floor area of the principal dwelling and the secondary dwelling is no more than the maximum floor area permitted for a dwelling house on the land under the WLEP. The Site is subject to a maximum floor space ratio (FSR) development standard of 0.5:1 under cl 4.4 of the WLEP. The proposed FSR of 0.492:1 for the Proposed Development complies with this development standard; and

12. the proposed secondary dwelling has a total floor area of 48.2 m2 being less than 60m2.

13. The Proposed Development complies with the non-discretionary development standard in s 53(2)(b) of the Housing SEPP in that the Site’s area of 631.6m2 exceeds the minimum required site area of 450m2 and the number of parking spaces provided on the Site is the same as the number of parking spaces provided immediately before the development is carried out.

14. Under cl 2.7 of the WLEP, demolition may be carried out with development consent. Earthworks are proposed in the development. Development consent is required under cl 7.6 of the WLEP for the fill earthworks. The Court notes that in relation to cl 7.6(3) considerations, the parties agree that:

“(a) The development’s impact on drainage patterns is acceptable.

(b) The fill is part of the proposed redevelopment of the Site and will not of itself stymie the future use or redevelopment.

(c), (e) The quality of soil to be imported is of de minimis importance and not of determinative weight. Conditions of consent have been prepared to ensure the use of clean fill and disposal of excavated material to an appropriate destination.

(d) The proposed earthworks will not detrimentally affect existing and likely amenity of adjoining properties.

(f) The likelihood of disturbing relics is low. Safeguards are implemented via conditions of consent to suspend work pending the unearthing of relics.

(g) The site will not have adverse impacts on a waterway, drinking water catchment of environmentally sensitive area.

(h) The prospect of any adverse impacts on such areas can be managed by conditions, including the provision and maintenance of sediment and erosion control measures.”

12. As there is an existing dwelling on the Site which already benefits from the listed essential services is cl 7.1 of the WLEP, the Court is satisfied of their availability to the Proposed Development.

13. Section 4.6 of the Resilience and Hazards SEPP provides that a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. By reference to s 4.6(4) the parties explain that the land is not within an investigation area, does not contain and is not previously known to have contained development for a purpose referred to in Table 1 to the contaminated land planning guidelines; and to the parties’ knowledge, no use identified in Table 1 has occurred on the Site.

14. Due to the historical use of the Site for residential purposes, the Respondent is satisfied that it is highly unlikely that the land is contaminated, and that the land is suitable for the Proposed Development.

15. The Proposed Development proposes a maximum building height of 8.7m which complies with the maximum building height development standard of 9 m applicable to the Site pursuant to cl 4.3 of the WLEP.

16. The Site is not within or in the vicinity of a Heritage Item or a Heritage Conservation Area: cl 5.10, WLEP.

17. The Site is within the Coastal Environment Area and the Coastal Use Area as mapped in the Resilience and Hazards SEPP and the terms of ss 2.10, 2.11 and 2.12 in Ch 2 Coastal Management of the Resilience and Hazards SEPP include relevant jurisdictional prerequisites to be satisfied.

18. In relation to development on land within the coastal environment area the parties explain that the Respondent has considered whether the Proposed Development is likely to cause an adverse impact on the matters listed in s 2.10(1) of the Resilience and Hazards SEPP. Accordingly, the Court can be satisfied pursuant to s 2.10(2) of the Resilience and Hazards SEPP that the Proposed Development is designed, sited and will be managed to avoid an adverse impact referred to in subs (1).

19. In relation to development on land within the coastal use area, the parties explain that the Respondent has considered whether the Proposed Development is likely to cause an adverse impact on the matters listed in s 2.11(1)(a) of the Resilience and Hazards SEPP. Accordingly, the Court can be satisfied pursuant to s 2.11(1)(b) of the Resilience and Hazards SEPP that the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a) and has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the Proposed Development.

20. In general terms regarding the coastal zone and pursuant to s 2.12 of the Resilience and Hazards SEPP, the Court is satisfied that the Proposed Development is unlikely to cause increased risk of coastal hazards on the Site or on other land. I reach this state of satisfaction following the related consideration of the terms in cl 5.21 - Flood planning, of the WLEP. The Applicant relies on Flood Study Assessment Report Revision C by Engineering Studio dated February 2025 (Flood Study) to satisfy the terms of cl 5.21 of the WLEP regarding Flood planning.

21. The Site is identified as being flood affected and the terms of cl 5.21 regarding flood planning in the WLEP include a jurisdictional prerequisite to be satisfied prior to the granting of consent. That clause draws upon the Flood Risk Management Manual for the definition of a flood planning area. Council’s flood mapping shows part of the Site as being subject to the 1% Annual Exceedance Probability (AEP) flood level, portions being within the flood fringe and large portions of the Site being subject to the flood planning level which is a 500mm freeboard above the 1% AEP level.

22. In respect of cl 5.21(2) of the WLEP, the parties are satisfied that the development:

23. is compatible with the flood function and behaviour on the land;

24. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

25. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

26. incorporates appropriate measures to manage risk to life in the event of a flood; and

27. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourses.

