Qiu v Hunters Hill Council

[2021] NSWLEC 1589

Land and Environment Court

New South Wales

Medium Neutral Citation:

Qiu v Hunters Hill Council [2021] NSWLEC 1589

Hearing dates:

Conciliation conference on 29 September 2021

Date of orders:

7 October 2021

Decision date:

07 October 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.
(2) Development Application No. 2020/1223 for a low-pitched metal clad roof over an existing lift and stair lobby structure and a roof terrace, at 28 Lyndhurst Crescent, Hunters Hill, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Environmental Planning and Assessment Regulation 2000, cl 55

Hunters Hill Local Environmental Plan 2012 (2013 EPI 34), cll 4.3, 4.4, 4.6, 5.10

Land and Environment Court Act 1979, ss 34, 39

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cll 3, 20

Cases Cited:

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

Zhang Fu Qiu (First Applicant)
Xiao Hui Liu (Second Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Respondent)
S Kondilios (Solicitor) (Applicant)

Solicitors:
McKees Legal Solutions (Applicant)
Hall & Wilcox Lawyers (Respondent)

File Number(s):

2021/164684

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2020/1223 for a low-pitched metal clad roof over an existing lift and stair lobby structure and a roof terrace (the proposal) at 28 Lyndhurst Crescent, Hunters Hill (Lot 1 in DP 30204) (the site) by Hunters Hill Council (the Council).

2. The applicant amended the proposal and the Council agreed to the amendment of the application, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000. The amended application was uploaded on the NSW planning portal by the applicant on 29 September 2021. The amended application was filed with the Court on 29 September 2021.

3. The proposed roof over the existing lift and stair shaft is to replace the existing unauthorised roof over the existing structure. The proposed roof has a maximum pitch of 9.5 degrees and a maximum height of RL13.27. The proposed roof terrace is 6.48m across and extends from the existing lift and stair shaft to the southern façade parapet edge of the existing dwelling. The proposed roof terrace area is 52.28m². The roof terrace is to be contained by a translucent glass balustrade and the remaining, non-trafficable area of the roof is to be covered in pebbles. The existing balustrade around the perimeter of the roof is to be retained.

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 September 2021. I presided over the conciliation conference. 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.

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

6. There are preconditions to the exercise of power to grant development consent for the proposal pursuant to cl 4.6(2) of the Hunters Hill Local Environmental Plan 2012 (LEP 2012).

Planning framework

7. The site is zoned R2 Low Density Residential pursuant to LEP 2012 (Land Zoning Map – Sheet LZN_002). The proposal is permissible with consent. The objectives of the zone are:

• 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.

8. The height of buildings development standard for the site is 8.5m (cl 4.3 and Height of Buildings Map – Sheet HOB_002 of LEP 2012). The proposal exceeds the height of the buildings development standard. The relevant objectives of the standard, at cl 4.3(1) are:

(a) to specify limits for the size and scale of development that would be compatible with the character, amenity and potential of particular locations,

(b) to maintain the character and identity of Hunters Hill by limiting the scale of buildings to a maximum of two storeys in the low density residential zone, heritage conservation areas and foreshore areas facing Lane Cove River or Parramatta River,

…

(d) to protect existing dwellings from excessive overshadowing, loss of privacy, obstruction of views and general visual impacts.

9. The floor space ratio (FSR) development standard for the site is 0.5:1 (cl 4.4 and Floor Space Ratio Map – Sheet FSR_002 of LEP 2012). The proposal does not add floor area to the gross floor area of the existing dwelling.

10. The site is within the Hunters Hill Heritage Conservation Area No 1 – The Peninsula (Hunters Hill HCA) (Heritage Map – Sheet HER_002C and Sch 5, Pt 2 to LEP 2012). The consent authority must consider the effect of the proposal on the heritage significance of the Hunters Hill HCA, pursuant to cl 5.10(4) of LEP 2012.

