7/11 Hunters Hill Developers Pty Ltd v Hunter's Hill Council

[2025] NSWLEC 1284

Land and Environment Court

New South Wales

Medium Neutral Citation:

7/11 Hunters Hill Developers Pty Ltd v Hunter’s Hill Council [2025] NSWLEC 1284

Hearing dates:

Conciliation conference on 8 November 2024 and 17 April 2025

Date of orders:

30 April 2025

Decision date:

30 April 2025

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application DA20230164 for the demolition of existing structures and construction of a residential flat building development comprising x12 units over basement parking at 7-11 Ryde Road, Hunter’s Hill NSW is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

APPEAL – Development application — Conciliation conference — Agreement between the parties — Orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Roads Act 1993

Environmental Planning and Assessment Regulation 2021, s 38

Hunters Hill Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.4A, 4.6, 5.10, 6.1, 6.2, 6.3, 6.8

Standard Instrument—Principal Local Environmental Plan

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 s 2.6, Ch 6 Div 2 Pt 6.2, ss 6.6, 6..7, 6.9, 6.10

State Environment Planning Policy (Housing) 2021, Ch 4, ss 144, 147

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

State Environment Planning Policy (Transport and Infrastructure) 2021, Ch 2, s 2.119

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

7/11 Hunters Hill Developers Pty Ltd (Applicant)
Hunter’s Hill Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor)(Applicant)
A Seton (Solicitor)(Respondent)

Solicitors:
Mills Oakley
Marsdens Law Group

File Number(s):

2024/00200501

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Hunter’s Hill Council’s (Council) deemed refusal of development application DA20230164, which sought consent for demolition of existing structures and construction of a residential flat building development comprising 12 units over basement parking at 7-11 Ryde Road, Hunters Hill (legally identified as Lots 2-4 in DP 7691) (DA).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was first held on 8 November 2024 and reconvened over an extended period. I presided over the conciliation conferences.

3. The parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 24 April 2025 (Agreement) resulting in the following amendments to the proposed development (Amended Application).

1. overall reduction in number of units proposed from 13 to 12;

2. revision to upper-level roof form presenting to Ryde Road including a revised design and pitch of the roof – resulting in the appearance of a two-storey form plus attic;

3. further break in built form presenting to Ryde Road via the removal of the ‘open to the sky’ stairway;

4. overall reduction in amount of glazing facing the street and deletion of west facing balconies on upper level of units 101-104; and

5. further increase in splay of driveway and width of median.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

5. The parties have addressed in a joint submission pre-conditions that must be satisfied before the Court can exercise its functions under s 4.16 of the EPA Act to dispose of these proceedings and grant the orders sought.

6. After a consideration of the parties submissions I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Preconditions

State Environmental Planning Policy (Resilience and Hazards) 2021

7. The applicant has prepared a Preliminary Site Investigation (Tab 10 of s 34 Agreement Bundle), which concludes that the site can be made suitable for the proposed use. Therefore I am satisfied that the site is not contaminated.

State Environment Planning Policy (Transport and Infrastructure) 2021

8. The DA engages the provisions of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP).

9. Chapter 2 of the Transport SEPP provides a series of planning controls and mandatory considerations, aimed at facilitating the effective delivery and management of public infrastructure throughout NSW.

10. Section 2.119 (Development with Frontage to Classified Road) of the Transport SEPP applies as Ryde Road is identified as a classified road (Gazetted Road No 2033) under the Standard Instrument—Principal Local Environmental Plan definition and Roads Act 1993.

11. Section 2.119(2) provides a number of matters of which the consent authority must be satisfied of, prior to the grant of development consent. In satisfaction of those matters it is to be noted:

1. The site retains a single southern frontage to Ryde Road consistent with all neighbouring properties along the northern verge of Ryde Road. Further, the site is bounded by private residential allotments on its western, northern and eastern boundaries. Accordingly, it is not considered practicable for vehicular access to be provided to the land other than via the classified road (s 2.119(2)).

2. The design (as amended) will not adversely affect the safety, efficiency and ongoing operation of the classified road as required by s 2.119(2)(b) because:

1. The design of the vehicular access to the land has been amended to include splays and the civil engineering and traffic experts are agreed that the proposed vehicular access will not adversely impact the safety and efficiency of Ryde Road;

2. Conditions have been imposed requiring the preparation and implementation of a construction management plan with measures to suppress dust during construction (see condition 3); and

3. The applicant has prepared a Traffic Impact Assessment Report (Tab 10 of Class 1 Application), which concludes that the projected number of additional movements using the classified road, as a result of the proposed development, is unlikely to result in any measurable impacts on the surrounding road network performance.

