Fahd v Hunters Hill Council

[2022] NSWLEC 1247

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fahd v Hunters Hill Council [2022] NSWLEC 1247

Hearing dates:

Conciliation conference on 29 April 2022 and 9 May 2022

Date of orders:

17 May 2022

Decision date:

17 May 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA/2021/1157 which seeks consent for the demolition of the existing dwelling and swimming pool and construction of a new single dwelling and swimming pool at 27 Dick St Henley, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house development in R2 low residential density zone – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Hunters Hill Local Environmental Plan 2012, cll 4.3, 4.4(2A), 5.10, 6.1, 6.2, 6.3, 6.7, 6.9

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

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

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cll 21-27

Category:

Principal judgment

Parties:

Helen Fahd (Applicant)
Hunters Hill Council (Respondent)

Representation:

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

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2021/311731

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Hunters Hill Council (the Respondent) of Development Application DA/2021/1157 seeking consent for the demolition of the existing dwelling and swimming pool, and the construction of a new single dwelling house and swimming pool at 27 Dick Street, Henley (the site).

2. The appeal was listed for mandatory conciliation on 29 April 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. Prior to the conciliation conference, at which I presided, the Applicant prepared amended architectural plans that, in the view of the Respondent at the commencement of proceedings, addressed the matters in contention.

4. On the basis of the amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 10 May 2022.

6. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

7. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [23].

8. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

9. The site is located within the R2 Low Density Residential zone, pursuant to the Hunters Hill Local Environmental Plan 2012 (HHLEP), in which dwelling house development is permitted with consent, and where consistent with the objectives of the zone, as follows:

•  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. The proposed development complies with the height of buildings development standard at cl 4.3 of the HHLEP, and also complies with the terms of cl 4.4(2A) of the HHLEP with respect to floor space ratio.

11. Compliance with cl 4.4(2A) is contingent upon satisfying cl 6.9(2)(b) of the HHLEP that requires at least 60% of the site to be landscaped area on sites with a direct frontage to the Parramatta River or the Lane Cove River. Landscaped area is defined in the dictionary of the HHLEP in the following terms:

landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.

12. I am satisfied that the area depicted on Drawing DA 502 as landscaped area is 60% of the site area, consistent with the terms of cl 6.9(2)(a) of the HHLEP.

13. A sandstone wall on the site fronting Dick Street is identified on the Heritage Map, item I287, Sheet HER_002B, for its local heritage significance and so the provisions of cl 5.10 the HHELP apply to the proposed development. On the basis of the Heritage Impact Statement prepared by Mr John Oultram dated 7 March 2022, and the architectural drawings that depict the wall retained insitu, I consider the effect of the proposal on the heritage significance of the item acceptable.

14. The site is identified on the Acid Sulfate Soils Map at cl 6.1(2) of the HHLEP as Class 5, but is not within 500m of adjacent Class 1, 2, 3 or 4 land and so consent is not required for the carrying out of works under this provision.

15. On the basis of the Geotechnical Investigation Report prepared by EI Australia, dated 8 July 2021, the amended Stormwater Plans prepared by Xavier Knight, and the extent of permeable surfaces on the land documented on the amended landscape plans prepared by Dangar Barrin Smith, I am satisfied in respect of those matters at cl 6.2(3) of the HHLEP as regards earthworks and, relatedly, that stormwater management has been satisfactorily addressed within the terms of cl 6.3(3) of the HHLEP.

16. The site is located within River Front Area, pursuant to cl 6.7 of the HHLEP and I am satisfied that the visual impact of the development to and from the waterway is minimised, due to the location, design and appearance of the development as depicted in the 3-dimensional images prepared by the Applicant and having regard to the amended landscape plans prepared by Dangar Barrin Smith and the agreed conditions of consent. I am also satisfied the historic significance of the land on which the development is to be carried out is maintained by the retention of the sandstone wall fronting Dick Street.

17. The site is also located within the area of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Sydney Harbour Catchment SEPP). The site is not identified as a strategic foreshore site, is not a heritage item within its terms, and is not within the wetlands protection area. The site appears to be within the W8 Scenic Waters Passive Use zone, and I am satisfied the proposed development is consistent with the relevant objectives of the W8 zone. I have considered those matters at cll 21-27 of the Sydney Harbour Catchment SEPP with which the proposal is not inconsistent. In particular, I note that development is not proposed to the existing structures on the foreshore.

