Issa v Hunter's Hill Council

[2023] NSWLEC 1691

Land and Environment Court

New South Wales

Medium Neutral Citation:

Issa v Hunter’s Hill Council [2023] NSWLEC 1691

Hearing dates:

Conciliation conference on 30 October 2023

Date of orders:

17 November 2023

Decision date:

17 November 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The cl 4.6 requests for variations to the

(a) floor space ratio development standard (cl 4.4 of Hunters Hill Local Environmental Plan 2012); and

(b) landscaped area development standard (cl 6.9 of Hunters Hill Local Environmental Plan 2012),

both prepared by Andrew Martin Planning and dated October 2023, are upheld.

(2) The appeal is upheld.

(3) Development application DA 2023/0026 for minor addition (new entry) to an existing dwelling, construction of a new front fence with gate and alterations and additions to an existing side masonry fence/wall at 43A Wybalena Road, Hunters Hill, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – clause 4.6 request to vary Floor Space Ratio and Landscape Area development standards –agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Hunters Hill Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3, 6.7, 6.9, Sch 5

Land and Environment Court Act 1979, s 34AA

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 6, Pt 6.2, ss 6.6-6.11, Pt 6.3, s 6.28

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

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

Category:

Principal judgment

Parties:

Georgette Issa (Applicant)
Hunter’s Hill Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/162894

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as the result of the deemed refusal, by Hunter’s Hill Council of development application DA2023/0026, which seeks approval for a minor addition (new entry) to an existing dwelling and construction of a new side and front fence with gate at 43A Wybalena Road, 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 under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 October 2023. I presided over the conciliation conference, at which the parties reached agreement as to the acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting consent to the development application subject to conditions.

4. 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, however 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. From this, I note the following points.

5. The development application has been made by the owner of the subject site, and no works are proposed on neighbouring properties, despite the application being for the construction of a boundary wall.

6. The development application was appropriately notified for 14 days from 22 March 2023, during which time one submission was received. The parties submit and I accept that the issues raised in that submission are adequately addressed in the amended proposal, and through the relevant conditions of consent addressing the construction of the boundary wall.

7. Pursuant to the Hunters Hill Local Environmental Plan 2012 (HHLEP), the subject site is zoned R2 Low Density Residential within which development for the purpose of a dwelling house is permitted with consent. The proposed development comprises a new enclosed entry, new front fence and gate, and alterations and additions to an existing side masonry wall, and is for the purposes of a dwelling house. The proposed development meets the objectives of the R2 zone.

8. HHLEP cl 4.3 sets a development standard for the maximum height of buildings. The height of the existing dwelling is not being altered with this development, and complies with the height control.

9. HHLEP cl 4.4 sets a maximum floor space ratio (FSR) development standard for a building on the subject site of 0.5:1. The existing dwelling has a FSR of 0.53:1, and the proposed enclosure of the existing covered entry stairs will result in this FSR increasing to 0.54:1, further contravening the development standard established under cl 4.4. The parties submit that, although the dwelling was compliant in terms of FSR when originally approved, a change in the method of calculation that occurred when the previous Local Environmental Plan was revised to become the current HHLEP resulted in a compliant building becoming non-compliant through no physical change.

10. HHLEP cl 4.6(3) requires a written request to justify the contravention of the development standard. This written request must demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. To that end, the applicant has submitted a written request prepared by Andrew Martin Planning dated October 2023 (the written request). Pursuant to HHLEP cl 4.6, I am satisfied that:

1. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R2 Low Density Residential Zone and the FSR development standard, notwithstanding the non-compliance with the standard. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties.

2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the FSR limit is minor (6m² increase to the existing 428m² dwelling), and is the result of the enclosure of an existing covered entryway that does not add to the bulk, scale, or external appearance of the dwelling when viewed from the road or waterway. Further, it does not create additional habitable space, nor does it impact any adjoining property. The contravention is therefore justified by the lack of impact on the amenity of neighbouring residents, the appropriate response to the constraints of the existing built form, and by being minor in nature.

3. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

11. HHLEP cl 6.9 sets a minimum landscaped area control of 60% to the subject site. As with the FSR development standard, when the dwelling was originally built it complied with this landscaped area development standard. However, due to revisions to this control, it no longer complies despite no relevant alteration to the site. Subsequently, the site currently achieves a non-compliant landscaped area of 429m², or 50.1%. The proposed development will slightly increase the landscaped area by 2m², however this will only reach a total of 50.3% landscaped area for the site.

12. Again, HHLEP cl 4.6(3) requires a written request to justify the contravention of this development standard, and meet the same test as outlined at [10]. An additional written request has been submitted by the applicant, prepared by Andrew Martin Planning dated October 2023 (the second written request). Pursuant to HHLEP cl 4.6, I am satisfied that:

1. The second written request demonstrates that compliance with the landscaped area development standard is unreasonable and unnecessary because the non-compliance is the result of a change to the technical method of calculation of landscaped area between revisions of the HHLEP, rather than any alterations to the building or its landscaped surrounds. The proposal further complies with the relevant objectives of both the R2 Low Density Residential Zone and the landscaped area development standard, notwithstanding the non-compliance with the standard.

2. The second written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the landscaped area control is the result of the change to the method of calculation, and that the dwelling was considered to comply with the relevant controls at the time of its original consent. The proposed development does not modify the current landscape to the site beyond upgrading an existing stair and boundary wall, and as a result slightly increases the available landscaped area.

