Pelling v Hunter's Hill Council

[2024] NSWLEC 1473

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pelling v Hunter’s Hill Council [2024] NSWLEC 1473

Hearing dates:

Conciliation conference on 2 August 2024

Date of orders:

06 August 2024

Decision date:

06 August 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent is granted to Development Application 2023/0014 for alterations and additions to the existing dwelling house, carport and associated works at Lot 13, Section 2, in Deposited Plan 806 and known as 18 Figtree Road, Hunters Hill, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions – conciliation conference – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 27, 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Hunters Hill Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 5.10, 6.3, 6.9, Sch 5, Pt 2

Category:

Principal judgment

Parties:

Cameron Michael Pelling (First Applicant)
Carmen Delia Pelling (Second Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
B Gallifuoco (Applicant)
D Johnson (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2024/51292

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application 2023/0014. The development application sought consent for alterations and additions to an existing dwelling house, carport and associated works (DA) at 18 Figtree Road, Hunters Hill, legally described as Lot 13, Section 2, DP 806 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending DA2023/0014 in accordance with the documents listed below (amended DA):

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 2 August 2024. I have presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended DA, subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. 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 the jurisdictional prerequisites have been satisfied. 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, as set out below.

9. I am satisfied that owner’s consent accompanied the DA.

10. The DA was lodged to the Respondent on 21 February 2023. The Respondent notified the DA from 24 February 2023 to 10 March 2023. One submission was received.

11. As the parties have reached agreement, the parties have considered the merits of the amended DA and how the issues raised in the submissions have been addressed.

Hunters Hill Local Environmental Plan 2012

12. The site is zoned R2 Low Density Residential under the Hunters Hill Local Environmental Plan 2012 (HHLEP). The proposed development is permitted with consent and I have had regard to the objectives of the zone.

13. The parties agree and I accept that the following applicable HHLEP provisions are met:

1. Clause 2.7 is engaged as demolition forms part of the proposed works for alterations and additions.

2. Clause 4.3 height of buildings) applies to the site and allows a maximum building height of 8.5m. The amended DA, as shown on the architectural plans prepared by Map Architects dated 30 April 2024 (architectural plans) confirm that the proposed building is less than 8.5m (drawing No A3100 and A3101).

3. Clause 4.4 prescribes a maximum FSR. However, pursuant to cl 4.4(2A), the maximum does not apply as the amended DA complies with cll 4.3 and 6.9.

4. Clause 5.10 heritage conservation applies to the site as it is located within the “Hunters Hill Conservation Area 1 – The Peninsular” (Sch 5, Pt 2) and adjoins two heritage items. The amended DA is accompanied by a Heritage Impact Statement prepared by Edwards Heritage Consultants Pty Ltd dated December 2022 which addresses the proposed development’s impacts, as required by cl 5.10.

5. Clause 6.1 acid sulfate soils applies to the site as the site is mapped as Class 5. However, the proposed works are not within 500m of class 1-4 soils that are below 5m AHD and do not lower the watertable. The provisions of subcll 6.1(2) and (3) do not apply.

6. Clause 6.3 stormwater management applies to the amended DA. The amended DA is supported by stormwater plans prepared by Cates Consulting Engineers dated November 2022 which show the proposed system discharges stormwater to the street, thereby satisfying the provisions of subcl 6.3(3).

7. Clause 6.9 landscaped areas for dwellings houses applies to the development and requires 50% of the site area to be landscaped. Clause 6.9(4) allows the minimum area to be reduced by not more than 33% to accommodate pathways, patio, terrace or a pool and is consistent with the objectives. I accept the parties’ agreement that the amended DA provides not less than the required landscaping consistent with subcll 6.9(2), (3) and (4), as set out in the jurisdictional statement and shown on drawing number A4000 Issue D prepared by Map Architects dated 30 April 2024.

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

14. The proposed development is BASIX affected development (s 27 of EPA Reg). The DA was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022, which does not apply in accordance with the savings provisions under s 4.2. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate that satisfies the now repealed SEPP BASIX.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC)

15. Chapter 6 applies as the site is located within the Sydney Harbour Catchment. The parties agree that the minor scope of the works will not result in adverse impacts as set out in the jurisdictional statement. The amended DA is accompanied by stormwater plans prepared by Cates Consulting Engineers dated November 2022 that incorporate reuse of water through the proposed water tank and discharge of stormwater to the street through a charged system. With consideration of the above and the jurisdictional statement, the parties agree, and I accept that the provisions of SEPP BC are met.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

16. The provisions of s 4.6 of SEPP RH apply to the site. The SEE states that the site has a history of residential use and is unlikely to be contaminated. Accordingly, the parties agree and I accept that the provisions of s 4.6 of SEPP RH have been satisfied.

Conclusion

17. 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.

18. 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.

19. I have considered the jurisdictional prerequisites and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

20. The Court orders:

1. The appeal is upheld.

2. Development Consent is granted to Development Application 2023/0014 for alterations and additions to the existing dwelling house, carport and associated works at Lot 13, Section 2, in Deposited Plan 806 and known as 18 Figtree Road, Hunters Hill, subject to the conditions of consent at Annexure A.

S Porter

Commissioner of the Court

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Annexure A

Decision last updated: 06 August 2024