ACON Pty Ltd v Hunter's Hill Council

[2024] NSWLEC 1428

Land and Environment Court

New South Wales

Medium Neutral Citation:

ACON Pty Ltd v Hunter’s Hill Council [2024] NSWLEC 1428

Hearing dates:

Conciliation conference 18 June 2024

Date of orders:

25 July 2024

Decision date:

25 July 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA2022/0139 for the demolition of existing structures, removal of two trees and construction of a dwelling house containing five bedrooms and integrated garage parking at 15 Wybalena Road, Hunters Hill (legally known as Lot 3 in DP 26618) is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Demolition and construction of a new dwelling house – conciliation conference - amended plans – agreement between the parties – orders made.

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 23, 28

Hunters Hill Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 5.10, 6.2, 6.3, 6.7, 6.9,

State Environmental Planning Policy (Biodiversity and Conservation), Ch 10, Div 2

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13, 4.6, Ch 2

State Environmental Planning Policy (Water Catchments) 2022

Texts Cited:

Hunters Hill Development Control Plan 2013

Category:

Principal judgment

Parties:

ACON Pty Ltd (Applicant)
Hunter’s Hill Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/363275

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the actual refusal of development application DA 2022/0139. The development application seeks consent for the demolition of existing structures, removal of two trees and construction of a three-storey dwelling house containing five bedrooms with integrated garage parking and associated landscaping. The development is proposed at 15 Wybalena Road, Hunters Hill (Lot 3 in Deposited Plan 26618).

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 18 June 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was subsequently filed and is supported by a Jurisdictional Statement. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The development application was made with the written consent of the registered proprietors of the lot which comprises the site: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

2. Between 17 August and 16 September 2022, the development application was notified by the Respondent. Four submissions in objection were received which have been provided to the Court. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. The development application was lodged, but not finally determined prior to 1 October 2023. Hence, the now repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies to the application rather than State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to SEPP BASIX and the EPA Regulation, the development application is a BASIX affected development. A BASIX certificate has been provided as part of the development application meeting the requirements of SEPP BASIX.

4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The development application does not propose a change of use. The parties agree and I accept, on the details in Statement of Environmental Effects accompanying the development application, that s 4.6 of SEPP RH is satisfied.

5. Pursuant to Ch 2 of SEPP RH, the site is mapped as being within the ‘Coastal Environment Area’, and the ‘Coastal Use Area’. The site is also mapped as a Coastal Wetland. The effect of the exclusion of land within the Foreshores and Waterways Area at ss 2.10(3) and 2.11(3) is that the remaining parts of ss 2.10 and 2.11 of SEPP RH do not apply to the development application.

6. The site is also mapped as being within the Coastal Zone under SEPP RH. Sections 2.12 and 2.13 of SEPP RH apply to development within the Coastal Zone. Development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land and the consent authority has taken into consideration the relevant provisions of any certified coastal management program applying to the land. On the first matter, the site is a substantial distance (over 100m) from Alexandra Bay. The parties agree, and I accept, that the proposed development is not likely to cause an increased risk of coastal hazards on that or other land. On the second matter, no certified coastal management plan applies to the land.

7. Chapter 10 of State Environmental Planning Policy (Biodiversity and Conservation) (SEPP BC) applies to the development application as it was made but not finally determined before the commencement of State Environmental Planning Policy (Water Catchments) 2022 on 21 November 2022. The site is located within the Sydney Harbour Catchment and the Foreshore and Waterways Area. Division 2 in Pt 10.3 of Ch 10 of SEPP BC contains various matters that must be taken into consideration when determining a development application in the Foreshore and Waterways Area. The relevant matters for consideration are:

10.19 Biodiversity, ecology and environment protection

The matters to be taken into consideration in relation to biodiversity, ecology and environment protection are as follows—

(a) development should have a neutral or beneficial effect on the quality of water entering the waterways,

…

10.23 Foreshore and waterways scenic quality

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows—

(a) the scale, form, design and siting of any building should be based on an analysis of—

(i) the land on which it is to be erected, and

(ii) the adjoining land, and

(iii) the likely future character of the locality,

(b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries,

(c) the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores.

10.24 Maintenance, protection and enhancement of views

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows—

(a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour,

(b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items,

(c) the cumulative impact of development on views should be minimised.

…

8. The parties agree, and I accept, that the amended development application is responsive to these matters for consideration. I note that the stormwater experts in the matter agree that the amended stormwater design demonstrates that it achieves a neutral or beneficial outcome. In determining the development application, I have taken the listed matters in Div 2 in SEPP BC into consideration, I am satisfied that none preclude the grant of consent.

9. Hunters Hill Local Environmental Plan 2012 (LEP 2012) applies to the land. Development for the purposes of a residential dwelling is permitted with consent in the R2 Low Density Residential zone. As required by cl 2.3(2) I have had regard to the R2 Low Density Residential zone objectives in determining the development application. The objectives of the zone are:

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

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

To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities.

To provide for high levels of amenity that are consistent with a low density residential environment.

10. Clause 2.7 of the LEP 2012 requires development consent to be granted for and prior to the demolition of a building or work. The development application proposes the demolition of the existing structures on the Site.

