Minassian v Hunter's Hill Council

[2023] NSWLEC 1101

Land and Environment Court

New South Wales

Medium Neutral Citation:

Minassian v Hunter’s Hill Council [2023] NSWLEC 1101

Hearing dates:

Conciliation conference on 6 March 2023

Date of orders:

08 March 2023

Decision date:

08 March 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicants are granted leave to rely upon the amended plans and documentation referred to in the index annexed hereto and marked “Annexure A”.

(2) The Applicants' written request under clause 4.6 of the Hunters Hill Local Environmental Plan 2012 prepared by Corona Projects, dated 6 March 2023, regarding the landscaped area for dwelling houses standard under clause 6.9 of the Hunters Hill Local Environmental Plan 2012, is upheld.

(3) The appeal is upheld.

(4) Development consent is granted to Development Application No. 2022/0160, as amended during Land and Environment Court of New South Wales Proceedings No. 2022/00325544, for development comprising alterations and additions to an existing dwelling house at Lot 3 in Deposited Plan 545531, known as 28 Martin Street, Hunters Hill, subject to the conditions of consent annexed hereto and marked “Annexure B”.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to dwelling house in R2 Low Residential Density zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, s 37

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

Land and Environment Court Act 1979, s 34, s34AA

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

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

Category:

Principal judgment

Parties:

Linda Minassian (Applicant 1)
Alan Docherty (Applicant 2)
Hunter’s Hill Council (Respondent)

Representation:

Counsel:
K Huxley (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Holding Redlich (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/325544

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Hunter’s Hill Council (the Respondent) of development application No. DA2022/0160 for alterations and additions to an existing dwelling house at Lot 3 in deposited Plan 545531, otherwise known as 28 Martin Street, Hunters Hill (the site).

2. The appeal was listed for mandatory conciliation on 6 March 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. Prior to the conciliation conference, at which I presided, the Applicants prepared amended architectural plans that, in the view of the Respondent at the commencement of proceedings, addressed the matters in contention.

4. On the basis of the amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicants, in accordance with s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 6 March 2023.

6. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by 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 s 34 agreement.

7. 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 [27].

8. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

9. The site is located within the R2 Low Density Residential zone, pursuant to the Hunters Hill Local Environmental Plan 2012 (HHLEP), in which dwelling house development is permitted with consent, and where consistent with the objectives of the zone, as follows:

•  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.

10. The proposed development complies with the height of buildings development standard at cl 4.3 of the HHLEP, and also complies with the terms of cl 4.4(2) of the HHLEP with respect to floor space ratio.

11. The site is located within the Hunters Hill Conservation Area – The Peninsula (HHCA). On the basis of the statement of heritage impact prepared in support of the Class 1 application, I accept the proposed development does not adversely impact the heritage values of the HHCA, pursuant to cl 5.10 of the HHLEP.

12. The site is identified in an area of class 5 acid sulfate soils (ASS) by the relevant map at cl 6.1(2) of the HHLEP. However, as the site is not within 500m of land classified otherwise that is below 5m, on or below which the water table will be lowered, an ASS Management Plan is not required.

13. Earthworks is proposed within the existing footprint of the dwelling, and as a part of the proposed landscape works. I have considered those matters to be considered at cl 6.2(3) of the HHLEP. I conclude the limited scope of excavation will not result in groundwater dewatering and will impose no detrimental impact of the sort identified in the provision.

14. The site is within the River Front Area identified on the relevant map at cl 6.7(2) of the HHLEP. I am satisfied that the extent of change to the exterior of the existing building visible from the waterway is minor and so minimises the visual impact to and from the waterway, and does not obstruct existing views.

15. Clause 6.9 of the HHLEP requires, at subcl (2), a landscaped area of 50% of the site area. Subclause (4) permits a reduction of no more than 33% of that area for the purpose of pathways, patio, terrace or pool so long as the proposal is consistent with the objectives of the clause. The proposed development comprises landscaped area of 39.1% of the site, consisting of hard surfaces amounting to 33% of the site, and soft landscaping amounting to 22.6% of the site. As such, the Applicants asserts a non compliance with total landscaped area of 21.8% of the site.

16. Clause 6.9 is in the following terms:

6.9   Landscaped area for dwelling houses and secondary dwellings

(1)  The objectives of this clause are as follows—

(a)  to maintain the character and identity of Hunters Hill by ensuring that dwelling houses and secondary dwellings are surrounded and separated by individual gardens,

(b)  to soften the visual impacts of dwelling houses and secondary dwellings when viewed from any waterway, park or road by providing sufficient space for trees and plantings around every building,

(c)  to protect and preserve native vegetation in general, and in particular, native vegetation that occurs in a riverfront area or on riparian land,

(d)  to ensure that the size and scale of dwelling houses and secondary dwellings are compatible with the existing character of their surrounding locality,

(e)  to minimise the discharge of stormwater from any site, whether by drainage or by overland flow.

