Wong v Hunter's Hill Council

[2025] NSWLEC 1116

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wong v Hunter’s Hill Council [2025] NSWLEC 1116

Hearing dates:

Conciliation Conference held 22 and 23 January 2025

Date of orders:

28 February 2025

Decision date:

28 February 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development consent is granted to Development Application No DA20230144, as amended, for the demolition of existing structures and the construction of a new two-storey, six-bedroom dwelling with a double garage, basement storage, landscaping and associated works, subject to the conditions in Annexure A to this agreement.

Catchwords:

DEVELOPMENT APPEAL – residential development – 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

Local Government Act 1993, s 205

Hunters Hill Local Environmental Plan 2012, cll 1.3, 2.4, 4.3, 4.4, 5.21, 6.1, 6.3, 6.6

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.11, s 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, s 4.4, Ch 6, ss 6.1, 6.3, Pt 6.2, Div 2, ss 6.6. 6.7. 6.8. 6.9. 6.10

Category:

Principal judgment

Parties:

Yuk Wong (Applicant)
Hunter’s Hill Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Apex Planning & Environment Law (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2024/280323

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA2023/0144 seeking consent for the demolition of the existing structures and construction of a new two-storey, six-bedroom dwelling, two car garage and basement boat storage room (Proposed Development) at 12 Joly Parade, Hunter’s Hill legally described as Lot 1 in DP 1296615 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 22 January 2025. I presided over the conciliation conference.

3. 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 and granting development consent to the development application subject to conditions.

4. 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. 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.

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

6. 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 to be the terms of the Hunters Hill Local Environmental Plan 2012 (HHLEP), the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.

7. The parties rely on the evidence of the town planner experts, Nick Juradowitch on behalf of the Applicant and Mark Adamson on behalf of the Respondent who prepared a Joint Expert Report filed on 17 December 2024. The parties’ experts agree that all Contentions raised in the Amended Statement of Facts and Contentions filed by the Respondent on 9 September 2024 (ASOFAC) have been resolved by the preparation of the:

1. amended material referred to at [37]; and

2. agreed conditions of consent.

8. The amendments to the Proposed Development include the reduction in the height of building and the gross floor area, increased landscaping, reduced glazing facing the waterway and the addition of a pitched roof.

9. The proceedings commenced onsite and the Court heard from a number of objectors and inspected the view from a number of residences, including the adjoining neighbour to the west of the Site. The Proposed Development proposes low height landscaping in the south west of the Site and the retention of existing fences.

10. The Applicant is the owner of the Site.

11. Most of the Site is zoned R2 Low Density Residential (R2 Zone) pursuant to the HHLEP. Dwelling houses are a permissible use within the R2 Zone. There is a 123m² triangular portion in the southeast corner of the Site, adjoining Tarban Creek, which is unzoned land. A minimal amount of the footprint of the dwelling house is located on the unzoned land.

12. The HHLEP applies to the unzoned land by operation of s 205 of the Local Government Act 1993 (LG Act). This is because cl 1.3 of the HHLEP states that “This Plan applies to the land identified on the Land Application Map”. The Land Application Map (Sheet LAP_001) outlines the Local Government Area (LGA) boundary in a thick black line. Section 205 of the LG Act is titled “Land taken to be included in an area”. Section 205(3) provides that:

(3) Land on the boundary of an area is to be taken to be in the area if –

(a) it is reclaimed from tidal waters, or

(b) it is on the foreshores of the area and beyond low-water mark, and it is privately owned or has a structure erected on it.

13. The unzoned land portion of the Site has been reclaimed from tidal water, is privately owned and has a structure erected on it (an existing above ground swimming pool). Therefore, the unzoned land is subject to the HHLEP but is not zoned by the land zoning map.

14. Clause 2.4 of the HHLEP provides that development may be carried out on unzoned land only with development consent. In deciding whether to grant development consent, the consent authority must consider whether the development will impact on adjoining zoned land and, if so, consider the objectives for development in the zones of the adjoining land, and must be satisfied that the development is appropriate and is compatible with permissible land uses in any such adjoining land. This provision is considered at pp 11 and 12 of the Statement of Environmental Effects filed with the Class 1 Application. The parties agree that the Proposed Development can operate in harmony with compatible with permissible land uses in any such adjoining land including the R2 land and the waterway.

15. Pursuant to cl 4.3 of the HHLEP and the Height of Buildings Map (Sheet HOB_002), a height of buildings development standard of 8.5m applies to the Site. The architectural drawings demonstrate that the Proposed Development complies with the HOB development standard.

