Legpro 70 Pty Ltd ATF Legpro Unit Trust v Wollongong City Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Legpro 70 Pty Ltd ATF Legpro Unit Trust (Applicant)
Wollongong City Council (Respondent)

Representation: Counsel:
C Collett (Solicitor) (Applicant)
J Reilly (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Wollongong City Council (Respondent)

File Number(s): 2024/75307

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Wollongong City Council (Council) of DA-2023/823 for bulk earthworks, tree removal, vegetation management and ancillary works (DA), within part of the former Corrimal Coke Works site located at 27 Railway Street Corrimal, legally described in the parties’ agreed conditions of consent (Annexure A to this judgement) as being part Lot 1 DP 79579 and part Lot 5 DP 749492 (site). The DA can be understood as one part of a somewhat intricate suite of development proposals, essentially related to bringing about a multi-faceted redevelopment of portions of this former industrial site.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 March 2025, and at which I presided. Prior to the conference, the parties had come to an 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 consent to the DA, as amended in the course of conciliation, in accordance with agreed consent conditions.

Pre-requisites to the exercise of the function to grant development consent

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

4. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]). Ultimately, I find that there are none. However, there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' agreed jurisdictional note, as amended on 7 March 2025.

Water Management Act 2000

5. The parties advise that pursuant to s 91(2) of the Water Management Act 2000 (WM Act), the DA requires approval from Water NSW to undertake a controlled activity on waterfront land (being the realignment of the riparian corridor). In turn the DA is integrated development under the provisions of s 4.46(1) of the EPA Act. The parties advise that on 14 March 2024, Council received the Water NSW General Terms of Approval (GTAs). Accordingly, and mindful of the inclusion of relevant conditions in Annexure A, I am satisfied with respect to s 91 of the WM Act, and with respect to related integrated development requirements.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

6. Chapter 4 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies in relation to koala habitat protection. I accept the parties’ agreement that the site does not contain any core koala habitat and the provisions of s 4.9 have been adequately addressed.

State Environmental Planning Policy (Resilience and Hazards) 2021

7. Chapter 2, ss 2.11 and 2.12 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) relates to coastal management and applies to the site, which is mapped within the coastal environment area. In turn, the provisions of ss 2.10, 2.11 and 2.12 apply, each of which require jurisdictional findings of satisfaction to enable the power to grant consent. In their jurisdictional statement the parties have indicated their consideration of the relevant listed matters, within the applicable provisions, and drawn positive conclusions with respect to the matters requiring findings of satisfaction of the Court.

8. In turn, and reliant on this advice of the parties (JS pars 44-50), I am satisfied with respect to relevant matters at ss 2.10(2), 2.11(1)(b) and 2.12. With these findings the relevant jurisdictional tests of Chapter 2 are satisfied.

9. The provisions of s 4.6 of SEPP RH also apply to the site. The site has a history of contamination associated with the previous use of the site for metal production. The DA is supported by a Detailed Site Investigation (DSI) (Tab 20 Class 1 Application) and a Remediation Action Plan (Tab 21 Class 1 Application) prepared by Reditus Consulting to detail the proposed remediation strategy and to assess the proposal against relevant provisions of the SEPP. I accept the parties’ advice that the land will, with the proposed remediation, be suitable for the purpose of the development. In turn the requirements of subss 4.6(1)(a), (b) and (c) have been met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

10. Sections 2.97 and 2.99 apply to the amended DA which seeks access via a level crossing and excavation within a rail corridor. The parties submit that TfNSW have issued their concurrence. Conditions of consent in relation to TfNSW requirements have been included at Annexure A. I accept the parties’ agreement that the provisions are met.

Wollongong Local Environmental Plan 2009

11. Under Wollongong Local Environmental Plan 2009 (WLEP), the subject site is zoned part R3 Medium Density Residential and part RE1 Public Recreation. The proposed works are confined to the R3 zone and are permissible with consent.

12. I accept the advice of the parties that the proposal does not breach any development standard.

13. I note that cl 5.1A relates to development on land intended to be acquired for a public purpose (under WLEP Land Reservation Acquisition Map). An area within the site is indicated for the purposes of future acquisition however no development is proposed in the relevant area itself. I also note that heritage conservation has been a matter of some considerable attention, with respect to the former Corrimal Coke Works (a listed heritage item). I note the parties’ agreement that a satisfactory response is in hand with respect to this topic, however no findings of satisfaction are required in this judgement in that respect.

