Cruikshank v Wollongong City Council

Catchwords: DEVELOPMENT APPEAL – residential development – demolition of existing dwelling and construction of two dwellings – tree removal – Torrens title subdivision – stormwater management – deferred commencement condition - conciliation conference – agreement between the parties - orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2000 (NSW), Sch 1
State Environmental Planning Policy – Building Sustainability Index (BASIX) 2004
State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 4.4, 4.8, 4.9
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, 4, ss 2.1, 2.11, 4.6
Wollongong Local Environment Plan 2009, cll 2.6, 2.7, 4.1, 4.3, 4.4, 5.21, 7.1, 7.2, 7.7, 7.8

Category: Principal judgment

Parties: Timothy Patrick Cruikshank (First Applicant)
Yolante Eels (Second Applicant)
Jane Kinsella (Third Applicant)
Wollongong City Council (Respondent)

Representation: Counsel:
G Shapiro (Solicitor)(Applicant)
E Kilpatrick (Solicitor)(Respondent)
Solicitors:
Hones Lawyers (Applicant)
Wollongong City Council (Respondent)

File Number(s): 2025/196482

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 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA-2023/185 seeking consent for the demolition of the existing dwelling house, construction of two detached dwellings to create a dual occupancy development and subsequent two lot Torrens title subdivision with proposed ancillary works include driveways, retaining walls, stormwater infrastructure and landscaping works, including tree removal (Proposed Development) at 17 Hillcrest Road, Austinmer 2515 NSW, legally described as Lot 13A DP 4936 (the Site).

2. This matter commenced on site and the Court heard from a number of objectors regarding their concerns about stormwater management and other impacts of the Proposed Development on their properties.

3. The parties rely on the following Joint Expert Reports which responded to the Contentions raised by the Respondent in the Statement of Facts and Contentions (SOFAC) filed 20 June 2025:

4. Arboriculture Joint Expert Report filed 17 September 2025 prepared by Melanie Howden for the Respondent and Ross Jackson for the Applicant

5. Stormwater Joint Expert Report filed 19 September 2025 prepared by Mathew Carden for the Respondent and Chris Ferry for the Applicant at par 111:

“111. We agree that if the proposal were amended to reflect the alternative design solution presented in Attachment B this would resolve all stormwater design related contentions.”

…

“115. The alternative drainage solution utilises an existing inter-allotment drainage easement and seeks to limit discharges within this easement to below pre-development levels. The experts agree that this is an acceptable drainage solution, and a condition of consent can be included to ensure this outcome is achieved.

116. Prior to formally adopting the alternative drainage solution (Attachment B) it should be reviewed and assessed by the other relevant experts (e.g. arborist, planning, landscape experts) to ensure it does not give rise to any non-stormwater related issues.”

3. Town Planning Joint Expert Report filed 10 October 2025 prepared by Jeff Mead for the Applicant and Peter Wells for the Respondent.

4. The Applicant’s planner, has provided a Supplementary Statement of Environmental Effects dated 17 October 2025 and the Applicants have amended the architectural, stormwater, and landscape plans, and other supporting documents, to address the Contentions raised by Council in the SOFAC and in response to the evidence contained in the Joint Reports. The amendments proposed by the Revised Drawings include:

5. Retention of trees T1A & T2, T11 and T13 and the development has been redesigned to avoid impact.

6. Retention of Trees T4,T5,T6 along the eastern boundary enabled by redesigned landscape layout and adjacent floorplan.

7. Tree T1B and T32 are now shown on Existing/Demolition Plan DA-010.

8. Provision of a 1m wide planter strip between the proposed driveway and western boundary from the front boundary extending to the southern end of the elevated driveway structure to alleviate bulk and scale and amenity impacts on 19 Hillcrest Road.

9. Separation of the stormwater easement and the abovementioned planter strip to avoid conflicts.

10. Reduction in western extent of front terrace to House 1 to enable greater planting within the front setback beside the driveway.

