Harbour Smith Management Pty Ltd v Wollongong City Council [2021] NSWLEC 1140

Harbour Smith Management Pty Ltd v Wollongong City Council [2021] NSWLEC 1140

The appeal is upheld and development consent is granted because the clause 4.6 written request sufficiently demonstrated that strict compliance with the minimum site width standard is unreasonable and unnecessary, environmental planning grounds for the variation exist, and the development would result in acceptable impacts on heritage and the environment, complying with relevant planning instruments and policies.

Parties
Applicant: Harbour Smith Pty Ltd; Respondent: Wollongong City Council
Jurisdiction
Australia
Judgment Date
18 March 2021
Procedural Posture
Appeal (class 1) – Development Application / Final Orders After S 34 Conciliation Conference
Outcome
Appeal upheld, development consent granted subject to conditions, costs order for thrown away costs to Respondent
Legal Topics
Development Application, Residential Flat Buildings, Heritage Impact, Development Standards (height, Floor Space Ratio, Site Width), Section 34 Conciliation, Clause 4.6 Variation, Public Interest, Development Consent Conditions
Planning and Environment Development Application Residential Flat Buildings Heritage Impact Development Standards (height, Floor Space Ratio, Site Width) Section 34 Conciliation Clause 4.6 Variation Public Interest +1 more

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Parties

Harbour Smith Pty Ltd

Applicant

Wollongong City Council

Respondent

Procedural Posture

Appeal (class 1) – Development Application / Final Orders After S 34 Conciliation Conference

Legal Issues

  1. 1 Whether development consent should be granted for a residential flat building despite non-compliance with minimum site width standard under Wollongong LEP 2009
  2. 2 Whether the statutory preconditions for a clause 4.6 variation are satisfied
  3. 3 Potential impact on environmental heritage items

Ratio Decidendi

The appeal is upheld and development consent is granted because the clause 4.6 written request sufficiently demonstrated that strict compliance with the minimum site width standard is unreasonable and unnecessary, environmental planning grounds for the variation exist, and the development would result in acceptable impacts on heritage and the environment, complying with relevant planning instruments and policies.

Court Disposition

Appeal upheld, development consent granted subject to conditions, costs order for thrown away costs to Respondent

Orders

  • Leave granted to rely on amended documents and plans specified in order 1
  • Applicant to pay Respondent’s costs thrown away in the amount of $6,000