Serfontein v Hunters Hill Council

[2025] NSWLEC 1186

Land and Environment Court

New South Wales

Medium Neutral Citation:

Serfontein v Hunters Hill Council [2025] NSWLEC 1186

Hearing dates:

Conciliation conference on 13-14 March 2025

Date of orders:

28 March 2025

Decision date:

28 March 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA2024/0118 as amended is determined by the grant of consent for alterations and additions to an existing heritage listed dwelling house, including partial demolition of existing structures, construction of a basement level, ground, first floor and attic level additions and renovations, construction of a swimming pool and tennis court and associated landscaping and earthworks on the land at 54 Woolwich Road, Hunters Hill (Lot 1 in DP 625333) subject to the conditions of consent contained at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to heritage item – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

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

Environmental Planning and Assessment Regulations 2021, s 38

Hunters Hill Local Environmental Plan 2012, cll, 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.7, 6.9, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Pt 6.2, ss 2.6, 6.6, 6.7, 6.9

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

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

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

Category:

Principal judgment

Parties:

Penelope Serfontein (First Applicant)
Christian Serfontein (Second Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor) (Applicants)
A Seton (Solicitor) (Respondent)

Solicitors:
Cole & Messenger (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/356675

Publication restriction:

Nil

Judgment

1. COMMISSIONER: A large two-storey dwelling known as ‘Morrillah’ stands on the corner of Woolwich Road and Serpentine Road, at 54 Woolwich Road, Hunters Hill. Morillah is a building designed in a style common to the Federation era, and attributed to the architect Henry Budden around 1901.

2. It is now proposed that a portion of the existing dwelling be demolished, along with other structures on the site, and for trees to be removed to permit:

1. Excavation and construction of a new basement to accommodate 4 car parking spaces with turntable, plant room, 2 storage rooms, gym, cinema, cellar, pool pump room, bathroom, rainwater tank, mud room and lift and stair to provide access to upper levels.

2. A two-storey addition to the west of the dwelling comprising living spaces on the ground level, and bedrooms, bathroom and other spaces on the first floor.

3. Addition to the first floor of the existing dwelling for a primary bedroom, walk in wardrobes and another bedroom.

4. Various internal and external alterations.

5. Addition of an attic with new dormer windows to the west and north.

6. External landscape works including a raised terrace to the northern side of the existing dwelling, new swimming pool and spa, external shower and toilet facilities, replacement of an existing lawn tennis court, a sandstone boundary wall, new gate and other landscaping.

3. To give effect to this proposal, the owners of the site, the Serfontein’s lodged development application No DA2024/0118 with Hunters Hill Council (the Council) on 12 August 2024. The Council notified local residents of the development application between 14-28 August 2024, receiving one submission objecting to the proposal.

4. The Council refused the development on 3 September 2024, and the Serfontein’s filed an appeal in Class 1 of the Court’s jurisdiction on 26 September 2024, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The appeal was listed for mandatory conciliation on 13 March 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

6. After an onsite view, the conciliation conference convened at Court, during which the parties reached in-principle agreement on those issues in dispute.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court, dated 14 March 2025, and amended plans and other documents were filed on the same date.

8. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared on behalf of the Serfortein’s, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

9. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [46].

10. The site is located in an area identified by the Hunters Hill Local Environmental Plan 2012 (HHLEP) as R2 Low Density Residential zone, in which dwelling house development is permitted with consent, where consistent with the following objectives:

•  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.

The proposal exceeds the height standard

11. The proposed development exceeds the height permitted on the site by the relevant standard at cl 4.3(2) of the HHLEP. To be clear, it is commonly held that Morillah currently exceeds the height standard of 8.5m by around 1m in height.

12. The Serfontein’s rely upon a written request authored by Mr Andrew Minto dated 13 February 2025 that seeks to justify the contravention consistent with the terms at cl 4.6 of the HHLEP.

13. I note the planning experts retained in this matter, Mr Andrew Minto for the Serfontein’s and Mr Adamson on behalf of the Council, agree that the written request supports the requisite opinions of satisfaction required by cl 4.6.

14. Those experts conferred prior to the commencement of the onsite view and filed a joint expert report in which agreement on the written request is recorded.

15. That said, it is for the Court to be satisfied in respect of whether the written request has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances, and there are sufficient environmental planning grounds to justify the contravention of the development standard (cl 4.6(3) of the HHLEP).

16. The written request explains the proposed additions have a maximum height of 9.18m, which is below the height of Morillah’s existing ridgeline.

17. The written request adopts what is known as the ‘Wehbe 1’ test and asserts compliance with the standard is unreasonable or unnecessary in the circumstances of this case as the proposal is consistent with the objectives of the height standard, notwithstanding the non-compliance.

