High Dune Pty Ltd as Trustee for High Dune Unit Trust v Wollongong City Council

1. On 26 September 2022, Heritage NSW provided general terms of approval (GTAs) as a concurrence authority under s 4.51 of Div 4.8 of the EPA Act: 4.51 Effect of approval if the approval body is also a concurrence authority (cf previous s 93A) If the concurrence of a person who is also an approval body is required before a consent authority may grant a development consent, the granting of the general terms of its approval is taken to also grant the concurrence provided that the matters to be considered in granting the general terms of its approval are the same as those required to be considered in deciding whether or not to grant the concurrence.
2. The site is within a broader area of known importance for aspects of aboriginal heritage and is of continuing significance to the local First Nations people. Discussion of the relevant matters was an important part of the exchanges between the parties during the s 34 process.
3. Following extended discussions between the parties an agreement was reached between them on the terms of a decision in the proceedings that would be acceptable to them, being a decision that the Court could have made in the proper exercise of its functions - see s 34(3) of the LEC Act. 34 Conciliation conferences … (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner - (a) must dispose of the proceedings in accordance with the decision…
4. The functions that the Court is exercising are those of the consent authority, and in order for that the exercise be 'proper', I have to be satisfied that all applicable jurisdictional matters have been addressed.
5. The parties have provided me with an Agreed Submission on Jurisdictional Matters. I have to reach my own satisfaction on these matters, but I am grateful to the parties for their guidance.
6. When evaluating a development application, the consent authority must consider the relevant parts of s 4.15(1) of the EPA Act: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
7. Of particular relevance are s 4.15(1)(a)(i, iii, iiia), (b), (c), (d) and (e).
8. Although the Court is standing in the shoes of Council, s 34 of the LEC Act restricts its evaluation to whether or not jurisdictional matters have been satisfactorily addressed. I am not required to, nor have I, considered any merit matters.
9. For convenience I will consider jurisdictional matters in the order in which they appear within the parties' agreed submissions on jurisdictional matters.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

1. The Resilience and Hazards SEPP applies throughout NSW. Chapter 2 of the Resilience and Hazards SEPP applies to land located within the coastal zone. Part of the site is mapped as being 'coastal wetland' pursuant to the Resilience and Hazards SEPP.
2. The treatment of stormwater within the development was investigated by Rienco Consulting. In a letter dated 25 October 2022 Rienco outlined a solution for stormwater management which avoids the deposition of stormwater onto land mapped 'coastal wetland', so that no works or development are now proposed to be carried out on land identified as 'coastal wetlands'.
3. The parties are satisfied that the proposal conforms to the requirements in the Resilience and Hazards SEPP and I concur.
4. Chapter 4 of the Resilience and Hazards SEPP requires me to consider whether the land is contaminated, a requirement which forms part of the assessment of any development application. Section 4.6(1) of the SEPP requires: 4.6 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) 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, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
5. A Preliminary Site Investigation, dated July 2021, was submitted by the Applicant in support of the DA. The investigation concluded that the site is not affected by contamination. The parties are satisfied that the site does not require remediation prior to development taking place, and I concur.