11. In House 1:

(a) Privacy screens have been added to the ground level terrace of House 1 to limit the potential for direct sightlines to the East and West adjoining properties, (b) Removal of 1 external stairs to provide additional deep soil, (c) Reconfiguration of WC to include shower, reconfiguration of previous Lounge/Home Office room into Bed 3, reduction to the internal floor area to reduce overall width by 500mm (12990mm to 12490mm), (d) Reconfiguration of plan layout including reduction in size of Master Bed 1 and removal of ensuite to bring height into compliance, and (e) Converted previous Bed 2 into additional planter and terrace area.

8. In House 2:

(a) The lower ground floor terrace of House 2 has been increased in size to allow for a suitable area of level private open space for future residents, (b) Significant increase to the built form setback on all levels from the eastern boundary (from 900mm to 4890mm) to enable retention of Trees 11 & 13, which will contribute toward the maintenance of urban canopy and a reduction in the bulk and scale of the development, improving amenity for adjoining properties (by providing natural screening and outlook) and reducing impacts to the character of Kennedy’s Hill, (c) Ground level terrace has been reduced in width and size, and fitted with privacy screens to limit the potential for direct sightlines to the East and West adjoining properties; 1m wide x 1m high planter added along the southern edge of terrace to provide additional visual privacy for the neighbouring property to the south, (d) Movement of subdivision lot boundary by approximately 1m and conversion of garage to carport to ensure adequate manoeuvring to enable vehicles to exit the site in a forward direction.

5. 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 21 October 2025. I presided over the conciliation conference.

6. 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.

7. These proceedings were then listed for an online Court update to deal with a discrete issue. Namely, to advise the Court whether, following the receipt of information from the Applicant relating to the condition of the inter-allotment drainage system through which stormwater from the Site would be conveyed (between the boundary of 15A Hillcrest Road, and traversing 10A, 10, 12A and 12 Mountain Road), the Respondent was satisfied either as to the existing condition of that drainage system, or if repairs are required, that those repairs could likely be carried out without causing unacceptable impacts.

8. On 31 October 2025, the Applicant provided the Respondent with the following documents:

9. CCTV of the subject intra-allotment drainage pipes;

10. Report of Chris Ferry dated 30 October 2025;

11. Report of Ross Jackson dated 31 October 2025 (including markup of tree locations);

12. Report of Total Relining Solutions (‘TRL’) dated 30 October 2025 and TRL Mark Up of the Survey (Rev 7); and

13. Survey (Rev 8) ‘Stormwater Updated’.

14. Having assessed this material, the Respondent’s position is that two sections of pipe (one within 10A Mountain Rd which encompasses three (3) defects notated by TRL on the survey, and one within the road reserve downstream of Pit 10 in which a brick is lodged, need to be repaired prior to the commencement of any consent for the proposal.

15. Having regard to the way in which TRL has described the methods which would be employed to repair the identified defects and the assurance that no excavation at all would be required, the Respondent advises the Court that it is of the view that the likely impacts of the repairs are acceptable and that the proposed deferred commencement condition could be amended to have these matters addressed. The parties confirm that they have reached agreement on suitable amendments to the draft conditions of consent which address this issue, which were filed 5 November 2025.

16. In addition, sections of pipe were investigated within Lot 121 DP 1196385 (15A Hillcrest) that are proposed to be made redundant on the Drainage Plan (Northern Beaches Consulting). The parties therefore agree to an additional operative condition that makes it clear that the consent does not authorise any drainage related or other works within the adjacent property at 15A Hillcrest Road Austinmer other than the drainage works shown on the approved Stormwater Drainage Plan (Northern Beaches Consulting) 22 October 2025 (proposed condition 34A).

