Jeffreson v Hunter's Hill Council

[2019] NSWLEC 1440

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jeffreson v Hunter’s Hill Council [2019] NSWLEC 1440
Hearing dates:	Conciliation conference on 9 & 10 September 2019
Date of orders:	18 September 2019
Decision date:	18 September 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   Leave is granted for the Applicant to rely on the amended plans and material listed in paragraph 2 of the conditions set out in Annexure ‘A’. (2)   Leave is granted to the Applicant to amend the development application DA 2017/1172 and the plans for the removal of trees T26 and T27 located on 20 Ferry Street, Hunters Hill. (3)   The appeal is upheld. (4)   Development consent for Development Application DA 2017/1172 for alterations and additions to existing dwelling on Lots 1 in DP 977325 and Lot 2 in DP 923852 known as at 14 Ferry Street, Hunter Hill, and for the removal of Trees 26 and 27 at No. 20 Ferry Street as shown on landscape plan dwg no. 14FS/LP/LEC01, is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – loss and replacement of trees – heritage conservation – agreement between the parties – modification of consent - orders
Legislation Cited:	Hunters Hills Local Environmental Plan 2012 Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	John Maxwell Jeffreson (Applicant) Hunter’s Hill Council (Respondent)
Representation:	Counsel: R Lancaster SC and N Eastman (Applicant) M Staunton (Respondent)   Solicitors: Rydge Evans Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/393980
Publication restriction:	No

Judgment

1. COMMISSIONER: Mr John Jeffreson is appealing the refusal of Development Application No. 2017-1172 by Hunters Hill Council (the Respondent) for alterations and additions to an existing single dwelling and heritage item at 14 Ferry Street, Hunters Hill (the site), pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 

2. The site is located close to the corner of Ferry Street and Woolwich Road comprising Lot 1 in DP 977325 and Lot 2 in DP 923852. The site is a heritage item listed as ‘I226’ in the Hunters Hill Local Environmental Plan 2012 (HHLEP), as ‘House, formerly ‘Cassola’’, and is within the R2 Low Density Residential zone.

3. The appeal was subject to mandatory conciliation on 9 September 2019 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act), which commenced with an on-site view at which two resident objectors provided submissions.

4. The focus of the objectors’ submissions may be summarised as follows:

1. The removal of mature trees adjoining the neighbouring property will result in adverse privacy impacts, allowing overlooking in to primary living areas and bedrooms at No.12 Ferry Street.

2. The demolition of the existing carport/shed in the rear yard of the property may result in the loss of an established climbing creeper that covers the boundary fence between the site and No.1 Toocooya Lane.

3. The bulk of the new garage located to the rear lane will impose overshadowing on the adjoining property at No.1 Toocooya Lane.

5. Following the onsite view, the parties continued the conciliation conference at the Hunters Hill Council Chambers at which the parties agreed to certain amendments to the development the subject of the development application. I granted an adjournment to allow the amended plans and final conditions of consent to be prepared.

6. The conciliation conference was re-convened on 10 September 2019 at which the amended plans were reviewed, and I sighted written consent from the owner of No.20 Ferry Street, consenting to the removal of trees T26 and T27 associated with the works.

7. The parties reached an agreement, under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

8. 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 decision agreed by the parties is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. As presiding Commissioner, I am satisfied that the jurisdictional pre-requisite to the grant of consent was identified by the parties and has been met.

9. In particular, I am satisfied that the proposed alterations and additions to the subject property will not will have a detrimental impact on the heritage significance of the C1 Heritage Conservation Area, known as ‘The Peninsula’, or the heritage item itself, pursuant to cl 5.10 of the HHLEP. I have formed this opinion of satisfaction after considering the agreement of the heritage experts that the visual impact of the proposed works is acceptable when viewed from the public domain, and that the demolition of the timber outbuilding is acceptable as it is agreed to date from the mid-20th century. Furthermore, I note agreement between the heritage experts on the general form, materials and colour palette of the proposed works.

10. 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.

11. 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.

12. The final orders to give effect to the parties’ agreement are:

1. Leave is granted for the Applicant to rely on the amended plans and material listed in paragraph 2 of the conditions set out in Annexure ‘A’.

2. Leave is granted to the Applicant to amend the development application DA 2017/1172 and the plans for the removal of trees T26 and T27 located on 20 Ferry Street, Hunters Hill.

3. The appeal is upheld.

4. Development consent for Development Application DA 2017/1172 for alterations and additions to existing dwelling on Lots 1 in DP 977325 and Lot 2 in DP 923852 known as at 14 Ferry Street, Hunter Hill, and for the removal of Trees 26 and 27 at No. 20 Ferry Street as shown on landscape plan dwg no. 14FS/LP/LEC01, is approved subject to the conditions in Annexure A.

………………………

T Horton

Commissioner of the Court

Annexure A (400 KB)

Plans (396 KB)

**********

Decision last updated: 18 September 2019