Feng v Hunters Hill Council

[2022] NSWLEC 1710

Land and Environment Court

New South Wales

Medium Neutral Citation:

Feng v Hunters Hill Council [2022] NSWLEC 1710

Hearing dates:

Conciliation conference on 12 December 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development consent is granted to development application No. DA2021/1309 for alterations and additions to an existing dwelling house at Lot B, DP 36427 No. 2 Windeyer Ave, Gladesville subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to dwelling house – 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, cll 49, 55

Hunters Hill Local Environmental Plan 2012 cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.9

Land and Environment Court Act 1979, s 34AA

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

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

Sydney Regional Environmental Plan – Sydney Harbour Catchment 2005

Texts Cited:

Hunters Hill Consolidated Development Control Plan 2013

Category:

Principal judgment

Parties:

Tianrui Feng (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/134204

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as the result of the deemed refusal by Hunters Hill Council of development application DA2021/1309. This development application seeks approval for alterations and additions to an existing dwelling house at Lot B, DP 36427, known as 2 Windeyer Ave, Gladesville. These proceedings have been brought to the Court under s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

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 12 December 2022. I presided over the conciliation conference.

3. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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 one 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.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following:

1. Pursuant to the Hunters Hill Local Environmental Plan 2012 (HHLEP), the subject site is zoned R2 Low Density Residential, within which development for the purpose of dwelling houses is permitted with consent. The parties submit and I accept that the proposed development meets the relevant objectives of this zone.

2. The Applicant is the owner of the land, meeting the requirements of the (now repealed) Environmental Planning and Assessment Regulation 2000 cl 49.

3. From the Statement of Environmental Effects and the parties’ submission that the site has been in residential use since its original subdivision and there is no evidence of any potentially contaminating uses occurring, I accept that the requirements of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 are met with the proposed development.

4. Pursuant to the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), an amended BASIX certificate dated 9 December 2022 has been issued that applies to the development and meets the necessary requirements of the SEPP BASIX.

5. Pursuant to the Sydney Regional Environmental Plan – Sydney Harbour Catchment 2005, consideration must be given to the visual impact of the development upon Sydney Harbour. The parties submit and I accept that given the proximity of the land to the visual catchment of Sydney Harbour, the development application will not impact on views to or from the harbour.

6. From the parties’ submission and the amended drawings, I accept that the amended development application complies with both the height and floor space ratio development standards as per cll 4.3 and 4.4 of the HHLEP.

7. Pursuant to HHLEP, the site is located within a Conservation Area. From the Statement of Heritage Impact and the parties’ submission, I accept that the amended development application adequately meets the relevant heritage requirements of HHLEP cl 5.10.

8. The parties submit and I accept that the land is not subject to a flood planning area, and therefore the relevant matters set out in HHLEP cl 5.21 are satisfied with the proposed development.

9. Pursuant to HHLEP cl 6.1, the site is mapped as ‘Class 5 Land’ with respect to Acid Sulfate soils. The parties submit and I accept that the works proposed under the amended development application can be undertaken without affecting the water table.

10. The parties submit and I accept that the proposed development necessitates only minor excavation and fill that will not adversely affect adjoining properties and therefore that the relevant matters for consideration under HHLEP cl 6.2 have been addressed.

11. The parties submit and I accept that the amended development application and condition 10 of Annexure A make appropriate provision for on-site retention and disposal of stormwater, and that the relevant provisions of HHLEP cl 6.3 have been met.

12. Based on the amended landscape plans and the parties’ submission, I accept that the proposed development meets the requirement for landscaped area to 50% of the site, as required by HHLEP cl 6.9.

13. Pursuant to the requirements of the Hunters Hill Consolidated Development Control Plan 2013, the parties submit and I accept that the development application was appropriately notified by the Council and that matters raised by the submitters have been adequately addressed through amendments to the proposed development, and further by the imposition of conditions of consent.

6. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

7. 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.

8. The Court notes that:

1. Hunters Hill Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant’s amending development application DA2021/1309, to rely upon the amended plans and documents specified in Schedule 1 (Amended Application).

2. The Amended Application as identified in Schedule 1 has been uploaded by the Applicant to the NSW Planning Portal on 12 December 2022.

9. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No. DA2021/1309 for alterations and additions to an existing dwelling house at Lot B, DP 36427 No. 2 Windeyer Ave, Gladesville subject to the conditions set out in Annexure ‘A’.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (226315, pdf)

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Decision last updated: 16 December 2022