Kingdom Developments 5 Pty Ltd v Wollongong City Council

Land and Environment Court (NSW)|2022-08-11

Judgment

COMMISSIONER: A mixed use development is proposed on a site in the Wollongong Metropolitan area, comprising an eight storey building with retail and business premises on the ground floor, 86 residential apartments over, three levels of basement car parking, and an area of landscaped communal open space for passive recreation.
To this end, the Applicant in these proceedings, Kingdom Developments 5 Pty Ltd (Kingdom) lodged development application No DA-2021/890 on 10 August 2021.
On 26 November 2021, Kingdom filed this Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal of the development application, which was subsequently refused by the Wollongong Local Planning Panel on 30 November 2021.
It is relevant to record here the proposed development is, in essence, in two parts; 1. A mixed use development comprising ground floor commercial tenancies occupying around two-thirds of the site, towards the northern boundary of the site, which adjoins a laneway shared with an adjoining building; 2. A landscaped open area occupying around one third of the site, towards to southern boundary.
The site is flood-affected, and the affect of flood on the site, and offsite impacts arising from that flood affectation lie at the heart of this case.

The issues are distilled

The upshot of this extensive chronology is that a number of the contentions initially pressed by the Respondent are resolved; either by amended plans and other documents, or by draft without prejudice conditions of consent that are agreed between the parties (Exhibit 9).
The remaining contentions primarily flow from failure to achieve compliance with provisions at cl 5.21 of the Wollongong Local Environmental Plan 2009 (WLEP), and the Wollongong Development Control Plan 2009 (WDCP) with respect to flooding risk and stormwater management.
The proposal also fails to achieve the building separation required by cl 8.6 of the WLEP. While the planning and urban design experts agree that the written request prepared by the Planning Hub dated 9 August 2022 (Exhibit D, Tab 3) should be upheld, the Court must form an opinion of satisfaction required of it by cl 4.6 of the WLEP.
Similarly, while the urban design experts agree that the proposal exhibits design excellence, pursuant to cl 7.18 of the WLEP, as shown by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 (Toga), it is not sufficient for the Court to form an opinion as to whether the proposed development does or does not exhibit design excellence by having regard to the evidence of the urban design experts alone. Instead, cl 7.18 prescribes a framework for deciding whether a development exhibits design excellence (Toga, at [70]) and the Court must have regard to the particular terms of, and answer the particular questions raised by, the matters in the design excellence provisions (Toga, at [75]).
However, in the Amended Statement of Facts and Contention as originally pressed (Exhibit 1), the Respondent contended that the development failed to exhibit design excellence given the flooding constraints on the land, rendering it unsuitable pursuant to cl 7.18(4)(e)(i) of the WLEP.
As the grant of consent is precluded unless the Court is satisfied of certain matters in respect of flood planning, which is, or was, asserted as characteristic of the suitability of the land, I will consider the evidence in respect of flood planning before I consider whether the development exhibits design excellence.
That said, I will first consider the written request to vary the building separation standard at cl 8.6 of the WLEP, then consider whether I am satisfied in respect of flood planning. If the answer is positive, I will then consider whether the development exhibits design excellence.

The site and its context

The site is located on the eastern side of Gladstone Avenue, which is partly occupied by a one/two storey brick industrial building dating from the 1940's, and is partly grassed with three mature trees.
The existing building on the site supports one side of a masonry structure that spans a laneway to the north of the site, which is a public road. The other side of the masonry structure is supported by the adjoining building, at No 1 Railway Square, currently used as a place of public worship known as 'Lighthouse'.
The site has a total area of 2734m2, comprising five allotments that are legally described as Lots 80 and 81 in DP 13047, and Lots 43, 44 and 45 in DP 10704. Together, the allotments form a frontage of 66.99m to Gladstone Avenue, and a depth of 41.275m when measured along the northern boundary.
To the south of the site is a single storey brick dwelling house, and a single storey commercial building that are, together, known as 17-19 Gladstone Avenue being the subject of a development application for a residential flat building currently under assessment.
To the west, and opposite the site, is an existing shop top housing development known as 'Vantage Apartments', comprising four 9-storey towers with commercial/retail uses at the ground level.
To the east of the site is land used for railway purposes, in the form of both a commuter carpark, and curtilage to the Wollongong railway station environs.
The site is located within the B4 Mixed Use zone, according to the WLEP, in which shop top housing and commercial premises are permitted with consent, where consistent with the following objectives for development in the B4 zone: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To support nearby or adjacent commercial centres without adversely impacting on the viability of those centres.
The site is also in close proximity to two items of heritage significance, listed in Sch 5 of the WLEP; 1. Wollongong Railway Station Group, item 6382, which is identified as a state heritage item, 2. Trade School (TAFE), item 6467, which is identified as a local heritage item.
The proceedings commenced with an onsite view at which the Court, in the company of the legal representatives and experts observed those features of the site and locality described above.

