Galettis v Hunters Hill Council

[2022] NSWLEC 1591

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Galettis v Hunters Hill Council [2022] NSWLEC 1591

Hearing dates:

Conciliation conference 20-21 October 2022

Date of orders:

21 October 2022

Decision date:

21 October 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-2021/1276, as amended, for alterations and additions to the existing dwelling, including a ground floor and first floor addition, pool, lower ground storage and associated landscaping at 7 Francis St, Hunters Hill, subject to the conditions of consent in Annexure ‘B’.

Catchwords:

DEVELOPMENT APPLICATION — alterations and additions to dwelling house in R2 Low Density Residential zone - heritage conservation area – 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, 5.10, 6.1, 6.2, 6.3, 6.7, 6.9, Sch 5, Part 2, Dictionary

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.3

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

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas), cl 2.3

Texts Cited:

Hunters Hill Consolidated Development Control Plan 2013

Category:

Principal judgment

Parties:

Katherine Galettis (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
P Brown (Solicitor) (Respondent)

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

File Number(s):

2022/53627

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal relates to a dwelling house in Hunters Hill designed by noted Australian architect, Harry Seidler and Associates (HSA) to which alterations and additions are proposed.

2. On 29 November 2021, the Applicant in these proceedings lodged development application 2021/1276 for alterations and additions to the existing dwelling house including a ground and first floor addition, swimming pool and lower ground storage at 7 Francis Street, Hunters Hill (the site).

3. The development application was notified by Hunters Hill Council (the Respondent) between 30 November 2021 and 15 December 2021, in response to which 18 public submissions were received, from both individuals, and submissions on behalf of organizations such as the Australian Institute of Architects, Hunters Hill Trust, The Twentieth Century Heritage Society of NSW & ACT Inc and others.

4. On 23 February 2022, as the development application remained undetermined, the Applicant filed this Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The appeal was listed for mandatory conciliation, at which I presided, on 20 October 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

6. The proceedings commenced with an onsite view where, in the company of the legal representatives and experts, the Court heard a number of oral submissions opposing the proposal, primarily on the grounds of built heritage and the intactness of the original design by HSA.

7. For completeness, I note the Court was also taken to a property at 9 St Malo Avenue, Hunters Hill which is located to the south of the subject site at a lower elevation, exposing that site to potential overlooking and overshadowing from the subject site.

8. Following the onsite view, I facilitated conciliation discussions between the parties that took place on the site. The Applicant agreed to certain amendments that, in the view of the Respondent, were capable of resolving the issues in contention, subject to an adjournment, that was granted, to permit the preparation of amended plans.

9. In essence, the amendments may be summarised as follows:

1. Retention of the original roof material and sheet profile,

2. Retention of the existing material and finish to the garage door,

3. Retention of the existing entry door and glazed sidelights facing Francis Street,

4. Lowering of a portion of fill to the south of the site and additional landscape planting to the south eastern corner to address those concerns at [7].

10. 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).

11. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 October 2022.

12. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement grants development consent, subject to the amended plans 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 this decision at Annexure ‘B’.

13. 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.

14. 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 [40].

15. 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.

16. The site is located within the R2 Low Density Residential zone, according to the Hunters Hill Local Environmental Plan 2012 (HHLEP) in which development for the purpose of dwelling houses is permitted with consent, where consistent with the following objectives:

•  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.

17. The proposed development complies with the height of buildings development standard of 8.5m at cl 4.3 of the HHLEP and is within the maximum floor space ratio (FSR) for the site, shown on the FSR Map at cl 4.4(2) of the HHLEP as 0.5:1. The proposal is 0.36:1.

18. While public submissions consistently identified certain distinctive characteristics and features of the existing dwelling said to embody significant 20th century cultural heritage that is of value to the local area, and to the Australian people more broadly, the site, for whatever reason, is not, and has never been, listed for its heritage significance in Schedule 5 of the HHLEP.

19. Heritage significance is defined in the Dictionary of the HHLEP in the following terms:

heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.

20. The site is, however, within the Peninsula Heritage Conservation Area (Peninsula HCA), identified in Part 2 of Sch 5, in which the objectives are:

a) to conserve the Environmental Heritage of Hunters Hill;

b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views;

c) to conserve archaeological sites; and

d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

21. Heritage conservation area is defined as follows in the Dictionary of the HHLEP;

heritage conservation area means an area of land of heritage significance—

(a)  shown on the Heritage Map as a heritage conservation area, and

(b)  the location and nature of which is described in Schedule 5,

and includes any heritage items situated on or within that area.

22. As such, provisions in respect of heritage conservation at cl 5.10 of the HHLEP apply to the site. Those provisions are set out below, in full:

5.10   Heritage conservation

Note—

Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5.

