Ashley v Hunter’s Hill Council

[2024] NSWLEC 1033

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ashley v Hunter’s Hill Council [2024] NSWLEC 1033

Hearing dates:

Conciliation conference 30 January 2023

Date of orders:

01 February 2024

Decision date:

01 February 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application number DA20230005, as amended, for construction of a first floor addition over the existing garage and its use as a secondary dwelling on land identified as Lot 1 in Deposited Plan 929967 an known as 9 Alexandra Street, Hunters Hill NSW 2110, is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: Alterations and additions to a residential dwelling and garage – use as a secondary dwelling – conciliation conference – agreement between the parties – orders made.

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Hunters Hill Local Environmental Plan 2012 cll 4.3, 4.4, 4.6, 5.4, 5.10, 6.3, 6.9, Sch 5

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

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

State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

Texts Cited:

Hunters Hill Development Control Plan 2013

Category:

Principal judgment

Parties:

Nathan William Ashley (First Applicant)
Fiona Marr (Second Applicant)
Hunter’s Hill Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor)(First and Second Applicants)
S Kondilios (Solicitor)(Respondent)

Solicitors:
Bartier Perry Lawyers (First and Second Applicants)
Hall & Willcox (Respondents)

File Number(s):

2023/261923

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application seeking approval for construction of a first floor addition over an existing garage and its use as a secondary dwelling. The development is proposed at 9 Alexandra Street, Hunters Hill (Lot 1 DP 929967). The Applicant’s appeal against the deemed refusal of their development application, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The Court arranged a conciliation conference pursuant to s 34AA of the Land and Environmental Court Act 1979 (LEC Act) between the parties which was held on 30 and 31 January 2024. 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 decision agreed upon is for the grant of consent to an amended development application, subject to the annexed conditions.

3. As the presiding commissioner, I am satisfied that the decision is one that the Court could make in the proper exercise of its function (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 has been made with the consent of the owner of the land: s 23 Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified by the Respondent for a period of 14 days between 2 February to 16 February 2022. No submissions were received.

3. The development application was made, but not finally determined, prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022 commenced on 1 October 2023. Hence State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 continues to apply to the application. The development application is accompanied by a BASIX certificate that has been updated to be consistent with the amended plans.

4. Chapter 3, Part 1 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the development application. I am satisfied that the development application is consistent with the jurisdictional preconditions of s 52 of SEPP Housing on the following basis:

1. No dwellings, other than the existing principal dwelling and the proposed secondary dwelling, will be located on the site;

2. The total floor area of the proposed existing principal dwelling and the proposed secondary dwelling is no more than the maximum floor area permitted for a dwelling house pursuant to the floor space ratio controls in Hunters Hill Local Environmental Plan 2012 (LEP 2012), see [3(8)].

3. The total floor area of the secondary dwelling is no more than 60sqm.

5. As required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects confirms that the site is not identified as contaminated, or likely to be contaminated land. The parties confirm that a review of the site history indicates that it has been used for residential purposes. The development application does not propose a change of use. I accept that the site will be suitable for the proposed development.

6. Pursuant to the LEP 2012 the site is zoned R2 Low Density Residential.  The proposal for a secondary dwelling is permissible with consent in the zone. In determining the development application, I have had given consideration to the zone objectives which 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.

7. Pursuant to cl 4.3(2) of LEP 2012, and the height of buildings map, a maximum height standard of 8.5m applies to the site. The amended development application is compliant with the height standard.

8. Pursuant to cl 4.4(2) of LEP 2012, and the floor space ratio (FSR) map, a maximum FSR of 0.5:1 applies to the site. The amended development application is compliant with the FSR standard. Clause 4.4(2A) of LEP 2012 applies to the development application as it seeks to vary the landscape development standard at cl 6.9 of LEP 2012.

9. Pursuant to cl 5.4(9) of LEP 2012, the floor area of a secondary dwelling must not be more than 60sqm or 30% of the site area. At 58sqm the area of the proposed secondary dwelling is compliant with cl 5.4 of LEP 2012.

10. The site is a local heritage item known as ‘Ivanhoe’ which is listed in schedule 5 of LEP 2012. The site is also located within the Hunters Hill Conservation Area No 1 – The Peninsula and the Foss Subdivision Heritage Conservation area. Pursuant to cl 5.10(2)(e) of LEP 2012 development consent is required for the erection of a building on land on which a heritage building is located or that is within a heritage conservation area. Further, pursuant to cl 5.10(4) of LEP 2012, before the grant of consent the consent authority must consider the effect of the proposed development on the heritage significance of the item and the relevant conservation area. With the assistance of the joint report of the heritage experts I have considered the impact of the proposed works on the significance of the item and the two relevant conservation areas. I am satisfied that any impact on heritage significance does not warrant the refusal of the development application.

