Wan v Hunters Hill Council

[2022] NSWLEC 1426

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wan v Hunters Hill Council [2022] NSWLEC 1426

Hearing dates:

Conciliation conference on 4 August 2022

Date of orders:

10 August 2022

Decision date:

10 August 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA2021/1266, for the construction of a new dwelling comprising ground floor modifications to existing dwelling, first floor addition, new swimming pool, outbuilding, tree removal, drainage and landscaping works on land legally described as Lot 1 in DP 1019616 and known as 28 Madeline Street, Hunters Hills, NSW, 2110, subject to the conditions at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – heritage conservation – dwelling house development in R2 Low Density Residential zone – heritage conservation zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Hunters Hill Local Environmental Plan 2012, Sch 5, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.3, 6.7, 6.9,

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 10, ss 10.18, 10.23

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

State Environmental Planning Policy (Resilience and Hazards) 2021, Pt 7, ss 2.12, 2.13, 4.6,

Category:

Principal judgment

Parties:

Shaoang Wan (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/137216

Publication restriction:

No

Judgment

1. COMMISSIONER: An existing brick dwelling occupies a corner allotment at the intersection of Madeline Street and Ady Street, Hunters Hill, on which the Applicant in these proceedings seeks development consent for development that comprises the following:

1. Ground floor modifications to orient the main living area to the northern side of the residence – connecting to the outside pool and recreation area;

2. Construction of a living room, kitchen, tea room, lounge, study, toilet, guest room with ensuite and stairs on the ground floor;

3. Removal of four (4) mature trees;

4. Construction of a master bedroom suite with terrace, two bedrooms with shared bathroom and fourth bedroom with ensuite on the first floor;

5. Demolition of the existing carport and garage and construction of a new double garage with modified access off Madeline Street;

6. Construction of a new pitched roof; and

7. Ancillary site works including landscaping and stormwater drainage.

2. To this end, the Applicant lodged Development Application DA2021/1266 with Hunters Hill Council (the Respondent) on 5 November 2021.

3. The development application remains undetermined, and the Applicant now brings this Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The appeal was listed for mandatory conciliation on 4 August 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference.

5. On the basis of the amended plans and agreed conditions of consent, the parties reached agreement at the conciliation conference as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) by lodgment of the plans and other documents contained in Annexure A to this judgment on the NSW Planning Portal, evidenced to the Court on 5 August 2022.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 5 August 2022.

7. 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 by the applicant, 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.

8. 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 [31].

9. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

10. The site is located within the R2 Low Density Residential zone, pursuant to the Hunters Hill Local Environmental Plan 2012 (HHLEP), in which dwelling house development is permitted with consent, and where consistent with the objectives of the zone, as follows:

•  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.

11. The proposed development complies with the height of buildings development standard at cl 4.3 of the HHLEP, and also complies with the terms of cl 4.4(2A) of the HHLEP with respect to floor space ratio.

12. Compliance with cl 4.4(2A) is contingent upon satisfying cl 6.9(2)(b) of the HHLEP that requires at least 50% of the site to be landscaped area. Landscaped area is defined in the dictionary of the HHLEP in the following terms:

landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.

13. I am satisfied that the area depicted on architectural plan DA15 as landscaped area is greater than 50% of the site area, consistent with the terms of cl 6.9(2)(b) of the HHLEP.

14. The site is located within the area identified in Sch 5 of the HHLEP as the Hunters Hill Conservation Area No 1 – The Peninsula (Hunters Hill HCA), and contains Stone walling which is an item of local heritage significance identified as item I287. Furthermore, the site is in close proximity to items of heritage significance directly opposite the site at 5 Ady Street and 31 Madeline Street, and adjoining to the west at 26 Madeline Avenue.

15. As a result of the amended architectural plans, the heritage experts agree more of the important interwar character is retained in the face brick presentation of the original house, and its landscaped setting. Likewise, the planning experts agree that the character of the Hunters Hill HCA, insofar as it comprises interwar character, is retained. I note existing openings in the stone walling to the perimeter of the site are retained, and no new openings are proposed.

