ADM Projects (Australia) Pty Ltd t/as ADM Architects v Wollongong City Council [2018] NSWLEC 1541

ADM Projects (Australia) Pty Ltd t/as ADM Architects v Wollongong City Council [2018] NSWLEC 1541

The Court was satisfied that the Applicant's cl 4.6 written request adequately demonstrated that compliance with cl 8.6 of the Wollongong Local Environmental Plan 2009 was unreasonable or unnecessary and that sufficient environmental planning grounds justified the contravention. The Court was also satisfied that the development was in the public interest because it was consistent with the objectives of the building separation standard and the B3 Commercial Core zone, that the matters in cl 4.6 were satisfied, and that after assessment under s 4.15 of the Environmental Planning and Assessment Act 1979, including consideration of objections, the amended proposal warranted approval.

Jurisdiction
Australia
Judgment Date
17 October 2018
Procedural Posture
Class 1 Development Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. DA 2017/493 / Final Determination by Consent Orders
Outcome
Appeal upheld; development consent granted by consent orders and cl 8.6 variation request upheld.
Legal Topics
['development Application' 'consent Orders' 'clause 4.6 Variation Request' 'building Separation Development Standard' 'public Objections' 'heritage Impacts' 'urban Design' 'traffic and Parking Impacts']
['planning and Environment Law' 'development Consent' 'local Environmental Planning'] ['development Application' 'consent Orders' 'clause 4.6 Variation Request' 'building Separation Development Standard' 'public Objections' 'heritage Impacts' 'urban Design' 'traffic and Parking Impacts']

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Procedural Posture

Class 1 Development Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application No. DA 2017/493 / Final Determination by Consent Orders

Legal Issues

  1. 1 ["Whether it was lawful and appropriate to grant development consent under s 4.15 of the Environmental Planning and Assessment Act 1979 notwithstanding the parties' agreement to consent orders." 'Whether the request to vary the building separation development standard in cl 8.6 of the Wollongong Local Environmental Plan 2009 should be upheld under cl 4.6.' 'Whether compliance with the building separation development standard was unreasonable or unnecessary in the circumstances.' 'Whether there were sufficient environmental planning grounds to justify contravening the building separation development standard.' 'Whether public objections had been properly taken into account.']

Ratio Decidendi

The Court was satisfied that the Applicant's cl 4.6 written request adequately demonstrated that compliance with cl 8.6 of the Wollongong Local Environmental Plan 2009 was unreasonable or unnecessary and that sufficient environmental planning grounds justified the contravention. The Court was also satisfied that the development was in the public interest because it was consistent with the objectives of the building separation standard and the B3 Commercial Core zone, that the matters in cl 4.6 were satisfied, and that after assessment under s 4.15 of the Environmental Planning and Assessment Act 1979, including consideration of objections, the amended proposal warranted approval.

Court Disposition

Appeal upheld; development consent granted by consent orders and cl 8.6 variation request upheld.

Orders

  • ['No order as to costs.' 'The request to vary the development standard in cl 8.6: "Building Separation within B3 Commercial Core" of the Wollongong Local Environmental Plan 2009 is upheld.' 'The appeal be upheld.' 'Development consent be granted to Development Application No. 2017/493 (as amended) for an...