11. Pursuant to cl 6.3(3) of LEP 2012 consent must not be granted to development unless the consent authority is satisfied that the development:

1. Is designed to maximise the use of water permeable surfaces on the land having regard to soil characteristics affecting on-site infiltration of water, and

2. Includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, ground water or river water, and

3. Avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates that impact.

12. The amended development application includes an amended concept stormwater plan. This plan addresses how the development will address stormwater drainage and provides for on-site retention and reuse. The parties agree, and I accept, that the concept stormwater plan meets the requirements of cl 6.3 of LEP 2012.

13. Pursuant to cl 6.9(2)(b) of LEP 2012, as the development application proposes a secondary dwelling, the landscaped area of the site must not be less than 50%. This landscaped area requirement is qualified by cl 6.9(4) of LEP 2012 which states:

(4)  Despite subclause (2), the minimum landscaped area may be reduced by not more than 33% for the purpose of accommodating a pathway, a patio, a terrace or a pool (if the pool has an area of less than 40 square metres), but only if the proposed development would be consistent with the objectives of this clause.

14. The development application will maintain the existing conditions of the site, including the existing shortfall of the landscape area. Applying the provisions of cl 6.9 of LEP 2012 the hardscaped area when combined with the landscape area equals a total of 172m² or 30.26%, which is less than the minimum 50% requirement of cl 6.9 of LEP 2012. The Applicant has prepared a written request pursuant to cl 4.6 of LEP 2012 seeking to vary the development standard for landscape area development at cl 6.9 of LEP 2012.

1. Pursuant to cl 4.6 of LEP 2012, the Court in exercising the functions of the consent authority, must be satisfied of both matters in subcll (4)(a)(i) and (ii), namely:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

2. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the landscape area control in the circumstances of this case as the objectives of the standard are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard.

3. I am also satisfied that the proposed development will be in the public interest because it is consistent with the relevant objectives of the development standard and the objectives for development within the R2 Low Density Residential zone in which the development is proposed to be carried out.

4. Finally, I accept, after a consideration of the matters identified in cl 4.6(5) of LEP 2012, that the concurrence of the Planning Secretary is not required having regard to Planning Circular PS 20-002 dated 5 May 2020.

5. Having regard to all of the above matters, I am satisfied that I should uphold the cl 4.6 variation request in relation to the Landscaped area for dwelling houses and secondary dwellings in cl 6.9 of LEP 2012.

15. Hunters Hill Development Control Plan 2013 (DCP 2013) applies to the site. The statement of environmental impacts and the agreed jurisdictional note details the compliance of the proposed development with DCP 2013. In determining the development application, I have considered the provisions of both development control plans: s 4.15(1) of the EPA Act.

4. 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)).

5. 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.

6. The Court notes that:

1. The Respondent has agreed to the Applicant’s amendment of the development application pursuant to s 38 of EPA Regulation to rely on the following additional and amended material:

Document Description	Prepared By	Date
Architectural plans:
a) DA0.02 (Rev. B) – Exist. & Proposed Streetscape Elevation	Building Design & Technology Pty Ltd	6 December 2023
b) DA1.01 (Rev. D) – Ground Floor / Site Plan	29 January 2024
c) DA1.02 (Rev. G) – First Floor & Roof Plan	30 January 2024
d) DA1.03 (Rev. H) – Elevations & Section	30 January 2024
e) DA1.06 (Rev. A) – Concept Landscape Plan	21 November 2023
f) DA1.07 (Rev. B) – Concept Stormwater Plan	29 January 2024
BASIX Certificate number 1356618S_02	Taylor Smith Consulting	29 January 2024
Clause 4.6 – Exceptions to development standards – Landscape Area	Minto Planning Services	5 December 2023
Arboricultural Impact Assessment and Tree Management Plan (Version 1)	Horticultural Management Services	18 April 2023

2. The Applicant’s filed the abovementioned material with the Court on 30 January 2023.

3. The written request prepared by Minto Planning Services and dated 5 December 2023, made pursuant to cl 4.6 of LEP 2012 in relation to the variation to the landscape area development standard at cl 6.9 of LEP 2012, is upheld.

7. The Court orders that:

1. The appeal is upheld.

2. Development application number DA20230005, as amended, for construction of a first floor addition over the existing garage and its use as a secondary dwelling on land identified as Lot 1 in Deposited Plan 929967 an known as 9 Alexandra Street, Hunters Hill NSW 2110, is determined by the grant of development consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

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Annexure A

Decision last updated: 01 February 2024