The local environmental plan

1. The applicable local environmental planning instrument is the Wollongong Local Environmental Plan 2009 (WLEP). Clause 2.6 of WLEP permits subdivision of any land to which WLEP applies, but only with consent: 2.6 Subdivision - consent requirements (1) Land to which this Plan applies may be subdivided, but only with development consent.
2. The Applicant seeks consent to subdivide the site and for works ancillary to the subdivision.
3. The site is mixed zoned, with part in the R2 Low Density Residential zone and the rest in the C2 Environmental Conservation zone, The development proposed is primarily situated in the R2 zone.
4. The Land Use Table for the R2 zone specifies: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 2 Permitted without consent Home occupations 3 Permitted with consent Attached dwellings; Bed and breakfast accommodation; Boat launching ramps; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental facilities; Exhibition homes; Exhibition villages; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Hospitals; Hostels; Information and education facilities; Jetties; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Residential flat buildings; Respite day care centres; Roads; Semi-detached dwellings; Seniors housing; Shop top housing; Signage; Tank-based aquaculture; Veterinary hospitals 4 Prohibited Any development not specified in item 2 or 3
5. Land zoned C2 constitutes the larger part of the site. The works proposed with the C2 zone are environmental protection works including vegetation management, and drainage works ancillary to the proposed subdivision.
6. The Land Use Table for the C2 zone specifies: Zone C2 Environmental Conservation 1 Objectives of zone • To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values. • To retain and enhance the visual and scenic qualities of the Illawarra Escarpment. • To maintain the quality of the water supply for Sydney and the Illawarra by protecting land forming part of the Sydney Drinking Water Catchment under State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6, to enable the management and appropriate use of the land by Water NSW. 2 Permitted without consent Nil 3 Permitted with consent Environmental facilities; Environment protection works; Extensive agriculture; Oyster aquaculture; Recreation areas 4 Prohibited Business premises; Hotel or motel accommodation; Industries; Local distribution premises; Multi dwelling housing; Pond-based aquaculture; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 3
7. Clause 2.3 of WLEP specifies: 2.3 Zone objectives and Land Use Table (1) The Land Use Table at the end of this Part specifies for each zone - (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. Clause 2.3(1)(a) requires that the consent authority have regard to the zone objectives. The parties have agreed that the proposed development is compatible with the objectives of both zone R2 and C2. I agree that is the case.
8. The DA is for subdivision. WLEP cl 4.1 specifies minimum lot size for subdivision: 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows - (a) to control the density of subdivision in accordance with the character of the location, site constraints and available services, facilities and infrastructure, (b) to ensure lots are of a sufficient size and shape to accommodate development. (2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan. (3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. (4) This clause does not apply in relation to the subdivision of any land - (a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or (b) by any kind of subdivision under the Community Land Development Act 2021. (4A) In calculating the area of any lot resulting from a subdivision of land, if the lot is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included. (4B) This clause does not apply in relation to the subdivision of land for the purpose of erecting an attached dwelling or a semi-detached dwelling in a residential zone. (4C) This clause does not apply in relation to the subdivision of land in a residential zone on which there is an existing dual occupancy or multi dwelling housing.
9. As the Land is subject to split zoning cl 4.1A applies: 4.1A Minimum lots sizes for certain split zones (1) The objectives of this clause are as follows - (a) to provide for the subdivision of lots that are within more than one zone but cannot be subdivided under clause 4.1, (b) to ensure that the subdivision occurs in a manner that promotes suitable land uses and development. (2) This clause applies to each lot (an original lot) that contains - (a) land in a residential, business or industrial zone or in Zone E4 Environmental Living, and (b) land in a rural zone or Zone E2 Environmental Conservation or Zone E3 Environmental Management. (3) Despite clause 4.1, development consent may be granted to subdivide an original lot to create other lots (the resulting lots) if - (a) one of the resulting lots will contain - (i) land in a residential, business or industrial zone that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land, and (ii) all of the land in a rural zone, Zone E2 Environmental Conservation or Zone E3 Environmental Management that was in the original lot, and (b) all other resulting lots will contain land that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land.
10. Pursuant to the Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021, Schedule 1 items [3] and [4] replaced references to Environment Protection Zones with Conservation Zones. This was an administrative name change, and has no operational consequence.
11. Clause 4.1A thus permits subdivision of R2 zoned land where one of the resultant lots contains all of the C2 zone land together with a portion of R2 land that is at least of the minimum lot size for R2 land. The application complies with this control.
12. Clause 5.10 applies to heritage matters: 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.
13. The range of matters that are to be considered under this clause is wide, but those of particular relevance relate to objectives (c) and (d).
14. The broader region within which the site is situated is known to be of considerable significance for Aboriginal heritage. An Aboriginal Cultural Heritage Assessment was prepared by Austral Archaeology for the Applicant. Both during the assessment process and the s 34 conciliation, the protection and management of archaeological heritage were the subject of considerable discussion. Heritage NSW, the body which is the concurrence authority in respect to Aboriginal heritage has issued GTAs, and these are incorporated into the conditions of consent. The parties are satisfied that the Aboriginal Cultural Assessment report and the GTAs incorporated into the conditions demonstrate that the development will not have an adverse effect on cultural heritage.