16. While overshadowing will result to openings in the primary ground floor living area of 26 Madeline Street, the shadow is cast on windows within 800mm of the boundary, and by a built form that is within the height standard, and which exceeds the side setback provisions applicable to the site by the Hunters Hill Development Control Plan 2013. I accept that this does not, of itself, compromise the heritage significance of the item. On this basis, I accept that the effect of the proposed development on the significance of the Hunters Hill HCA, and heritage items in the vicinity of the site is not adverse, pursuant to cl 5.10 of the HHLEP.

17. The site is identified on the Acid Sulfate Soils Map at cl 6.1(2) of the HHLEP as Class 5, but is not within 500m of adjacent Class 1, 2, 3 or 4 land and so consent is not required for the carrying out of works under this provision.

18. On the basis of the extent of proposed earthworks, being largely limited to excavation within the footprint of the swimming pool, I am satisfied in respect of those matters at cl 6.2(3) of the HHLEP and, relatedly, by reference to the amended landscape plans, prepared by Paul Scrivener Landscape, dated 2 August 2022, and Stormwater management plans prepared by SDS Engineering, dated 25 October 2021, that stormwater management has also been satisfactorily addressed within the terms of cl 6.3(3) of the HHLEP.

19. While the site is identified on the River Front Area map at cl 6.7(2) of the HHLEP, I accept that the site is not visible from the Lane Cove River to the north. In any event, I note the planning experts agree that the roof height, design and materiality is satisfactory.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. Relatedly, the site is also identified on the Foreshore and Waterways Area boundary according to Chapter 10 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP).

21. In accordance with s 10.18 of the Biodiversity and Conservation SEPP, I have considered those matters at s 10.23. For similar reasons to those stated at [19], the agreement reached between the heritage and planning experts, and the Amended Heritage Impact Statement prepared by Urbis, dated 21 July 2022, I conclude the proposed development is acceptable within the terms of the Biodiversity and Conservation SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. The site is located within the coastal environment area and coastal use area as defined by Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

23. Under the terms of ss 2.12 and 2.13 of the Resilience and Hazards SEPP, the consent authority, or the Court exercising the functions and discretions of the consent authority on appeal, must be satisfied that the proposed development will not likely cause increased risk of coastal hazards on land, and must consider the relevant provisions of any applicable certified coastal management program.

24. On the basis of the architectural, landscape and stormwater plans, I am satisfied that the proposal will not give rise to the hazards defined in the Coastal Management Act 2016.

25. I have considered the relevant provisions of the Lane Cove River Coastal Zone Management Plan and conclude that the proposed development is not inconsistent with the aims, principles, processes, objectives, strategies or management actions contained therein.

26. In particular I note the Stormwater management plans cited at [18], and the agreed conditions of consent at Condition 18 and 19 address the issues of particular relevance in Part 7 of the Lane Cover River CZMP.

27. I also accept the agreed position of the parties, supported by historical documentation and aerial photography contained in the Amended Heritage Impact Statement prepared by Urbis, dated 21 July 2022, that the site has historically been used for residential purposes and I am satisfied that the site is not contaminated, pursuant to s 4.6 of the Resilience and Hazards SEPP.

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

28. Finally, I am satisfied that the application is accompanied by a complying BASIX certificate prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

29. 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.

30. 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.

Orders

31. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. DA2021/1266, for the construction of a new dwelling comprising ground floor modifications to existing dwelling, first floor addition, new swimming pool, outbuilding, tree removal, drainage and landscaping works on land legally described as Lot 1 in DP 1019616 and known as 28 Madeline Street, Hunters Hills, NSW, 2110, subject to the conditions at Annexure B.

……………………

T Horton

Commissioner of the Court

(Annexure B) (68990, docx)

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Decision last updated: 10 August 2022