18. The relevant objectives of the height standard at cl 4.3 of the HHLEP are as follows:

(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.

19. The objectives are said by the written request to be achieved for reasons summarised as follows:

1. Firstly, the proposed form of the development is compatible with the character, amenity and potential of the locality because the roof form of the proposed addition is not dissimilar to the original roof structure and does not extend above the existing ridgeline. The written request cites statements within the Heritage Impact Statement prepared on behalf of the Serfontein’s that support such an assertion.

2. Secondly, the proposed development is a two storey dwelling above a basement that is not visible from the public domain, and with an upper storey that is within the roof and properly characterised as an attic. As such, the development has a character of a two storey building and no adverse streetscape impacts arise from the proposal.

3. Thirdly, no unreasonable amenity impacts are imposed on adjoining private property in terms of overshadowing, views or privacy.

20. Next the written request sets out environmental planning grounds the Applicant relies on as sufficient to justify the exceedance, summarised as follows:

1. The existing roof form currently exceeds the height standard, and the proposed roof form is set below this level.

2. The resulting form will not result in any adverse impacts on adjoining properties.

3. The proposal, including the roof form that exceeds the height standard, has been designed to avoid any unreasonable heritage impacts on either Morillah as a heritage item, of the Peninsula HCA more broadly.

4. Finally, the departure promotes good design and amenity of the built environment, being an object of the EPA.

21. I note here that neither the Council nor its experts dispute that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the HHLEP, or that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development in the R2 zone.

22. Furthermore, the Council does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the standard in this instance, pursuant to cl 4.6(5) of the HHLEP.

23. Accordingly, the Council raises no issue regarding cl 4.6 and accepts that a variation of the height standard under cl 4.3 is justified.

24. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the HHLEP.

25. I am also satisfied that the environmental planning grounds advanced in the written request are sufficient to justify the contravention of the height standard. The exceedance is a pre-existing condition that effectively results from the steep pitched roof slope that is an essential aspect of the original design of the dwelling.

26. Accordingly, I find the written request as to the height exceedance should be upheld.

Other jurisdictional preconditions to the grant of consent

27. The floor space ratio (FSR) standard applicable to the site at cl 4.4 is 0.5:1, and the parties the proposed development complies with the FSR standard.

28. A stone boundary wall to the Woolwich Road frontage of the subject site, and the adjoining property at 52 Woolwich Road is listed for its local heritage significance. Morillah is also listed for its local heritage significance in Sch 5 of the HHLEP, as are a number of properties on the northern side of Woolwich Road, including the adjoining property at 52 Woolwich Road. The site is located within the Hunters Hill Conservation Area No 1 – The Peninsula (Peninsula HCA). I have considered the effect of the proposed development on the heritage significance of Morillah, and of the Peninsula HCA and, on the basis of the amended plans and the agreement of the heritage experts, I accept the effect is acceptable.

29. The site is located on land mapped as ‘class 5’ on the relevant Acid Sulfate Soils Map at cl 6.1(2) of the HHLEP. While a substantial volume of excavation is proposed, the elevation of the land expressed in terms of the Australian Height Datum (AHD) is such that the excavation will not be to a level that is below 5m AHD and, having regard to the results of four boreholes recorded in the Geotechnical Investigation prepared by JK Geotechnics dated 9 July 2024 (Geotechnical Assessment), I am also satisfied that the watertable will not be lowered by the proposed development.

30. On the basis of the following, I have considered the matters to be considered at cl 6.2(3) of the WLEP and conclude that the earthworks proposed will not have a detrimental impact on the environmental functions, processes, uses of heritage of the subject site or surrounding land:

1. Geotechnical Assessment

2. Stormwater Services Plan prepared by Sparks & Partners (Stormwater Plans)

3. Landscape Plans prepared by Wyer & Co.

31. Architectural drawing DA5000 expresses the area of deep soil at 74% of the site which satisfies me that the development is designed to maximise the use of water permeable surfaces in accordance with cl 6.3(3) of the HHLEP, and the Stormwater Plans depict the onsite retention of stormwater in a rainwater tank, which satisfies me that on site retention of water is proposed as alternative to mains water. Finally, the collection of stormwater infiltration, and use of water quality devices depicted in the Stormwater Plans satisfies me that adverse impacts arising from stormwater runoff are avoided.

32. The site is identified on the River Front Area Map at cl 6.7 of the HHLEP. As such, development consent is precluded unless the Court is satisfied that measures will be taken to minimise the visual impact of the development from the nearest waterway. On the basis of the northern setback on the site that is retained by the proposed refurbishment of the tennis court, and the cues adopted by the proposal from the existing heritage fabric that, I am so satisfied.

