Gaitanos v The Council of the Municipality of Hunters Hill

[2021] NSWLEC 1726

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gaitanos v The Council of the Municipality of Hunters Hill [2021] NSWLEC 1726

Hearing dates:

Conciliation conference on 18 November 2021

Date of orders:

6 December 2021

Decision date:

06 December 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

Refer to the orders below at [20]

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of dwelling house – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.20, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Hunters Hill Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4, 6.6, 6.7, 6.9

Land and Environment Court Act 1979, ss 34, 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 25, 26

Texts Cited:

Hunters Hill Consolidated Development Control Plan 2013

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Category:

Principal judgment

Parties:

Stephen Gaitanos (Applicant)
Council of the Municipality of Hunters Hill (Respondent)

Representation:

Counsel:
J Oldknow (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)

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

File Number(s):

2021/219923

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Council of the Municipality of Hunters Hill (Council) of Development Application No DA/2021/1011 (the DA). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 983.2m² parcel of land identified as Lot 14 in DP 10445 at 7 Tiree Avenue, Hunters Hill (the Site). The DA as submitted to the Council on 9 February 2021 sought consent for demolition of the existing structures and the construction of a new dwelling house, swimming pool, associated landscaping, retaining structures and driveway, as set out in the architectural plans prepared by Plus Architecture, Revision A dated 27 January 2021 (Revision A Architectural Plans). The DA was notified in accordance with Council’s policy over the period 17 February 2021 to 19 March 2021, resulting in the receipt of two submissions.

3. On 21 June 2021 revised plans and additional information were provided to Council, including revised architectural plans prepared by Plus Architecture, Revision C dated 18 June 2021 (Revision C Architectural Plans). On 2 August 2021 the Applicant commenced these Class 1 proceedings in the Court on the basis of a deemed refusal of the DA, as amended and depicted in the Revision C Architectural Plans.

4. On 3 September 2021 the Council filed its Statement of Facts and Contentions (SOFC). The Court listed the matter for a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) for 18 and 19 November 2021. Due to the Court’s COVID-19 Pandemic Arrangements Policy (April 2021) (COVID-19 Policy) restrictions in place at the time, and as agreed between the parties, there was no site view undertaken as part of the proceedings. There were no oral submissions from objectors, and proceedings were conducted via MS Teams.

5. Prior to the commencement of proceedings, the Applicant made further amendments to the DA. On 15 November 2021 the Applicant filed with the Court a folder of documents entitled “Applicant’s Amended Application” (Amended DA) that was also lodged, with the consent of Council, on the NSW planning portal on that same date. The Amended DA includes revised architectural plans prepared by Plus Architecture, Revision E dated 3 November 2021 (Final Plans). The Amended DA was prepared in order to address matters raised in the SOFC, by Council during discussions between the parties, and in the public submissions.

6. On 18 November 2021, at the commencement of the conciliation conference the parties advised the Court that they had reached an agreement pursuant to s 34(3) of the LEC Act that was based on the Amended DA. The parties provided to the Court that morning a copy of the signed s 34 agreement, dated 18 November 2021, along with the Annexure A draft conditions and a Jurisdictional Statement.

7. As part of the s 34 conciliation conference, the parties made oral submissions in respect of the s 34 agreement, draft conditions and jurisdictional statement. Arising from that review of the documents it was agreed between the parties that:

1. The BASIX Certificate dated 27 October 2021 would need to be updated, and the updated version filed with the Court by the Applicant and copied to the Council.

2. The references in the draft conditions to the BASIX Certificate (at Conditions 20 and 84) would need to be amended to refer to the updated certificate. It was agreed between the parties that I could change those references in Conditions 20 and 84 upon receipt of the amended BASIX Certificate before finalising the consent.

3. Table 2 of Condition 2 of the draft conditions would be amended by the parties that day to add to Table 2 the Geotechnical Investigation document prepared by GK Geotechnics dated 2 October 2020. A copy of this document was filed with the Class 1 application. The parties made that amendment and filed the amended Annexure A draft conditions later on 18 November 2021.

8. The main changes between the Revision C Architectural Plans filed with the Class 1 Application and the Final Plans the subject of the s34 agreement are:

1. Design changes to the roof form and pitch, and external materials and finishes, including balustrade treatments.

2. Design changes to the front fence and east (Tiree Avenue) elevation of the dwelling, including front door.

3. Minor changes to the first floor layout, and reduction in the size of the rear balcony at this level by moving the balustrade further east.

4. Minor changes to the landscaping, as shown on the revised Landscape Plans prepared by Land Form Studios (Revision 3 dated 6 October 2021).

9. At the s 34 conference Council advised the design changes and additional documentation provided have resolved the Council’s contentions raised in the SOFC sufficient for it to enter into the s 34 agreement.

10. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

Satisfaction of jurisdiction

11. The relevant jurisdictional matters have been identified by the parties. In relation to the Hunters Hill Local Environmental Plan 2012 (HHLEP) the relevant provisions are:

1. The development is for the purposes of a ‘residential dwelling’, which is permissible with consent in the R2 Low Density Residential Zone (R2 Zone), and is consistent with the objectives of the R2 Zone.

2. The development complies with all the relevant development standards in the HHLEP, and in particular:   

1. The maximum height of the development complies with the 8.5m height of buildings development standard at cl 4.3.

2. The landscaped area of the development complies with the minimum standards of 50% of the site area at cl 6.9 (2)(b) subject to the reductions specified at cl 6.9(4).

