Imseis v Hunter Hill Council

[2025] NSWLEC 1394

Land and Environment Court

New South Wales

Medium Neutral Citation:

Imseis v Hunter Hill Council [2025] NSWLEC 1394

Hearing dates:

Conciliation conference on 22 May 2025

Date of orders:

3 June 2025

Decision date:

03 June 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA2023/0134, as amended, for demolition of an existing dwelling, construction of a dwelling house with basement and swimming pool at 48 Baron’s Crescent, Hunters Hill (Lot Y in DP 449896) is determined by the grant of consent subject to conditions of consent contained at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: dwelling house development in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

Hunters Hill Local Environmental Plan 2012, cll 4.4, 6.1, 6.2, 6.3, 6.7, 6.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, ss 2.1, 4.2

Category:

Principal judgment

Parties:

Ebrahim Imseis (First Applicant)
Rima Imseis (Second Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor)(Applicant)
S Kondillios (Solicitor) (Respondent)

Solicitors:
Messenger Cole (Applicant)
Hall & Wilcox (Respondent)

File Number(s):

2024/460639

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Development for the purpose of a dwelling house is proposed on a site on the western half of the Hunters Hill peninsula, at a site known as 48 Barons Crescent, Hunters Hill.

2. To this end, development application DA2023/0134 was lodged with Hunters Hill Council on 30 October 2023 by the applicant in these proceedings, Mr Ebrahim Imseis and Ms Rina Imseis (together, the Applicants). The Applicants seek consent to demolish the existing dwelling on the site in order to construct a new dwelling house, swimming pool, landscaping and driveway (the DA).

3. The Council notified local residents of the development between 30 October 2023 and 13 November 2023, and received three submissions objecting to the proposal.

4. The Council refused the development on 25 June 2024, and the Applicants filed an appeal in Class 1 of the Court’s jurisdiction on 11 December 2024, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The appeal was listed for mandatory conciliation on 22 May 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

6. After an onsite view, the conciliation conference convened in the rear yard of the subject site, during which the parties reached in-principle agreement on those issues in dispute.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court, dated 22 May 2025, and amended plans and other documents were filed on the same date.

8. The parties ask me to approve their decision as set out in the agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared on behalf of the Applicants, 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.

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 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 [31].

10. The site is located in an area identified by the Hunters Hill Local Environmental Plan 2012 (HHLEP) as R2 Low Density Residential zone, in which dwelling house development 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.

11. As the proposal complies with landscape area standard and height of building standard, cl 4.4(2A) of the HHLEP sets aside any floor space ratio on the site.

12. The site is located on land mapped as ‘class 5’ on the relevant Acid Sulfate Soils Map at cl 6.1(2) of the HHLEP. While a substantial volume of excavation is proposed for the basement and swimming pool, the elevation of the land expressed in terms of the Australian Height Datum (AHD) is such that the excavation will not be to a level that is below 5m AHD and, having regard to the results of three boreholes recorded in the Geotechnical Investigation prepared by GCA dated 20 February 2025 (Geotechnical Assessment), I am also satisfied that the watertable will not be lowered by the proposed development.

13. On the basis of the following, I have considered the matters to be considered at cl 6.2(3) of the WLEP and conclude that the earthworks proposed will not have a detrimental impact on the environmental functions, processes, uses of heritage of the subject site or surrounding land:

1. Geotechnical Assessment

2. Stormwater Services Plan prepared by EZE Drainage Design (Stormwater Plans)

3. Landscape Plans prepared by Paul Scrivener Landscape Architects.

14. In particular I note the excavation proposed for the basement is located in the centre of the site, with surface and subsurface drainage directed to the absorption trench so that drainage patterns and soil stability are unlikely to be disrupted.

15. Architectural drawing 501 expresses the area of deep soil at 50% of the site which complies with the standard at cl 6.9(2)(b) of the HHLEP, and so satisfies me that the development is designed to maximise the use of water permeable surfaces in accordance with cl 6.3(3) of the HHLEP. Additionally, the Stormwater Plans depict the onsite retention of stormwater in a 6,500L rainwater tank intended for reuse associated with toilets, washing machine and external use only, which satisfies me that on site retention of water is proposed as alternative to mains water. I also accept the agreement of the relevant experts that the absorption trench is suited to, and appropriately documented, for soil characteristics on the site. Finally, as the Council advises there is no under-ground public stormwater drainage system in the vicinity of the site, I accept that the proposed subsoil drainage depicted in the Stormwater Plans is sufficient to ensure adverse impacts arising from stormwater runoff are avoided.

16. The northern side of Baron’s Crescent is identified on the River Front Area Map at cl 6.7 of the HHLEP. As such, development consent is precluded unless the Court is satisfied that measures will be taken to minimise the visual impact of the development from the nearest waterway. On the basis of the northern setback on the site, compliance with the height standard and the retention of the large mature Monterey Cypress, I am so satisfied.