33. As stated at [31], the proposal provides 74% of the site as deep soil which satisfies me that the minimum landscaped area of 50% of the site area for dwelling houses is achieved, in accordance with cl 6.9 of the HHLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

34. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The Arboricultural Impact Assessment prepared by ArborLogix dated 25 June 2024 assesses the impact of the proposal on 10 trees. Three trees are proposed to be removed, and seven are proposed to be retained. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

35. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. As such, Part 6.2 of Biodiversity SEPP applies.

36. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

37. The Stormwater Plans depict storage of stormwater in a subsurface rainwater tank^, connected to Council’s drainage system via a pit fitted with water quality filtration devices. I am satisfied that the on site detention of stormwater, combined with the filtration depicted on the Stormwater Plans, will result in a neutral or beneficial effect on water quality in the catchment, and will manage the flow of water into that catchment.

38. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied, there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion.

39. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

40. I have considered whether the land is contaminated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The Statement of Heritage Impact provides a detailed historical chronology of the use and occupation of the site, most relevantly from the date of subdivision in 1881. There is no use or activity that would suggest the site is contaminated or requires remediation. As such, I am satisfied the site is suitable for the purpose for which the development is proposed to be carried out.

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

41. The application is accompanied by a BASIX certificate (Cert No. A1787374 prepared by Ecoplus dated 14 March 2025) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

42. An embodied energy report is appended to the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

43. 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.

44. 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.

45. The Court notes that Hunters Hill Council, as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021, approves the amendment to development application No DA2024/0118, to include the following plans and documents, filed with the Court on 14 March 2025:

Plan Ref	Date	Description	Issue
Architectural Plans Prepared by ID Studios Architecture & Interiors
DA0000	14.03.25	COVER SHEET	H
DA0001	14.03.25	EXISTING AND DEMO SITE PLAN	H
DA0002-A	14.03.25	EXISTING AND DEMO FLOOR PLANS (BASEMENT)	H
DA0002-B	14.03.25	EXISTING AND DEMO FLOOR PLAN (GROUND FLOOR)	H
DA0002-C	14.03.25	EXISTING AND DEMO FLOOR PLAN (FIRST FLOOR)	H
DA0002-D	14.03.25	EXISTING AND DEMO FLOOR PLAN (ROOF FLOOR)	H
DA0003	14.03.25	SITE ANALYSIS PLAN	H
DA0004	14.03.25	SITE PLAN	H
DA1100	14.03.25	PROPOSED BASEMENT PLAN	H
DA1101	14.03.25	PROPOSED GROUND FLOOR PLAN	H
DA1102	14.03.25	PROPOSED FIRST FLOOR PLAN	H
DA1104	14.03.25	PROPOSED ROOF PLAN	H
DA2100	14.03.25	PROPOSED ELEVATIONS	H
DA2101	14.03.25	PROPOSED ELEVATIONS	H
DA3000	14.03.25	PROPOSED SECTIONS	H
DA5000	14.03.25	SITE PLAN + LANDSCAPE COVER	H
DA5001	14.03.25	GFA + FSR CALCULATION	H
DA6004	14.03.25	NOTIFICATION PLAN	H
DA7000	14.03.25	SHADOW DIAGRAMS - AUTUMN + WINTER	H
DA7001	14.03.25	SHADOW DIAGRAMS - SPRING + SUMMER	H
DA9000	14.03.25	FINISHES SCHEDULE EXTERIOR	H
Sketch Plan 1	14.03.25	Sketch Plan
Clause 4.6 – Exceptions to development Standards Variation to Clause 4.3 – Height of buildings prepared by Minto Planning Services dated 13 February 2025
Supplementary Heritage Report prepared by Vanessa Holtham dated February 2025
BASIX Certificate No A1787374 dated 14 March 2025

Orders

46. The Court orders that:

1. The written request prepared by Minto Planning Services made pursuant to cl 4.6 of the Hunters Hill Local Environmental Plan 2012 (HHLEP) seeking the grant of development consent in contravention of the HHLEP in relation to the height standard under cl 4.3 is upheld.

2. The appeal is upheld.

3. Development Application DA2024/0118 as amended is determined by the grant of consent for alterations and additions to an existing heritage listed dwelling house, including partial demolition of existing structures, construction of a basement level, ground, first floor and attic level additions and renovations, construction of a swimming pool and tennis court and associated landscaping and earthworks on the land at 54 Woolwich Road, Hunters Hill (Lot 1 in DP 625333) subject to the conditions of consent contained at Annexure A.

T Horton

Commissioner of the Court 

Annexure A

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Decision last updated: 28 March 2025