(2)  The landscaped area of any site on which development for the purpose of a dwelling house or a secondary dwelling is carried out must not be less than—

(a)  for each site with a direct frontage to the Parramatta River or the Lane Cove River—60% of the site area, or

(b)  for all other sites—50% of the site area.

(3)  For the purposes of subclause (2), the site area is to be calculated under clause 4.5 (3) and any area that has a length or a width of less than 2 metres is not to be included in calculating the proportion of landscaped area.

(4)  Despite subclause (2), the minimum landscaped area may be reduced by not more than 33% for the purpose of accommodating a pathway, a patio, a terrace or a pool (if the pool has an area of less than 40 square metres), but only if the proposed development would be consistent with the objectives of this clause.

17. The Applicants relies upon a written request, prepared by Corona Projects in accordance with cl 4.6 of the HHLEP. The written request asserts compliance with the numerical standard is unreasonable or unnecessary as the objectives of the standard are achieved, notwithstanding the noncompliance on grounds summarised as follows:

1. The existing gardens are to be retained, and new planting are proposed.

2. The combination of existing and new plantings have the effect of screening the southern presentation of the dwelling from the street, and softening the visual impact of the dwelling from the waterway.

3. Existing vegetation is retained, while existing paved area is removed in favour of soft landscaping.

4. The existing size and scale of the dwelling is retained, as are all existing setbacks, which is a part of the existing character.

5. A reduction in hard paving will reduce the discharge of stormwater from the site.

18. Next the written request advances four grounds it considers sufficient to justify the contravention of the standard. These are:

1. The non compliance is a feature of the existing development.

2. All existing landscaping is proposed to be retained, and areas of landscaping less than 2m in width are excluded from the calculation.

3. The proposal to retain existing landscaping and provide new additional landscaping will enhance the amenity of the dwelling.

4. The landscaping proposed is of high-quality, includes large established canopy trees, and a new ‘kitchen garden’ adjacent to the kitchen.

19. The written request also asserts the proposed development will be in the public interest because, firstly, it is consistent with the objectives of the landscaped area standard for the reasons summarised at [17], and secondly, because it is consistent with the objectives for development in the R2 zone. Additionally, when those matters at cl 4.6(5) of the HHLEP are considered, the concurrence of the Secretary may be assumed.

20. The Respondent is satisfied that the written request has adequately addressed the matters to be demonstrated by cl 4.6(3) of the HHLEP and that the proposed development will be in the public interest because it is consistent with the objectives of the standard, and of the zone.

21. I am also satisfied under cl 4.6(4) of the HHLEP that the written request has adequately addressed the matter to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the landscaped area standard and of the R2 zone, for the reasons set out in the written request.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. On the basis of the historical chronology of the site and its development detailed in the Statement of Heritage Impact dated August 2022, and the continuing nature of its use, I have considered whether the site is contaminated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 and I conclude it is not likely to so be.

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

23. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. A465789, dated 7 July 2022) prepared by CasaFabrica in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

24. 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.

25. 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.

26. The Court notes:

1. The Respondent has agreed, under s 37 EPA Regulation, to the Applicants amending Development Application No. 2022/0160 by the amended material in “Annexure A”;

2. The Applicants have filed the plans and other documents in “Annexure A” with the Court on 6 March 2023.

Orders

27. The Court orders that:

1. The Applicants are granted leave to rely upon the amended plans and documentation referred to in the index annexed hereto and marked “Annexure A”.

2. The Applicants' written request under clause 4.6 of the Hunters Hill Local Environmental Plan 2012 prepared by Corona Projects, dated 6 March 2023, regarding the landscaped area for dwelling houses standard under clause 6.9 of the Hunters Hill Local Environmental Plan 2012, is upheld.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. 2022/0160, as amended during Land and Environment Court of New South Wales Proceedings No. 2022/00325544, for development comprising alterations and additions to an existing dwelling house at Lot 3 in Deposited Plan 545531, known as 28 Martin Street, Hunters Hill, subject to the conditions of consent annexed hereto and marked “Annexure B”.

……………………

T Horton

Commissioner of the Court

Annexure A (143704, pdf)

Annexure B (202329, pdf)

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Decision last updated: 08 March 2023