11. The proposal is in the vicinity of a heritage item (Item 200, Sch 5, Pt 1 to LEP 2012) described as ‘House, “Cambridge”, formerly “Fernbank and Molesworth”’. Pursuant to cl 5.10(5)(c) of LEP 2012, the application included a Statement of Heritage Impact prepared by James Kim, undated, filed 10 June 2021.

12. The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the site at cl 3(1). The matters referred to in Part 3, Div 2, are to be taken into consideration by consent authorities before granting consent to development under Pt 4 of the EPA Act, at cl 20(a).

13. I am satisfied by the Council’s submission that the proposal will not affect the heritage significance of the Hunters Hill HCA, nor the panoramic view of the harbour from the heritage item, because the proposal is minor. It has been reduced in height as much as possible and the roof terrace has been contained to a small area of the existing roof of the dwelling, on the harbour side. I accept the Council’s submission that the proposal does not affect the scenic quality of the harbour.

Contravention of the height of buildings development standard

14. The ridge of the proposed roof is RL13.27. The proposed roof is over an existing basement level of the dwelling, and the finished floor level of the basement level is RL1.52. The ground level (existing), below the slab, is therefore approximately RL1.37 (DA-31/B). The maximum height of the proposal is 11.9m.

15. The site falls from the street frontage to the harbour frontage. The natural ground level, based on the fall of the land on the western side of the dwelling shown on the site survey (RGM Property Surveys dated 17 August 2021), is between the contour lines for 4m and 3m, roughly RL3.5m below the proposed roof ridge. The proposed roof ridge is approximately 9.77m above what would have been (prior to the excavation for the construction of the existing dwelling) the natural fall of the site. The prior excavation of the site directly below the proposed roof is an environmental planning ground within the meaning of cl 4.6(3)(b) of LEP 2012 (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [23] (Initial Action).

16. The existing unauthorised roof ridge is RL14.57 (site survey, RGM Property Surveys dated 17 August 2021).

17. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by Minto Town Planning Services and dated 28 September 2021.

18. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action at [13]). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

19. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

20. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

21. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 at [4]).

22. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 [42]-[51] (Wehbe) and repeated in Initial Action at [17]-[21]:

“(1) the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

(2)    the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

(3)    the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

(4) the development standard has been abandoned by the council;

(5) the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).”

23. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

24. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved, notwithstanding the non-compliance with the numerical standard.

25. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

26. The applicant’s written request justifies the exceedance of the height of buildings development standard, as follows:

• The existing dwelling and ancillary rooftop structures currently exceed the standard.

• The proposed roof over the lift and stair shaft which accesses the rooftop is of a height similar to the original roof, which failed.

• The original roof over the lift and stair shaft failed, resulting in water ingress.

• The proposal is in keeping with the character of the existing dwelling, and the existing dwelling forms part of the character of the Hunters Hill HCA.

• The proposed roof and roof terrace do not result in unreasonable amenity impacts on adjoining properties.

27. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that the exceedance of the height of buildings development standard by the proposal, as amended, is justified by the prior excavation of the site to lower the ground level in the centre of the site; and the agreement of the planning experts that the roof does not unreasonably interfere with the amenity of neighbours, or views across the site.

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

28. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

29. I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the height of buildings development standard and the zone, for the reasons given by the applicant in the written request and the agreed evidence of the planning experts in their joint report.

Orders

30. The Court notes:

1. That Hunters Hill Council as the relevant consent authority agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application No. 2020/1223.

2. That the applicant lodged the amended development application on the NSW Planning Portal on 29 September 2021.

3. That the Council filed the amended development application with the Court on 29 September 2021.

31. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2020/1223 for a low-pitched metal clad roof over an existing lift and stair lobby structure and a roof terrace, at 28 Lyndhurst Crescent, Hunters Hill, is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (224341, pdf)

**********

Decision last updated: 07 October 2021