Douzaklian v Hunters Hill Council

[2022] NSWLEC 1356

Land and Environment Court

New South Wales

Medium Neutral Citation:

Douzaklian v Hunters Hill Council [2022] NSWLEC 1356

Hearing dates:

Conciliation conference on 24 May 2022

Date of orders:

07 July 2022

Decision date:

07 July 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The order of the Court are:

(1) The appeal is upheld.
(2) Development Application No. 2021/1230, for demolition of the existing dwelling and construction of a two-storey dwelling with associated basement, at 37E The Point Road, Woolwich (Lot 4 DP 226470, Lot 1 DP1117615 and Lot 1 DP 573409), is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition of an existing dwelling and construction of a new dwelling – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Environmental Planning and Assessment Regulation 2021, Sch 6

Hunters Hill Local Environmental Plan 2012, cll 1.9, 4.3, 4.4, 5.10, 6.2, 6.3, 6.5, 6.6, 6.7, 6.9

Land and Environment Court Act 1979, s 34AA

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

State Environmental Planning Policy (Resilience and Hazards) 2021

Category:

Principal judgment

Parties:

Haroutoun Douzaklian (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2021/360391

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2021/1230, for demolition of the existing dwelling and driveway, removal of vegetation, and construction of a new dwelling and garage, at 37E The Point Road, Woolwich (the site), by Hunters Hill Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 May 2022. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal pursuant to the relevant provisions of State Environmental Planning Polices (SEPPs) and the Hunters Hill Local Environmental Plan 2012 (LEP 2012).

The proposal is amended

5. The Environmental Planning and Assessment Regulation 2000 continues to apply to the application because the application was lodged with the Council on 19 October 2021, the Class 1 application was filed with the Court on 20 December 2021, and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021).

6. The Council, as the relevant consent authority, agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application. The amended development application was lodged on the NSW planning portal on 21 June 2022. The applicant filed the amended development application with the Court on 21 June 2022 (the proposal). The applicant filed the amended landscape plans on 30 June 2022.

Planning framework

7. The site is zoned R2 pursuant to LEP 2012 (Land Zoning Map - Sheet LZN_003 of LEP 2012) and the proposal is permissible with consent. The objectives of the R2 zone, to which regard must be had, 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.

8. The floor space ratio (FSR) development standard for the site is 0.5:1 (Floor Space Ratio Map - Sheet FSR_003 and cl 4.4 of LEP 2012). The proposal has a FSR of 0.38:1 which complies with the FSR development standard. Pursuant to cl 4.4(2A) of LEP 2012, if a dwelling house on any land complies with cl 4.3 in respect of height and cl 6.9 in respect of landscaping, there is no maximum FSR development standard for that dwelling house. I accept the Council’s assessment of the proposal that it complies with the numerical standards under cll 4.3 and 6.9 of LEP 2012 and so there is no maximum FSR development standard for the site.

Height of the proposal

9. The parties submitted that a restrictive covenant is registered on the site that has the effect of limiting the height of buildings to RL 15.155. The covenant is a private covenant, not imposed by the Council. The private covenant is suspended by the operation of cl 1.9 of LEP 2012. The height of the development is below the height of buildings development standard for the site of 8.5m pursuant to cl 4.3 of LEP 2012. Condition 25 (Annexure A) requires that a restrictive covenant in favour of the Council be imposed which restricts the height of the development to RL 17.3, excluding the lift overrun.

Heritage conservation

10. The site is located within the Hunters Hill Heritage Conservation Area No. 1 (HCA) and is in the vicinity of local heritage items at 39 The Point Road and 41-43 The Point Road, Hunters Hills. Before granting development consent to a proposal on a site within a heritage conservation area, the consent authority must consider the effect of the proposal on the heritage significance of the heritage conservation area, pursuant to s 5.10(4) of LEP 2012. The application is supported by a Heritage Impact Statement prepared by Weir Phillips Heritage and Planning dated August 2021 (HIS), and a joint report prepared by the heritage experts relied on by the parties. I accept the conclusions of the HIS and the joint report and the Council’s submission that following the Council’s assessment of the proposal, it will not adversely impact on the identified heritage significance of the HCA.

Earthworks

11. Before granting development consent for earthworks and associated groundwater dewatering, or for development involving ancillary earthworks, the consent authority must consider the matters listed under cl 6.2(3) of LEP 2012. The application is supported by two engineering reports by Enspire both dated 14 September 2021 (engineering reports) and a geotechnical report and addendum report. I accept conclusions of the engineering reports and the Council’s submission that following the Council’s assessment of the proposal, it will not adversely impact upon the matters listed under s 6.2(3) of LEP 2012.

Stormwater Management

12. Before granting development consent for a proposal on a site within the R2 zone, the consent authority must be satisfied of the matters listed under cl 6.3(3) of LEP 2012. The application is supported by stormwater plans and an engineering report relevant to the matters under cl 6.3(3) of LEP 2012. I accept conclusions of the stormwater report and the Council’s submission that following the Council’s assessment of the proposal, it meets the requirements of the matters listed under s 6.3(3) of LEP 2012 because the plans include an onsite stormwater retention tank and maintains the discharge arrangement of the existing development.

Riparian land and adjoining waterways

13. The site is mapped as part Riparian Land. Before granting development consent for a proposal on land mapped as Riparian Land, the consent authority must consider the matters listed under cl 6.5(3) of LEP 2012. The application is supported by an Ecological Report prepared by EMM (the ecological report) which assesses the proposal against the matters under cl 6.5(3) of LEP 2012. I accept conclusions of the ecological report and the Council’s submission that following the Council’s assessment of the proposal, it will not adversely impact upon the matters listed under s 6.5(3) of LEP 2012.

14. I accept the Council’s submission that the proposal is consistent with the requirements of cl 6.6(3) of LEP 2012, as no part of the proposal is forward of the foreshore building line other than the swimming pool, which is permissible under cl 6.6(2) of LEP 2012.

Riverfront area

15. The site is mapped as River Front Area. Before granting development consent for a proposal on a site mapped as River Front Area, the consent authority must be satisfied of the matters listed under cl 6.7(3) of LEP 2012. I accept the Council’s submission that following the Council’s assessment of the proposal, it satisfies the requirements of the matters listed under s 6.7(3) of LEP 2012, for the reasons set out by the Council in the jurisdictional statement sent to the Court on 30 June 2022.

Relevant SEPPs

16. I accept the Council’s submission in the jurisdictional statement sent to the Court on 30 June 2022 that following the Council’s assessment of the proposal, the relevant jurisdictional requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, State Environmental Planning Policy (Resilience and Hazards) 2021 and State Environmental Planning Policy (Biodiversity and Conservation) 2021 are met.

Conclusion

17. I have considered the submissions made by the Council in the jurisdictional statement sent to the Court on 30 June 2022 and I am satisfied based on 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.

Orders

18. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2021/1230, for demolition of the existing dwelling and construction of a two-storey dwelling with associated basement, at 37E The Point Road, Woolwich (Lot 4 DP 226470, Lot 1 DP1117615 and Lot 1 DP 573409), is determined by the grant of consent, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (356957, pdf)

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Decision last updated: 07 July 2022