Urban Revolutions Pty Ltd v Hunter’s Hill Council

[2024] NSWLEC 1060

Land and Environment Court

New South Wales

Medium Neutral Citation:

Urban Revolutions Pty Ltd v Hunter’s Hill Council [2024] NSWLEC 1060

Hearing dates:

Conciliation conference on 21 December 2023

Date of orders:

20 February 2024

Decision date:

20 February 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No DA20230069 is determined by the grant of development consent for the demolition of existing buildings, removal of 3 trees, construction of a two storey dwelling with a lower ground level, swimming pool and associated landscaping, at 34 Figtree Road, Hunters Hill NSW 2110 (legally described as Lot 32 DP 9243), subject to the conditions of consent at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

Hunters Hill Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pts 6.2, 6.3

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

Category:

Principal judgment

Parties:

Urban Revolutions Pty Ltd (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Masdens Law Group (Respondent)

File Number(s):

2023/224958

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 deemed refusal of Development Application No DA20230069 for the demolition of existing buildings, removal of 3 trees, construction of a 2 storey dwelling with a basement/lower ground floor, swimming pool and related landscaping (the proposal), at 34 Figtree Road, Hunters Hill (the site), by Hunter’s Hill Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 December 2023. 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.

3. 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.

4. 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).

The application is amended

5. The Council, as the consent authority, consented to the amendment of the application dated 4 December 2023 and 25 January 2024, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are listed under condition 2 of the conditions of consent at Annexure A.

Jurisdictional pre-requisites

6. The site is zoned R2 Low Density Residential pursuant to LEP 2012 and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, 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.

7. The site is located within the Hunters Hill Conservation Area No 1 (Peninsula Heritage Conservation Area (HCA)) and is in the vicinity of local heritage items (Sch 5 to LEP 2012). Pursuant to cl 5.10(4) of LEP 2012, the consent authority, or the Court exercising the functions of the consent authority, must consider the effect of the proposal on the heritage significance of the HCA. Based on the agreement of the heritage experts in their joint report filed 21 November 2023, I am satisfied that the amended proposal will not affect the identified collective heritage significance of the Peninsula HCA.

8. The site is subject to a height of buildings development standard of 8.5m (cl 4.3 of LEP 2012) and a floor space ratio (FSR) development standard of 0.5:1 (cl 4.4 of LEP 2012). Pursuant to cl 4.4(2A), there is no maximum FSR for the site provided that a dwelling house on land complies with the height and landscaping standards. The proposal is compliant with the landscaping requirements under cl 6.9 of LEP 2012. The proposal is compliant with the development standards.

9. The site is identified as being affected by Class 5 Acid Sulphate Solis on the relevant map, pursuant to cl 6.1 of LEP 2012. I accept the Council’s submission that the proposal is acceptable in terms of the matters listed under cl 6.2(3) of LEP 2012.

10. I am satisfied that the proposal has been designed, sited and will be managed to avoid adverse effects on the matters specified under Pt 6.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C). The provisions of Pt 6.3 of SEPP B&C are satisfied by the implementation of the Stormwater Management and Civil Plans dated 14 November 2023.

11. I accept the Council’s submission that the long term use of the site has been residential and is therefore unlikely to be contaminated (s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021).

Conclusion

12. I have considered the submissions made by the Council in the Agreed Jurisdictional Prerequisites filed with the Court on 2 February 2024 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

13. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No DA20230069 is determined by the grant of development consent for the demolition of existing buildings, removal of 3 trees, construction of a two storey dwelling with a lower ground level, swimming pool and associated landscaping, at 34 Figtree Road, Hunters Hill NSW 2110 (legally described as Lot 32 DP 9243), subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

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Annexure A

Decision last updated: 20 February 2024