(1) Objectives The objectives of this clause are as follows—

(a)  to conserve the environmental heritage of Hunters Hill,

(b)  to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c)  to conserve archaeological sites,

(d)  to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2) Requirement for consent Development consent is required for any of the following—

(a)  demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—

(i)  a heritage item,

(ii)  an Aboriginal object,

(iii)  a building, work, relic or tree within a heritage conservation area,

(b)  altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

(c)  disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(d)  disturbing or excavating an Aboriginal place of heritage significance,

(e)  erecting a building on land—

(i)  on which a heritage item is located or that is within a heritage conservation area, or

(ii)  on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f)  subdividing land—

(i)  on which a heritage item is located or that is within a heritage conservation area, or

(ii)  on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

(3) When consent not required However, development consent under this clause is not required if—

(a)  the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development—

(i)  is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and

(ii)  would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or

(b)  the development is in a cemetery or burial ground and the proposed development—

(i)  is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and

(ii)  would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or

(c)  the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or

(d)  the development is exempt development.

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment The consent authority may, before granting consent to any development—

(a)  on land on which a heritage item is located, or

(b)  on land that is within a heritage conservation area, or

(c)  on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

(6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.

(7) Archaeological sites The consent authority must, before granting consent under this clause to the carrying out of development on an archaeological site (other than land listed on the State Heritage Register or to which an interim heritage order under the Heritage Act 1977 applies)—

(a)  notify the Heritage Council of its intention to grant consent, and

(b)  take into consideration any response received from the Heritage Council within 28 days after the notice is sent.

(8) Aboriginal places of heritage significance The consent authority must, before granting consent under this clause to the carrying out of development in an Aboriginal place of heritage significance—

(a)  consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement), and

(b)  notify the local Aboriginal communities, in writing or in such other manner as may be appropriate, about the application and take into consideration any response received within 28 days after the notice is sent.

(9) Demolition of nominated State heritage items The consent authority must, before granting consent under this clause for the demolition of a nominated State heritage item—

(a)  notify the Heritage Council about the application, and

(b)  take into consideration any response received from the Heritage Council within 28 days after the notice is sent.

(10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that—

(a)  the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b)  the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c)  the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d)  the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e)  the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

23. As the site is not listed for its heritage significance, but is located within a heritage conservation area, it is the effect of the proposal on the Peninsula HCA that the consent authority must consider under cl 5.10(4) of the HHLEP.

24. Heritage Conservation is dealt with in the Hunters Hill Consolidated Development Control Plan 2013 (HHDCP) at Section 2.4. The values of heritage conservation areas are set out in the following terms at Section 2.4.1:

“Values of heritage items and heritage conservation areas in the Hunters Hill Municipality relate primarily to hundreds of buildings which date from the Nineteenth Century and the early Twentieth Century, and which demonstrate the evolving history of this Municipality as well as contributing to this Municipality’s historic identity. However, heritage items and heritage conservation areas often include other elements which contribute to the Municipality’s historic character and identity such as trees, sandstone walls, kerbs and gutters, culverts and steps.”

25. I have considered the effect of the proposed development on the Peninsula HCA. In doing so, I note the architectural statement prepared by the Applicant’s architect, Mr Luigi Roselli, contained on drawing DA-AS of the architectural drawings set that relevantly states:

“Multiple options for the design were considered and a final approach adopted which maximised the retention of the existing fabric and important elements of the house, which defined the original design.

Additions are now clearly separated from the original building by a landscaped recess providing a distinction between the original and contemporary and deferring the additions to the original dwelling.

…

The original proposed submitted to Council had a compliant 1500mm side boundary setback to the east. However, in response to feedback concerning the relationship between the original and contemporary additions a 1500mm visual break was adopted between the existing dwelling and new addition. As a result of this change, a minor departure from the side boundary setback control (to the eastern boundary only) is sought (1200mm proposed and 1500mm required).

…

The proposal maintains the character of Hunters Hill by preserving the existing landscaped setbacks with new and suitable replacement planting proposed, preserving and enhancing the leafy character of the area.”

26. I also note, with respect to public submissions suggesting, in the opinion of the submitters, amendments that would have the effect of reducing the impact of the proposal on the existing dwelling, that the architect’s statement also now states:

“The additional designed by LRA adopt the ‘Burra Charter’ approach of being clearly different but sympathetic to the existing property. The new design worked as a counterpoint to the original; Harry Seidler’s curved roof is enhanced and emphasized by the rectangular side additions. The flat front elevation of the original house is framed by the curved and counter curved elevations of the new additions.

The materials employed at intentionally different, however they have an affinity of colour and textural qualities. The sandy coloured Besser blocks sit beside proposed rough coast render and a sandy clay coloured brick brise soleil. Harry Seidler’s white rendered concrete components and fascias sit beside our proposed white rendered slabs and roof edges.

…

The green coloured roof painted by a previous owner will be replaced with new roofing to match the existing custom orb corrugated curved roof. All rusted screws will be replaced. All windows will be replaced with double glazed aluminium anodises windows with their frame sizes to be either equivalent to or smaller than existing.

