Qin v Hunter's Hill Council

[2025] NSWLEC 1136

Land and Environment Court

New South Wales

Medium Neutral Citation:

Qin v Hunter’s Hill Council [2025] NSWLEC 1136

Hearing dates:

Conciliation conference 6-7 March 2025

Date of orders:

7 March 2025

Decision date:

07 March 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. A2022/0239, as amended, for demolition of existing dwelling and construction of a new 2-level dwelling with a basement garage at 11 William Street, Henley, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

APPEAL – dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

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

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

Environmental Planning and Assessment Regulation 2021 ss 27, 37, 38

Hunters Hill Local Environmental Plan 2012, cll 4.3, 4.4, 6.1, 6.2, 6.3, 6.7, 6.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.9

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Cases Cited:

McMillan v Taylor [2023] NSWCA 183

Category:

Principal judgment

Parties:

Irving Qin (Applicant)
Hunter’s Hill Council (Respondent)

Representation:

Counsel:
R White (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/409232

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a 2-storey dwelling house with basement garage at 11 William Street, Henley. The development application was refused by the respondent on 7 May 2024. The present proceedings are an appeal against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 6 March 2025, and continued on 7 March 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was provided on 7 March 2025, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amended development application no longer includes a swimming pool, has increased the area of landscaping, has reduced the height of the proposed landscaping in the front and rear setbacks, has a reduced driveway width and has a changed upper level floor plan to open up view corridors from a neighbouring property.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that are required to be considered prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the Hunters Hill Local Environmental Plan 2012 (HHLEP).

• The proposed development complies with the applicable height development standard that applies to the site, pursuant to cl 4.3 of the HHLEP.

• Pursuant to cl 4.4(2A) of the HHLEP, there is no maximum floor space ratio (FSR) for a dwelling house if it is compliant with both the height development standard in cl 4.3, and the landscaping requirements in cl 6.9. As both are complied with, there is no maximum FSR that applies.

• Clause 6.1 of the HHLEP concerns acid sulfate soils. Although the site is identified as containing Class 5 acid sulfate soils, it is not located within 500m of relevant land, and accordingly an acid sulfate soils management plan is not required.

• Clause 6.2 of the HHLEP concerns earthworks. The development application includes earthworks for the provision of the basement level for the garage. Based on the Geotechnical Site Investigation Report by KFM Geotech dated 23 April 2023, I have considered the matters set out in cl 6.2(3) of the HHLEP.

• Clause 6.3 of the HHLEP concerns stormwater and applies to the proposed development. Based on extent of landscaping proposed and the Stormwater Management Plan (Rev C) dated 19 April 2024, I am satisfied of the matters in cl 6.3(3).

• The proposed development is on a site identified as river front area, such that cl 6.7 of the HHLEP applies. Having regard to the location of the development, its proximity to the waterway, the proposed landscaping, and the height and design of the built form, I am satisfied of the matters in cl 6.7(3).

• The proposed development complies with the requirement for 50% landscaped area, which is required pursuant to cl 6.9 of the HHLEP.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The site falls within the Sydney Harbour Catchment, such that Part 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the development application. Based on the Stormwater Management Plan (Rev C) dated 19 April 2024, I am satisfied of the matters in ss 6.6(2) and 6.7(2) of the SEPP BC. Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

• Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 5 December 2022. Based on the BASIX certificate, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

• The development application was notified between 12 January 2023 and 9 February 2023, and 7 written submissions were received. The issues raised include construction related impacts, view loss, loss of privacy, overshadowing, visual dominance and inadequate landscaping. I have considered those issues, which have largely been addressed in the amended development application.

6. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.

8. The Court notes that:

1. The respondent, Hunter’s Hill Council, as the relevant consent authority, agrees, under clauses 37 and 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending development application no. A2022/0239 in accordance with the amended plans and additional information listed below:

DOCUMENT	DATE
1	Amended Architectural Plans (Rev E), prepared by Arc Architects DA00E - Site Plan DA02E - Basement Level - Garage DA03E - Ground Floor DA04E - First Level DA05E - Roof DA06E - Elevations DA07E - Elevations DA08E - Section DA14E - Driveway Profile Amended DA21E - Finishes Schedule LA01E - Landscape Plan	7 March 2025
2	Arboricultural Assessment, prepared by Ezigrow	5 March 2025

9. The Court orders that:

1. The appeal is upheld.

2. Development Application No. A2022/0239, as amended, for demolition of existing dwelling and construction of a new 2-level dwelling with a basement garage at 11 William Street, Henley, is determined by the grant of consent subject to the conditions at Annexure A.

J Gray

Commissioner of the Court 

Annexure A

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Decision last updated: 07 March 2025