16. Pursuant to cl 4.4 of the HHLEP and the Floor Space Ratio Map (Sheet FSR_002), a floor space ratio (FSR) development standard of 0.5:1 applies to the Site. The proposal complies with the FSR development standard.

17. The Site is not mapped within the flood planning area: cl 5.21, HHLEP.

18. The Site is mapped as Class 5 (Acid Sulfate Soils Map Sheet ASS_002), however, the Site is not located within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum. Further, the proposed excavation is minimal and the parties agree that the proposal is unlikely to cause the watertable to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. Therefore, the terms of cl 6.1 of the HHLEP are not enlivened.

19. Clause 6.3 of the HHLEP relates to stormwater management and provides that development consent must not be granted unless the consent authority is satisfied that the development:

(a) Is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) Includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) Avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

20. The Respondent did not raise any stormwater or engineering contentions in the Amended Statement of Facts and Contentions filed 9 September 2024. Stormwater management is satisfactorily addressed by amended Stormwater Plans which provide for the following:

1. the collection of stormwater and its treatment before discharge into Tarban Creek; and

2. the capture of stormwater in rainwater tanks.

21. The Final Plans are also supported by landscaping plans which provide for soft landscaping over deep soil over the majority of the Site. Finally, conditions 5, 24, 37, 43, 46 and 48 also regulate stormwater management. Having regard to the above I find that the jurisdictional prerequisites in cl 6.3 of the HHLEP have been satisfied.

22. Clause 6.6 of the HHLEP provides for limited development on foreshore area and at cl 6.6(2)(b) permits “the erection of a building in the foreshore area, if the levels, depth or other exceptional features of the site make it appropriate to do so”. The Site’s “exceptional feature” is the reclamation of land by seawalls and the use of fill on the Site. This has resulted in the Foreshore Building Line (FBL), as mapped on Sheet FBL_002 of the HHLEP, being anomalous, due to the FBL having been measured from a now obsolete mean high water mark. Accordingly, the consent authority is required to be satisfied of various matters at cl 6.6(3) of the HHLEP. I adopt the reasons set out in the Addendum to the SEE prepared by Ingham Planning dated January 2025 at pp 5 and 6 to reach the requisite state of satisfaction of those matters in cl 6.6(3) of the HHLEP.

23. For the purposes of Ch 2 of the Resilience and Hazards SEPP, the Site is located within a coastal use area, however, pursuant to s 2.11(2), the provisions relating to coastal use areas in Ch 2 do not apply to land that is within the Foreshores and Waterways area within the meaning of Ch 6 – Water Catchments of the Biodiversity and Conservation SEPP.

24. The Site is located within a regulated catchment listed in s 6.1 of the Biodiversity and Conservation SEPP, namely the Sydney Harbour Catchment. The Site is also mapped on the Sydney Harbour Foreshores and Waterways Area Map (Sheet FWA_001) and the Site adjoins land in Zone 5 – Water Recreation (W5 Zone) pursuant to s 6.26 of the Biodiversity and Conservation SEPP. Part 6.3 of the Biodiversity and Conservation SEPP therefore applies to the Site pursuant to s 6.24(1). In deciding whether to grant development consent, the consent authority is required to consider the provisions at s 6.28(1), and be satisfied of the provisions at s 6.28(2) of the Biodiversity and Conservation SEPP. These provisions have been addressed on page 10 and 11 of the Addendum to the SEE which I adopt as reasons to being satisfied as required by s 6.28(2) of the Biodiversity and Conservation SEPP.

25. In deciding whether to grant development consent within the Sydney Harbour Catchment, there are a number of jurisdictional prerequisites at Pt 6.2, Div 2, ss 6.6 (water quality and quantity), 6.7 (aquatic ecology), 6.8 (flooding), and 6.9 (recreation and public access) of the Biodiversity and Conservation SEPP. These matters are considered at pars 5.2.2, 6.1.2 and 6.3.2 of the SEE and addressed in further detail below.

26. Consideration has been given to relevant matters of water quality and quantity by the Council as set out in the Memorandum from the Consultant Development Engineer dated 11 May 2024 at Tab 9 of the Respondent’s bundle filed 15 January 2025. In addition, the Final Plans are supported by stormwater management plans which provide for the following:

1. the collection of stormwater and its treatment before discharge into Tarban Creek; and

2. the capture of stormwater in rainwater tanks.

27. The Final Plans are also supported by landscaping plans which provide for soft landscaping over deep soil over the majority of the Site. Condition 3B of the agreed conditions of consent at Annexure A make provision for an amended landscape plan to be provided to the Council to satisfy the landscape controls, consistent with the amended Architectural Drawings.