3. The Amended Application is supported by an acoustic assessment (Tab 12 of s 34 Agreement Bundle) which provides recommendations for acoustic mitigation measures (which have been incorporated into the conditions) which concludes that the development will satisfy the relevant noise emission criteria.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Chapter 2 – Vegetation in Non-Rural Areas

12. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) details provisions regarding the preservation and management of vegetation in non-rural areas.

13. In short, the development requires the removal of 11 individual trees (T4, T5 and T9 – T17 (Tab 5 of the Class 1 Application)).

14. The removal/retention of trees on site has been assessed in the following documents:

1. Arboricultural Impact Assessment prepared by Earthscape Horticultural Services dated December 2023 (Tab 4 of Class 1 Application);

2. Addendum Arboricultural Impact Assessment Report (T18) prepared by Earthscape dated 26 February 2025 (Tab 5 of s34 Agreement Bundle); and

3. T17 Picus Test Report prepared by Australian Tree Consultants dated 31 August 2024 (Tab 6 of s34 Agreement Bundle).

15. The evidence is that the removal of these trees and proposed replacement planting is consistent with local planning objectives having regard to tree species, integrity, level of significance and replacement planting as proposed in the landscaping strategy for the site (see Dwg No L-10, Tab 3 of s 34 Agreement Bundle). The annexed conditions grant approval to that removal, consistent with the requirements of s 2.6(1) if the Biodiversity SEPP.

Chapter 6 - Catchments

16. The subject site is identified within the Sydney Harbour Catchment. Accordingly, Ch 6 of the Biodiversity SEPP applies.

17. Division 2 of Pt 6.2 under Ch 6 of the Biodiversity SEPP provides a number of matters which the consent authority must consider or be satisfied of, prior to the grant of development consent. In satisfaction of those matters:

1. The proposed plans and accompanying DRAINS and MUSIC modelling have been considered by the stormwater experts and found to be acceptable. In relation to s 6.6(2)(a), the parties agree, and I am satisfied that that quality of water discharged from the site will be managed at a neutral or beneficial level.

2. Section 6.7 (Aquatic Ecology) – pursuant to subs (2), the consent authority must be satisfied of a number of matters in relation to impacts on aquatic ecology:

1. The proposal includes significant landscaping and additional trees which would more than offset any potential loss to the matters raised in subs (2)(a).

2. The site is not nearby any identified aquatic reserve, and as a result of the treatment of stormwater run-off, is not anticipated to have any impact (direct or indirect) on downstream waterbodies (subs (2)(b)).

3. In relation to sedimentation, appropriate erosion and sediment controls have been included in the engineering plans (Dwg No 107, Tab 4 of s 34 Agreement Bundle) to ensure there is not sedimentation of the drainage system or any waterbody (subs (2)(d)).

4. “the adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area will be minimised” – the site is not nearby any coastal wetlands or littoral rainforests area, and is therefore not considered to have any impact on those areas (subs (2)(e)).

18. The proposed development is not anticipated to have any impact on the available public access to nearby natural waterbodies – and will maintain the existing access arrangements (s 6.9 Recreation and Public Access).

19. The Council has considered the application as amended and agrees that the proposed development is unlikely to have an adverse environmental impact in the regulated catchment area (s 6.10 Total Catchment Management).

State Environment Planning Policy (Housing) 2021

20. Chapter 4 of the State Environment Planning Policy (Housing) 2021 (Housing SEPP) prescribes a series of controls for “residential apartment development”, which is defined under s 144(1) and (2)) as including residential flat buildings, shop top housing, and mixed use development that contains certain residential components. The DA is for a residential flat building– Ch 4 applies.

21. Section 147 of the Housing SEPP provides that prior to the grant of development consent, the consent authority must consider:

“(a)  the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9,

(b) the Apartment Design Guide,

(c)  any advice received from a design review panel within 14 days after the consent authority referred the development application or modification application to the panel.”

22. In satisfaction of the matters for consideration at subss (a) and (b), the applicant has prepared a revised Design Verification Statement and Apartment Design Guide (ADG) Compliance Table (Tab 5 of s 34 Agreement Bundle). This document assesses and supports the form of the proposed amended development against the design quality principles and ADG.

