Perea v Hunters Hill Council

[2023] NSWLEC 1297

Land and Environment Court

New South Wales

Medium Neutral Citation:

Perea v Hunters Hill Council [2023] NSWLEC 1297

Hearing dates:

Conciliation conference on 8 June 2023

Date of orders:

15 June 2023

Decision date:

15 June 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA2021/1199, which seeks tree removal, earthworks, retaining structures, landscaping and the construction of a swimming pool on Lot 202 in Deposited Plan 873454, also known as 44A Barons Crescent, Hunters Hill is determined by the grant of consent, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – swimming pool – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, ss 49, 55

Hunters Hill Local Environmental Plan 2012, cll 2.3, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.9

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.28

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

Swimming Pools Regulation 2018, cl 5

Texts Cited:

Australian Building Codes Board, Building Code of Australia, 1996

Hunters Hill Development Control Plan 2013

Category:

Principal judgment

Parties:

Jose Miguel Herrera Perea (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
Brown (Respondent)

Solicitors:
Swaab (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/366739

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA2021/1199 (the DA) by Hunters Hill Council (the Council), which seeks tree removal, earthworks, retaining structures, landscaping and the construction of a swimming pool on Lot 202 in Deposited Plan 873454, also known as 44A Barons Crescent, Hunters Hill (the site).

Background

2. The DA was lodged with Council on 7 September 2021. The original DA was notified to residents, with four submissions in objection received. After internal review, the Council determined to refuse the DA, as notified to the applicant on 8 July 2022.

3. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Council agreed for the applicant to amend the plans and documents that support the DA, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

5. Pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced with a site view and then held in person. Three residents made an oral submission at the start of the conciliation, and the Court was also taken to view two adjoining properties. The issues raised by the resident objectors related to protection of bushland habitat and scenery, adverse amenity, inconsistency with character and precedence.

6. Based on the amended DA and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agreed that the contentions of Council have been considered and are resolved, and the issues raised by objectors had been considered. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA2021/1199, with conditions.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied of all relevant jurisdictional requirements, to grant consent to Development Application DA2021/1199, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following relevant jurisdictional requirements have been specifically addressed:

1. Hunters Hill Local Environmental Plan 2012 (HHLEP):

1. Pursuant to cl 2.3 of the HHLEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent and has had regard to the objectives of the zone. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the HHLEP, and has specifically considered cll 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7 and 6.9.

2. In response to the contentions and issues raised by the objectors, the Court is satisfied that the swimming pool as described in the amended application is permissible within the foreshore area and addresses the requirements for consideration, pursuant to cl 6.6, as described below:

6.6 Limited development on foreshore area

The objective of this clause is to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the significance and amenity of the area.

(2) Development consent must not be granted to development on land in the foreshore area except for the following purposes—

(a) the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area,

(b) the erection of a building in the foreshore area, if the levels, depth or other exceptional features of the site make it appropriate to do so,

(c) boat sheds, sea retaining walls, wharves, slipways, jetties, waterway access stairs, swimming pools, fences, cycleways, walking trails, picnic facilities or other recreation facilities (outdoors).

(3) Development consent must not be granted under this clause unless the consent authority is satisfied that—

(a) the development will contribute to achieving the objectives for the zone in which the land is located, and

(b) the appearance of any proposed structure, from both the waterway and adjacent foreshore areas, will be compatible with the surrounding area, and

(c) the development will not cause environmental harm such as—

(i) pollution or siltation of the waterway, or

(ii) an adverse effect on surrounding uses, marine habitat, wetland areas, fauna and flora habitats, or

(iii) an adverse effect on drainage patterns, and

(d) the development will not cause congestion or generate conflict between people using open space areas or the waterway, and

(e) opportunities to provide continuous public access along the foreshore and to the waterway will not be compromised, and

(f) any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land will be maintained, and

(g) in the case of development for the alteration or rebuilding of an existing building wholly or partly in the foreshore area, the alteration or rebuilding will not have an adverse impact on the amenity or aesthetic appearance of the foreshore.