11. Pursuant to cl 4.3 ‘Height of Buildings’ of LEP 2012 and the Height of Buildings Map, the site has a maximum height development standard of 8.5m. The development application, as amended, complies with the 8.5m height control.

12. Clause 6.9 ‘Landscaped area for dwelling houses and secondary dwellings’ in LEP 2012 sets the minimum landscaped area standard for the site. Applying sub cl (2)(b) the landscaped area standard for the site is 50% of the site, or 259.6m². The amended development application proposes landscaped area of 288.1m², compliant with the provision.

13. Clause 4.4 of the LEP 2012, provides that if a dwelling house on any land complies with cl 4.3, in respect of the Height of Buildings standard, and cl 6.9, in respect of landscaped area for dwelling houses and secondary dwellings, there is no maximum floor space ratio for that dwelling house. The proposed development complies with cl 4.3 (see [1(11)]) and cl 6.9 , therefore no maximum floor space ratio applies.

14. Pursuant to cl 5.10 of the LEP 2012, consent must not be granted to a development unless the consent authority has considered the impact of the development with respect to a heritage item or if the development is located within a heritage conservation area. The Site is located within the Hunter's Hill Conservation Area No. 1 - The Peninsula (HCA) and is in close proximity to the heritage item at 13 Wybalena Road. The development application is accompanied by an Amended Heritage Impact Statement prepared by Edwards Heritage Consultants. That assessment concludes that the development will not result in any detrimental impact to heritage fabric and will positively integrate with the established streetscape, having an acceptable and complementary contribution to the HCA. The parties agree and I accept that the development will not have a detrimental impact on the HCA.

15. The development is proposed on land which is mapped as Class 5 Acid Sulfate soil on the Acid Sulfate Soils map in LEP 2012. However, I am satisfied that the site is not located within 500m of Class 1,2,3 or 4 land nor proposes works that will cause the water table to be lowered below 1m Australian Height Datum. I am satisfied that an Acid Sulfate Soils management plan is not required.

16. The extent of earthworks proposed by the development application are minimal and predominately contained within the footprint of the existing dwelling. As required by cl 6.2 ‘Earthworks’ of LEP 2012, in granting consent to the development, with the assistance of the Statement of Environmental Effects and the stormwater and architectural plans which form part of the development application, I have given consideration to the matters listed in subcl (3). Having considered the listed matters, I am satisfied that none warrant the refusal of the development application.

17. Pursuant to cl 6.3 of the LEP 2012, the consent authority must be satisfied that the development will not result in adverse impacts of stormwater runoff on the adjoining properties, native bushland and receiving waters. The amended development application includes civil design plans prepared by NY Civil Engineers dated November 2023 which the parties agree, and I accept, demonstrate how the stormwater runoff will be managed to minimise the impact on the adjoining properties and surroundings of the Site. Further, the stormwater experts in the matter agree that the amended stormwater design demonstrates that the proposed development will not result in adverse impacts to adjoining properties and that the proposed design is acceptable. On this basis I accept the parties’ agreement that the extent of stormwater runoff is unlikely to result in a significant impact on the adjoining properties, native bushland and receiving waters.

18. The site is identified as being within the “River Front Area” on the River Front Area Map referred to in cl 6.7 of the LEP 2012, which requires the consent authority to be satisfied in relation to the following:

(a) measures will be taken, including in relation to the location, design and appearance of the development and conservation of existing trees, to minimise the visual impact of the development to and from the nearest waterway, and

(b) any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out, and of surrounding land, will be maintained, and

(c) existing views towards waterways from public roads and reserves would not be obstructed.

19. The parties agree that the Court can be satisfied as to these matters based on the plans and documents submitted with the development application. In particular, I note that the amended development application increased the side setback, in part to improve public views along the site’s southern boundary. Further, the amended design of the dwelling reduces its height, and the modulated form is recessive when viewed from Alexandra Bay. I find that cl 6.7 of LEP 2012 is satisfied.

20. Hunters Hill Development Control Plan 2013 (DCP 2013) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2013. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court notes that:

Plan Ref	Date	Description	Issue
Stormwater Management Plan prepared by NY Civil Engineering
D1	27.5.24	Details Notes & Legend	D
D2	27.5.24	Stormwater Management Plan	D
D3	27.5.24	Stormwater Management Lower Ground Floor Plan	D
D4	27.5.24	Stormwater Management Ground Floor Plan	D
D5	27.5.24	Stormwater Management Roof Plan	D
D6	27.5.24	Stormwater Details	D
D7	27.5.24	Stormwater Details	D
D8	27.5.24	Stormwater Runoff Catchment Plan	D
D9	27.5.24	Sediment Control Plan	D
D10	27.5.24	Sediment Control Plan	D

1. The Court notes that Hunter’s Hill Council, as the relevant consent authority, approves under s 38 of the Environmental Planning and Assessment Regulation 2021 the Applicant amending Development Application no. DA2022/0139 to include the following plans:

8. The Court orders that:

1. The appeal is upheld.

2. Development Application DA2022/0139 for the demolition of existing structures, removal of two trees and construction of a dwelling house containing five bedrooms and integrated garage parking at 15 Wybalena Road, Hunters Hill (legally known as Lot 3 in DP 26618) is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 25 July 2024