State Environmental Planning Policy (Sustainable Buildings) 2022

23. In compliance with the requirements under s 2.1 of the State Environmental Planning Policy (Sustainable Buildings) 2022, the applicant has prepared and provided an amended BASIX Certificate (See Tab 13 of s 34 Agreement Bundle).

Hunters Hill Local Environmental Plan 2012

24. Clause 2.3 of the Hunters Hill Local Environmental Plan 2012 (LEP) provides that the Court must have regard to the zone objectives when determining a development application in respect of land within the zone. The proposed development for which consent is sought, being ‘residential flat building’ is a permissible use in the R3 zone and the proposed development has regard to the objectives of the R3 Zone.

25. Clause 5.10 (Heritage Conservation) – The subject site is identified on the LEP Heritage Map as being within a “General” and “Landscape” conservation area. Pursuant to cl 5.10(4), prior to the grant of a development consent, the Court must consider the effect of the proposed development on the heritage significance of the area concerned. The applicant’s heritage expert has prepared a detailed assessment of the relevant conservation area(s) (Tab 8 of Class 1 Application). Additionally, the design (as amended) has been the subject of extensive review and input from the parties’ heritage experts, who have subsequently reached an agreed position that the design appropriately responds to, and reinforces, the heritage significance and character of the surrounding locality.

26. Clause 6.1 (Acid Sulfate Soils) – Development consent is required under cl 6.1 if the site is identified as a “Class” of land shown on the Acid Sulfate Soils Map and proposes works specified under the accompanying Table at cl 6.1(2) for the corresponding class of acid sulfate land.

27. The site is identified as being a ‘Class 5’ site on the Acid Sulfate Soils Map. Pursuant to the table for cl 6.1(2), the relevant trigger for works on Class 5 land is:

Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

28. The site is located within approximately 420m of land identified as Class 4 land that is identified as being below 5 metres Australian Height Datum (AHD).

29. The Applicant’s Hydrologist has prepared a sulfate soils assessment (Tab 11 of s 34 Agreement Bundle), which concludes that there is no significant evidence of the presence of acid sulfates, and accordingly a sulfates management plan is not required.

30. Clause 6.2 (Earthworks) – the DA proposes a certain amount of earthworks to deliver a single level of basement parking, which is a matter for consideration under cl 6.2(3). In support of the proposed works, the applicant has prepared a Geotechnical Investigation Report, which concludes that the ground conditions at this site are suitable for proposed development and associated works. In light of this assessment, and on the balance of the amended material provided and conditions which are sought to be imposed, I am satisfied that the proposed works appropriately responds to the considerations under cl 6.2(3).

31. Clause 6.3 (Stormwater Management) – the applicant has prepared an updated set of stormwater plans (Tab 4 of s 34 Agreement Bundle) and has satisfactorily addressed the stormwater controls and objectives of cl 6.3.

32. Clause 6.8 (Medium Density Residential Development) – the DA complies with this clause having a frontage of over 35m (see Dwg No DA-0100 of the Architectural Plans – Tab 1 of the s 34 Agreement Bundle).

Clause 4.4 – Floor Space Ratio

33. The site is identified under cl 4.4 of the LEP Floor Space Ratio Map as having a maximum Floor Space Ratio (FSR) value of 0.7:1. However, cl 4.4A of the LEP provides:

(2)  The maximum floor space ratio for a residential flat building on land identified as “Area 2” on the Floor Space Ratio Map that has a site area of 1,000 square metres or more is 0.8:1.

34. The subject site is identified within “Area 2” on the Floor Space Ratio Map and has a total area of over 1,963.55m². As amended, the development as a residential flat building proposes 1,493m² of gross floor area, or 0.76:1 – in compliance with cl 4.4A (see Dwg No DA-0010, Tab 1 of s 34 Agreement Bundle).

35. The DA contains four upper level units (Units 101-104), which do not provide access at ground level and are serviced instead by shared stairways. Accordingly, in accordance with the express LEP definition and guidance offered by the Court, the proposed development cannot be characterised as ‘multi-dwelling housing’ and can only be characterised as a ‘residential flat building’.

36. Also, it is relevant to note that the proposed development is a consolidated development site, on which all dwellings proposed are connected to, and situated above, a common basement envelope. Further, the site contains shared facilities which are to be utilised by each dwelling, including a common communal open space, a single waste room for the servicing of all units (in the north western corner of the site), as well as assigned and visitor car spaces which are distributed throughout the basement envelope. Those shared facilities are contained across the development site and do not permit a dissection of the site.