Expert evidence

The Court was assisted in its consideration of the contentions in this matter by the following experts in the following disciplines: 1. Town planning: Mr Jeremy Swan for the Applicant, and Ms Rebecca Welsh for the Respondent, and in urban design: Mr Rohan Dickson for the Applicant and Mr David Jarvis for the Respondent who jointly conferred in the preparation of a joint expert report at Exhibit 4, and a supplementary joint report at Exhibit 6. 2. Traffic: Mr Robert Varga for the Applicant and Mr Charlie Bevan for the Respondent, who conferred in the preparation of a joint report marked Exhibit 3. I note here the Respondent was granted leave prior to the hearing to appoint an expert, Mr Andrew Heaven, in place of Mr Bevan who was excused on compassionate grounds. 3. Flooding: Mr Daniel Dhiacou for the Applicant and Ms Louise Collier for the Respondent, and who was joined by Mr Andrew Heaven in preparing the supplementary joint report at Exhibit 7. A stated at [29], Mr Soroush Ziaee, a civil engineering expert from Martens was later added.

Building separation standard is contravened

The proposed development does not comply with the provisions of cl 8.6 of the WLEP, and the Applicant relies upon a written request prepared by Mr Jeremy Swan, dated 9 August 2022 in accordance with cl 4.6 of the WLEP (the written request).
Clause 8.6 of the WLEP provides standards in respect of building separation in the following terms: 8.6 Building separation within Zone B3 Commercial Core or Zone B4 Mixed Use (1) The objective of this clause is to ensure sufficient separation of buildings for reasons of visual appearance, privacy and solar access. (2) Buildings on land within Zone B3 Commercial Core or B4 Mixed Use must be erected so that - (a) there is no separation between neighbouring buildings up to the street frontage height of the relevant building or up to 24 metres above ground level whichever is the lesser, and (b) there is a distance of at least 12 metres from any other building above the street frontage height and less than 45 metres above ground level, and (c) there is a distance of at least 28 metres from any other building at 45 metres or higher above ground level. (3) Despite subclause (2), if a building contains a dwelling, all habitable parts of the dwelling including any balcony must not be less than - (a) 20 metres from any habitable part of a dwelling contained in any other building, and (b) 16 metres from any other part of any other building. (4) For the purposes of this clause, a separate tower or other raised part of the same building is taken to be a separate building. (5) In this clause - street frontage height means the height of that part of a building that is built to the street alignment.
As the proposed development contains dwellings, the applicable building separation for this development is 20m from any habitable part of a dwelling contained in any other building and 16m from any other part of any other building.
In summary, the written request asserts that the proposal is unable to comply with subcl (2)(a) to the northern boundary as the site adjoins a laneway, and so some separation between neighbouring buildings is a function of the arrangement of lots in the area. Likewise, the southern setback exceeds the zero building separation up to the street frontage height required by subcl (2)(a) by virtue of the communal open space that provides the overland flow path for the floodway.
Separation distances to boundaries vary between 6m-23m which represents a variation to the building separation standard for the northern and eastern boundaries.
In the case of the northern boundary, the separation distance is consistent with the Apartment Design Guide (ADG) requirements for a 6m separation from habitable rooms to the boundary up to 4 storeys, a 9m separation room habitable rooms to the boundary up to 7 storeys and requires a 12m separation from habitable rooms to the boundary from 9 storeys and above.
In the case of the eastern boundary, a 6m setback is proposed to adjoining land to the rear of the site being zoned SP2 Infrastructure, forming part of the rail corridor and that land currently used for car parking. The land zoned SP2 cannot be developed for the purposes of residential accommodation and so the separation of 6m to the boundary is considered reasonable.
For those reasons, the written request asserts an appropriate level of privacy and solar access is provided for the proposal and adjoining developments, and so compliance with the building separation standard is unnecessary or unreasonable in the circumstances of the case as the proposed development achieves the objectives of the building separation standard, notwithstanding the non-compliance.
Next, the written requests advances five environmental planning grounds it considers sufficient to justify the contravention as follows:

The proposed development is consistent with the objectives of the zone and the objectives of the building separation development standard.
The proposal does not result in any adverse visual, privacy or solar access impacts for adjoining properties or the surrounding area;
The proposed development complies with the separation distance requirements of the Apartment Design Guide;
The proposed built form and separation distances are consistent with recent approvals within the area based on the built form and residential uses proposed. The design of the development ensures an appropriate built form is provided onsite that achieves the desired future character of the area and a high level of amenity for residents and adjoining properties; and
Strict compliance with the building separation development standard would result in a built form that isolates the site from adjoining sites and would not result in the provision of a well-designed and integrated streetscape for future development.

I accept the proposed development is consistent with the objective of the standard at [52] and, given the mix of compatible uses in what I accept is an accessible location, is also consistent with the objectives of the B4 zone at [47]. Accordingly, on the basis of the written request, I am satisfied of those matters at cl 4.6(4)(a)(i) and (ii) of the WLEP. In forming this opinion of satisfaction, I note the particular circumstances of the site such as the laneway adjoining to the north, and to land zoned SP2 to the east, and I given particular weight to the separation requirements of ADG being achieved on the northern elevation.
Having regard to those matters at cl 4.6(5) of the WLEP, I find no grounds on which the variation to the building separation standard would not be upheld.

