Realta Enterprises Pty Ltd v Wollongong City Council [2025] NSWLEC 1640

Texts Cited: NSW, Child Care Planning Guideline, September 2021
Wollongong Development Control Plan 2009

Category: Principal judgment

Parties: Realta Enterprises Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation: Counsel:
M Staunton and A Hannam (Applicant)
D Loether (Solicitor) (Respondent)
Solicitors:
RMB Lawyers (Applicant)
Bartier Perry (Respondent)

File Number(s): 2024/302453

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application DA-2022/1036 (DA) by the Wollongong Local Planning Panel (WLPP). In accordance with s 8.15 of the EPA Act, Wollongong City Council (Council) is the respondent in these proceedings under the direction of WLPP.

2. The DA, as amended, seeks consent for:

3. Lot consolidation and boundary adjustment subdivision;

4. Demolition of outbuildings and certain tree removal; and

5. Development for a new 42 place child care centre with basement parking, associated landscaping and stormwater works.

6. The site, including proposed construction access, comprises Lots 7-11, 13 and 14 in DP 1166128 and Lot 26 in DP 22090 and is known as 3A, 3B & 5 Leslie Street and 5, 7, 9, 11 and 13 Livistona Close, Russell Vale.

Conciliation and agreement between the parties

4. This matter was listed for a conciliation conference on 26 August 2025 after a request from the parties. I was appointed to preside. The parties advised that. 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 accordance with agreed conditions.

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

5. 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. Rather than a consideration of the merits of the position agreed by the parties, 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 [62]-[65]). Ultimately, I find that there are none. But 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' jurisdictional statement of 26 August 2025 (JS) and subsequent advice.

State Environmental Planning Policy (Transport and Infrastructure) 2021

6. Chapter 3 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) relates to child care centre proposals. Of jurisdictional relevance is s 3.22, concerning indoor and outdoor unencumbered space requirements. I accept the advice of the parties that the DA, as amended, complies with reg 107 (indoor unencumbered space requirements) and reg 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations 2011. Therefore, the parties agree, and I accept, that no concurrence from the relevant regulatory authority is required.

7. Relating to s 3.23, I also note the agreed advice of the parties that the applicable provisions of the Child Care Planning Guideline (CCPG) have been taken into consideration and addressed by the DA, as amended.

State Environmental Planning Policy (Resilience and Hazards) 2021

8. Section 4.6(1) provides that 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.

9. The parties advise that I can be satisfied with respect to s 4.6(1). They advise that the DA is accompanied by a Detailed Site Investigation (DSI) which concludes that there are potential contamination sources on the site but that the site could be made suitable for the proposed development subject to a number of recommendations, including the development and implementation of a Remedial Action Plan (RAP). A RAP now accompanies the DA. I note that Conditions 36 and 37 of the proposed conditions of consent (Annexure A to the judgement) require a validation report to be provided to Council verifying that the site is not affected by soil and/or groundwater contamination above the threshold criteria and that the site is suitable for the proposed development; and that site contamination remediation works to be carried out in accordance with the RAP. On the basis of the parties’ advice and proposed consent conditions, I am satisfied as to the matters set out in s 4.6(1).

Wollongong Local Environmental Plan 2009

10. The site is zoned part R2 Low Density Residential under applicable Wollongong Local Environmental Plan 2009 (WLEP).

11. The proposed centre-based child care facility is permissible under this zoning and subdivision is permissible under cl 2.6 of WLEP and demolition also under cl 2.7. I note the parties’ advice that they believe the proposal satisfies the zone objectives for the R2 zone as the amended proposal would provide a child care centre facility and service to meet the day to day needs of residents in the locality.

12. The parties advise that the proposal does not breach any development standards.

13. Clause 5.21 applies to development on land the consent authority considers to be within the flood planning area (FPA). As the site is not on land that could be considered to be within the FPA, cl 5.21 does not apply.

14. Clause 5.22 applies to:

(a) for sensitive and hazardous development—land between the flood planning area and the probable maximum flood, and

(b) for development that is not sensitive and hazardous development—land the

consent authority considers to be land that, in the event of a flood, may—

(i) cause a particular risk to life, and

(ii) require the evacuation of people or other safety considerations.

