Georgalis v Hunter's Hill Council

[2022] NSWLEC 1439

Land and Environment Court

New South Wales

Medium Neutral Citation:

Georgalis v Hunter’s Hill Council [2022] NSWLEC 1439

Hearing dates:

Conciliation conference on 16 August 2022

Date of orders:

19 August 2022

Decision date:

19 August 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to DA2021/1169 for alterations and additions including a ground floor extension, a cabana adjacent to the existing pool and first-floor addition to the rear of the existing dwelling house at 2 James Street, Hunters Hill, subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to item of local heritage significance – heritage conservation area – conciliation conference – agreement between 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 5.10, 6.1, 6.2, 6.3, 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 (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Nicolas Georgalis (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
A Sinclair (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/134137

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant in these proceedings seeks consent for alterations and additions to an existing dwelling, which is an item of heritage significance at No 2 James Street, Hunters Hill.

2. To that end, the Applicant lodged development application no. DA 2021/1169 on 11 August 2021, comprising a ground and first-floor extension to the rear of the existing dwelling, and a cabana adjacent to an existing swimming pool.

3. On 9 February 2022, Hunters Hill Council (the Respondent) refused the development application. The Applicant now brings this Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The appeal was listed for mandatory conciliation on 16 August 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference.

5. Prior to the conciliation conference, the Applicant prepared amended architectural plans that, in the view of the Respondent at the commencement of proceedings, addressed the matters in contention. The Respondent’s view is supported by a joint expert heritage report, filed 12 August 2022, that agreed the amended plans are a sympathetic response to important heritage elements on the site and result in a positive alteration to the existing dwelling.

6. On the basis of the amended architectural plans, lodged on the NSW planning portal on 11 August 2022 with the consent of the Respondent as the relevant consent authority, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 15 August 2022.

8. 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 at Annexure A.

9. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [24].

10. 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.

11. 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 a dwelling house is permitted with consent. The objectives of the R2 zone to which regard must be had, are:

• 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.

12. The site is also located within the Hunters Hill Conservation Area No 1 - The Peninsula, and the site contains two items listed for their local heritage significance:

1. Item No. 184 – “Daybreak” and;

2. Item No. 243 – “Moreton Bay FigTree”)

13. On the basis of the assessment documented in the Heritage Report, prepared by Mr Colin Brady dated July 2021, the amended architectural plans and the agreement between the heritage experts, I accept that the proposed development does not detract from the heritage significance of either ‘Daybreak’, or the ‘Moreton Bay Fig Tree’, pursuant to cl 5.10 of the HHLEP.

14. The site is identified at cl 6.1(2) of the HHLEP to be within an area of Class 5 sulfate soils. However as the proposed development does not comprise any significant excavation works, I accept that the watertable will not be lowered as a result of the works proposed.

15. Likewise, I consider the earthworks associated with the proposed development to be minor, and acceptable when those matters at cl 6.2(3) of the HHLEP are considered.

16. On the basis of the Stormwater Plans prepared by NY Civil Engineering, dated 7 July 2021, and the Landscape Diagram, drawing DA 751, prepared by BKA Architecture that are both contained in the agreed conditions of consent at Condition A.2, I am satisfied that the proposed development is designed to maximise the use of water permeable surfaces, and avoids any adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, in accordance with cl 6.3 of the HHELP.

17. I note the site is not identified within the foreshore area (cl 6.6 of the HHLEP), and is not identified as river front area (cl 6.7 of the HHLEP).

18. On the basis of the Landscape Diagram, drawing DA 751, prepared by BKA Architecture, I note the existing landscaped area for the site is 51% of the total site area, in excess of the minimum of 50% required by cl 6.9(2)(b) of the HHLEP.

19. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. A467843), prepared by Sustain Build Projects dated 27 July 2022 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

20. On the basis of the historical record contained in the Heritage Report, prepared by Mr Colin Brady, I accept the agreed position of the parties that the site has historically been used for residential purposes since around 1883, is not contaminated and is suitable for the purpose for which the development is proposed to be carried out, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

Conclusion

21. 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.

22. 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 whatsoever of the issues that were originally in dispute between the parties.

23. The Court notes that:

1. Hunter’s Hill Council, as the relevant consent authority, has agreed, under cl 55(1) of the EPA Regulation, to the Applicant amending Development Application DA2021/1169 in accordance with the documents listed below:

Plan name	Drawing Number	Revision	Date	Prepared by
Amended Architectural Plans
Ground Floor Plan	DA100	D	3/8/2022	BKA Architecture
Level 01 Plan	DA101	E	3/8/2022	BKA Architecture
Roof Plan	DA102	E	3/8/2022	BKA Architecture
Elevations – South and West	DA200	E	3/8/2022	BKA Architecture
Elevations – North and East	DA201	E	3/8/2022	BKA Architecture
Section – Sheet 01	DA300	E	3/8/2022	BKA Architecture
Section – Sheet 02	DA301	D	3/8/2022	BKA Architecture
Shadow Diagrams – Sheet 01	DA700	C	3/8/2022	BKA Architecture
Shadow Diagrams – Sheet 02	DA701	C	3/8/2022	BKA Architecture
Area Diagrams	DA750	C	3/8/2022	BKA Architecture
Landscape Diagrams	DA751	C	3/8/2022	BKA Architecture
Finishes Board	DA900	C	3/8/2022	BKA Architecture
Supporting Documentation
Document Name				Date
BASIX Certificate prepared by Sustain Build Projects				27 July 2022

2. The amended development application documents listed above were lodged on the NSW planning portal on 11 August 2022.

3. The amended development application was filed with the Court on 15 August 2022.

Orders

24. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to DA2021/1169 for alterations and additions including a ground floor extension, a cabana adjacent to the existing pool and first-floor addition to the rear of the existing dwelling house at 2 James Street, Hunters Hill, subject to conditions contained in Annexure ‘A’.

……………………

T Horton

Commissioner of the Court

Annexure A (208158, pdf)

**********

Decision last updated: 19 August 2022