The site is flood affected

The site is subject to flooding, with a medium to high flood risk. The southern portion of the site is identified as a floodway. It is located within the Wollongong City (Gurungaty Waterway) Catchment, and a piped, underground watercourse runs through it, in an east-west direction.
Mr Dhiacou considers 41% of the site to be a floodway, 30% of the site is flood storage, and the remainder is flood free.
In their further supplementary joint report (Exhibit 11), the flooding experts identify provisions at Chapter E13, Floodplain management, and E14, Stormwater Management, as relevant to the particulars in dispute.
Section 6.3, Chapter E13 of the WDCP defines 'Medium Flood Risk Precinct' in the following terms: "Medium Flood Risk Precinct - In this precinct there would be a significant likelihood of flood damage and/or danger to life, but these damages or danger to life can be minimised by the application of appropriate development controls. The Medium FRP includes: i) Includes land below the 1% AEP level plus 0.5 m that is not within the High FRP area inundated in a 1% AEP plus freeboard and not classified as High FRP."
The WDCP defines 'High Flood Risk Precinct' in the following terms: "High Flood Risk Precinct - The High FRP is where high flood damages, potential risk to life and/or evacuation problems would be anticipated or where development would significantly or adversely alter flood behaviour. This area includes floodways. In this precinct, there would be a significant likelihood of flood damages and/or danger to life. The High FRP includes: i) Areas greater than H3 hazard conditions during a 1% AEP flood from Figure 3; ii) Land within 10m from the top of a watercourse bank; and iii) Floodways."
A Floodways area is defined in the glossary of Chapter E13 as follows: "Areas of the floodplain where a significant discharge of water occurs during floods. They are often aligned with naturally defined channels. Floodways are areas that, even if only partially blocked would cause a significant redistribution of flow or a significant increase in flood levels. …"
The objectives of Chapter E13 of the WDCP are in the following relevant terms: "The key objectives of this chapter are to: a) Maintain the existing flood regime and flow conveyance capacity; b) Maintain the function of floodway and flood storage areas; c) Reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone land; d) Reduce private and public losses from flooding; e) Improve public safety with respect to flooding; … h) Ensure new development must, as far as practical, reduce the existing flood risk, and in no circumstances should the flood risk be worsened; …"
The objectives of Chapter E14 of the WDCP are: The objectives of this chapter are to: a) Achieve a uniform standard of stormwater drainage design for all developments; b) Reduce peak flows from sites into Council's stormwater drainage system; c) Reduce the probability of downstream flooding; d) Minimise the potential impacts of new development and redevelopment in areas affected by local overland stormwater run-off or flooding, such that no increase in stormwater peak flows occurs downstream; e) Minimise stormwater run-off volumes; f) Reduce peak run-off flows from urban developments and minimising impervious areas, wherever practicable; g) Minimise the drainage infrastructure cost of development; and h) Increase public convenience and public safety as well as protection of property.
The Applicant relies upon a Flood Assessment, prepared by Martens dated October 2022 (Flood Study) (Exhibit M, Tab 4) that has its origins in the Wollongong City Flood Study, prepared by Jacobs in 2019. This study formed the basis of a Flood Assessment found in the Class 1 Application (Exhibit A, Tab 11) prepared by Reinco, which contains the same assumptions relied upon in the Flood Study.
The Flood Study records, relevantly: Flood velocities across the site are generally low up to and including the 1% AEP event with climate change, ranging between 0.1-1.0ms. In the PMF event, flood velocities are higher, ranging between 0.4-1.9m/s. Hydraulic hazard across the site is primarily controlled by flood depths and are mostly H3 up to and including the 1% AEP event with climate change. In the PMF event, hydraulic hazard is H4-H5 across the majority of the site.
An H5 hazard is defined by Geoscience Australia (Flood Study, p16) as a level of flood in which all buildings are vulnerable to structural damage, and some less robust building types, to failure, which Ms Collier regards to be not a reduction in flood liability, but rather, an unreasonable burden to be inherited by new owners and occupiers of the proposal.
This is distinct from the existing condition, where the existing building on the site is not currently occupied and an open space area with no facilities or features lies to the south. Proposing new buildings and facilities within the floodway will result in losses, incurred from time to time as the result of flood.
Mr Dhiacou explained three components contribute to define an H5 level hazard, being velocity, and the combination of depth and velocity. In his view, due to the weir barrier formed by the railway corridor to the east of the site, the subject site is not subject to high velocity flood water, but is subject to deep floodwaters that structures can be designed to withstand.
The Applicant relies upon a letter prepared by Mr Zlatko Gashi, principal of M&G Consulting Engineers dated 28 September 2022 (Exhibit M, Tab 7) that states seat benches, tables, basketball hoop and the like can be designed to comply with the provisions of Floodplain Management in the WDCP subject to six recommendations contained in the letter.
The Applicant submits that, consistent with objectives (c), (d) and (e) of Chapter E13, a range of measures have been adopted evident in the development, including locating habitable areas above the flood level, the provision of a Flood Emergency Response Plan (FERP), and a proposal for residents to safely shelter in place during flood of limited duration.
Additionally, the flood study prepared by Martens & Associates (Exhibit M, Tab 4) shows the communal open space area will be inundated to a depth of 1.0 m and a velocity of 1.5 m/s even in a 20% Annual Exceedance Probability (AEP) event. In a probable maximum flood (PMF) event, flood velocity is predicted between 0.4-1.9m/s. A likely consequence of this is that residents would be temporarily trapped within the building. According to Ms Collier, this is a considerable intensification of use on a site that is not compatible with the flood risk.
The Respondent contends that despite the site being located within a Medium and High Flood Precinct, finished levels proposed in the development are uncertain; fencing may cause obstruction of flow; safe evacuation from the floodway is not demonstrated; and no FERP has been prepared.
As a more general statement, Ms Collier's concerns are that a floodway is no place to locate a gathering space for people.
With respect to levels, Ms Collier understands that the flood study is based upon existing levels being retained. Any change to those levels, or indeed any change to the ground surface resulting from a change in materials, or from softscape to hardscape, has the capacity to change the behaviour of flood waters on the site. Inconsistencies between the architectural and landscape plans preclude certainty.
Furthermore, Ms Collier expresses concern at the failure of the flood study to account for fencing and other physical obstructions within the catchment, and those proposed by the development.
At p 27 of the joint report, Mr Dhiacou sets out the assumptions underlying the Flood study. Most relevantly, this includes a 'roughness' coefficient as a proxy for light vegetation/grass/field area, consistent with the majority of the wider catchment. As stated at [70], these assumptions derive from the Respondent's own modelling undertaken by Jacobs in 2019.
With respect to the FERP, persons in the communal open space during a flood event may have only 10 - 15 minutes before the areas starts to become hazardous due to flood, and yet no signage is proposed to guide persons to take refuge within the building, and no FERP has yet been developed.
In response, Mr Dhiacou proposes the FERP be required as a condition of consent, and cites those features and elements of a FERP set out at Section 4 of the Flood Study which includes a 'responsible person' to monitor the use of the communal open space in inclement weather, including restricting access to it during very wet days.
The Respondent submits that the Court would follow the decision of Commissioner Walsh in Zaki Property Pty Ltd v Wollongong City Council [2022] NSWLEC 1526 (Zaki Property) in which the appeal, relying on the operation of a FERP, was dismissed.

