Wang v Hunter's Hill Council

[2024] NSWLEC 1388

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wang v Hunter’s Hill Council [2024] NSWLEC 1388

Hearing dates:

Conciliation conference on 19 June 2024

Date of orders:

09 July 2024

Decision date:

09 July 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No DA2023/0096, as amended, for the demolition of the existing dwelling, Strata Title subdivision and construction of a new attached dual occupancy, on land identified as Lot 2, Section 1 in Deposited Plan 808, known as 49 Woolwich Road, Hunters Hill NSW 2210, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy – conciliation conference - 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, ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2 and 6

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 4.2

Hunters Hill Local Environmental Plan 2012 cll 4.1, 4.1A, 4.3, 4.4, 5.10. 6.1, 6.2, 6.3

Category:

Principal judgment

Parties:

Li Wang (Applicant)
Hunter’s Hill Council (Respondent)

Representation:

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

Solicitors:
Bartier Perry Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/365696

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application 2023/0096. The development application sought consent for the demolition of the existing dwelling, Torrens Title subdivision and construction of a new attached dual occupancy (DA) at 49 Woolwich Road, Hunters Hill, legally described as Lot 2, Section 1 in DP 808 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending DA2023/0096 in accordance with the documents listed below (amended DA):

• The following amended architectural plans prepared by LIS Architects:

Drawing Title	Sheet No.	Revision	Dated
Cover Page	DA001	C	13 June 2024
BASIX Commitment	DA002	C	13 June 2024
Site Plan	DA004	C	13 June 2024
Draft Strata Subdivision Plan	DA006	C	13 June 2024
Basement Plan	DA101	C	13 June 2024
Ground Floor Plan	DA102	C	13 June 2024
First Floor Plan	DA103	C	13 June 2024
Roof Plan	DA104	C	13 June 2024
Elevations	DA201	C	13 June 2024
Elevations	DA202	C	13 June 2024
Elevations	DA203	A	13 June 2024
Sections	DA301	C	13 June 2024
Driveway Profiles	DA302	C	13 June 2024
Privacy Screen Details	DA303	A	13 June 2024
Material and Finishes	DA701	C	13 June 2024

• The following amended landscape plans prepared by Lisound Landscape:

Drawing Title	Sheet No.	Revision	Dated
Landscape Plan	182023/01	B	11 May 2024
Landscape Plan	182023/02	B	11 May 2024

• BASIX Certificate number 1380913M_02 dated 14 June 2024.

3. The changes are summarised as:

• Change from Torrens Title subdivision to Strata Title subdivision;

• Built form changes to address the streetscape of the heritage conservation area; and

• Reduction in overshadowing and measures to minimise overlooking to adjoining properties.

4. 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 19 June 2024. I have presided over the conciliation conference.

5. 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. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended application subject to conditions.

6. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

10. I am satisfied that owners consent accompanied the DA.

11. The DA was lodged to the Respondent on 3 August 2023. The Respondent notified the DA between 9 August 2023 and 6 September 2023. Two submissions were received. In entering an agreement, the parties advised the Court that they have considered the concerns raised.

Hunters Hill Local Environmental Plan 2012

12. The site is zoned R2 Low Density Residential under the Hunters Hill Local Environmental Plan 2012 (HHLEP). The proposed development for dual occupancies is permitted with consent and I have had regard to the objectives of the zone.

13. The parties agree and I accept that the following applicable HHLEP provisions are met:

1. Clause 4.1 minimum subdivision lot size no longer applies as the amended DA seeks strata subdivision instead of Torrens Title subdivision.

2. Clause 4.1A minimum lot size for dual occupancies requires a minimum of 700m² for an attached dual occupancy. The site is 947.61m² and meets the requirement (Survey Plan prepared by CC Surveying dated 16 December 2019).

3. Clause 4.3 height of buildings applies to the site and allows a maximum building height of 8.5m. The amended DA, as shown on the architectural plans prepared by LIS Architects dated 13 June 2024 (architectural plans) confirm that the proposed building is less than 8.5m (Sections dwg DA301).

4. Clause 4.4 floor space ratio (FSR) applies to the site and allows a maximum of 0.5:1. The architectural plans show that the amended DA does not exceed the maximum FSR, at 0.5:1 (Site Plan dwg DA004).

5. Clause 5.10 heritage conservation applies to the site as it is located within the Hunters Hill Conservation Area 1 – The Peninsular and the Sunnyside Conservation Area and adjoins heritage items. The amended DA is accompanied by a Heritage Impact Assessment prepared by Weir Phillips dated 1 March 2023 which addresses the proposed development’s impacts as required by cl 5.10.

6. Clause 6.1 acid sulfate soils applies to the site as the site is mapped as Class 5 and within 500m of Class 2 soils. The Statement of Environmental Effects prepared by BMA Urban dated 25 May 2023 (SEE) confirms that the amended DA is unlikely to lower the water table. The provisions of subcll 6.1 (2) and (3) do not apply.

7. Clause 6.2 earthworks applies to the amended DA. The Geotechnical Investigation Report prepared by Core Geotech dated 10 April 2023 and SEE adequately addresses the provisions. Appropriate conditions of consent are also included within Annexure A.

8. Clause 6.3 stormwater management applies to the amended DA. The amended DA is supported by stormwater plans prepared Telford Civil dated 20 March 2023 which satisfy the provisions of subcl 6.3(3) and discharges stormwater to the street.

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

14. The proposed development is a BASIX affected development (s 27 of EPA Reg 2021). The DA was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022, which does not apply in accordance with the savings provisions under s 4.2. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate that satisfies the repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the amended DA. The Arborist Report prepared by Horticultural Resources Consulting Group dated 10 March 2023 justifies the removal of the seven trees.

16. Chapter 6 applies as the site is located within the Sydney Harbour Catchment. The SEE accompanying the application states that the proposal will have a neutral effect on water quality, incorporates reuse of water through the proposed water tanks and will not be visible from Sydney Harbour. The DA is accompanied by stormwater plans and appropriate conditions of consent at Annexure A that the parties agree deal with stormwater management. With consideration of the above and the jurisdictional statement, the parties agree and I accept that the provisions of SEPP BC are met.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The SEE states that the site has a history of residential use for many years and is unlikely to be contaminated. Accordingly, the parties agree and I am satisfied that the provisions of s 4.6 of SEPP RH have been adequately addressed.

Conclusion

18. 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.

19. 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.

20. I have considered the jurisdictional prerequisites 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

21. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA2023/0096, as amended, for the demolition of the existing dwelling, Strata Title subdivision and construction of a new attached dual occupancy, on land identified as Lot 2, Section 1 in Deposited Plan 808, known as 49 Woolwich Road, Hunters Hill NSW 2210, subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

365696.23 Annexure A

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Decision last updated: 09 July 2024