15. WLEP requires attention in cl 5.21 to flood planning: 5.21 Flood planning (1) The objectives of this clause are as follows - (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change, (c) to avoid adverse or cumulative impacts on flood behaviour and the environment, (d) to enable the safe occupation and efficient evacuation of people in the event of a flood. (2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development - (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) 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, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. (3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters - (a) the impact of the development on projected changes to flood behaviour as a result of climate change, (b) the intended design and scale of buildings resulting from the development, (c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood, (d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.
16. The site is within the flood planning area and has been mapped as being flood prone land.
17. The Court must be satisfied prior to the grant of development consent that pursuant to cl 5.21(2) that the proposed development meets the requirements specified in cl 5.21(2)(a)-(e).
18. The DA was accompanied by a Flood Study by Rienco that concluded that none of the proposed lots would be subject to mainstream flooding, and that the application satisfied the requirements specified in cl 5.21.
19. I concur with the parties that no issues arise from cl 5.21 which would preclude granting consent.
20. WLEP contains provisions relating to biodiversity: 7.2 Natural resource sensitivity - biodiversity (1) The objective of this clause is to protect, maintain or improve the diversity and condition of the native vegetation and habitat, including - (a) protecting biological diversity of native flora and fauna, and (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the recovery of threatened species, communities, populations and their habitats. (2) This clause applies to land that is identified as "Natural resource sensitivity - biodiversity" on the Natural Resource Sensitivity - Biodiversity Map. (3) Development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the impact of the development on - (a) native terrestrial flora and fauna and its habitat, and (b) native aquatic flora and fauna and its habitat, and (c) the ecological role of the land, waterways, riparian land or wetland, and (d) threatened species, communities, populations and their habitats. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development is consistent with the objectives of this clause and - (a) the development is designed, sited and managed to avoid potential adverse environmental impact, or (b) if a potential adverse environmental impact cannot be avoided, the development - (i) is designed and sited so as to have minimum adverse environmental impact, and (ii) incorporates effective measures so as to have minimal adverse environmental impact, and (iii) mitigates any residual adverse environmental impact through the restoration of any existing disturbed or modified area on the site.
21. The objectives of the clause are wide ranging but only apply to land which is mapped on the Natural Resource Sensitivity-Biodiversity Map (cl 7.2(2)). Clauses 7.2(3) and (4) set constraints on the ability of a consent authority to approve development.
22. The site has been subject to assessment by Ecoplanning in the form of a Flora and Fauna Assessment, the findings from which are reflected in the associated Vegetative Management Plan (VMP).
23. The parties were satisfied that the development in the form to which the s 34 Agreement applies is consistent with the objectives of cl 7.2 and is designed, sited and will be managed to avoid potential adverse impacts.
24. Development in riparian lands is subject to cl 7.4: 7.4 Riparian lands (1) The objective of this clause is to ensure that development does not adversely impact upon riparian lands. (2) This clause applies to land shown as "riparian land" on the Riparian Land Map. (3) Despite any other provision of this Plan, development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the impact of the proposed development on the land and any opportunities for rehabilitation of aquatic and riparian vegetation and habitat on that land.
25. Part of the site is mapped on the Riparian Land Map. Clause 7.4(3) requires that the consent authority must not grant development consent for development on riparian land unless the impact of the proposed development on the land and opportunities for rehabilitation have been considered.
26. The parties agree that no work is proposed within the riparian land except for revegetation and vegetation management which will be conducted in accordance with the VMP. The proposed development is therefore consistent with cl 7.4.
27. Part of the site is within the foreshore area and below the Foreshore Building Line, so that cl 7.7 applies: 7.7 Foreshore building line (1) The objective of this clause is to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the significance and amenity of the area. (2) Development consent must not be granted for development on land in the foreshore area except for the following purposes - (a) the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area, (b) the erection of a building in the foreshore area, if the levels, depth or other exceptional features of the site make it appropriate to do so, (c) development for the purposes of boat sheds, sea retaining walls, wharves, slipways, jetties, waterway access stairs, swimming pools, fences, cycleways, walking trails, picnic facilities or other recreation facilities (outdoor). (3) Development consent must not be granted under subclause (2) unless the consent authority is satisfied that - (a) the development will contribute to achieving the objectives for the zone in which the land is located, and (b) the appearance of any proposed structure, from both the waterway and adjacent foreshore areas, will be compatible with the surrounding area, and (c) the development will not cause environmental harm such as - (i) pollution or siltation of the waterway, or (ii) an adverse effect on surrounding uses, marine habitat, wetland areas, flora or fauna habitats, or (iii) an adverse effect on drainage patterns, and (d) the development will not cause congestion of, or generate conflicts between, people using open space areas or the waterway, and (e) opportunities to provide continuous public access along the foreshore and to the waterway will not be compromised, and (f) any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land will be maintained, and (g) in the case of development for the alteration or rebuilding of an existing building wholly or partly in the foreshore area, the alteration or rebuilding will not have an adverse impact on the amenity or aesthetic appearance of the foreshore
28. The development proposed does not contravene the objectives of cl 7.7 or the provisions governing granting consent.