28. In order to form the state of satisfaction required by cl 5.21(2) of the WLEP as set out above, the parties addressed the considerations raised at cl 5.21(3)(a) to (d), and agree that:

29. the impact of the development on projected changes to flood behaviour as a result of climate change are de minimis and not of determinative weight;

30. the design and scale of the building is satisfactory having regard to flooding;

31. the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of flood; and

32. there is no realistic potential to modify, relocate or remove buildings resulting from the development if the surrounding area is impacted by flooding.

33. I adopt the reasons given by the parties in relation to flood planning and in addition I have read the Flood Study and note the conclusion at page 13 which reads as follows:

“It is apparent from the design review that the site is currently affected by overland flows during the 1% AEP storm event. Overland flows entering the site will be conveyed through a new concrete lined channel to connect the two existing channels on the property boundaries. Flows along Henly Road will also not be impacted by the subject development with only minor encroachment into the subject property. The proposed residence and overland flow channel shall be constructed in accordance with Engineering Studio civil engineering drawing 220125 to alleviate flooding issues within the site.

Based on the Flood Impact Assessment Report undertaken, it has been shown that the new residence can be constructed on the site with nil impact to surrounding properties and within the guidelines imposed by the regulatory authorities.”

25. The Site is shown as “riparian land” on the Riparian Land Map of the WLEP and in that context, the parties have considered the impact of the Proposed Development on the land as being minor and explain that riparian vegetation will be reinstated on Site as a result of the Proposed Development: cl 7.4(3), WLEP.

26. As the Site is marked on the Acid Sulfate Map as Classes 3, 4 and 5, cl 7.5(3) of the WLEP provides that development consent must not be granted when nominated works are undertaken unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and provided to the consent authority. An Acid Sulfate Soils Management Plan was filed at Tab 8 of the Class 1 Application. Agreed Condition 30 requires compliance with the acid sulfate soils management plan.

27. The Proposed Development is for BASIX development as defined in the Dictionary of the EPA Regulation because it is a building that contains at least one dwelling.

28. BASIX certificate No 1732953M dated 19 January 2024 was submitted with the original development application however, s 37(5) of the EPA Regulation relevantly states in respect of an amended development application:

(5) If the amendment will result in the development differing materially from the description contained in the BASIX certificate that accompanied the original development application, the application must be accompanied by a new BASIX certificate that takes account of the amendment.

29. Section 2.1(5) of the Sustainable Buildings SEPP provides as follows:

(5) Development consent must not be granted to development to which the standards specified in Schedule 1 or 2 apply unless the consent authority is satisfied the embodied emissions attributable to the development have been quantified.”

30. Schedule 2 of Sustainable Buildings SEPP applies to BASIX development referred to in paragraph (c) of the definition of BASIX development in the EPA Regulation.

Embodied emissions, attributable to development, means the greenhouse gas emissions resulting from the materials used to construct a building that forms part of the development, including emissions from the following—

(a) the extraction of raw materials that are used to construct the building,

(b) transporting materials to be manufactured,

(c) the manufacture of the materials used to construct the building.

31. BASIX certificate No 1789044M dated 26 March 2025 has been provided by the Applicant and addresses the above provisions of the Sustainable Buildings SEPP, in particular, a Materials Index is included in BASIX to calculate and report on the embodied emissions of construction materials in new residential developments. The Materials Index requires data to be entered on the size of the development and the materials that the floors, walls, ceiling, roof and glazing are to be constructed from. The BASIX calculator determines the volume of each material and its associated embodied emissions. The sum of embodied emissions from all materials entered is calculated to determine the total embodied emissions for the development. The embodied energy report forms part of the online BASIX tool which is covered by the BASIX Certificate.

32. Chapter 4 Koala Habit Protection 2021 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the Site because in Sch 2 of the Biodiversity and Conservation SEPP the City of Wollongong is listed as an included Local government area and the specified Koala management area is identified to be “South Coast”. A Koala Plan of Management is not required as the respondent, pursuant to s 4.10(b), is satisfied that the Site is not core koala habitat.

33. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment.

34. 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.

Notations

35. The Court notes that:

36. Wollongong City Council as the relevant consent authority has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application No DA-2024/85 the subject of these proceedings as shown in the following amended plans and reports:

(a) Architectural Plans 1-3 Issue B by Birch Residential dated 20/03/2025 (b) Basix Certificate 1789044M by Certified Energy dated 26 March 2025 (c) Flood Study Assessment Report Revision C by Engineering Studio dated February 2025

Orders:

36. The Court orders:

37. The appeal is upheld.

38. Development application No DA-2024/85 (as amended) for the demolition of existing structures and construction of a dwelling house and secondary dwelling at 207 Lawrence Hargrave Drive, Thirroul is determined by the grant of consent subject to the conditions set out in Annexure A.

E Espinosa

Commissioner of the Court

Annexure A

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