17. The Court exercising the functions and discretions of the consent authority, Wollongong City Council, for the purposes of s 38(2) of the Environmental Planning and Assessment Regulation 2021, agrees to the amendment to Development Application No. DA-2023/185 to rely upon the amended plans and documents set out below:

| Document | Prepared by | Date | | Architectural Plans (Become) | | DA-001 – Project Details (Revision F) | Become | 22 Oct 2025 | | DA-005 – Site Analysis (Revision N) | Become | 22 Oct 2025 | | DA-010 – Existing/Demolition Site Plan (Revision M) | Become | 22 Oct 2025 | | DA-015 - Proposed Site Plan (Revision Q) | Become | 22 Oct 2025 | | DA-099 - House 1 Proposed Lower Ground Plan (Revision L) | Become | 22 Oct 2025 | | DA-100 - House 1 Proposed Ground Level Plan (Revision N) | Become | 22 Oct 2025 | | DA-101 - House 1 Proposed Level 01 Plan (Revision O) | Become | 22 Oct 2025 | | DA-102 - House 1 Proposed Roof Plan (Revision O) | Become | 22 Oct 2025 | | DA-103 - House 2 Proposed Lower Ground Plan (Revision O) | Become | 22 Oct 2025 | | DA-104 - House 2 Proposed Ground Level Plan (Revision Q) | Become | 22 Oct 2025 | | DA-105 - House 2 Proposed Roof Plan (Revision O) | Become | 22 Oct 2025 | | DA-400 - Proposed Building Elevations (Revision H) | Become | 22 Oct 2025 | | DA-401 - Proposed Building Elevations (Revision K) | Become | 22 Oct 2025 | | DA-420 - Proposed Building Sections (Revision N) | Become | 22 Oct 2025 | | DA-800 - Shadow Diagrams – Plan (Revision J) | Become | 22 Oct 2025 | | DA-810 - Sun Eye Diagram (Revision H) | Become | 22 Oct 2025 | | DA-900 - Area Schedules (Revision M) | Become | 22 Oct 2025 | | DA-920 - External Finishes Schedule (Revision E) | Become | 22 Oct 2025 | | DA-930 – 3D View – Diagram (Revision J) | Become | 22 Oct 2025 | | Landscape | | Landscape Plan (Revision E) | Zenith Landscape Designs | 17 Oct 2025 | | Arboricultural Impact Assessment Report | Jacksons Nature Works | 9 Sep 2025 | | Supplementary Arboricultural Impact Assessment and Root Mapping | Jacksons Nature Works | 16 Oct 2025 | | Letter from Ross Jackson, Jacksons Nature Works – Trees on 15A | Jacksons Nature Works | 22 Oct 2025 | | Other | | Survey Plan | CMS Surveyors | 16 Oct 2025 | | Stormwater Plans (Revision K) | NB Consulting | 22 Oct 2025 | | Civil Engineering Plans (Revision D) | NB Consulting | 22 Oct 2025 | | Proposed Plan of Subdivision (Revision 3) | CMS Surveying | 22 Oct 2025 | | BASIX Certificate No. 1361286M_05 | E-LAB Consulting | 23 Oct 2025 | | NatHERS Certificate No. C808OOS4N7 | E-LAB Consulting | 23 Oct 2025 | | Civil Driveway Plans (Revision A) | NB Consulting | 22 Oct 2025 | | Civil Driveway Design Certificate | NB Consulting | 22 Oct 2025 | | Letter from Chris Ferry Re: Stormwater Engineering Services: Pipe Network CCTV Condition Review | NB Consulting | 30 Oct 2025 | | Letter from Jacksons Nature Works Re: Pipe Assessment and Methodology | Jacksons Nature Works | 31 Oct 2025 | | Total Relining Solutions – Austinmer Report | Total Relining Solutions | Undated | | Boundary Identification and Detail & Level Survey (Annotated by TRS and Council) | CMS Surveyors (annotated by TRS and Council) | 16.10.2025 |

13. 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.

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

15. 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 and explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.

16. The Proposed Development relates to both the Site and the adjacent property at 15A Hillcrest Rd, Austinmer, as it includes the redirection of stormwater from pipes located on 15A Hillcrest Rd, Austinmer (which convey stormwater from 15 and 15A Hillcrest Rd, Austinmer).

