Thomken Property Group Pty Ltd v Wollongong City Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Category: Principal judgment

Parties: Thomken Property Group Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation: Counsel:
J Boustany (Solicitor) (Applicant)
L Raffaele (Solicitor) (Respondent)
Solicitors:
Centurion Lawyers (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s): 2025/36597

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of DA-2023/248. Development consent is sought for the demolition of existing residential dwellings, tree removal and construction of a 66 place single storey child care centre with associated signage and ground level carparking (DA) at 74-76 Russell Street, Woonona (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) on 3 October 2025. I presided over the conciliation conference.

3. The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-2023/248 in accordance with the documents listed below:

| Drawing No. | Revision | Title | Prepared By | Date | | Architectural Drawings | | A0.00 | D | General Notes | SD Creative Drafting Services | 01/08/25 | | A1.00 | D | Site Plan and Notes | SD Creative Drafting Services | 01/08/25 | | A1.01 | D | Ground Floor and Roof Layout | SD Creative Drafting Servcies | 01/08/25 | | A1.02 | D | Carpark Set-Outs and Notes | SD Creative Drafting Servcies | 01/08/25 | | A1.03 | D | Playground Set-Outs and Notes | SD Creative Drafting Services | 01/08/25 | | A1.04 | D | Elevations 1-4 and Section 5 & 6 | SD Creative Services | 01/08/25 | | A1.05 | D | Coloured Scheme Elevations | SD Creative Services | 01/08/25 | | A1.06 | D | Coloured Unencumbered Area Layouts | SD Creatives Services | 01/08/25 | | A1.07 | D | Site Cut and Fill Plan | SD Creative Services | 01/08/25 | | A1.08 | D | Kitchen Set-Out and Elevations | SD Creative Services | 01/08/25 | | A1.09 | D | Solar Access | SD Creative Services | 01/08/25 | | A1.10 | D | Demolition Plan and Notes | SD Creative Services | 01/08/25 | | F1.00 | D | Emergency Evacuation Plan | SD Creative Services | 01/08/25 | | Landscape Plans | | 01 | D | Landscape Concept | Outside In Design Group | 04/08/25 | | 02 | D | Plant Schedule + Planting Details | Outside In Design Group | 04/08/25 | | 03 | D | Plant Schedule + Planting Details | Outside In Design Group | 04/08/25 | | Stormwater Plan | | 000 | D | Cover Sheet Plan | Telford Civil | 24/06/25 | | 101 | D | Stormwater Concept Plan | Telford Civil | 24/06/25 | | 102 | D | Catchment Plan | Telford Civil | 24/06/25 | | 103 | D | On-Site Detention Details and Calculation Sheets | Telford Civil | 24/06/25 | | 104 | D | On-Site Detention Details and Calculation Sheet Sheet 2 of 2 | Telford Civil | 24/06/25 | | 105 | D | Miscellaneous Details Sheet | Telford Civil | 24/06/25 | | Supplementary / Additional Reports | | | Version 2 | Arboricultural Impact Assessment and Tree Management Plan | Horticultural Management Services | 04/08/2025 | | | | Plan of Management | | 11/08/2025 | | | | Waste Management Plan | Compass Planning | Undated | | | | Compatibility Certificate | Telford Civil | 13/08/2025 |

4. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; ( [2023] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202] (Al Maha). For the reasons set out below, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions as required by s 34(3) of the LEC Act.

Owner’s consent

9. I am satisfied that owner’s consent has been provided for the DA as the Applicant is the registered proprietor. Owner’s consent has been provided by the directors of the company.

Community notification and objections

10. Council notified the DA between 18 April 2023 to 2 May 2023. 25 submissions were received. I accept that the amended DA does not require another notification as the amendments have reduced environmental impacts.

11. At the commencement of the duty s 34 conciliation conference, the Court heard oral submissions from several objectors.

12. Different from the consideration of the Court at a hearing, as the parties have entered into an agreement, the Court’s role is limited to ensuring that there is power to grant consent. The Court does not consider the merits of the issues raised when the parties reach agreement (Al Maha at [217]).

13. In reaching agreement, the parties have advised the Court that they considered the concerns raised in the objections and where possible, that these have been addressed in the amended DA.

Wollongong Local Environmental Plan 2009

14. The subject site is zoned R2 Low Density Residential, where the proposed use for a centre-based child care facility is permissible with consent. Pursuant to cl 2.3, regard has been had to the relevant objectives of the zone.

15. Clause 2.7 permits the proposed demolition.

16. Clause 4.3 height of buildings applies and allows a maximum of 9m. The architectural plans prepared by Creative Drafting Services Issue D (architectural plans) and jurisdictional statement demonstrates that the proposed development is 5m in height.

17. Clause 4.4 floor space ratio (FSR) allows a maximum of 0.5:1. The architectural plans and jurisdictional statement details that the proposed FSR is 0.23:1.

18. Clause 7.1 public utility infrastructure applies. The parties’ agree and I accept that all services are currently available and can be connected to by the proposal.

19. Clause 7.6 earthworks applies to the proposal, with minimal excavation works proposed. On the basis of the jurisdictional statement and conditions of consent (including demolition and construction related conditions, dilapidation reports, sediment and stormwater plans and waste management conditions) I accept that the provisions have been considered by the parties.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site in relation to contamination. The amended DA is accompanied by a Preliminary Site Investigation dated 28 September 2022, Detailed Site Investigated dated 3 October 2023 and Remedial Action Plan (RAP) dated 11 October 2023 all prepared by Martens & Associates. The RAP includes recommendations to make the site suitable for the proposed development which have been included in the conditions of consent. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

21. Section 2.119 applies and requires appropriate noise and vehicular emission management to and from classified roads. I accept the parties’ agreement that the provisions are met on the basis of the Noise Assessment prepared by Renzo Tonin & Associates dated 5 September 2022 and Air Quality Assessment prepared by Todoroski Air Sciences dated 2 February 2022 which detail how the proposal can meet the provisions.

22. Chapter 3 Educational establishments and child care facilities of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the proposed development.

23. The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by ss 3.22 and 3.26 of SEPP TI as shown on the architectural plans and outlined in the jurisdictional statement. Further, based on the agreed submissions from the parties in the jurisdictional statement and (to the extent relevant to the amended DA) the Statement of Environmental Effects prepared by Compass Planning dated November 2022, I accept that the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations 2011 have been addressed.

Heads of consideration

24. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

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

26. 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.

27. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

28. The Court orders:

29. The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) agreed in the sum of $3,500.00 within 28 days.

30. The appeal is upheld.

31. Development consent is granted to Development Application No. DA-2023/248 for demolition of existing residential dwellings, tree removal and construction of a 66 place single storey child care centre with associated signage and on ground carpark at 74-76 Russell Street, Woonona subject to the conditions included at Annexure A.

S Porter

Commissioner of the Court

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Annexure A (498 KB, pdf)