The fence may block floodwater

Ms Collier believes the proposal is inconsistent with the objectives of Chapter E13 as the landscaping and structures shown in the ground floor plan, and the type of fencing proposed for the site will obstruct the floodway in a flood event.
The fence of concern fronts Gladstone Avenue to the west of the communal open area and is best described as a palisade style fence comprising vertical balusters that are open between.
In the joint expert report at Exhibit 11, Ms Collier sets out her concerns with the flood modelling, as it does not include any sensitivity testing of blockage of the proposed fencing to determine whether this will have an effect on adjacent properties.
Ms Collier summarises her concern at the potential impact of the impeding function of the fence, if blocked, in the following terms: I note that with a 1.8 m high fence at a ground level of 16.7m AHD would raise potentially raise flood levels in the immediate area to 18.5m AHD. The ground floor level of the Vantage Apartments is 18m AHD and therefore there is a risk that the fencing, if blocked, will cause overfloor flooding of the ground floor level of those apartments. These apartments are a contemporary feature in this locality (DA lodged in 2010) and were designed to meet a previous version of the Wollongong DCP Chapter E13.
The blockage may result from floating debris, carried on the overland flow. Potential flood debris in the immediate vicinity of the subject site, according to Ms Collier, may also include floating vehicles from Osbourne and Gladstone Street.
Mr Dhiacou relies upon Section 6.6.3 of Chapter E13 of the WDCP which permits 'security/ permeable/ open type/safety fences' in the floodway. The fence is designed to withstand the flood forces of the 1% AEP event, and is not necessary to withstand the flood forces associated with the PMF event.
The prescriptive standards at Section 6.6.3 are in the following terms: 6.6.3 Prescriptive Standards a) Fencing within a floodway or High FRP will not be permissible except for security/ permeable/ open type/safety fences of a type approved by Council. b) Council requires a Development Application for all new solid (non-porous) and continuous fences above 0.6m high, in the High and Medium FRP's. c) An applicant must demonstrate that the fence would not impede flow or flood water. Appropriate fences must satisfy the following: i) An open collapsible hinged fence structure of pool fence type; ii) Brick or other masonry type fence (which will generally not be permitted) or: iii) A fence type and citing criteria prescribed by Council. Council will consider other forms of fencing subject to compliance with the performance criteria.
In closing submissions, the Applicant stated it would accept, if the Court were so minded, a condition of consent requiring the fence to Gladstone Avenue to be collapsible in the event of flood.
The Court was not further informed of the characteristics or requirements of a collapsible fence, if indeed one exists. Instead, I note the Court was provided with evidence of a structural engineer that a fence can be designed to withstand the floodwaters expected on the site.

Offsite flood impacts

The Flood Study states, at p 17, that the floor level impacts of the development on adjacent sites is as follows:

Less than 20mm offsite flood level increase in the 20% AEP and 1% AEP events.
20-33mm offsite flood level increase in the 1% AEP climate change event within Gladstone Avenue, which is deemed acceptable given the limited extent beyond 20mm, identified as around 3m2 in area, less than 2m from the site boundary in an area affected by flood depths of 600mm.
50-130mm offsite flood level increase in the PMF within Gladstone Avenue which is deemed acceptable given it relates to 63m2 above 50mm around 8m from the site in an area affected by flood depths of 800mm, and where the probability of the event is low.

These results are depicted in Maps, set out in Table 2 of the Flood Study, and contained in Appendix D of the Flood Study.
The Respondent submits that the results evident in Maps 31 and 32 must be read carefully as the scale by which the extent of flooding is represented are not consistent and so the apparent impacts of flooding offsite are easily misread.
According to the Applicant, the Maps at Map 31 and 32 are clearly understood when read in answer to the prescriptive controls found at Section 6.4.3 (b) of the WDCP that distinguish, at Table 2 (Exhibit 2, Tab 11, p19) permissible flood impacts up to the 1% AEP, from those at (c) which states that flood impacts in the PMF are to be assessed on merit, and not by reference to the allowable impacts in Table 2.