17. The owners of the Site are the Applicants to the Class 1 Appeal and there is before the Court, evidence of in-principle consent and agreement from 15A Hillcrest (Tab 13 of the Amended Bundle) and 15 Hillcrest Road (Tab 12 of the Amended Bundle), confirming that these owners understand and give in-principle agreement for an easement to be granted by the Site relating to the flow of stormwater from 15 and 15A Hillcrest over the Site. Accordingly, there is sufficient certainty in relation to the redirection of stormwater from 15 and 15A Hillcrest over the Site.

18. The Site is zoned R2 Low Density Residential under the Wollongong Local Environmental Plan (WLEP). The demolition, and construction of the proposed dual occupancy, subdivision and associated works is permissible in the R2 zone and consistent with cl 2.6 of WLEP (subdivision) and cl 2.7 (demolition).

19. In relation to the extant pipelines (which continue from 15A Hillcrest through 10A Mountain Road, 12A Mountain Road, and 12 Mountain Road, Austinmer), on the basis of results obtained from CCTV investigation, the proposed conditions of consent require certain repairs to be undertaken (see proposed deferred commencement condition A1.2 and Attachment 1) and the Court is satisfied that the terms of that condition ensure that the impacts of those repair works on structures and trees will be negligible.

20. Similarly, the agreed deferred commencement conditions (specifically A1.1) require the Applicant to provide evidence to the Council that it has obtained a legal right to drain water over downstream properties (being 10A, 10, 12 and 12A Mountain Road) before the consent will commence. Consistent with the principle of orderly development of land, the consent will not commence until these legal arrangements are in place and until the receiving drainage system has been repaired and is physically suitable to receive more water.

21. The Site is located with the Wollongong local government area and pursuant to s 4.4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The Proposed Development is required to satisfy the terms of the Biodiversity and Conservation SEPP. However, as there is no approved koala plan of management relevant to the Site and as the Site has an area of 1,090m2, being less than a hectare, the terms of s 4.8 and 4.9 of the Biodiversity SEPP do not apply.

22. Management of land use and development in the coastal zone is provided for in Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). Specifically, the Site is mapped under the Resilience and Hazards SEPP as a ‘coastal use area’: s 2.1. Section 2.11 of the Resilience and Hazards SEPP specifies that the consent authority must not grant consent to development on land within a coastal use area unless the consent authority has considered the matters set out at s 2.11(1)(a) and is satisfied of the matters at s 2.11(1)(b).

23. The parties explain that the consent authority can be satisfied that there is no adverse impact on existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, as there is no public access current provided or proposed to be provided from the Site (see Statement of Environmental Effects dated 14 December 2022 (SEE), Tab 2 of the Class 1 Application, p 13);

24. Overshadowing from the Proposed Development on neighbouring sites is considered acceptable and the development will not impact solar access to the public domain. It is not expected that the development will cause wind funnelling. Views from public places to the foreshore are not impacted upon. For these reasons, the Proposed Development is not likely to cause an adverse impact in these circumstances (see SEE, p 13).

25. The Proposed Development will not have an adverse impact on the visual amenity and scenic quality of the coast, as the Proposed Development retains significant trees on the Site and is likely to provide an improved outcome from many perspectives compared to the existing development and site treatment (see SEE, p 13);

26. There will be no adverse impact to Aboriginal cultural heritage, practices or places, as there are no known areas of aboriginal cultural heritage or places located on or within the vicinity of the Site (see SEE, p 13);

27. There will be no adverse impact to the cultural and built environment heritage, as there are no heritage items located on or within the vicinity of the Site (see SEE, p 13);

28. The Proposed Development is designed, sited and has been managed to avoid adverse impacts as set out in s 2.11(1)(a) (see SEE, p 13) and the Respondent has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the Proposed Development as required by s 2.11(1)(c).

