Fritsch v Hunter’s Hill Council

[2024] NSWLEC 1083

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fritsch v Hunter’s Hill Council [2024] NSWLEC 1083

Hearing dates:

Conciliation conference on 8 February 2024

Date of orders:

29 February 2024

Decision date:

29 February 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1)   The appeal is upheld. 

(2)   Development consent is granted to Development Application No DA20230043 for the demolition of the existing garage, construction of a new double garage, alterations and additions to the existing heritage item, swimming pool and associated landscaping and site works on the land at 21 Glenview Crescent, Hunters Hill NSW 2110, known as Lots 10 and 11 in Deposited Plan 830737, subject to the conditions contained in Annexure A. 

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning & Assessment Regulation 2021, s 38

Hunters Hill Local Environmental Plan 2012, cll 2.3, 2.7, 5.10, 6.3, 6.7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 Pt 6.3, s 6.28

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

Category:

Principal judgment

Parties:

Sarah Fritsch (Applicant)
Hunter’s Hill Council (Respondent)

Representation:

Counsel:
J Lazarus SC (Applicants)
P Brown (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/205963

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought by the applicants under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA20230043 (DA) by Hunters Hill Council (Council). The DA seeks consent for alterations and additions to a residential property at 21 Glenview Crescent, Hunter’s Hill, legally described as Lots 10 and 11 in Deposited Plan 830737 (site).

2. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 8 February 2024. I presided over the conciliation conference. After more time was given, the parties came to an agreement in relation to the proceedings, involving amended plans.

3. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA, as amended, and subject to agreed conditions. 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.

4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined matters of relevance through a jurisdictional statement provided to the Court on 12 February 2024, explaining how they believed the jurisdictional matters have or could be satisfied. Below, I attend to jurisdictional considerations mindful of this advice from the parties.

Jurisdiction

State Environmental Planning Policy (Resilience and Hazards) 2021

5. Section 4.6 requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. The parties have advised of the long history of the site for residential purposes. They believe that on this basis, there is no reason to suspect the site is contaminated. I accept this advice. The requirements of s 4.6 are met. No further investigation of the site is warranted on that front.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

6. The parties advise that Ch 6 and, in particular, Pt 6.3 applies. The site is located within the Foreshores and Waterways Area as shown on the Sydney Harbour Foreshores and Waterways Area Map. There are a series of matters warranting consideration in that respect, under cl 6.28(1). Then cl 6.28(2) lists matters with which the Court needs to be satisfied. I can readily say that I am satisfied in regard to each of the matters referenced at cl 6.28(2), given the particulars of the development (including its design to enhance views and vistas from the street), the fact it is not adjacent to industrial or commercial maritime development and its considerable setback from the waterway foreshore.

Hunters Hill Local Environmental Plan 2012

7. The site is zoned R2 Low Density Residential and the proposed development is permissible with consent under that zone. I have had regard to the zone objectives mindful of cl 2.3(2). The application proposes demolition works and this is permissible with consent under cl 2.7.

8. I accept the advice of the parties that the proposed development would not breach any development standards contained within Hunters Hill Local Environmental Plan 2012.

9. Clause 5.10 is concerned with heritage conservation and applies because the site is a listed heritage item (“Glenview” Item No I171) which falls within a heritage conservation area (Hunters Hill Conservation Area – No 1 The Peninsular). Clause 5.10(4) requires the consent authority to consider the effect of the proposed development on the heritage significance of the item or area concerned. The proposal was supported by a Heritage Impact Statement (Revision 3) prepared by Urbis dated 20 March 2023 and following dialogue between heritage and design experts, the amended proposal is seen as satisfactory on heritage grounds. The required “consideration of effect” has been undertaken.

10. The provisions at cl 6.3 (in relation to stormwater management) are relevant. I can confirm that I accept the parties’ position and am satisfied that the provisions at subcll 6.3(1), (2) and (3) are satisfied. Here I note that the joint expert report on stormwater (filed 7 February 2024) directly addressed these matters at pp 5-6.

11. The site is within an identified river front area in accordance with cl 6.7. The parties agree that the DA as amended is acceptable with regard to this clause for the following reasons (jurisdictional statement par 54):

“Measures have been taken to ensure that the proposal conserves and protects landscaping elements and through an appropriate scale of development, has minimised the visual impact of the development to and from the nearest waterway, being the Parramatta River.