Findings on flood planning

Clause 5.21 of the WLEP is in the following terms: 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. (4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause. (5) In this clause - Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department's website on 14 July 2021. flood planning area has the same meaning as it has in the Floodplain Development Manual. Floodplain Development Manual means the Floodplain Development Manual(ISBN 0 7347 5476 0) published by the NSW Government in April 2005
In considering the matters at subcl (4), I have considered the following: 1. In respect of the impact of the development on projected changes to flood behaviour as a result of climate change, I accept the Applicant's submission at [98] that the maps at Appendix D of the Flood Study are either within the tolerance accommodated by Table 2 of the WDCP, or exceed the tolerance by such a minor extent, or are reasonable on merit, that the impact of the development on projected changes to flood behaviour as a result of climate change, are acceptable. 2. In respect of the design and scale of buildings resulting from the development: 1. The proposal represents a reduction in the footprint of the proposed development on the site when compared to the footprint of the existing building, expressed as a reduction from around 1200m2 (existing) to 839m2 (proposed). As such, I also accept that what follows is a lesser obstruction to floodwaters than is presently the case, allocating a greater surface area for the flow and storage of flood waters. 2. Built form is limited to the northern portion of the site, while communal open space is located in the area of the site identified as most likely to receive floodwaters, and where permeable deep soil landscaping is concentrated. 3. The fence fronting Gladstone Avenue and minor, fixed structures within the communal open space are designed or, according to evidence I accept, are capable of being designed to enable and withstand floodwaters likely to be on the site. In particular, I note Mr Gashi's written advice at [75] includes a recommendation that fence posts should be engineered to remain in place at all times. It does not propose a collapsible or hinged fence, but an open design so as not to obstruct flood water flow. The fence is not 1.8m high as is said at [89], but is 1.5m high. Furthermore, even in the event that a number of vehicles are mobilised and come to rest against the fence, I do not understand that this would result in total blockage. 4. On the above basis, I am satisfied that the proposal will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties. 1. In respect of measures to minimise the risk to life and ensure the safe evacuation of people: 1. I do not accept the Respondent's argument that risk to life is not minimised because the proposed development is for residential development that will result in occupation of the site 24/7. Development of the sort proposed by the development application is permitted on the site, subject to the grant of consent. It is the measures taken to minimise the risk of life, and the safe evacuation of people, that is to be demonstrated by the development application. 2. The site has extensive enclosed areas that are positioned above the peak PMF level of 18m AHD, providing areas of refuge in the event of a PMF event, likely to be in the order of 3-4 hours in duration. 3. While a FERP is not in evidence, one is proposed. Furthermore, the features and elements of a FERP are identified by Mr Dhiacou at [81], and the preparation of a FERP is proposed in the conditions of consent, including a requirement for the FERP to form part of the Owners Corporation Building Management Manual. 4. I consider it reasonable that owners and occupiers of the proposed development will be familiar with the procedures contained in the FERP in respect of the communal open space, supported by signage in the communal open space. 5. With respect to the decision by the Commissioner in Zaki Property, I note that the use for which consent was sought in that case was a centre based childcare facility. I also note the Commissioner, at [92], observed that the FERP required "a large group of parents and lay carers to act in a certain way when the relevant flood events do occur [and] Irrational behaviour by some lay carers and parents in and around circumstances when the barrier comes down should be seen as a likely event…". 6. The circumstances in this case are different. Rather than a child care facility visited fleetingly by a large number of unrelated, non-resident users of a commercial facility, the FERP is for the information and action of residents of this site who can be expected to be familiar with a wide range of protocols applicable to shop top housing, including rules and procedures for use of communal open space, as is often the case in residential apartment development. 7. On this basis, I am satisfied that the proposed development will not adversely affect the safe occupation and efficient evacuation of people and incorporates appropriate measures to manage risk to life in the event of a flood. 1. In respect of the potential to modify, relocate or remove buildings, I accept the assessment advanced on p 23 of the Flood Study that as the proposal does not result in material offsite impacts, and does not represent a risk to life, there is no need to modify, relocate or remove buildings. However, I do note the proposal includes the removal of the existing building on the site and the construction of a new building with a reduced footprint.
Additionally, while Ms Collier observes future residents of the site may well experience cost and inconvenience after flood waters have receded, I note objective (c) of E13 of the WDCP seeks to reduce the impact of flooding and flood liability on individual owners and occupiers of flood prone land; and to reduce private and public losses from flooding.
The objective is not worded to avoid, or even to minimise such liability, but only to reduce, and I do not agree with Ms Collier that the assessment to be made is the degree of reduction in liability from that of the existing unoccupied use of the site. Rather, it is the degree to which the development the subject of the development application demonstrates steps taken to reduce the impact of flooding and flood liability.
After considering both the architectural plans and the landscape plans, I have formed the view that the arrangement of voids within the built form, in the form of the setback evident in the colonnade running parallel to Gladstone Avenue, the ground level setback to the east from that evident in the existing building on the site and the design of the communal open space, which may be regarded as spare and utilitarian, achieves the objective of reducing the impact of flooding and flood liability on individual owners and occupiers of flood prone land; and the private and public losses from flooding.
I accept that damage is the likely legacy of floodwaters of the depth and velocity anticipated at [77], requiring repair and renewal. However, I note the area likely to be subject to damage is landscaped open space, comprising landscape planting that is capable of regrowth or replacement and so I am satisfied that the proposal will not adversely affect the environment.
On the basis of the above, I am satisfied as to those matters at cl 5.21(2) of the WLEP.

