On 19 October 2022, Commissioner Dickson delivered judgment in the matter of Thirroul Plaza Pty Ltd v Wollongong City Council [2022] NSWLEC 1569.
The development application the subject of the proceedings sought consent to replace the existing Thirroul Plaza located at 282-298 and 302-304 Lawrence Hargraves Drive, Thirroul, with a 3 storey mixed use development containing 77 residential units across 4 building forms, with a wellness centre and swimming pool, ground level commercial premises and basement car parking. The development application also proposed road works including a new intersection at the corner of Lawrence Hargraves Drive and King Street.
The development application was one which attracted a great deal of local interest, with close to 4,000 written submissions being received by the Council across four notification periods since the development application was first lodged in May 2020.
The proceedings involved a four day hearing in the Land and Environment Court held in July 2022, run by Adam Seton and Jisella Corradini-Bird of Marsdens Law Group, with expert evidence being heard from nine sets of experts (town planning and urban design, acoustics, traffic, economic impacts, heritage, landscaping, contamination and flooding), in addition to lay evidence being heard from a number of local residents.
After an assessment of the evidence, Commissioner Dickson considered the development application warranted refusal on the grounds of planning and urban design, heritage and acoustics. The reasons for her decision are summarised below.
Council’s Development Control Plan contained specific controls for Thirroul which required the retention of views from the village to the Illawarra escarpment, as well as expectations in relation to built form on key sites in the village which anticipated a 2 storey height for development. On the grounds of planning and urban design, Commissioner Dickson found as follows:
“In my view the impacts from this development are unacceptable on three grounds. Firstly, on the basis of the cumulative extent of the obstruction of views to the escarpment from the Village arising from the development. Secondly, the lack of provision, within the design of the proposed development, of an effective view through the development site to the escarpment. And finally, that the obstruction of views to the escarpment arises from a variation to the built form development controls in DCP 2009 by the inclusion of a third storey.”
The site was located within proximity to two heritage items, being: Anita’s Theatre which was located opposite the site, and the Illawarra Escarpment heritage conservation area which presented as a backdrop to the Thirroul Village.
In relation to Anita’s Theatre, the Court found that although there was an impact of the development on Anita’s Theatre, it was a modest one and Anita’s Theatre would retain its landmark assessment.
In contrast, Commissioner Dickson considered the development would disrupt view to the Escarpment heritage conservation area, and impact its prominence as a backdrop to the Village. The Commissioner considered that these detrimental impacts arose from the form, massing and scale of the development and were sufficient to warrant refusal of the development application.
Finally, in relation to acoustics, the development site was located within a B2 Local Centre zone with a number of nearby venues operating night time activities, in particular the Beaches Hotel which adjoined the site, and Anita’s Theatre located opposite. Commissioner Dickson indicated that she was “not persuaded that the existing acoustic environment (and noise impacts) can be appropriately mitigated to ensure the residential amenity of the apartments is acceptable.”
Having found that the development application should be refused on the grounds of planning and urban design, heritage and acoustics, it was not necessary for Commissioner Dickson to make findings in relation parking and traffic, economic impact or landscaping, which the Council had contended also warranted refusal of the development application.
A copy of the judgment has been published on NSW Case law and can be accessed here.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Special legal advice should always be sought separately before taking any action based on this publication.
