Shen v Hunters Hill Council

[2021] NSWLEC 1334

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shen v Hunters Hill Council [2021] NSWLEC 1334

Hearing dates:

Conciliation conference on 20 May 2021

Date of orders:

09 June 2021

Decision date:

09 June 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

Refer to the orders below at [12]

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

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

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Hua Shen (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
A Hudson (Solicitor) (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Hall & Wilcox (Respondent)

File Number(s):

2020/322096

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Hunters Hill Council (Council) of Development Application DA19/1101 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 819m² parcel of land at 30 Park Road, Hunters Hill and identified as Lot 15 in DP 250735 (the site). The DA, as originally lodged with Council, sought consent for the demolition of the existing dwelling and swimming pool and construction of a new dwelling, fencing and landscaping.

3. The DA was notified by Council commencing on 5 March 2020, resulting in the receipt of one submission. On 17 June 2020 the DA was refused under delegation and on 11 November 2020 the Applicant lodged this Class 1 Appeal with the Court. On 22 December 2020 the Council filed its Statement of Facts and Contentions (SOFC).

4. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), held on 20 May 2021. The proceedings commenced with the taking of an oral submission on site from the adjoining neighbour who had lodged the written submission of objection, and then proceeded to a site inspection and conciliation conference.

5. At the conclusion of the s 34 conference on 20 May 2021 the parties had reached an agreement, based on amended plans made to address matters raised in the SOFC and in the public submission. A final copy of the s34 agreement and conditions of consent forming Annexure A of the agreement was filed on 21 May 2021.

6. The main changes between the original DA and the amended application the subject of the s34 agreement are:

1. The area of the basement has been reduced in size from 76.44m² to 50.3m², with the size of the meter room reduced and the playroom replaced by a storeroom.

2. The flat roof has been replaced by a pitched roof, incorporating eaves.

3. Privacy screens have been added to the south facing first floor windows to Bedroom 5 and obscure glazing added to the two south facing ensuites (Bedrooms 1 and 5) in order to protect the privacy of 28 Park Road.

7. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings and agreed that there are no jurisdictional constraints to the Court exercising its function under s 34(3) of the LEC Act.

Satisfaction of jurisdiction

8. In relation to the Hunters Hill Local Environmental Plan 2012 (HHLEP) the relevant considerations are:

1. The development is for the purposes of a dwelling house, which is permissible with consent in the R2 Low Density Residential Zone (R2 Zone) and is consistent with the objectives of the R2 Zone.

2. The development has a height that is less than and therefore compliant with the 8.5m height of buildings development standard at cl 4.3 of the HHLEP.

3. The development complies with the landscaped area development standard at cl 6.9(2)(b) for 50% of the site area reduced by up to 33% for accommodating pathways, patio or terraces (pursuant to cl 6.9(4) of the HHLEP), resulting in a total landscaped area equating to 47.3% of the site area, as per the calculations on the landscape plan L 100 I dated 17 May 2021.

4. As the development complies with the height of buildings development standard at cl 4.3 of the HHLEP and the landscaped area development standard at cl 6.9, no floor space ratio development standard applies pursuant to cl 4.4(2A).

5. With respect to cl 6.1 Acid Sulfate Soils, the site is shown on the Acid Sulfate Soils Map as being within the Class 5 area, although the works are not “Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land”. Accordingly no acid sulfate management plan is required.

6. With respect to cl 6.3 Stormwater Management, Council is satisfied that the proposed development properly addresses the matters in (a) to (c) of subcl (3). Condition 8A requires submission of final engineering drawings consistent with the nominated concept stormwater plans.

9. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), applies to the land and cl 7 requires consideration of any contamination and associated remediation. The parties agree the site has a long residential usage and there is no evidence or indicators of contamination and Council has confirmed past zoning has been residential and not industrial or commercial. Accordingly no further assessment is required.

10. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), a revised BASIX Certificate number 10332269S_02 dated 16 May 2021 has been provided demonstrating compliance with the BASIX SEPP, and is referenced in the conditions of consent.

Disposal of proceedings in accordance with the parties’ decision

11. 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’ agreement.

12. The Court orders:

1. The Applicant is granted leave to amend its application to rely upon the following plans and documents:

1. Architectural Plans Revision 13 prepared by Urban Harmony dated 16/05/2021:

1. 563.000 - Cover

2. 563.105 - Roof plan

3. 563.101 - Site Plan

4. 563.102 - Lower Ground Floor Plan

5. 563.103 - Ground Floor Plan

6. 563.103a - Ground Floor Plan (Front Fence)

7. 563.104 - First Floor Plan

8. 563.106 - Elevations 1

9. 563.107 - Elevations 2

10. 563.108 - Sections 1

11. 563.109 - Sections 2

12. 563.110 - Sections 3

13. 563.111 - Sections 4

14. 563.112 - Window Schedule

15. 563.113 - BASIX

16. 563.114 - Site Analysis Plan

17. 563.118 - 3D Views 1

18. 563.119 - 3D Views 2

19. 563.120 - 3D Views 3

20. 563.121 - 3D Views 4

21. 563.122 - 3D Views 5

22. 563.123 - Elevational Shadow Diagram - Number 28

23. 563.124 - Front Fence Elevation

24. 563.125 - Landscape Area Plan

25. 523.126 - Streetscape Elevation

2. Shadow Diagrams prepared by Urban Harmony dated 19/05/2021

1. 563.115 - Shadow Diagram - Winter Solstice 9am

2. 563.116 - Shadow Diagram - Winter Solstice 12pm

3. 563.117 - Shadow Diagram - Winter Solstice 3pm

3. Landscape Plans prepared by Grant Clement dated 17/05/2021

1. L 100 - Landscape Plan

2. L 200 - Planting Plan

3. L 300 - Elevations

4. L 400 - Erosion Control Plan

5. External Finishes prepared by Gremmo Homes (provided to Council on 20 May 2021)

6. NatHERS Certificate dated 16 May 2021; and

7. BASIX Certificate dated 16 May 2021.

2. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent as agreed at $2000 (excluding GST) payable within 28 days from the date of this order.

3. The appeal is upheld.

4. Development Application DA2019/1101 for the demolition of an existing dwelling and swimming pool and construction of a new dwelling, front fence and landscaping with in ground pool at 30 Park Road, Hunters Hill NSW 2110 is approved subject to the conditions of consent annexed hereto and marked “A”.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (253318, pdf)

Site Plan (577822, pdf)

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Decision last updated: 09 June 2021