Case Note – Windang Kruger Resorts v Wollongong City Council

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Case Note – Windang Kruger Resorts v Wollongong City Council

By Alexandra Power and Alyce Kliese

Development Control Plans (DCPs) are designed to support planning and design controls in local council areas. While DCPs offer detailed guidelines, flexibility in applying these is encouraged pursuant to section 4.15(3A)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act).

The recent case of Windang Kruger Resorts Pty Ltd ATF Windang Kruger Resorts Unit Trust v Wollongong City Council [2023] NSWLEC 1046 showcases that compliance with DCPs is not determinative when considering proposals, and applications can be assessed on their merits.

The Facts

In 2021, the applicant brought two development appeals regarding adjacent parcels of contaminated land (the Proposal). The proposed works sought to make the land suitable for future development by capping the land with emplacement fill, which would raise the land above flood constraints.

The Issue

The main issue in dispute was whether the fill would cause damage to surrounding properties. According to Chapter E13 Clause 7 of the Wollongong DCP, filling in flood prone areas is not permitted without expert consideration of the cumulative effects. The flooding specialists disagreed as to whether the requirements were met. The Applicant’s expert claimed that the effect on other properties would be less than 0.1mm, which satisfies Clause 6.4.3.(b). The respondent’s expert argued that this clause should not apply, because while the direct flood-related impacts of the proposal are minor, the DCP provisions refer to precedent and cumulative impact. If large areas of the floodplain were to be filled, the potential for damage to around 1500 properties in the area is significant. As such, the Proposal was at odds with the DCP.

What the Court said

Commissioner Walsh granted consent for the Proposal based on the development type. The Commissioner held that the type of development is crucial when applying the DCP, as Clause 6.1 Point 2(a) refers to the need to ‘identify the land use category of the development’. As the Proposal is for carrying out works to make land usable in future, rather than immediate land use, the flood impacts provisions at Clause 6.4.3.(b) do not apply.

Commissioner Walsh relevantly stated that:

 “while DCPs need to be taken into consideration as a fundamental element in the decision-making process, non-compliance does not mean a proposal must fail. It is important that due consideration is given to s 4.15(3A)(b) of the EPA Act, and the need to be flexible in the application of development control plan standards. There are other benefits of the proposal which need to be balanced against these adverse findings.”

The benefits include site remediation and development opportunities. To address potential damage in a future proposal, Commissioner Walsh concluded that consideration for flood impacts can be included in the conditions of consent.