Wollongong City Council rejects the claim, saying all developments are assessed on merit.

An application is in for an 18-storey budget hotel and apartment block at 24-30 Kenny St, Wollongong, from developer Jared Beneru and Blaq Projects. It would add 78 rooms along with 68 apartments.

But the application, from town planners MMJ, seeks a waiver from the rule that above a certain height, residential buildings need 20m separation between dwellings in the different buildings, and 16m separation between dwellings and other parts of the other building.

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MMJ argues that the objectives of privacy, amenity and sunlight are achieved - but also that the separation rule has been waived so many times in Wollongong CBD approvals that it could be classed as abandoned for the purpose of the law.

Courts have found planning rules can be waived if they have been "abandoned" by council actions.

MMJ lists 13 significant CBD development applications (DAs) which it said were approved outside the building separation standard.

"It is reasonable to suggest that the above DAs were considered on merit ... without council totally abandoning the development standard altogether," it says.

"It must also be acknowledged that this development standard, by virtue of how often it has been varied, could be considered discarded or less critical from a planning consideration perspective."

The council rejected this.

"Council maintains that the requirement for appropriate separation between multi-storey apartment buildings has not been abandoned through the determination outcomes of other proposals in the city," a spokesperson said.

"Each application is considered strictly in accordance with the requirements of planning legislation and achieving the objectives of all development standards.

"The assessment of the building separation requirement can be quite technical and in some instances there may be demonstrated justification for a variation. For instance, a variation may be minor and relate to a limited protrusion, or where the building orientation or design elements can mitigate impacts.

"The objectives of the exceptions clause are to provide an appropriate degree of flexibility in applying certain development standards and to achieve better outcomes [by] allowing flexibility in particular circumstances."

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