14. Clause 5.21 of WLEP is concerned with flood planning. The parties’ jurisdictional statement addresses each of the points at cl 5.21(2) mindful of a Water Cycle Management Strategy accompanying the application. Having regard to the agreed position of the parties I too am satisfied with respect to flood planning and in particular the provisions at cl 5.21(2).

15. Clause 7.2 is concerned with “natural resource sensitivity – biodiversity” and applies to the site because a portion of the site is indicated on WLEP’s Natural Resource Sensitivity—Biodiversity Map. The relevant threatened ecological community is identified as plant community type (PCT) 838. The parties advise there is no proposed works within this PCT which require development consent. More broadly with respect to the larger scheme for the site environs, the parties advise of the preparation of a Biodiversity Development Assessment Report (BDAR) (Tab 15 Class 1 Application) which identifies mitigation measures for each stage of the development to manage specific indirect impacts and/or prescribed impacts.

16. In relation to this particular DA context, the BDAR identifies that 20 ecosystem credits are required to offset residual impacts to PCT 838. The parties agree that the BDAR assessment satisfies the provisions of cl 7.2 in regard to requirements for the need of a consent authority to consider impacts of the development on threatened species, communities, populations, and their habitats. I have noted the particular objectives of cl 7.2 and on the basis of the evidence provided by the parties, and in particular noting the BDAR, and am satisfied that the proposed development is consistent with these objectives. For the same reasons, I am also satisfied with respect to the provisions at cl 7.2(a) and (b).

17. In respect to cl 7.4 and riparian lands I note the parties’ advice of their consideration of the impact of the proposed development on the site’s riparian corridor and of opportunities for rehabilitation of aquatic and riparian vegetation and habitat on that land. As identified above, the proposed realignment and works to the riparian corridor is defined as a ‘controlled activity’ under the WM Act, and DPE-Water has issued GTAs with respect to this aspect of the proposal. The parties also advise the DA is accompanied by a Vegetation Management Plan (Tab 18 Class 1 Application) which details the installation and management of native vegetation within the realigned riparian corridor zone to ensure long-term vegetation management, and ecological and biodiversity outcomes.

18. Clause 7.5 relates to acid sulfate soils. The parties advise that the required Acid Sulfate Soil Management Plan has been provided.

19. The parties’ jurisdictional statement includes reference to other considerations undertaken in the course of the coming to an agreement on this matter, but these matters do not require jurisdictional findings of the Court, here.

Conclusion

20. In accordance with the above reasoning, the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

21. 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.

Notations

22. The Court notes:

23. The Respondent, Wollongong City Council, as the relevant consent authority, approves, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 the amendment of development application no. DA-2023/823 in accordance with the following amended plans and documents:

| TAB | DOCUMENT | DATE | | 1 | Letter from Urbis to Wollongong City Council regarding Amended Development Application | 25 September 2024 | | 2 | Revised Landscape Design prepared by Clouston Associates | 19 September 2024 | | 3 | Remediation Action Plan prepared by Reditus (Version 4) prepared by Reditus Consulting | 24 September 2024 | | 4 | Amended Civil Engineering Plans prepared by Maker Eng: • MKR00452-16-C0000: Coversheet and Drawing Schedule rev 3 • MKR00452-16-C0010: General Notes rev 3 dated 24 September 2024 • MKR00452-16-C0030: Zoning Layout Plan rev 4 dated 24 September 2024 • MKR00452-16-C0040: Civil Key Plan rev 4 dated 24 September 2024 • MKR00452-16-C0050: Existing Site Survey Plan rev 4 dated 24 September 2024 • MKR00452-16-C0060: Indicative Subdivision Layout Plan rev 1 dated 23 September 2024 • MKR00452-16-C0100: Civil Works Layout Plan 1 of 3 rev 6 dated 24 January 2025 • MKR00452-16-C0101: Civil Works Layout Plan 2 of 3 rev 6 dated 24 January 2025 • MRK00452-16-C0102: Civil Works Layout Plan 3 of 3 rev 6 dated 24 January 2025 • MKR00452-16-C0105: Creek Civil Works Layout Plan rev 1 dated 24 September 2024 • MKR00452-16-C0200: Bulk Earthworks Layout Plan rev 4 dated 24 September 2024 • MKR00452-16-C0250: Bulk Earthworks Section Plan 1 of 5 rev 4 dated 24 September 2024 • MKR00452-16-C0251: Bulk Earthworks Section Plan 2 of 5 rev 4 dated 24 September 2024 • MKR00452-16-C0252: Bulk Earthworks Section Plan 3 of 5 rev 4 dated 24 September 2024 • MKR00452-16-C0253: Bulk Earthworks Section Plan 4 of 5 rev 4 dated 24 September 2024 • MKR00452-16-C0254: Bulk Earthworks Section Plan 5 of 5 rev 4 dated 24 September 2024 • MKR00452-16-C0300: Typical Road Layout Plan rev 4 dated 24 September 2024 • MKR00452-16-C0310: Typical Road Section Plan 1 of 2 rev 4 dated 24 September 2024 • MKR00452-16-C0311: Typical Road Section Plan 2 of 2 rev 4 dated 24 September 2024 • MKR00452-16-C0315: Creek Design Section Plan rev 1 dated 24 September 2024 • MKR00452-16-C0350: Creek Details rev 1 dated 23 September 2024 • MKR00452-16-C0500: Longitudinal Section Road 01 1 of 6 rev 4 dated 24 September 2024 • MKR00452-16-C0501: Longitudinal Section Road 03 2 of 6 rev 4 dated 24 September 2024 • MKR00452-16-C0502: Longitudinal Section Road 03 3 of 6 rev 4 dated 24 September 2024 • MKR00452-16-C0503: Longitudinal Section Road 03 4 of 6 rev 4 dated 24 September 2024 • MKR00452-16-C0504: Longitudinal Section Road 04 & Road 05 5 of 6 rev 4 dated 24 September 2024 • MKR00452-16-C0505: Longitudinal Section Lane 01 & Lane 02 6 of 6 rev 4 dated 24 September 2024 • MKR00452-16-C1850: Erosion and Sediment Control Notes and Details rev 2 dated 25 August 2023 • MKR00452-16-C1860: Erosion and Sediment Control Layout Play rev 5 dated 23 September 2024 • MKR00452-16-C1900: Tree Removal and Retention Layout Plan rev 4 dated 23 January 2025 | Various dates up to 24 January 2025 | | 5 | Water Cycle Management Strategy (Version 5) prepared by Maker Eng | 23 September 2024 | | 6 | Revised Construction Management Plan prepared by Maker Eng | September 2024 | | 7 | Corrimal Cokeworks Stage 2 Built Form Development and Construction Staging presentation prepared by Maker Eng | • | | 8 | Corrimal Cokeworks Proposed Subdivision & Development Staging prepared by Maker Eng | • | | 9 | Biodiversity Development Assessment Report prepared by Eco Logical Australia (Version 7) | 24 September 2024 | | 10 | Corrimal Residential Development Grey-Headed Flying-Fox Management Plan prepared by Eco Logical Australia (Version 7) | 24 September 2024 | | 11 | Vegetation Management Plan prepared by Eco Logical Australia (Version 7) | 25 September 2024 | | 12 | Interim Advice 10: Endorsement of Stage 2-4 Remediation Action Plan, prepared by Geosytec Consultants | 16 October 2024 | | 13 | Review of Revised Realignment Design of North Corrimal Creek prepared by the NSW Soil Conservation Service | 25 September 2024 | | 14 | Flood Maps prepared by Maker Eng: • MKR00452-D110: Proposed Hydraulic Model Elevations • MKR00452-M103: AEP Flood Extent • MKR00452-M106: Proposed DFE Extent • MKR00452-M176: Change in DFE Water Level | September 2024 |

(‘Amended Development Application’)

2. The Applicant has filed the amending material with the Court.

Orders

23. The Court orders that:

24. The Applicant is granted leave to rely on the Amended Development Application.

25. The appeal is upheld.

26. Development Application No. DA-2023/823, as amended, for bulk earthworks (stage 2-4), vegetation management and realignment and embellishment of an existing riparian corridor at 27 Railway Street, Corrimal NSW 2518 is determined by the grant of development consent subject to the conditions of consent in Annexure A.

P Walsh

Commissioner of the Court

Annexure A

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