Interior changes to the house are limited to enlarging the living room by relocating the kitchen westwards yet maintaining the same length and shape as the original kitchen. The bathroom partitions will be relocated and the bathrooms refitted.

The existing stair has been replaced to facilitate the level access behind the northern wall of the living room to connect with the new addition to the existing landing.”

27. The site is identified within an area of Class 5 acid sulfate soils on the Acid Sulfate Soils Map at cl 6.1(2) of the HHLEP that is within 500m of soil designated Class 2. The proposal includes excavation of the site. However, given the relative levels of the subject site, and that of the adjacent Class 2 land, I do not consider the water table is likely to be lowered by 1m on that land.

27. I have considered the Geotechnical Investigation Report prepared by Crozier Geotechnical Consultants, dated 10 June 2021, and the conditions of consent in respect of geotechnical matters at Condition 24, 54, 80 and 91, the amended Stormwater Plans prepared by Stellen Consulting, dated 19 August 2022, and the extent of permeable surfaces on the land documented on the amended landscape plans prepared by Dangar Barrin Smith. On that basis, I am satisfied in respect of those matters at cl 6.2(3) of the HHLEP regarding earthworks and, relatedly, that stormwater management has been satisfactorily addressed within the terms of cl 6.3(3) of the HHLEP.

28. The site is located within the 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 by, firstly, the height of the proposed extension being lower than the existing dwelling that retains pre-eminence when viewed from the south; secondly, by the use of a green roof over the ground floor play area which provides a planted foreground to the upper level; and thirdly, as the upper level is further recessed when viewed from the south. Additionally, I note that existing views from Francis Street to the water along the eastern setback are obstructed by street fencing, mature plantings and an existing blockwork wall in the front setback.

29. Clause 6.9 of the HHLEP establishes the landscaped area for dwelling houses, with which the proposal complies.

State Environmental Planning Policy (Resilience and Hazards) 2021

31. The site is identified in the Statement of Heritage Impact (SHI) as part of the former Pulpit Point Depot, owned at that time by the Mobil Oil Company. According to Figure 53 – 1943 Aerial Photograph in the SHI, the site is located above and north of pre-existing Mobil Oil Company storage tanks. The Depot was closed in the 1980’s at which time the land was rezoned and subdivided for residential use. On the basis of the letter prepared by the State Pollution Control Commissioner dated 13 June 1989, I accept that, at that time, Mobil Oil liaised with the NSW State Pollution Control Commission in relation to the treatment of the Depot land. Furthermore, the letter appears to confirm satisfaction at compliance with certain Notices such that the area is no longer deemed to be contaminated. This conclusion is supported by historical amendments made to environmental planning instruments at the time, in which rehabilitation of the site is a precondition to residential development, and by reference to the s 149 planning certificate for the site that expressly states, in effect, at clause 17(2)(a) that contamination risk does not apply to the site.

32. Since that time, the site has been developed, occupied and used for residential purposes and is therefore unlikely to be contaminated pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy (Vegetation in Non-Rural Areas)

33. The Development Application was lodged under the provisions of State Environmental Planning Policy (Vegetation in Non-Rural Areas) which were repealed on 1 March 2022, and its provisions transferred to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP).

34. As the site is located within the Hunter’s Hill Local Government Area and is within the R2 Low Density Residential zone, the provisions stipulated under Chapter 2, s 2.3 of the Biodiversity and Conservation SEPP apply to the site. On the basis of the Arboricultural Report prepared by Jacksons Nature Works dated 20 October 2022, and Landscape Plans prepared by Dangar Barin Smith, I accept that the trees proposed for removal are not Koala Habitat Vegetation and do not invoke the operation of the biodiversity offset scheme.

35. I also note that the further Amended Application retains, replaces and relocates certain trees within the site, and that additional landscaping is proposed as stated at [9(4)].

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

36. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Cert No. A429114_02), prepared by Luigi Roselli Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

37. 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.

38. In making the orders to give effect to the agreement between the parties, I have not made any merit assessment of the issues that were originally in dispute between the parties as these are now resolved by agreement of the parties.

39. The Court notes:

1. That 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 amending development application DA-2021/1276 to rely upon the documents specified in Annexure ‘A’ (Amended Application).

2. The Amended Application identified in Annexure ‘A’ has been lodged on the NSW planning portal on 21 October 2022.

3. That the Amended Application was filed with the Court on 21 October 2022.

Orders

40. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application DA-2021/1276, as amended, for alterations and additions to the existing dwelling including a ground floor and first floor addition, pool, lower ground storage and associated landscaping at 7 Francis St, Hunters Hill, subject to the conditions of consent in Annexure ‘B’.

…………………..

T Horton

Commissioner of the Court

53627.22 Annexure A (145809, pdf)

53627.22 Annexure B (274672, pdf)

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Amendments

28 October 2022 - Uploaded correct Annexure A document

Decision last updated: 28 October 2022