Sheppard v Hunters Hill Council

[2020] NSWLEC 1621

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sheppard v Hunters Hill Council [2020] NSWLEC 1621

Hearing dates:

Conciliation conference on 4 & 26 November 2020

Date of orders:

9 December 2020

Decision date:

09 December 2020

Jurisdiction:

Class 1

Before:

Adam AC

Decision:

See orders at [11] below.

Catchwords:

DEVELOPMENT APPLICATION – garage – landscaping – conciliation conference – amended plans – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Hunters Hill Local Environmental Plan 2012

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Texts Cited:

Hunters Hill Development Control Plan 2013

Category:

Principal judgment

Parties:

Samantha Sheppard (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
DG Briggs & Associates (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2020/70211

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicant, Ms Sheppard, has appealed the refusal by Hunters Hill Council of development application DA 2019/1089 seeking approval for the construction of a double garage and associated works at 47 Auburn Street, Hunters Hill (which is Lot 5 in DP 9948). The appeal was made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are to be determined pursuant to s 4.16 of the EPA Act.

2. The matter commenced on site on 4 November 2020 as a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. The conciliation started at the street frontage of the site where the proposal was explained. Views were also taken from within the residence to understand how the proposal would appear from within the house; and also to observe the nature of recent development on the opposite side of the street. There were no objectors.

4. The conciliation continued by observing dwellings along Auburn Street with the diversity of appearance of different properties noted, as well as how provision of garage space had been addressed. It was pointed out that a number of the garages observed had been constructed prior to the introduction of the current Hunters Hill Local Environmental Plan 2012 (HHLEP) and the Hunters Hill Development Control Plan 2013 (HHDCP).

5. The conciliation then continued using MS teams. During the course of the conciliation the parties reached an in-principle agreement by which the matter could be disposed pursuant to s 34(3) of the LEC Act. The in-principle agreement was documented by a Heads of Agreement dated 4 November 2020 and signed by the parties’ legal representatives on 5 November 2020. The conciliation was adjourned to permit the applicant to prepare the amended plans specified in the Heads of Agreement, and the Court made orders for finalising the plans, draft conditions and notes as to the jurisdictional and merit issues. This timetable was complied with.

6. Pursuant to s 34(3) of the LEC Act the parties reached an agreement as to the terms of the decision which is acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions). The parties identified the relevant jurisdictional prerequisites in these proceedings. The parties are in agreement that the jurisdictional prerequisites have been satisfied.

7. The parties agreed that pursuant to s 34(3)(a) and (b) of the LEC Act the Court is required to dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is one that the Court could have made in the proper exercise of its functions.

8. The parties agreed that:

1. The jurisdictional matters about which the consent authority (the Court standing in the shoes of the Council) must be satisfied are:

1. the application relates to 42 Auburn Street, Hunters Hill, being Lot 5 in DP 9948;

2. the applicant is an owner of the land. The development application was made with the owner's consent;

3. the development in the form agreed by the parties and which is the subject of the amended plans is for the construction of a single garage with pitched tile roof, and attached carport, associated retaining walls and landscaping with a new driveway crossing and layback;

4. the proposal is permissible with consent with in the R2– Low Density Residential zone under the HHLEP;

5. the site is not of heritage significance;

6. the site is not located in a heritage conservation area;

7. the parties have considered the relevance of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) and are satisfied that there are no former uses of the land that warrant particular consideration(s) under SEPP 55;

8. the proposed development complies with all development standards that apply to a development of this kind. There are no clause 4.6 submissions relevant to the proposal.

9. Having observed the site and its context, read the relevant planning instruments and the amended plans, I agree with the parties’ conclusions.

10. Given that all jurisdictional requirements are met, I am not required to make an assessment of merits issues. I note that the parties’ Summary of Jurisdictional Matters includes a record of their agreement that the merit matters raised in contentions:

1. Adverse visual impact

2. Landscaped area and landscaping theme

3. Character

4. Impact on existing trees

5. Lack of necessary information

have been resolved by the changes to the plans and the landscaping plan.

Orders

11. The Court orders that:

1. The Applicant is granted leave to amend Development Application No. DA 2019/1089 to rely on the following amended plans:

Drawing Number	Drawn By	Plan Dated
A01 - Title Page/ Materials and Finishes	Justin Long Design	5.11.2020
A04 - Proposed Ground Floor Plan	Justin Long Design	5.11.2020
A05 - Proposed Roof and Concept Storm water Drainage Plan	Justin Long Design	5.11.2020
A07 - Proposed Elevations and Sections	Justin Long Design	5.11.2020
A08 - Proposed Eastern Elevation	Justin Long Design	5.11.2020
A09 - Proposed Detail Landscape Plan	Justin Long Design	24.11.2020

2. The appeal is upheld.

3. Development Application No. DA 2019-1089 as amended for the construction of as single garage with pitched tiled roof, an attached carport with a flat roof, associated retaining walls and landscaping with a new driveway crossing and layback is granted consent subject to the conditions of consent set out in Annexure “A”.

4. No order as to costs.

………………………

P Adam

Acting Commissioner of the Court

Annexure A (210534, pdf)

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Decision last updated: 10 December 2020