Ishak v Hunter's Hill Council

[2024] NSWLEC 1541

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ishak v Hunter’s Hill Council [2024] NSWLEC 1541

Hearing dates:

Conciliation conference on 15-16 August 2024

Date of orders:

04 September 2024

Decision date:

04 September 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld

(2) Development Application No. DA/2023/0084 as amended, for the construction of a new swimming pool and associated landscaping at 3 Futuna Street, Hunter’s Hill is determined by the grant of development consent subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – swimming pool in front setback – Heritage Conservation Area – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979 ss 4.16, 8.7

Land and Environment Court Act 1979 ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 s 38

Hunter’s Hill Local Environmental Plan 2012 cll 4.3, 4.4, 5.10, 6.1, 6.3, 6.9

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021 ss 6.6, 6.7, 6.8, 6.9, 6.10

Texts Cited:

Hunter’s Hill Community Engagement Strategy 2022

Category:

Principal judgment

Parties:

John Ishak (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Matthew Abrahamian (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2024/41916

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Hunter’s Hill Council, of the development application of John Ishak, seeking consent for the construction of a new swimming pool and associated landscape works at 3 Futuna Street, Hunters Hill

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 August 2024. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Council agreed to the applicant amending the development application. These amendments included the repositioning of the proposed swimming pool to the south of its originally proposed location, and associated amendments to the landscape and fence design.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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 identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified in accordance with the Hunter’s Hill Community Engagement Strategy 2022 from 3-13 July 2023, during which time no submissions were received. The parties agree that the amended application does not necessitate renotification.

9. The subject site is zoned R2 Low Density Residential under the Hunter’s Hill Local Environmental Plan 2012 (HHLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is ancillary to the existing dwelling house and, based on the amended application that is now before the Court, is consistent with the objectives of the R2 zone.

10. The proposal has no impact on height or floor space ratio pursuant to HHLEP cll 4.3 and 4.4.

11. The site is not identified as a heritage item, however is located within heritage conservation area C1 “The Peninsula” pursuant to HHLEP cl 5.10. The consent authority must consider the impact of the development on the heritage significance of the area concerned. From the parties’ submission, the joint report of heritage experts filed on 29 July 2024, and the Heritage Impact Statement by Weir Phillips Heritage and Planning dated May 2023, I accept that the impact of the application as amended, is acceptable.

12. Pursuant to HHLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map and is within 60m of Class 1 land. Based on the parties’ submission, the Statement of Environmental Effects (SEE) by Andrew Martin Planning dated June 2023, and the amended landscape drawings, I accept that the proposed works are not likely to lower the water table below 1 metre Australian Height Datum and that, as a result, an Acid Sulfate Soils Management Plan is not required.

13. Pursuant to the requirements of HHLEP cl 6.3, I note that as the proposed swimming pool is to be constructed within the garden of an established house, any stormwater generated by the development is to be conveyed into the existing stormwater system. Further, pursuant to cl 6.3(a), through the refinement that occurred between experts, I accept that the amended application has been designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water. From this, and the parties’ submission, I accept that the proposed development meets the requirements of cl 6.3.

14. HHLEP cl 6.9 sets a minimum landscaped area for dwelling houses of 50% of the site area. However, under cl 6.9(4), this minimum landscaped area may be reduced by not more than 33% for the purpose of accommodating a pathway, patio, terrace, or pool (if the pool has an area of less than 40m²), but only if the proposed development is consistent with the objectives of this clause. The parties rely on this dispensation, as the proposed development accommodates a pathway, patio and pool, with the pool area equating to 23.97m². This results in a landscaped area of 231m2, which exceeds the minimum under cl 6.9(4) of 230.48m2. From the parties’ submission and the amended landscape plans, I accept that the proposed development meets the objectives of the clause, and therefore the minimum landscaped area requirements of cl 6.9.

15. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the HIS and the parties’ submission, I accept that the subject site has been historically used for residential purposes, and there is no evidence of any potentially contaminating activities. I subsequently accept that the site is suitable for the intended, continued, residential use.

16. Part 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the site as it is located within the Sydney Harbour Catchment, and relevantly, ss 6.6-6.10 of this SEPP apply.

17. Pursuant to s 6.6 of the SEPP B&C, from the parties’ submission, the information contained in the SEE, and the agreed conditions of consent, I accept that the development:

1. Will have a neutral effect of the quality of water entering a waterway (s 6.9(a));

2. Will not have an adverse impact on water flow in a natural waterbody (s 6.9(b)).

3. May slightly increase the amount of stormwater run-off from the site due to the reduction of permeable areas, however this run-off will be adequately managed by the existing stormwater system (s 6.9(c)).

4. Retains permeable areas for on-site water infiltration, but as the development is for a swimming pool it does not demand any further on-site stormwater retention (s 6.9(d)).

5. Will have a neutral effect on the level and quality of the water table (s 6.9(e)) and on the regulated catchment (s 6.9(f)).

6. Will adequately protect the quality and quantity of ground water, through small-scale excavation (s 6.9(g)).

18. Pursuant to s 6.7 of the SEPP B&C, from the parties’ submission, the Arboricultural Impact Assessment Report by Earthscape Horticultural Services dated December 2020 and the agreed conditions of consent, I accept that the proposed development:

1. Will not have an adverse impact on terrestrial, aquatic or migratory animals (6.7(a))

2. Does not impact aquatic reserves nor involve the clearing of riparian vegetation (6.7 (b) and (c));

3. Provides sediment and erosion control measures in condition 15 of the conditions of consent, to minimise any sedimentation of a natural waterbody (6.7 (d)), and;

4. Is not situated in proximity to coastal wetlands or littoral rainforests (6.7(e)).

19. The site is not located on flood liable land, and as such s 6.8 of the SEPP B&C does not apply.

20. Finally, pursuant to SEPP B&C s 6.9, the site is not located adjacent to any natural waterbodies and the development will therefore have no impact on public access to or around foreshores and natural waterbodies.

Conclusion

21. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

22. The Court notes:

1. The Respondent, Hunter’s Hill Council, as the relevant consent authority, approves, pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021 to the amendment of development application no. DA/2023/0084 in accordance with the following amended plans and documents:

TAB	DOCUMENT	DATE
1	Amended Landscape Plans, prepared by 360 degrees • L-DA-00 – Rev K - Cover Page & Drawing Schedule • L-DA-01 – Rev K - Landscape Schedule & Notes • L-DA-02 – Rev M – Landscape Area Calculations and Design Statement • L-DA-03 – Rev K – Existing Trees • L-DA-04 – Rev M – Ground Floor Landscape Plan • L-DA-05 – Rev K – Landscape Sectional Elevation • L-DA-06 – Rev L – Planting Palette	15 August 2024
2	Site Plan and Pool Sections, prepared by Dewcape • DA001 – Rev 04 Site Plan and Pool Sections	15 August 2024

(‘Amended Development Application’)

23. The Court orders:

1. The appeal is upheld

2. Development Application No. DA/2023/0084 as amended, for the construction of a new swimming pool and associated landscaping at 3 Futuna Street, Hunter’s Hill is determined by the grant of development consent subject to the conditions of consent in Annexure ‘A’.

E Washington

Commissioner of the Court 

Annexure A

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Decision last updated: 04 September 2024