37. Accordingly, in appreciation of the applicable standard instrument definitions and the development site as a whole, there is no delineation or differentiation between the characterisation of dwellings proposed in the subject development. The Council is satisfied and I accept that the proposed development can be properly characterised as a ‘residential flat building’ and is therefore compliant with the applicable FSR control under cl 4.4A.

The Clause 4.6 Written Request

Clause 4.3 – Height

38. The objectives of the height standard in cl 4.3 and the R3 zone of the LEP are as follows:

4.3 Height of buildings

(1) The objectives of this clause are as follows—

(a)  to specify limits for the size and scale of development that would be compatible with the character, amenity and potential of particular locations,

(b)  to maintain the character and identity of Hunters Hill by limiting the scale of buildings to a maximum of two storeys in the low density residential zone, heritage conservation areas and foreshore areas facing Lane Cove River or Parramatta River,

(c)  to consolidate developments that would be taller than two storeys in Zone E1 or MU1, while ensuring a suitable visual transition to the adjoining zones,

(d)  to protect existing dwellings from excessive overshadowing, loss of privacy, obstruction of views and general visual impacts.

Zone R3   Medium Density Residential

1   Objectives of zone

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To ensure that development is compatible with the character and heritage of the locality.

•  To provide for levels of amenity that are reasonable for a medium density residential environment.

39. The amended proposal exceeds the 10m height limit in cl 4.3(2) of the LEP, with a maximum building height at 10.47m.

40. For the reasons set out in the cl 4.6 written request prepared by Minto Planning Services, I am satisfied that the development is consistent with objectives (a), (b), and (d) of the height standard. Therefore, it follows that compliance with that standard is unreasonable and unnecessary in the circumstances of this case.

41. In forming that assessment, it is to be noted that Council is satisfied that the development:

1. provides a built form which is compatible with the character and amenity of the locality (subs (1)(a));

2. the proposed works will not result in any adverse streetscape impacts or impacts upon the surrounding Heritage Conservation Area and will make a positive contribution to the character of the area – noting the recent amendments (summarised at [3] above) have been focused on limiting the presentation of the built form to a two-storey plus roof form (subs (1)(b)); and

1. the proposal is not anticipated to result in any unreasonable amenity impacts upon the adjoining properties, particularly as a result of overshadowing, a loss of views or a loss of privacy (subs (1)(d)).

1. The Council accepts that following amendments that there are sufficient environmental planning grounds to justify contravening the development standards, which are set out in the amended cl 4.6 request. Of significance, these grounds include:

1. the pitched roof form which generates the non-compliance facilitates the delivery of a high quality built form and superior street scape presentation which responds to the surrounding context;

2. in spite of the non-compliance, the proposal will not result in unacceptable environmental impacts in terms of solar access, views or privacy; and

3. the pitched roof form which generates the non-compliant element responds to the surrounding character of the Heritage Conservation Area and provides for a superior heritage response rather than strict compliance with the standard which would require the flattening of the pitched roof.

42. As the written request has satisfied statutory requirements pursuant to cl 4.6 of the LEP, the proposed variation to the height standard is approved.

Conclusion and orders

43. As the parties’ decision is within power I now dispose of the proceedings in accordance with that decision.

44. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

45. The Court notes that the Hunters Hill Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application DA20230164 to incorporate the documents listed below:

No.	Drawing No	Rev	Drawing Title		Prepared By	Dated
Architectural Plans
1.	DA-0010	G	Calculations		IDA Design Group	24.03.25
	DA-0020	G	Site Analysis		IDA Design Group	24.03.25
	DA-0021	G	Site Analysis		IDA Design Group	24.03.25
	DA-0022	G	Site Analysis		IDA Design Group	24.03.25
	DA-0023	G	Streetscape Analysis		IDA Design Group	24.03.25
	DA-0024	G	Streetscape Analysis		IDA Design Group	24.03.25
	DA-0030	G	Site Zones		IDA Design Group	24.03.25
	DA-0031	G	Landscape Zones		IDA Design Group	24.03.25
	DA-0100	G	Site Plan		IDA Design Group	24.03.25
	DA-0110	G	Site Section		IDA Design Group	24.03.25
	DA-0999	G	Basement Floor Plan		IDA Design Group	24.03.25
	DA-1000	G	Ground Floor Plan		IDA Design Group	24.03.25
	DA-1001	G	Level 1 – Floor Plan		IDA Design Group	24.03.25
	DA-1002	G	Level 2 – Floor Plan		IDA Design Group	24.03.25
	DA-1003	G	Roof Plan		IDA Design Group	24.03.25
	DA-2001	G	Elevations – Sheet 1		IDA Design Group	24.03.25
	DA-2002	G	Elevations – Sheet 2		IDA Design Group	24.03.25
	DA-2003	G	Elevations – Sheet 3		IDA Design Group	24.03.25
	DA-3001	G	Sections		IDA Design Group	24.03.25
	DA-3002	G	Sections		IDA Design Group	24.03.25
	DA-4030	G	Max. Height Plane		IDA Design Group	24.03.25
	DA-4050	G	Material Schedule		IDA Design Group	24.03.25
	DA-4901	G	Door/Window Schedule		IDA Design Group	24.03.25
	DA-5001	G	Shadow Diagrams – Winter Solstice		IDA Design Group	24.03.25
	DA-5002	G	Shadow Diagrams – Winter Solstice		IDA Design Group	24.03.25
	DA-5010	G	Solar Access Diagrams		IDA Design Group	24.03.25
	DA-5011	G	Solar Access Diagrams		IDA Design Group	24.03.25
	DA-5100	G	Cross ventilation diagrams		IDA Design Group	24.03.25
	DA-5200	G	FSR diagram		IDA Design Group	24.03.25
	DA-6000	G	Future development – lot 5		IDA Design Group	24.03.25
Landscape Plans
2.	L-01	D	Title		Site Design + Studios	01.04.25
	L-02	D	Ground Floor Landscape Plan		Site Design + Studios	01.04.25
	L-03	D	Level 1 Landscape Plan		Site Design + Studios	01.04.25
	L-04	D	Level 2 Landscape Plan		Site Design + Studios	01.04.25
	L-05	D	Landscape Area Calculation Plan - Ground Floor		Site Design + Studios	01.04.25
	L-06	D	Landscape Area Calculation Plan - Level 1		Site Design + Studios	01.04.25
	L-07	D	Landscape Area Calculation Plan - Level 2		Site Design + Studios	01.04.25
	L-08	D	East & West Elevations		Site Design + Studios	01.04.25
	L-09	D	South Elevation		Site Design + Studios	01.04.25
	L-10	D	Planting Details		Site Design + Studios	01.04.25
	L-11	D	Specification		Site Design + Studios	01.04.25
Stormwater Plans
3.	000	C	Cover Sheet Plan		Telford Civil	31.10.24
	101	G	Stormwater Concept Plan Basement Floor Sheet 1 Of 2		Telford Civil	25.02.25
	102	C	Stormwater Concept Plan Basement Floor Sheet 2 Of 2		Telford Civil	25.02.25
	103	H	Stormwater Concept Plan Ground Floor		Telford Civil	19.03.25
	104	D	On-Site Detention Details and Calculations Sheet 1 of 2		Telford Civil	29.11.24
	105	D	On-Site Detention Details And Calculations Sheet 2 of 2		Telford Civil	29.11.24
	106	D	Catchment Plan and Music Results		Telford Civil	25.02.25
	107	A	Sediment and Erosion Control Plan		Telford Civil	15.11.23
	108	A	Miscellaneous Details Sheet		Telford Civil	15.11.23
Supporting Documentation
No.	Document			Prepared By		Date
4.	46 BASIX Certificate No. 1378244M_03			Taylor Smith Consulting		17.04.25
5.	47 Design Verification Statement			IDA Design Group		01.04.25
6.	48 Addendum Arboricultural Impact Assessment Report (T18)			Earthscape		26.02.25
7.	49 Clause 4.6 (Building Height) Variation Request			Minto Planning		26.03.25
8.	50 Swept Path Analysis			Stanbury Traffic		17.03.25
9.	51 T17 Picus Test Report			Australian Tree Consultants		31.08.24
10.	52 Preliminary Site Investigation			Waratah Consulting		12.09.23
11.	53 Acid Sulfate Study			Waratah Consulting		04.11.24
12.	54 Acoustic Assessment			Acouras Consultancy		17.04.25

46. The Court orders that:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the Council’s costs thrown away as a result of the amendments made as agreed or assessed.

2. The appeal is upheld.

3. Development Application DA20230164 for the demolition of existing structures, lot consolidation and construction of a residential flat building development comprising x12 units over basement parking at 7-11 Ryde Road, Hunter’s Hill NSW is determined by the grant of consent subject to conditions contained in Annexure A.

S Dixon

Senior Commissioner of the Court

**********

Annexure A

Decision last updated: 30 April 2025