Thirroul Plaza Pty Ltd v Wollongong City Council [2022] NSWLEC 1569

Procedural Posture

Class 1 Development Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application Da/2020/363 / Hearing After Amendments to the Development Application and Unsuccessful Conciliation Under S 34 of the Land and Environment Court Act 1979

Legal Issues

1. 1 ['Whether the proposed built form and number of storeys were excessive and incompatible with the desired future character of Thirroul Village Centre and views to the escarpment.' 'Whether the provisions in Chapter D12 of Wollongong Development Control Plan 2009 limiting development to two storeys were inconsistent or incompatible with the 12m height standard in Wollongong Local Environmental Plan 2009.' 'Whether flexibility under s 4.15(3A)(b) of the Environmental Planning and Assessment Act 1979 should be applied to vary the relevant development control plan standards.' "Whether the proposed development would have unacceptable impacts on the heritage significance of Anita's Theatre and the Illawarra Escarpment Heritage Conservation Area." "Whether the proposed residential development would provide acceptable acoustic amenity and avoid land use conflict with Anita's Theatre and the Beaches Hotel." 'Whether the development application should be refused having regard to likely impacts, public submissions and the public interest under s 4.15 of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Consent was refused because the proposed development would have unacceptable likely impacts under s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979. The Court held that the DCP two-storey and building envelope controls were not inconsistent with the LEP 12m height standard and that flexibility to vary those DCP controls was not warranted because the proposal failed to achieve their objectives, particularly retaining village character and views to the escarpment. The development's form, massing and scale would be incompatible with the desired future character of Thirroul Village Centre and would detrimentally affect views to, and the heritage significance of, the Illawarra...

Court Disposition

Appeal dismissed; development application refused.

Orders

• ['The appeal is dismissed.' 'Development application number 2020/363 which seeks consent for Lot consolidation, demolition of existing structures, removal of 32 trees and construction of a 3 storey mixed use development containing 77 residential units across 4 building forms, wellness centre and swimming pool,...