28. For these reasons the Court is satisfied that the Proposed Development ensures that the impact on water flow in a natural waterbody will be minimised as required by s 6.6 of the Biodiversity and Conservation SEPP.

29. No contention is raised by the Respondent with respect to aquatic ecology. No development is proposed in any body of water and excavation has been minimised and is to the Council’s satisfaction. Conditions of consent apply to erosion and sediment control and stormwater. The development is supported by stormwater management plans. Accordingly, the Court is satisfied of the matters raised at s 6.7(2) of the Biodiversity and Conservation SEPP.

30. The Proposed Development is not on flood liable land and excavation, cut and fill is minimised. The Court is satisfied of the matters raised at s 6.8(2) of the Biodiversity and Conservation SEPP.

31. The Site is private property on which a dwelling house is located. The Proposed Development will not interfere with existing access to Tarban Creek from the public domain in the vicinity of the Site. The Court is therefore satisfied of the matters at s 6.9(2) of the Biodiversity and Conservation SEPP.

32. In relation to s 6.10 of the Biodiversity and Conservation SEPP, the Proposal is unlikely to have any adverse impact on the downstream catchment. The Proposal has included appropriate measures to ensure that stormwater leaving the Site has been appropriately treated and managed during construction and ongoing operation.

33. Hunters Hill Local Government Area is not listed in Sch 2 of the Biodiversity and Conservation SEPP. Accordingly, and pursuant to s 4.4, the terms of Ch 4 of the Biodiversity and Conservation SEPP regarding Koala habitat protection do not apply to the Proposed Development.

34. Consideration has been given as to whether the Site is contaminated as required by s 4.6 of the Resilience and Hazards SEPP. The Council agrees that as the Site has a history of use only for residential purposes, it is unlikely to be contaminated.

35. 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. I adopt the reasons given by the parties as set out in this judgment.

36. 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.

Notations

37. The Court notes that the Respondent has approved, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application No. DA20230144 to incorporate the documents listed below (Amended Application).

1. Architectural plans prepared by Studio JLA
Drawing Number	Drawing Name	Revision	Date
DAA00.02	Demolition Plan	G	17 January 2025
DAA00.04	Waste Management Plan	G	17 January 2025
DAA01.20	GFA Calculation	O	22 January 2025
DAA01.22	Landscape Calculation	J	22 January 2025
DAA01.41	Excavation Analysis	J	22 January 2025
DAA02.00	Site / Roof Plan	S	22 January 2025
DAA2.01	Basement Floor Plan	U	22 January 2025
DAA02.02	Ground Floor Plan	U	22 January 2025
DAA02.03	Level 1 Floor Plan	T	22 January 2025
DAA3.00	Section AA & BB	N	22 January 2025
DAA03.20	Driveway Detail	G	22 January 2025
DAA04.00	Front & Rear Elevation	O	22 January 2025
DAA04.01	Side Elevations	O	22 January 2025
DAA10.00	Finishes Schedule	L	22 January 2025
2. Landscape Plans prepared by Grindstone Landscapes (to be amended per Conditions 3B and 3C)
Drawing Number	Drawing Name	Revision	Date
LDA-01	Landscape DA Plan	E	16 January 2025
LDA-02	Landscape DA Plan Deep Soil	E	16 January 2025
LDA-03	Rear Elevation	E	16 January 2025
3. Stormwater Plans and Driveway Section prepared by Nelly Davies Consulting Engineers
Drawing Number	Drawing Name	Revision	Date
SW01	Construction Notes	D	20 January 2025
SW02	Stormwater Management Plans – Lower Court Yard	E	20 January 2025
SW03	Stormwater Management Plans – Pool Level	D	20 January 2025
SW04	Stormwater Management Plans – Family Level	D	20 January 2025
SW05	Stormwater Management Plans – Street Level	D	20 January 2025
SW06	Erosion & Sediment Control Plan	D	20 January 2025
4. Documents
Addendum to Statement of Environmental Effects	Ingham Planning	21 January 2025
BASIX Certificate No. 1424365S_05	Concept Designs Australia	29 January 2025
NatHERS Certificate No. 0011668001_01	Concept Designs Australia	29 January 2025

Orders

38. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA20230144, as amended, for the demolition of existing structures and the construction of a new two-storey, six-bedroom dwelling with a double garage, basement storage, landscaping and associated works, subject to the conditions in Annexure A to this agreement.

E Espinosa

Commissioner of the Court 

Annexure A

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Decision last updated: 28 February 2025