Realignment of the culvert

The Respondent believes the existing pipe forming the watercourse ('the existing culvert') is an arched structure dating from the mid 20th century although the condition and invert levels are unconfirmed, in part due to failure by Kingdom to undertake CCTV analysis of the existing culvert prior to the hearing.
Kingdom propose to realign the culvert to ensure the new alignment ('the new culvert') is outside the footprint of the proposed building. The alignment of the new culvert commences with a new pit connection in the road reserve to the west of Gladstone Avenue, to a location around 8m south of the current location. The new culvert then reverts to the alignment of the existing culvert with a pit connection to an existing pit on Railway land to the east of the site.
The alignment of the new culvert is shown in architectural drawing DA 10 (Exhibit M, Tab 9) adopting the same alignment as the southern extent of basement 1.
According to Mr Heaven, the Respondent's initial concerns were not related to the diversion of the culvert, but the method of connection between existing and new culvert, and the offsite impacts arising from the works associated with those connections.
In respect of the connection itself, Mr Heaven's primary concern was initially twofold. Firstly, the risk of disruption caused by excavation, and the potential for failure caused by the works required to effect the connection between the existing culvert and the new culvert.
As Mr Heaven puts it, making the connection requires excavation to around 3.5m in depth. At that depth, the excavated trench requires shoring or benching that is likely to result in a hole of around 6-7m in diameter at the surface. Furthermore, the arch itself is likely to require forming up and securing prior to the connection being made.
In the case of the connection to the existing culvert to the west of Gladstone Avenue, this has the potential to cause disruption to a sub-arterial road that provides access to the Wollongong CBD, and to Wollongong Railway Station.
Kingdom submit that this is properly a matter for an application under the Roads Act 1993, that Ms Irish, counsel for the Respondent, submits is not at this time, made.
In the case of the connection to the eastern pit, located on Railway lane, such excavation may impact the existing brick wall on the eastern boundary that is proposed to be retained, and the geometry is likely to require a custom-formed transition between the rectangular cross section of the new culvert, and the arched form of the existing culvert.
Mr Dhiacou acknowledged that the invert levels of the existing culvert were not known at the commencement of the hearing, and accepts that CCTV analysis would establish those levels. The initial reason for not completing CCTV analysis was due to time.
In the period of the adjournment granted by the Court at [22], the Applicant subsequently undertook CCTV analysis of the existing culvert. The conclusions of this analysis are contained in Exhibit L, and result in agreement between the parties that the condition of the existing culvert supports the connections proposed.
On this basis, the issue is resolved, and it is agreed that all works proposed to be undertaken to the east can be completed within the subject site.

Design excellence

As the proposal is for a new building on a site is within the Wollongong City Centre, the provisions of cl 7.18 of the WLEP dealing with design excellence apply.
The provisions are, relevantly: 7.18 Design excellence in Wollongong city centre and at key sites (1) The objective of this clause is to deliver the highest standard of architectural and urban design. (2) This clause applies to development on any of the following land involving the construction of a new building or external alterations to an existing building - (a) land within the Wollongong city centre, (b) land shown edged heavy black and distinctively coloured on the Key Sites Map (a key site). (3) Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters - (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) whether the proposed development detrimentally overshadows an area shown distinctively coloured and numbered on the Sun Plane Protection Map, (e) how the proposed development addresses the following matters - (i) the suitability of the land for development, (ii) existing and proposed uses and use mix, (iii) heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts such as sustainable design, overshadowing, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access, circulation and requirements, (x) impact on, and any proposed improvements to, the public domain. …
As there are no view corridors impacted by the proposal, and no overshadowing of the area shown on the Sun Plane Protection Map, there are two questions of relevance posed by the provisions: 1. Whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, and 2. Whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain.
Those two questions are contingent upon findings with respect to the issues within subcl 7.18(4)(e). For instance, whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved (subcl (4)(a)), cannot be isolated from consideration of the bulk, massing and modulation of buildings at subcl (4)(e)(v) as all are aspects of architectural design.
Likewise, whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, being a consideration required by subcl 7.18(4)(b) of the WLEP, is inseparable, in my view, from considering the impact on, and any proposed improvements to, the public domain (cl 7.18(4)(d)(x)).
Furthermore, those matters set out at cl 7.18(4)(a)-(d) are posed in terms of 'whether' the development the subject of the development application achieves certain things whereas those matters set out at cl 7.18(4)(e) are posed in terms of 'how' the proposal addresses certain matters.

Whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved

Having regard to the relevant matters at cl 7.18(4)(e) of the WLEP, I find the proposal achieves a high standard of architectural design, materials and detailing appropriate to the building type and location for reasons summarised as follows: 1. As the site is zoned B4 Mixed Use, in which the proposed uses are permitted with consent, and as I have found the flood planning on the site to be satisfactory for the reasons summarised at [100]-[105], I consider the land suitable for development in the manner proposed, (subcl (4)(e)(i)). 2. I also agree with, and adopt the view of, the Wollongong Design Review Panel (Exhibit 2, Tab 15) that the proposed use mix is consistent with the Respondent's vision for the precinct (subcl (4)(e)(ii)). 3. While the proposed residential tower does not achieve the separation required of if by cl 8.6 of the WLEP, for the reasons summarised at [60], I find the location of the tower to be acceptable in terms of separation, setbacks, amenity and urban form when other towers on neighbouring sites, both existing and proposed, are considered (subcl (4)(e)(iv)). 4. Relatedly, while the particulars initially identified a building depth in excess of that recommended by the ADG, on the basis of the amended architectural plans and the statement contained on p 54 of the design statement prepared by Kingdom's architect (Exhibit J), I accept the building bulk, massing and modulation has been designed to provide, in effect, two tower forms, connected by open, recessed and landscaped voids and so does not present as a building of excessive depth (subcl (4)(e)(v)). 5. As an outcome of the above, I also accept the statement at pp 53-54 of the design statement that the open, recessed and landscaped voids assist in providing natural ventilation to all apartment levels, as one aspect of sustainable design. Additionally, I note the details confirming mechanically operated sun shading at DA 23, Revision P21 (Exhibit M, Tab 9), the provision of photovoltaic cells, collection of roof water for irrigation and design of apartment layouts to anticipate future development of the site to the north so that at least 2 hours of sunlight will be received by the apartments on the subject site in mid winter (subcl (4)(e)(vii) and (viii)).

Whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain.

Having regard to the relevant matters at cl 7.18(4)(e) of the WLEP, I find the form and external appearance of the proposed development will improve the quality and amenity of the public domain for reasons summarised as follows: 1. I consider the retention and adaptation of the existing building fabric on the eastern boundary, and continuation of the brick colonnade in the form of the podium an appropriate response to the heritage issues identified at [48], streetscape constraints applicable to the site (subcl (4)(e)(iii)), and street frontage heights (subcl (4)((e)(vi)). Relatedly, as stated at [60], I also consider the contravention of the building separation standard that would otherwise result in zero separation between lower portions of the proposal to be justified. 2. In respect of pedestrian, cycle, vehicular and service access, circulation and requirements (subcl (4)(e)(ix)), I note the laneway to the north is proposed to provide cycle, vehicular and service access to the development. An impediment to doing so is said to be the overhead structure currently spanning between the subject site, and No 1 Railway Square to the north. In my view, the removal of the overhead structure is adequately provided for by the following:

A letter from structural engineer Zlatko Gashi dated 27 July 2022 (Exhibit C, Tab 5) states the removal of the bridge-like structure is possible, subject to direction by a structural engineer.
In a supplementary report dated 8 August 2022 (Exhibit C, Tab 16), Mr Gashi considers the removal to comprise the disconnecting of services, cutting the concrete slab along the external face of masonry wall to 1 Railway Station Square, removing the lightweight cross walls and the lightweight roof. Following the removal, two door openings have been identified for infill.
Owners consent is granted by Exhibit G, and a schedule of works has been prepared by Mr Gashi dated 31 August 2022 (Exhibit K). 1. On this basis, and having regard to the architectural and landscape plans depicting the extent, material and finish of the laneway to the north of the site, by which access to the development is gained, I consider all forms of access to the development to be well served by the manner in which the lane is proposed to be used. 2. Finally, I consider the impact on the public domain, and the improvements proposed to it (subcl (4)(e)(x)), to be positive for the reasons that follow:
The existing mature trees in the communal open space are retained, within an area of deep soil comprising around 27% of the site.
The setback of the proposal from the existing laneway to the north creates a widened lane of 7400mm that provides vehicular and waste collection access in a manner that avoids presentation of basement carparking to Gladstone Avenue.

For the reasons set out above, I have formed the opinion that the proposed development exhibits design excellence, pursuant to cl 7.18(3) of the WLEP.
Relatedly, as the proposal is for residential apartment development, the provisions of State Environmental Planning Policy No 65 - Design Quality on Residential Apartment Development (SEPP 65) apply.
Clause 28 of SEPP 65 requires a consent authority to take into consideration, in addition to any other matters that are required to be, or may be, taken into consideration, the following: (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide.
Where an application relates to residential apartment development, cl 50(1A) of the EPA Regulation requires a development application to be accompanied by a statement by a qualified designer, defined at cl 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.
The statement must conform to the provisions of cl 50(1AB) of the EPA Regulation, which include attestations in relation to cl 28(2)(b) and (c) of SEPP 65, and assists the Court's consideration of cl 30(2) as to whether adequate regard has been given to the design quality principles, and the objectives specified in the ADG for the relevant design criteria.
Kingdom relies upon a design statement that conforms with cl 50(1AB) of the EPA Regulation, marked Exhibit J.
I am satisfied that the statement provided by Mr Peter Israel (Reg No.5064) is in a complying form and adequately demonstrates that the development is largely consistent with the design quality principles, and achieves the objectives and design criteria of the ADG.
I am also of the opinion that the proposal is consistent with those standards at cl 30(1) of SEPP 65 that cannot be used as grounds to refuse development consent.