3. Finally, the second written request demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

13. The site is located within the Hunters Hill Conservation Area No 1 – The Peninsula (HHLEP item C1 Sch 5) (the HCA) and is within the vicinity of heritage item 505 at 47 Wybalena Road. Subsequently, pursuant to HHLEP cl 5.10, I must consider the effect of the proposed development on the heritage significance of the item and HCA. The parties submit, and I accept that the proposed development will have an acceptable impact on the heritage significance of both the heritage item and HCA, and that the objectives of HHLEP cl 5.10 are met.

14. Pursuant to HHLEP cl 6.1, the land is mapped Class 5 Acid Sulfate Soils and is within 500m of land mapped Class 2. The parties submit and I accept that the proposed development is not likely to have any impact on the watertable, and that the provisions of this clause subsequently do not apply to the proposed development.

15. Pursuant to HHLEP cl 6.2, the parties submit, and I accept that all relevant matters pertaining to earthworks as identified in this clause have been considered and, subject to the application of the relevant conditions in Annexure A, will not result in earthworks with any unacceptable impact on the matters listed in cl 6.2.

16. Clause 6.3 of the HHLEP identifies a range of matters relating to stormwater management that must be considered. The parties submit and I accept that the proposed development does not alter the stormwater regime on the land and that there is existing approved stormwater infrastructure in place on the subject site, and that subsequently the matters identified in cl 6.3 are satisfied.

17. Pursuant to cl 6.7 of the HHLEP, the parties submit, and I accept that the proposed development, being minor in nature, will have no visual impact from the waterway, will not obstruct existing views to the waterway from the public road, and will not impact the significance of the land or surrounding land in any of the ways listed in cl 6.7 (3).

18. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. Part 6.2 requires the Court to be satisfied of the matters set out in ss 6.6(2), 6.7(2), 6.8(2), 6.9(2), 6.10 and 6.11. Relevantly, the parties submit, and I accept that the development will not have any unacceptable impact on the aspects of water quality, aquatic ecology, flooding, recreation and public access or catchment management listed in these sections, and that pursuant to s 6.11 there are no water dependent uses or land use conflicts arising from the proposed development.

19. Pursuant to Pt 6.3 of the Biodiversity SEPP, the site is identified as ‘Foreshores and Waterways Area’ on the Foreshores and Waterways Area map. Subsequently, the parties submit, and I accept that the proposed development will have no adverse impact on the relevant matters listed in s 6.28, and that the proposed development will not impact on the Foreshores and Waterways Area.

20. Section 4.6 of the 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 Statement of Environmental Effects and the parties’ submission, I accept that the site has been historically used for residential purposes and there are no known actions that may have led to contamination of the subject site. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the site is suitable for its intended purpose.

21. A BASIX certificate has been filed with the amended application in accordance with State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004.

22. 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.

23. As the parties’ decision is one 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.

24. The Court notes:

1. That Hunters Hill Council as the relevant consent authority has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application DA 2023/0026, in accordance with the below documentation:

1. Amended architectural plans, all being Revision E, dated 30 October 2023 and prepared by Urban Link Architects:

DRAWING NO.	TITLE	DATE
DA-000	COVER	30 October 2023
DA-001	APPROVED S96 UNDER OLD LEP - LANDSCAPE	30 October 2023
DA-002	APPROVED S96 UNDER NEW LEP – LANDSCAPE	30 October 2023
DA-003	APPROVED S96 - GFA	30 October 2023
DA-004	DEMOLITION PLAN	30 October 2023
DA-005	PROPOSED GROUND FLOOR PLAN	30 October 2023
DA-006	PROPOSED LEVEL 1 PLAN	30 October 2023
DA-007	PROPOSED FENCE ELEVATION	30 October 2023
DA-008	PROPOSED NORTH AND WEST ELEVATIONS	30 October 2023
DA-009	PROPOSED EAST AND SOUTH ELEAVTIONS	30 October 2023
DA-010	PROPOSED SECTIONS	30 October 2023
DA-011	PROPOSED LANDSCAPE PLAN	30 October 2023
DA-012	PROPOSED GFA	30 October 2023
DA-013	PROPOSED SHADOW DIAGRAMS	30 October 2023
DA-014	PROPOSED DEMOLITION PLAN	30 October 2023
DA-015	AS FILED VS REVISED PROPOSED PLAN	30 October 2023

2. Engineering plans prepared by Cadmus Engineering dated October 2023:

DRAWING NO.	TITLE	DATE
S1.00	Structural Notes - Sheet 1-2	October 2023
S1.01	Structural Notes - Sheet 2-2	October 2023
S2.00	Boundary Wall Layout Plan, Elevations And Details	October 2023
S2.01	Existing Wall Temporary Bracing And Support Methodology	October 2023

3. Amended cl 4.6 request relating to floor space ratio, prepared by Andrew Martin Planning and dated October 2023;

4. Amended cl 4.6 request relating to landscaped area, prepared by Andrew Martin Planning and dated October 2023.

25. The Court orders:

1. The cl 4.6 requests for variations to the

1. floor space ratio development standard (cl 4.4 of Hunters Hill Local Environmental Plan 2012); and

2. landscaped area development standard (cl 6.9 of Hunters Hill Local Environmental Plan 2012),

both prepared by Andrew Martin Planning and dated October 2023, are upheld.

2. The appeal is upheld.

3. Development application DA 2023/0026 for minor addition (new entry) to an existing dwelling, construction of a new front fence with gate and alterations and additions to an existing side masonry fence/wall at 43A Wybalena Road, Hunters Hill, is determined by the grant of development consent subject to the conditions at Annexure A.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (217109, pdf)

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Decision last updated: 17 November 2023