The proposal maintains and protects the existing heritage listed building on the site, and will not impact upon heritage items on adjoining and nearby sites.

Existing views towards the Parramatta River from Glenview Crescent are maintained by the provision of a glass entry structure between the existing building and the new additions.

Due to the site's ample separation from the foreshore, the reasonable height and bulk of the proposal and the heavily landscaped nature of the site and surrounds, only a very small portion of the proposal will be seen from the wider foreshore area”.

12. Having visited the site and with an awareness of the amended application, I entirely accept this advice of the parties and find that I am satisfied in regard to each of the three matters listed at subcl 6.7(3).

Other matters for consideration under section 4.15(1) of the EPA Act

13. Council’s Statement of Facts and Contention advised of the notification of the proposal. There was no indication of objecting submissions. In this instance it was the case that prior to the site inspection, two local residents spoke in support of the proposal.

14. As a public interest factor I also note, the indication in the parties’ jurisdictional statement of Council’s “reasons” for giving support to the amending application, as follows (par 56):

“(a) Whilst the Council formed the view that the proposal as originally submitted with the Court was not suitable for approval for the reasons articulated in Council's Statement of Facts and Contentions dated 3 August 2023, good faith discussions between the parties have resulted in amendments to the proposed development, as reflected in the amended development application the subject of this determination.

(b) The changes made to the proposed development, as reflected in a comparison between the plans and supporting reports/ documentation originally lodged with the class 1 appeal and the amended plans and documents the subject of this determination (including but not limited to the deletion of a number of elements that had unacceptable adverse heritage impacts including reduction in the amount of excavation, deletion of the lift, deletion of the second garage/ workshop and associated access across Frances Street Reserve, retention of more landscaping and changes to the entrance to allow retention of original fabric) have resulted in a proposal that has resolved Council's contentions and is now one suitable for approval.”

Conclusion

15. Based on the above details, I am satisfied that there is no jurisdictional bar and the parties’ decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

17. The Court notes the advice of the parties that:

1. The Respondent agrees to the Applicant amending Development Application No DA20230043 pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021, to include the following plans and documents:

Plans	Rev	Date
Architectural Plans prepared by Rob Mills Architecture & Interiors
i) Cover Page, DWG No. DA.00	G	12.02.2024
ii) 3D Massing Envelope, DWG No. DA.01	G	12.02.2024
iii) Survey Plan/Site Analysis, DWG No. DA.02	G	12.02.2024
iv) Existing Lower Ground Floor_Level 2, DWG No.03	G	12.02.2024
v) Existing Ground Floor_Level 3, DWG No.04	G	12.02.2024
vi) Existing First Floor_Level 4, DWG No.05	G	12.02.2024
vii) Design Response Site Controls, DWG No. DA.06	G	12.02.2024
viii) Design Response Site Controls, DWG No. DA.07	G	12.02.2024
ix) Design Response Site Controls, DWG No. DA.08	G	12.02.2024
x) Demolition Plan_Lower Ground Floor – Level 2, DWG No. DA.09	G	12.02.2024
xi) Demolition Plan_ Ground Floor – Level 3, DWG No. DA.10	G	12.02.2024
xii) Demolition Plan_First Floor – Level 4, DWG No. DA.11	G	12.02.2024
xiii) Demolition Plan_Turret, DWG No. DA.12	G	12.02.2024
xiv) Proposed Site Plan/Roof Plan, DWG No. DA.100	G	12.02.2024
xv) Proposed_Main Bedroom – Level 1, DWG No. DA.102	G	12.02.2024
xvi) Proposed_Lower Ground Floor – Level 2, DWG No. DA.103	G	12.02.2024
xvii) Proposed_ Ground Floor – Level 3, DWG No. DA.104	G	12.02.2024
xviii) Proposed_First Floor – Level 4, DWG No. DA.105	G	12.02.2024
xix) Elevations, DWG No. DA.200	G	12.02.2024
xx) Elevations, DWG No. DA.201	G	12.02.2024
xxi) Elevations, DWG No. DA.202	G	12.02.2024
xxii) Impacts on Existing Rock Outcrop, DWG No. DA.205	G	12.02.2024
xxiii) Sections, DWG No. DA.300	G	12.02.2024
xxiv) Sections, DWG No. DA.301	G	12.02.2024
xxv) Sections, DWG No. DA.302	G	12.02.2024
xxvi) Sections, DWG No. DA.303	G	12.02.2024
xxvii) Terrace Details, DWG No. DA.304	G	12.02.2024
xxviii) 3D Perspectives_Terrace, DWG No. DA.305	G	12.02.2024
xxix) Shadow Diagram 9am Proposed, DWG No. DA.400	G	12.02.2024
xxx) Shadow Diagram 12pm Proposed, DWG No. DA.401	G	12.02.2024
xxxi) Shadow Diagram 3pm Proposed, DWG No. DA.402	G	12.02.2024
xxxii) Elevational Shadow Diagrams, DWG No. DA.403	G	12.02.2024
xxxiii) View from the Sun Diagrams_21st June, DWG No. DA.404	G	12.02.2024
xxxiv) Materials & Finishes, DWG No. DA.500	G	12.02.2024
xxxv) BASIX Commitments, DWG No. DA.600	G	12.02.2024
xxxvi) Design Response – Excavation, DWG No. DA.700	F	09.02.2024
xxxvii) Design Response – Excavation, DWG No. DA.701	F	09.02.2024
Landscape Plans prepared by Wyer & Co
i) Landscape DA Documentation	06	09.02.2024
ii) Development Application Site Plan, DWG No. DA_01	06	09.02.2024
iii) Development Application Proposed Level 1, DWG No. DA_02	06	09.02.2024
iv) Development Application Proposed Level 2, DWG No. DA_03	06	09.02.2024
v) Development Application Proposed Level 3, DWG No. DA_04	06	09.02.2024
Stormwater Redirection Plans prepared by Stantec Australia
i) General Notes, DWG No. CI-007-001	D	28 August 2023
ii) General Arrangement, DWG No. CI-060-001	C	4 October 2023
iii) Erosion and Sediment Control Plan, DWG No. CI-070-001	F	4 October 2023
iv) Erosion and Sediment Control Details, DWG No. CI-076-001	D	28 August 2023
v) Bulk Earthworks Plan, DWG No. CI-100-001	A	28 August 2023
vi) Driveway Longitudinal Section, DWG No. CI-400-001	C	4 October 2023
vii) Civil Details, DWG No. CI-406-001	A	28 August 2023
viii) Stormwater Catchment Plan, DWG No. CI-500-001	E	7 September 2023
ix) Stormwater Drainage Plan – Ground Floor, DWG No. CI-520-001	F	4 October 2023
x) Stormwater Drainage – Longitudinal Sections, DWG No. CI-522-001	A	28 August 2023
xi) Stormwater Drainage Details Sheet 1 of 3, DWG No. CI-526-001	D	28 August 2023
xii) Stormwater Drainage Details Sheet 2 of 3, DWG No. CI-526-002	D	28 August 2023
xiii) Stormwater Drainage Details Sheet 3 of 3, DWG No. CI-526-003	D	28 August 2023
xiv) Stormwater Drainage Pit Schedule, DWG No. CI-527-001	C	4 October 2023
xv) Stormwater Overland Floor Path Plan, DWG No. CI-540-001	A	4 October 2023
Reports and Documents	Rev	Date
BASIX Certificate No. A488121_02	-	8 February 2024
Hydraulic Assessment Report prepared by Telford Civil (REF: TEL23426)	C	February 2024
Pre-cautionary Clause 4.6 Statement – Height prepared by Andrew Minto Planning	-	20 October 2023
Geotechnical Report by Douglas Smith Partners (REF: 210590.00.R.002.Rev0)	0	22 December 2023
Stormwater Management Report prepared by Stantec Australia (REF: 301350980-SWMP_006)	6	7 September 2023

Orders

18. The Court orders that:

1. The appeal is upheld. 

2. Development consent is granted to Development Application No DA20230043 for the demolition of the existing garage, construction of a new double garage, alterations and additions to the existing heritage item, swimming pool and associated landscaping and site works on the land at 21 Glenview Crescent, Hunters Hill NSW 2110, known as Lots 10 and 11 in Deposited Plan 830737, subject to the conditions contained in Annexure A. 

Peter Walsh

Commissioner of the Court

205963.23 Annexure A

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Decision last updated: 29 February 2024