Acoustic

The Respondent submits the Court does not have before it sufficient evidence to satisfy it in respect of acoustic levels in the residential component of the development.
Instead, the Respondent proposes a condition of consent deferring commencement of consent, if the Court is so minded, until an Acoustic Report is completed to satisfy the requirements of s 2.100 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP).
The Applicant relies upon the following acoustic assessments, prepared by White Noise Acoustics in relation to the proposed development: 1. A Noise Assessment Impact dated 11 December 2020 ((Exhibit A, Tab 5) that concludes, at p18, that on the proviso that recommendations are adopted, required internal noise levels will be achieved. 2. A letter of advice dated 28 January 2022 (Exhibit B, Tab 15) stating that the Department of Planning's Development Near Rail Corridors and Busy Roads - Interim Guideline will be complied with in the proposed development. 3. A letter prepared by White Noise Acoustics, dated 5 August 2022 (Exhibit C, Tab 13) that states an Acoustic Review of the proposal has been undertaken and that the development will comply with the relevant NSW Planning and Australian Standard requirements.
The recommendations contained in the Noise Assessment Impact at [136(1)] include the specification of external materials, including glass thickness, masonry or concrete external wall construction, internal plasterboard partitions to achieve an acoustic performance of Rw 50, and external roof of concrete.
I consider all of these recommendations commonplace and achievable. Accordingly, I also find further acoustic assessments and certification to be appropriately a condition of consent to be complied with prior to the issue of an occupation certificate, and should not defer commencement of the consent as proposed by the Respondent.

Earthworks and contamination

The Respondent initially contended there is insufficient evidence for the Court to be satisfied that groundwater would be managed appropriately should consent be granted for a development comprising the extent of excavation proposed.
The amended development application is supported by a geotechnical assessment prepared by EI Australia dated 3 August 2022 (Exhibit C, Tab 10) that concludes that while some variation in groundwater levels may occur during construction, "this will reach equilibrium in the long-term to a degree that any groundwater mounding due to the tanked basement will be negligible, and hence no adverse effects on adjacent properties".
On the basis of the advice at [140], and the documents listed as follows, I conclude the proposed development will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage items and features surrounding land, pursuant to cl 7.6 of the WLEP:

Detailed Site investigation (DSI) prepared by EI Australia dated 18 July 2022 (Exhibit C, Tab 2) that concludes the site is deemed suitable for the proposed use, subject to recommendations for a Hazardous Materials Survey and a Construction Environmental Management Plan that are both provided for in the proposed conditions of consent.
Dewatering Management Plan prepared by EI Australia dated 20 October 2022 (Exhibit N, Tab 2), and also recommended by the DSI above.
Review of the De-watering management plan completed by Horticultural management Services dated 24 October 2022 (Exhibit N, Tab 3),
Amended Stormwater Plans prepared by Martens (Exhibit M, Tab 2)
Amended Water Sensitive Urban Design (WSUD) Report prepared by Martens dated October 2022, identifying the function of grassed swales and bioretention.

Relatedly, I am also satisfied that the above serves to acquit Kingdom of the requirements of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 and I accept the conclusion reached in the DSI that the site is suitable for the purpose for which the development is proposed to be carried out.
The Respondent extends its concern with respect to contamination to the works proposed at [111]-[113] in Gladstone Avenue, and to the Lane to the north of the site.
Kingdom relies on a Preliminary Site Investigation (PSI) prepared by EI Australia dated 6 October 2022 (Exhibit M, Tab 11) that, in summary, concludes that as the road reserve has functioned as such since 1938, and the laneway to the north has operated since 1948, and there is no record in commonly cited sources to indicating otherwise, the land is unlikely to be contaminated.
I have considered if the land in the Gladstone Street road reserve, and the laneway to the north of the site, are contaminated. On the basis of the chronology evident at pp 11-12 of the PSI, I accept the Gladstone Road Reserve has not been the site of uses likely to cause contamination, beyond the risk of contamination from material used to construct the road itself, identified as a medium risk, according to Table 5-5 of the PSI. I consider it unlikely that the land is contaminated. However, if the land is contaminated, I am satisfied that it is suitable in its contaminated state, if that is the case, for the development for which development is proposed to be carried out.
That development, in the case of the Gladstone Street road reserve, is the excavation and installation of pits and, in the case of the laneway to the north, for resurfacing to achieve the vehicular access described at [125(4)].

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

The application is accompanied by a BASIX certificate (Cert No. 1153256M_05, dated 27 October 2022) prepared by Max Brightwell (Exhibit N, Tab 6) in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Amendments in Exhibit N are minor

As stated at [31], on the last day of the hearing, Kingdom relied upon amended plans and other documents contained in a bundle marked Exhibit N.
I note that the development application was amended by amended plans and other documents at Exhibit M, in relation to which an order was made in accordance with s 8.15(3) of the EPA Act for Kingdom to pay the Respondent's costs thrown away as agreed or assessed.
After considering the degree of change contained in the contents of Exhibit N, when considered subsequent to those at Exhibit M, I agree with Kingdom that the changes are minor.

Orders

The Court orders that: 1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Wollongong City Council, as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), agrees to the applicant amending the development application No DA-2021/890 the amended plans and other documents at [31] of this judgment. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments in respect of the amended plans and other documents at [28] of this judgment, with which the Respondent agreed in accordance with cl 55 of the EPA Regulation. 3. The appeal is upheld. 4. Development application No DA-2021/890 for the demolition of a building and construction of a mixed use development comprising 'shop top housing' in an eight storey building, with retail and business premises/office premises at the ground floor level, and over basement car parking at 7-13 and 15 Gladstone Avenue, Wollongong, is determined by the grant of consent, subject to conditions of consent at Annexure A. 5. All Exhibits are returned, except for Exhibits A, B, C, D, H, M, N. T Horton Commissioner of the Court

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: 29 November 2022

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Cases Cited (2)