18. I accept the agreed position of the parties, supported by the Heritage Impact Statement, prepared by Mr John Oultram dated March 2022, that the site has historically been used for residential purposes and I am satisfied that the site is not contaminated, pursuant to cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land.

19. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1220580S_02 dated 9 May 2022), prepared by Brian Teplicanec Consultancy in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

20. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

21. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

22. The Court notes:

1. That Hunter’s Hill Council, as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application DA/2021/1157 in accordance with the documents listed below:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural plans
Lower Ground Plan	DA101	L	09/05/2022	PBD Architects
Ground Plan	DA102	N	09/05/2022	PBD Architects
Level 1 Plan	DA103	L	09/05/2022	PBD Architects
Roof Plan	DA104	F	09/05/2022	PBD Architects
East Elevation	DA201	L	09/05/2022	PBD Architects
North Elevation	DA202	J	09/05/2022	PBD Architects
West Elevation	DA203	K	09/05/2022	PBD Architects
South Elevation	DA204	L	09/05/2022	PBD Architects
Section A	DA300	K	09/05/2022	PBD Architects
Section B	DA301	L	09/05/2022	PBD Architects
Retaining Wall Section	DA310	E	09/05/2022	PBD Architects
Materials Schedule	DA400	H	09/05/2022	PBD Architects
Landscaped Area Calculation	DA502	B	09/05/2022	PBD Architects
Typical Arch Detail	DA900	F	09/05/2022	PBD Architects
Pool Detail	DA901	D	09/05/2022	PBD Architects
Typical Timber Look Batten Detail	DA902	B	09/05/2022	PBD Architects
Stormwater plans
Cover Sheet	C000	B	31/03/2022	Xavier Knight
Lower Ground Floor Plans	C100	B	19/04/2022	Xavier Knight
Ground Floor Plans	C101	B	31/03/2022	Xavier Knight
Drainage Details	C200	B	31/03/2022	Xavier Knight
Drainage Details – Sheet 2	C201	B	31/03/2022	Xavier Knight
Sediment and Erosion Control Plan	C300	B	31/03/2022	Xavier Knight
Sediment and Erosion Control Details	C301	B	31/03/2022	Xavier Knight
Music Catchment	C350	B	31/03/2022	Xavier Knight
Landscape Plans
DA Cover Sheet	LP01-D3721	E	05/05/2022	Dangar Barin Smith
Plant Schedule	LP02-D3721	E	05/05/2022	Dangar Barin Smith
Site Plan	LP03-D3721	E	05/05/2022	Dangar Barin Smith
Front Landscape Plan	LP04-D3721	E	05/05/2022	Dangar Barin Smith
Middle Landscape Plan	LP05-D3721	E	05/05/2022	Dangar Barin Smith
Rear Landscape Plan	LP06-D3721	E	05/05/2022	Dangar Barin Smith
First Floor Landscape Plan	LP07-D3721	E	05/05/2022	Dangar Barin Smith
Details	LP08-D3721	E	05/05/2022	Dangar Barin Smith
Reports
Revised Heritage Statement prepared by John Oultram Heritage & Design dated 7 March 2022.
Construction Method Statement prepared by Versatile dated 18 March 2022.
Updated Survey Sheet prepared by Sydney Surveyors dated 1 March 2022.
Updated BASIX Certificate prepared by Brian Teplicanec Concultancy dated 9 April 2022.
Updated NatHers Certificate prepared by Brian Teplicanec Concultancy dated 9 April 2022.

2. That the amended application was uploaded on the NSW planning portal on 9 May 2022.

3. That the applicant has subsequently filed the amended application with the Court 9 May 2022.

Orders

23. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application DA/2021/1157 which seeks consent for the demolition of the existing dwelling and swimming pool and construction of a new single dwelling and swimming pool at 27 Dick St Henley, subject to the conditions of consent in Annexure A.

T Horton

Commissioner of the Court

Annexure A (344310, pdf)

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Decision last updated: 17 May 2022