Owner's consent

1. The proposed development includes work on adjoining land including Lot 517 DP 1156416 and Lot 2 DP 1176767.
2. The Applicant proposes works within a road reserve and on Lot 517 which are operational land in the ownership of the Respondent who provides its owner's consent and agreement to carry out the development works.
3. Lot 2 belongs to Anglican Community Services (ABN 39922848563). Anglian Community Services provided its owner's consent in a letter dated 17 August 2021 which was submitted with the DA.
4. Subsequent to August 2021, aspects of the development have evolved, and in its current form has been amended from the original DA. Rothwell Boys Pty Ltd v Coffs Harbour Council [2012] NSWLEC 19 is authority that once landowners' consent has been given to a development application no further consent is required even if the development application is amended prior to determination.
5. I am satisfied that all necessary owner's consents have been granted. Two letters documenting owners' consent form Annexures A and B to the Conditions of Consent.

Dedication of Land

1. The Applicant's proposal includes dedication of land to the Respondent for the purposes of relocating the pedestrian walkway that currently occupies a portion of Wilkies Street. The Applicant has prepared a letter of offer to enter into a Voluntary Planning Agreement (VPA). This has been co-signed by Anglicare as the proprietor of the land proposed to be dedicated.
2. The parties are satisfied that conditions of consent can be imposed which require the entering into a VPA between the Applicant, the Respondent and Anglicare for the purposes of facilitating this land dedication.

Public submissions and public interest

1. In evaluating any development application, s 4.15 of the EPA Act requires a consent authority to have considered any submissions made in respect to notification of the development application and the public interest.
2. Both the original DA and the amended DA were placed on public exhibition. I am satisfied that notification and exhibition on both occasions was conducted as required.
3. At the commencement of the s 34 conciliation, a number of those who had made submissions in response to the exhibition of the original DA made oral submissions, at the junction of Panmill Drive and Wilkies Street. Subsequently after inspection of the southern part of the site there was also an opportunity for the neighbour at the northern side of the site at 1 Amy Street to make submissions.
4. At the start of the s 34 process the outcome is unknown. An agreement may be reached, or the matter may be terminated, and subsequently be allocated as a hearing before a Commissioner, but not necessarily the same Commissioner who presided at the s 34. As I have indicated earlier, if an agreement is reached then the Commissioner is required to give effect to the agreement, subject to being satisfied that the decision is one that could be lawfully made. The Commissioner is not required to and does not make a merit assessment, although a merits assessment would form part of the decision making if the matter had gone to hearing.
5. The submissions were extensive and canvassed a range of issues. Although I have doubt that issues raised are of concern to the makers of the submissions, a number raised issues which are not part of the application, which was for subdivision and works which directly relate to subdivision. The DA contains no details on the nature of the dwellings which may be constructed at some time in the future; each will be the subject of separate development applications. The evaluation of the future applications will take into account the requirements of WLEP and the WDCP as they stand when the application is made. Other concerns reflect history- concerns about the narrowness of the existing streets and consequences for street parking and access by vehicles such as garbage trucks, and conflicts between motor vehicles and bicycles and pedestrians. These may be of daily concern to residents but are the consequence of historic approvals of earlier developments. Developments which may be proposed post subdivision will involve only three new dwellings and will have only a very small incremental effect on traffic.
6. For a number of the concerns, the responses by the Respondent identify how issues will be addressed in conditions.
7. The Agreed Submissions on Jurisdictional Matters document, in tabular form, the response of the relevant Council Officers to the matters raised in individual submissions.
8. This demonstrates that the concerns raised have all been carefully considered. The Court is satisfied that the consideration of submissions from the public has been thorough and provides no grounds for not granting consent.
9. The Court is not aware of any other jurisdictional reasons that would prevent the making of the orders proposed and approving the DA by granting consent subject to conditions.
10. The Court notes that the Applicant is to pay the Respondent's costs thrown away, pursuant to s 8.15(3) of the EPA Act, as a result of the amendments to the development in Annexure A, in the amount of $8,000.00 within 28 days of the date of these orders.

Orders:

1. The Court Orders that: 1. Leave is granted to amend the Development Application consistent with the plans and documents set out in Condition 1 of Annexure A. 2. The Applicant is to pay the Respondent's costs thrown away, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as a result of the amendments to the development in Annexure A, in the amount of $8,000.00 (eight thousand dollars) within 28 days of the date of these orders. 3. The appeal is upheld. 4. Development Application No. DA/1324/2021 lodged with the Respondent on 17 November 2021 (DA), being for the proposed demolition of part of the elevated boardwalk section of Wilkies Walk and reconstruction of part of the boardwalk, and a 3-lot subdivision of land known as 1 Amy Street Thirroul NSW 2515, also known as Lot 101 DP 268549, is determined by grant of consent, subject to the conditions in Annexure A.

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: 19 April 2023