15. The parties advise that the child care facility would be classified as “sensitive and hazardous development” under the provisions of cl 5.22(5) and the site includes land between the FPA and the probable maximum flood (PMF). As such, cl 5.22 applies. The childcare component is above the PMF level, with the exception of a small portion of the southwestern corner which is used for landscaping. This landscaping area would be fenced off so it cannot be accessed by children or staff (with the exception of landscape maintenance staff).

16. The parties agree that in the circumstances, the proposal: (a) will not affect the safe occupation and efficient evacuation of people in the event of a flood, (b) incorporates appropriate measures to manage risk to life in the event of a flood, and (c) will not adversely affect the environment in the event of a flood. I accept this advice.

17. I also note that the subdivision component (not comprising “sensitive and hazardous development”) moves the boundary between Lots 8 and 9 of DP 1166128 so that the common boundary moves north, giving Lot 9 an additional area of land that is above the PMF. The parties advise that Lot 9 is already approved for residential development and the parties agree that the subdivision does not cause a particular risk to life or require the evacuation of people or other safety considerations, such that cl 5.22 does not apply to that aspect of the proposal (noting cl 5.22(2)(b)).

18. Clause 7.1 of WLEP is concerned with public utility infrastructure provision. Consent must not be granted unless the consent authority is satisfied that essential infrastructure is available or that adequate arrangements have been made to make that infrastructure available when required. The parties have indicated their agreement that, given its location within an existing urban area, the site can be readily connected to electricity, water, sewer, gas and telecommunication. I am satisfied in respect of cl 7.1(2).

19. The site is mapped as Class 5 Acid Sulfate Soils on the Acid Sulfate Soils Map, relevant to cl 7.5. The parties agree that an acid sulfate soils management plan or preliminary assessment is not required. This is because the triggering factor for Class 5 land is not met (“works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land”).

Lay submissions

20. There has been considerable objection to the proposal from local community members. The parties advise that the DA was initially placed on public notification to surrounding residents for a period of 14 days from 11 October 2022. Council received a total of 43 submissions in response to the public notification of the DA. There was public re-notification for a period of 14 days from 14 April 2025 to 28 April 2025 after initial amendments. Council received a total of 49 submissions in response to the public re-notification of the Amended DA. I also note that this matter was originally delegated to me by the Chief Judge as a contested hearing. The site inspection for this listing was held on 25 August 2025 and I heard a number of objecting submissions from local residents (before a group of attending observers), immediately prior to the site inspection (the most recent architectural plans had been circulated to registered objectors prior).

21. There is a requirement for a consent authority to take into consideration these objecting submissions under s 4.15(1)(d) of the EPA Act. I note the advice of Council that this has occurred. Council’s position, with which the applicant agrees, is that objecting submissions have been adequately considered and addressed in DA documentation, as well as in responses providing in the evidence of the parties’ town planning and traffic/parking experts.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979 (NSW)

22. I also note that throughout their agreed jurisdictional statement the parties refer to various other points of consideration to which they have attended, including Wollongong Development Control Plan 2009 (WDCP). I note the parties agree that the proposed development, as amended, satisfies the relevant controls contained in the WDCP.

Other considerations

Owner’s consent

23. Pursuant to s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), a development application may be made either by the owner of the land to which the DA relates, or another person, with the written consent of the landowner. The parties advise that owner’s consent for the entirety of the site has been provided, including property in Livistona Close which would be used for temporary construction access.

Conclusion

24. With the above findings, I am satisfied that the jurisdictional prerequisites have been met, and the parties’ decision is one 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.

25. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. Subsection 34(3)(b) of The LEC Act also requires me to “set out in writing the terms of the decision”. The final orders have this effect.

Orders

26. The Court orders that:

27. The appeal is upheld.

28. Development consent is granted to development application DA-2022/1036 for lot consolidation and boundary adjustment subdivision, demolition of outbuildings and tree removal, and the construction of a new 42 place child care centre with basement parking, associated landscaping and stormwater works at Lots 7-10 and Lots 11, 13 and 14 in DP 1166128, and Lot 26 in DP 22909, subject to the conditions of consent at Annexure A.

P Walsh

Commissioner of the Court

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Annexure A

Amendments

15 September 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), Annexure A has been corrected.