Issa v Hunters Hill Council

[2024] NSWLEC 1717

Land and Environment Court

New South Wales

Medium Neutral Citation:

Issa v Hunters Hill Council [2024] NSWLEC 1717

Hearing dates:

Conciliation conference on 28-29 July 2024

Date of orders:

07 November 2024

Decision date:

07 November 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA2023/0078, as amended, for the demolition of existing structures, tree removal and construction of a dwelling house with an in-ground swimming pool, associated earthworks and landscaping on the land at 43 Wybalena Road, Hunters Hill, Lot 1 DP 375698, is determined by a grant of consent subject to conditions contained in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – construction of residential dwelling house – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.6, 8.7

Land and Environment Court Act 1979 ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 (EPA Regulation) ss 27, 38

Hunters Hill Local Environmental Plan 2012 cll 4.3, 4.4, 6.1, 6.2, 6.3, 6.6, 6.7, 6.9, Sch 5, Pt 2

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 6, ss 6.3, 6.6, 6.7, 6.8, 6.9, 6.10, 6.28, 6.32,

State Environmental Planning Policy (Resilience and Hazards) 2021 Ch 2, ss 2.10, 2.11, 2.12, 2.13, s 4.6

Category:

Principal judgment

Parties:

Samuel Issa (First Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/197608

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Hunters Hill Council, of development application DA2023/0078 which seeks consent for the demolition of existing structures, tree removal, construction of a part two, part three-storey dwelling house with an in-ground swimming pool and associated earthworks and landscaping at 43 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 and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 and 29 October 2024. I presided over the conciliation conference, at which the parties reached agreement as to acceptable terms of a decision in the proceedings. 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.

4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments include:

1. An overall reduction in height of the proposed building;

2. The introduction of a pitched roof form and reduction in the area of roof terrace;

3. Amendments to the building articulation, materials and finishes;

4. Amendments to the proposed earthworks to better relate the building to the natural ground level;

5. Relocation of the pool from the waterfront setback to the middle of the site;

6. Amended design of the western pergola to articulate the corresponding area as landscaped area;

7. Introduction of screens to glazing in the western façade to break up the visual perception of glazing from the waterway, and;

8. Associated landscape revisions.

5. 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

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

7. The application was adequately notified from 28 June to 28 July 2023. One submission was received in this time and one oral submission was made at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions, and further that the parties agree that the amended application does not necessitate renotification.

8. The subject site is zoned R2 Low Density Residential under the Hunters Hill Local Environmental Plan 2012 (HHLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

9. Pursuant to HHLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development complies with this development standard.

10. HHLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.5:1, however cl 4.4(2A) states that if a dwelling house on any land complies with the height of buildings standard at cl 4.3, and cl 6.9 in respect of landscaping, no maximum FSR applies. Accordingly, as the requirements of cl 6.9 are met (see below) no FSR standard applies to this development.

11. The site is not identified as a heritage item, however it is located within the Peninsula Heritage Conservation Area (HCA) as identified in HHLEP, Pt 2 of Sch 5. From the parties’ submission and the information contained in the Heritage Impact Statement by Weir Phillips dated September 2023, following the revisions to the building design that result in the amended application, I accept that the proposed development will have an acceptable impact on the heritage significance of the HCA.

12. The site is not identified in the flood planning area.

13. Pursuant to HHLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, but is more than 500m away from any Class 1, 2, 3 and 4 land. Development consent is therefore not required under this provision.

14. Earthworks are proposed in this development, particularly to the eastern street frontage. From the parties’ submission and the amended architectural plans, I accept that the matters set out at HHLEP cl 6.2(3) have been considered and the proposed development is acceptable pursuant to these considerations.

15. From the parties’ submission, the amended landscape plans by Paul Scrivener dated 29 October 2024, and the concept stormwater design by Civil Stormwater Engineering Group dated 16 October 2023, I accept that the matters listed in HHLEP cl 6.3(3) have been considered and the proposed development is again acceptable pursuant to these considerations.

16. Although the site contains land defined as foreshore area for the purposes of HHLEP cl 6.6, following the repositioning of the swimming pool, the amended architectural plans demonstrate that no works are proposed in this area.

17. The site is identified as river front area pursuant to HHLEP cl 6.7. From the parties’ submission and the amended architectural and landscape plans, I accept that the visual impact of the proposed development is minimised, the historic and aesthetic significance is maintained, and views from public places will not be obstructed. Accordingly, I accept that the requirements of HHLEP cl 6.7 are met.

18. The land is zoned Coastal Use Area and Coastal Management Area for the purposes of Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H). From the parties’ submission and the information contained in the amended application, I accept that the development has been designed, sited, and will be managed to avoid an adverse impact on the coastal environment area of the type identified in s 2.10(1). I further accept that the impacts on the coastal use area identified in s 2.11(1) do not arise, or are otherwise minimised in the amended application. I finally accept that the proposed development is not likely to cause increased risk of coastal hazards (s 2.12), and that no certified coastal management program applies to the land (s 2.13).

19. Section 4.6 of the SEPP R&H requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended, continued residential use.

20. Pursuant to s 27 of the EPA Regulation, a BASIX certificate that relates to the development as amended, accompanies the application. Compliance with this certificate is required under the agreed conditions of consent.

21. The site is located within the Sydney Harbour Catchment pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). From the parties’ submission, the concept stormwater design, and the amended architectural plans, I accept that the requirements of Ch 6 of the Biodiversity and Conservation SEPP relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).

22. The land is also within the Foreshores and Waterways Area for the purposes of s 6.3 of the SEPP B&C. A small portion of the site is above the mean high water mark and zoned W8 Scenic Waters – Passive Use. No development is proposed on this part of the land. From the parties’ submission and the amended architectural and landscape plans, I accept that the general requirements as set out in s 6.28(2) of the SEPP B&C are met.

23. The land is also located within the Rocky Foreshores Area for the purposes of cl 6.32 of the SEPP B&C. The parties submit, and from this and the amended architectural and landscape plans, I accept that the proposed development is to be carried out landward of the sea wall and will not impact any of the matters listed in cl 6.32(3).

24. I therefore accept that the matters for consideration, and the requirements of Ch 6 of the SEPP B&C have been met with the proposed development.

Conclusion

25. 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.

26. The Court notes:

1. Hunter’s Hill Council, as the relevant consent authority, has agreed under section 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA2023/0078 in accordance with the amended plans and documents listed in Condition 1 of Annexure “A”.

27. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA2023/0078, as amended, for the demolition of existing structures, tree removal and construction of a dwelling house with an in-ground swimming pool, associated earthworks and landscaping on the land at 43 Wybalena Road, Hunters Hill, Lot 1 DP 375698, is determined by a grant of consent subject to conditions contained in Annexure “A”.

E Washington

Commissioner of the Court

Annexure A

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Decision last updated: 07 November 2024