3. Pursuant to cl 4.4(2A) there is no floor space ratio (FSR) applying to the Site by virtue of the development complying with the aforementioned building height at cl 4.3 and landscaped area at cl 6.9. In any event, if the 0.5:1 FSR were to apply the development has a FSR of less than this figure.

3. Clause 5.10 – Heritage. The site is not identified as a heritage item but is located within the Hunters Hill Conservation Area No.1 and is within the vicinity of a number of scheduled heritage items. Therefore the provisions of cl 5.10, requiring consideration of the effect of the proposed development on the heritage items and conservation area, apply. Such consideration is found in the Statement of Heritage Impact, prepared by Kemp and Johnson Heritage dated 7 December 2020, the Supplementary Heritage Response prepared by Urbis dated 8 June 2021 (both filed with the Class 1 application), and the Updated Heritage Impact Statement in response to the SOFC prepared by Urbis dated 6 October 2021 (filed in the Applicant’s Amended Application). At the conciliation conference, Council’s heritage advisor Mr Greg Patch also advised that he was satisfied that the Final Plans were satisfactory in terms of the effects on heritage significance.

4. Clause 6.1 – Acid sulfate soils. The Site is identified as being Class 5 land on the Acid Sulphate Soils Map and is also within the vicinity of the Class 2 land. The development, however, does not result in a lowering of the water table and, therefore an acid sulfate soils management plan is not required.

5. Clause 6.2 – Earthworks. The Geotechnical Investigation prepared by JK Geotechnics dated 2 October 2020 (Geotechnical Investigation) and filed with the Class 1 application provides an assessment of the impact of the proposed excavation and recommends appropriate measures to avoid, minimise or mitigate impacts. The Geotechnical Investigation is called up in Condition 2 (at Table 2) of the conditions of consent.

6. Clause 6.3 – Stormwater Management. The relevant matters have been duly considered and have resulted in the inclusion of Condition 29 requiring confirmation from a suitably qualified geotechnical engineer, that the proposed absorption method, which forms part of the stormwater drainage design, is able to be satisfactorily implemented.

7. Clause 6.7 – River front area. The Site is identified on the River Front Area Map as being within a river front area. The relevant matters for consideration have been addressed in the Statement of Environmental Effects prepared by JV Urban dated June 2021 (SEE) (filed with the Class 1 application) and the Updated Statement of Environmental Effects prepared by JV Urban, dated 6 October 2021 (Updated SEE) (filed with the Amended DA). The latter document confirms that the Amended DA will not have an adverse impact on the river front area.

8. The Site is not identified as:

1. being located within a flood planning area (therefore cl 5.21 does not apply),

2. is not within a terrestrial biodiversity area (cl 6.4 does not apply), and

3. is not within a foreshore area (cl 6.6 does not apply)

12. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), applies to the land and requires consideration of any contamination and associated remediation. The parties advise that based on the long-term use of the site for residential purposes, and no proposal to change that use, it is unlikely the site is contaminated. Further investigations are not considered necessary and the parties agree the proposal satisfies the matters outlined in cl 7 of SEPP 55.

13. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), an amended BASIX Certificate number 1164721S_04 dated 19 November 2021, has been provided demonstrating compliance with the BASIX SEPP, and this is referenced in Conditions 20 and 84 of the conditions of consent.

14. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the SREP) applies to the Site. The SEE and Updated SEE have included an assessment of the application pursuant to the relevant provisions of the SREP.

15. Pursuant to cl 25 of the SREP, the Council is satisfied that the Amended DA is of an acceptable scale and form when considered in the context of the surrounding built form and landscaping between the proposed dwelling and the waterway. The dwelling will continue to be viewed amongst other dwellings of significant bulk and scale when viewed from the water, and within the existing mature vegetation along the ridgeline which is to be maintained.

16. Pursuant to cl 26 of the SREP, the Council is also satisfied that the Amended DA maintains and enhances views to and from Sydney Harbour and seeks to minimise adverse impacts on views to and from public places and heritage items. The Amended DA has reduced protrusions within the southern side setback to maintain the status quo of a limited public vista down the driveway to the Gladesville Bridge and Parramatta River.

17. The parties also agree that the Amended DA, subject to conditions, can be approved taking into account the matters for consideration in s 4.15(b) – (e) of the EPA Act, including the provisions of the Hunters Hill Consolidated Development Control Plan 2013 (HHDCP) and matters raised in public submissions. A detailed consideration of the development is included in the Updated SEE and Council has confirmed the Amended DA achieves the objectives of the relevant controls in the HHDCP.

Disposal of proceedings in accordance with the parties’ decision

18. 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’ agreement.

19. The Court notes:

1. That the Council of the Municipality of Hunters Hill, as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 ('EP&A Regulation'), to the Applicant amending development application DA/2021/1011.

2. That the amended application as described in Annexure ‘B’ was lodged on the NSW planning portal on 15 November 2021.

3. That the Applicant subsequently filed the amended application with the Court on 15 November 2021.

20. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA/2021/1011 for the demolition of existing structures and construction of a new dwelling house, swimming pool and associated landscaping and site works at 7 Tiree Avenue, Hunters Hill (Lot 14, DP 10445) is approved, subject to the conditions of consent in Annexure ‘A’.

3. The Respondent is directed to register the development consent on the NSW Planning Portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders.

4. The Respondent is to publish a notice of the development consent granted in relation to Development Application No. DA/2021/1011 on its website in accordance with clause 124 of the EP&A Regulation within 14 days of the date of these orders.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (252220, pdf)

(Architectural GF Plan) (695394, pdf)

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Decision last updated: 06 December 2021