(4) In this clause—

foreshore area means the land between the foreshore building line and the mean high water mark of the nearest natural waterbody.

foreshore building line means the line shown as the foreshore building line on the Foreshore Building Line Map.

3. The amended application, which relies on landscaping, materials consistent with the natural landscape and minimised excavation sufficiently addresses the requirements of cl 6.7, particularly in consideration of the visual amenity from the Lane Cove River, and the Great North Walk.

2. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The DA is located on land mapped within the Foreshores and Waterways area, which engages s 6.28(2) of the SEPP Biodiversity.

2. The amended DA seeks to remove two trees, and the conditions of consent ensure that the works required to construct the pool will minimise any further loss of trees. The removal and protection of trees is informed by an arboricultural report, tree management plan and landscape plans that support the amended DA.

3. Based on the amended design of the swimming pool, that appears nestled within the landscape, there is no assessed impact on views and vistas. The relevant objectives, aims, standards and requirements of the SEPP Biodiversity are addressed. 

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the use of the site being historically for residential purposes, as assessed by Council, together with the agreed conditions of consent, the relevant requirements of s 4.6 of the SEPP Resilience are addressed.

4. Hunters Hill Development Control Plan 2013 (HHDCP):

1. The original DA was publicly notified in accordance with the HHDCP, with four submissions received. The issues raised by the objectors in written and oral submission have been considered by the Council in undertaking its merit assessment of the DA. It was explained that the Council is satisfied that the issues raised by residents have been addressed, and where appropriate amendments made to the DA.

2. The relevant requirements of the HHDCP are generally complied with, based on the amended plans and supporting documents to the amended DA, and described in the agreed conditions of consent.

9. Pursuant to cl 49 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowners. All proposed works are contained within the site.

10. Pursuant to cl 5 of the Swimming Pools Regulation 2018, the plans that support the DA and conditions of consent intend for the swimming pool to be designed, constructed, installed and maintained consistent with the requirements set out in the Building Code of Australia.

Grant of consent

11. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

12. The Council has undertaken an appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the DA and supporting documents.

13. I am satisfied, based on the evidence before me and as explained by the parties, that there are no jurisdictional impediments to this agreement and that Development Application DA2021/1199 should be granted consent.

14. 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.

15. The Court notes that:

1. Hunters Hill Council as the relevant consent authority has agreed, pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application DA2021/1199 and to rely on the following documents:

Reference	Title	Prepared By	Date
Survey Plan
18597_1A, Sheet 1	Survey Plan	Sydney Surveyors	2 Mar 2023
18597_1A, Sheet 2
Landscape Plans
Plan 1471/L-01 Rev A	Site Analysis/Sediment & Erosion Control Plan	Site Design & Studios	28 Apr 2023
Plan 1471/L-02 Rev A	Landscape Plan
Plan 1471/L-03 Rev A	Detail Plan
Plan 1471/L-04 Rev A	Landscape Area Calculation Plan
Plan 1471/L-05 Rev A	Section A & B
Plan 1471/L-06 Rev A	Section C
Plan 1471/L-07 Rev A	Section D
Plan 1471/L-08 Rev A	Elevation E
Plan 1471/L-09 Rev A	Elevation F & G
Plan 1471/L-10 Rev A	Planting Schedule and Image
Plan 1471/L-11 Rev A	Pool Fencing Notes

Title	Prepared By	Date
Tree Management Plan & Specifications	Jacksons Nature Works	10 May 2023
Arboricultural Impact Assessment Report		12 May 2023
Arboricultural Impact Assessment Report (Addendum)		5 June 2023

2. The applicant has filed the amended documents described above with the Court on 8 June 2023, which are provided in Condition 2 of Annexure A.

16. The Court orders that:

1. The appeal is upheld.

2. Development Application DA2021/1199, which seeks tree removal, earthworks, retaining structures, landscaping and the construction of a swimming pool on Lot 202 in Deposited Plan 873454, also known as 44A Barons Crescent, Hunters Hill is determined by the grant of consent, subject to the conditions in Annexure A.

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 15 June 2023