Natour v Hunters Hill Council

[2022] NSWLEC 1130

Land and Environment Court

New South Wales

Medium Neutral Citation:

Natour v Hunters Hill Council [2022] NSWLEC 1130

Hearing dates:

Conciliation conference on 17-18 February 2022

Date of orders:

14 March 2022

Decision date:

14 March 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders:

(1) The Appeal is upheld.

(2) Development Application No. DA-2021/1101, for the demolition of existing buildings, construction of new two storey dwelling, swimming pool and landscaping including tree removal at 15 Centenary Avenue, Hunters Hill NSW 2110, is approved subject to the conditions in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Hunters Hill Local Environmental Plan 2012, cll 2.7, 4.3, 5.10, 6.2, 6.3, 6.7, 6.9
Land and Environment Court Act 1979, ss 34, 34AA
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy 55—Remediation of Land, cl 7
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cll 20, 21, 22, 23, 24, 25, 26, 27, 27A, 27B, Pt 3, Div 2

Category:

Principal judgment

Parties:

Edward Natour (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
M Seymour (Barrister)(Applicant)
A Kleiss (Solicitor)(Respondent)

Solicitors:
Mills Oakley Solicitors (Applicant)
Hunters Hill Council (Respondent)

File Number(s):

2021/310637

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Edward Natour (Applicant) against the Respondent’s deemed refusal of Development Application No. 2021/1101 lodged with Hunters Hill Council on 26 May 2021.

2. The development application seeks consent for the demolition of existing structures, excavations works and construction of a new stepped two – storey dwelling house with outbuilding, swimming pool, associated landscaping, retaining walls and driveway works. The development is to be constructed on lot 8 in deposited plan 209390, known as 15 Centenary Avenue, Hunters Hill.

3. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 17 and 18 February 2022.

4. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to conditions.

5. Pursuant to s 34(3) of the LEC Act (which applies by virtue of s 34AA(2) of the LEC Act), I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Hunters Hill Local Environmental Plan 2012 (HHLEP 2012), the subject site is zoned R2 Low Density Residential. Demolition is permissible pursuant to cl 2.7 of HHLEP 2012. In determining the development application, I have had regard to the objectives of the zone.

2. The development application complies with the development standards for maximum height in cl 4.3 of HHLEP 2012.

3. The development compiles with the landscape requirements of cl 6.9 of the HHLEP 2012 and therefore there is no floor space control applicable to the site.

4. Pursuant to cl 5.10 of the HHLEP 2012, the consent authority must consider the effect of the proposed development on the heritage significance of two heritage items in the vicinity of the site. I am satisfied that the material before the court has demonstrated that the impacts on heritage have been adequately considered.

5. There is sufficient material before the Court to demonstrate that appropriate consideration has been given to the Excavation matters raised in cl 6.2 of the HHLEP 2012. This is also the case in respect to information relating to Stormwater that requires consideration pursuant to cl 6.3 of the HHLEP 2012.

6. Pursuant to cl 6.7 of the HHLEP 2012, I accept the agreed position between the parties that amendments made to the application demonstrate that the appropriate consideration has been given to the location of the site within the “River Front Area”.

7. The application was notified in accordance with the relevant development control plan and the submissions have been considered.

8. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

9. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), applies to the land and cl 7 requires consideration of any contamination and associated remediation. The parties agree the site has a long history of residential usage and the site is unlikely to be contaminated. Accordingly, I am satisfied no further assessment is required.

10. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP Sydney Harbour) applies to the land and cl 20(a) requires the consent authority to consider those matters referred to in Pt 3, Div 2. I am satisfied that the material before the Court demonstrates that the appropriate consideration has been given to the matters referred to in cll 21 to 26 and that cll 27, 27A and 27B are not applicable.

8. 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’ agreement.

9. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders. I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

10. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Development Application No. DA-2021/1101, for the demolition of existing buildings, construction of new two storey dwelling, swimming pool and landscaping including tree removal at 15 Centenary Avenue, Hunters Hill NSW 2110, is approved subject to the conditions in Annexure ‘A’.

…………………………

S Harding

Acting Commissioner of the Court

Annexure A.pdf

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Decision last updated: 14 March 2022