29. Chapter 4 of the Resilience and Hazards SEPP provides for the remediation of contaminated land and s 4.6 provides that a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The Site has been used for residential purposes since at least the year 1915 however, the findings of the Detailed Site Investigation carried out by Douglas Partners dated 19 January 2024, filed with the Class 1 Application, confirm that the Site is contaminated by asbestos (as bonded fibre ACM). While there is on-site contamination, The consent authority can be satisfied that the Site will be remediated and therefore be made suitable for residential use for the Proposed Development because as a consequence of the findings by Douglas Partners, the Applicants commissioned a Remediation Action Plan prepared by Douglas Partners dated 7 August 2024 to make the Site suitable for residential development (Tab 38 of the Class 1 Application). These remediation requirements have been incorporated into the proposed conditions (see conditions 18 and 85) .

30. As the DA was lodged but not finally determined before 1 October 2023, the State Environmental Planning Policy – Building Sustainability Index (BASIX) 2004 continues to apply. A revised BASIX Certificate has been prepared to accompany the Revised Drawings in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

31. The Proposed Development complies with the:

32. Minimum Subdivision Lot Size control set out in cl 4.1 of the WLEP of 449m2 (SEE, p 27), with the subdivision resulting in a front lot of 511m2, and the battleaxe lot of 550m2 (see Dwg 900 – Area Schedules);

33. Height of Buildings development standard pursuant to cl 4.3 of the WLEP of 9m (SEE, p 27, and Dwgs 420, and 930);

34. Applicable Floor Space Ratio development standard pursuant to cl 4.4 of the WLEP of 0.5:1 (SEE, p 27), with House 1 having a proposed GFA of 169m2 (of an allowable 248m2) and House 2 having a proposed GFA of 187m2 (of an allowable 283m2) (see Dwg 900 – Area Schedules).

35. Any public utility infrastructure that is essential for the Proposed development is available, as the current use of the Site (which contains an existing residential dwelling) utilises public utility infrastructure, including the supply of water, the supply of electricity, and the disposal and management of sewerage: cl 7.1, WLEP.

36. Clause 7.5 of the WLEP provides that development consent is required for works described in the Table to that subclause on land shown on the Acid Sulfate Soils Map. The Site is shown as Class 5 Land on the Acid Sulfate Soils Map, however the works do not involve excavation of land below 5 metres AHD on the Site, or on the Class 3 or 4 land within 500 metres of the Site, nor are they likely to lower the ground water table (Geotechnical Assessment, Tab 10 of the Class 1 Application, p 3). Therefore, cl. 7.5(2) is not engaged, and cll 7.5(3) and (4) are not triggered and a management plan is not required.

37. The Site is not mapped as land:

38. located in a flood planning area: cl 5.21, WLEP;

39. identified as “Natural resource sensitivity—biodiversity” on the Natural Resource Sensitivity—Biodiversity Map under the WLEP: cl. 7.2, WLEP;

40. within the foreshore area on the Foreshore Building Line Map under the WLEP: cl. 7.7, WLEP;

41. identified as “Illawarra Escarpment” on the Illawarra Escarpment Map under the WLEP: cl. 7.8, WLEP.

42. 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.

43. 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.

Orders:

37. The Court orders:

38. The appeal is upheld.

39. Development consent is granted by way of deferred commencement consent to Development Application No DA-2023/185 seeking consent for the demolition of the existing dwelling, tree removal, Torrens Title subdivision into two (2) lots, construction of two dwelling houses (one on each proposed lot) and associated landscaping, drainage and civil works on Lot 13A DP 4936, 17 Hillcrest Road, and stormwater works on Lot 121 DP 1196385, 15A Hillcrest Road subject to the conditions of consent in Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (794 KB, pdf)

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Amendments

25 November 2025

Amended Name of the Council

15 December 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), by consent of the Parties, the duplicate table containing amended plans in the body of the judgment at paragraph [12] has been deleted and Attachment 1 has been added to Annexure A.