17. As stated at [15], the proposal provides a landscaped area of 50% of the site area, in accordance with cl 6.9 of the HHLEP so that no area with a width of 2m or less is included in the calculation.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The Arboricultural Impact Assessment prepared by Advanced Treescape Consulting dated 21 May 2025 (the AIA) assesses the impact of the proposal on five trees. Four trees are proposed to be removed and one, a mature Monterey Cypress located on an adjoining site, is proposed to be retained. The arboricultural experts agree with the conclusions of the AIA and s 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

19. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. As such, Part 6.2 of the Biodiversity SEPP applies.

20. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

21. The Stormwater Plans depict the collection and storage of roof water in a rainwater tank, fitted with a first flush device and^, connected to Council’s drainage system via an on site detention tank (OSD). I am satisfied that the onsite detention and retention of stormwater, combined with the filtration depicted on the Stormwater Plans, will result in a neutral or beneficial effect on water quality in the catchment, and as the parties agree a discharge rate to the kerb and gutter of 8.7L/s is acceptable, I am also satisfied that the proposal appropriately manages the flow of water into that catchment.

22. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied, there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation, and no adverse impact on aquatic reserves, or in terms of erosion.

23. I note that the site is not identified as flood liable land to which s 6.8 of the SEPP is directed and so does not apply.

24. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

25. I have considered whether the land is contaminated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. There is no use or activity that would suggest the site is contaminated or requires remediation. As such, I am satisfied the site is suitable for the purpose for which the development is proposed to be carried out.

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

26. While a development application lodged on the planning portal after 30 October 2023 is required to be accompanied by a report on the embodied emissions attributable to the development by s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP), the savings provision at s 4.2 excludes development where the BASIX certificate has been issued prior to 1 October 2023, as is the case here.

27. Notwithstanding the terms of the savings provision, the application is accompanied by a BASIX certificate (Cert No. 1755494S prepared by Loka Consulting Engineers Pty Ltd dated 14 May 2025) in accordance with the Sustainable Buildings SEPP.

Conclusion

28. 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.

29. 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 of the issues that were originally in dispute between the parties.

30. The Court notes that Hunters Hill Council, as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021, approves the Applicant amending Development Application no. DA2023/0134 in accordance with the following plans and documents:

Plan Ref	Date	Description	Issue
Architectural Plans Prepared by AG Design Projects Pty Ltd
000	21.05.25	COVER SHEET	Q
001	25.03.25	WINDOW SCHEDULE	B
101	21.05.25	SITE PLAN	B
102	21.05.25	DEMOLITION SITE PLAN	C
103	21.05.25	PROPOSED SITE PLAN	G
201	21.05.25	BASEMENT FLOOR PLAN	M
202	21.05.25	GROUND FLOOR PLAN	H
203	14.05.25	FIRST FLOOR PLAN	E
204	14.05.25	ROOF PLAN	C
301	14.04.25	SECTIONS	D
401	13.05.25	ELEVATIONS	E
402	23.04.25	ELEVATIONS	D
403	14.04.25	ELEVATIONS	B
501	12.05.25	AREA PLAN	E
Proposed Civil Plans prepared by Deboke Engineering Consultants
S100	11.04.25	Cover Sheet	01
S101	11.04.25	Specifications Sheet	01
S200	11.04.25	General Arrangement Plan	01
S300	11.04.25	Slope Analysis Plan	01
S301	11.04.25	Bulk Earthwork Plan	01
S400	11.04.25	Driveway Long Sections	01
S500	11.04.25	Council Standard Drawings	01
Concept Stormwater Management Plans prepared by EZE Drainage Designs
D1	21.05.25	COVER SHEET & DESIGN SUMMARY TABLE	E
D2	21.05.25	STORMWATER MANAGEMENT PLAN	E
D3	21.05.25	TYPICAL DETAILS	E
D4	21.05.25	PROPOSED ABOVE GROUND RAINWATER TANK	E
D5	21.05.25	BASEMENT DRAINAGE LAYOUT	E
D6	21.05.25	OSD PUMP OUT DESIGN & DETAILS	E
D7	21.05.25	PROPOSED ABSORPTION TRENCH SYSTEM	E
D8	21.05.25	PROPOSED OUTLET PIPE TO KERB	E
Landscape Plan prepared by Paul Scrivener Landscape, 24/2843 sheet 1 of 1, Issue H dated 22 May 2025
Amended Arboricultural Impact Statement prepared by Advanced Treescape Consulting, Issue 2.2 dated 21 May 2025
Geotechnical Investigation Report G2554-1 prepared by Geotechnical Consultants Australia dated 20 February 2025
BASIX Certificate No 1795494S dated 14 May 2025

Orders

31. The Court orders that:

1. The appeal is upheld.

2. Development Application DA2023/0134, as amended, for demolition of an existing dwelling, construction of a dwelling house with basement and swimming pool at 48 Baron’s Crescent, Hunters Hill (Lot Y in DP 449896) is determined by the grant of consent subject to conditions of consent contained at Annexure A.

T Horton

Commissioner of the Court

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460639.24 Annexure A (276 KB, pdf)

Decision last updated: 03 June 2025