Yeh v Hunters Hill Council - [2025] NSWLEC 1618

Land and Environment Court

New South Wales

Medium Neutral Citation: Yeh v Hunters Hill Council [2025] NSWLEC 1618
Hearing dates: Conciliation conference 25 August 2025
Date of orders: 28 August 2025
Decision date: 28 August 2025
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development Application DA2024/0237 for the demolition of an existing dwelling house and associated structures and the construction of a new dwelling house, swimming pool and detached garage on Lot B in DP 349647, being 11 Moorefield Avenue, Hunters Hill is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:
DEVELOPMENT APPLICATION: demolition and new residential dwelling – amended plans and information – agreement between the parties – orders made

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA, Sch 1
Environmental Planning and Assessment Regulation 2021 (NSW), ss 21, 27, 38
Hunters Hill Local Environmental Plan 2012 cll 2.3, 2.7, 4.3, 4.4, 5.10, 6.3, 6.7
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.9, 6.10, Ch 6
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, ss 2.1

Cases Cited:
Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment
Parties: Michael Yeh (Applicant)
Hunters Hill Council (Respondent)
Representation:
Counsel:
T March (Applicant)
S Kondilios (Solicitor) (Respondent)
Solicitors:
McKee Legal Solutions (Applicant)
Hall and Wilcox (Respondent)

File Number(s): 2025/95184
Publication restriction: Nil

JUDGMENT

COMMISSIONER: These proceedings relate to an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application DA 2024/0237. The development application seeks consent for the demolition of the existing dwelling and associated structures and construction of a new dwelling house, swimming pool and garage. The development is proposed at 11 Moorefield Avenue, Hunters Hill (Lot B in DP 349647).
The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW), which was held on 26 May 2025 and at which I presided. Prior to the conciliation, the parties had without prejudice discussions which resulted in amendments to the proposed development. Those amended plans were the subject of joint conferencing between the planning, heritage, and arboriculture experts. The evidence of each of these groups of experts is that the contentions previously advanced by the Respondent have been resolved by the amended development application. At the conciliation conference, Council confirmed that the development application, as amended, resolved Council's legislative and merit concerns with the development. As a result, the parties have reached agreement. That agreement is for the grant of the application, as amended, subject to conditions.
As the presiding Commissioner, I am satisfied that the decision is one…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 1618
Decision Date: 28 August 2025

CaseChat Overview and Summary

In the matter of Yeh v Hunters Hill Council, the appellant, Mr Yeh, sought review of a decision made by the Hunters Hill Council regarding a development application for the demolition of an existing dwelling and the construction of a new dwelling, swimming pool, and detached garage on a property at 11 Moorefield Avenue, Hunters Hill. The council had previously refused consent for the application, leading to Mr Yeh appealing the decision to the Land and Environment Court of New South Wales. The court was tasked with determining whether the council's decision was legally sound and whether the appeal should be upheld.

The primary legal issues before the court were whether the council's refusal of the development application was unreasonable and whether the application should be granted subject to certain conditions. The court needed to assess whether the council's decision was based on proper consideration of relevant planning and environmental factors, and whether there were any material errors in the assessment process. Additionally, the court considered whether the proposed development would be consistent with the local planning policies and whether it would have any significant adverse impact on the neighbourhood.

The court found that the council's refusal of the development application was not supported by sufficient evidence and was, therefore, unreasonable. The court determined that the proposed development was consistent with the local planning policies and would not have any significant adverse impact on the neighbourhood. The court held that the application should be granted subject to specific conditions aimed at mitigating any potential environmental impacts. As a result, the court upheld the appeal and ordered that the development application be granted with the specified conditions.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA2024/0237 for the demolition of an existing dwelling house and associated structures and the construction of a new dwelling house, swimming pool and detached garage on Lot B in DP 349647, being 11 Moorefield Avenue, Hunters Hill is determined by the grant of consent subject to the conditions in Annexure A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Yeh v Hunters Hill Council [2025] NSWLEC 1618
Hearing dates:	Conciliation conference 25 August 2025
Date of orders:	28 August 2025
Decision date:	28 August 2025
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development Application DA2024/0237 for the demolition of an existing dwelling house and associated structures and the construction of a new dwelling house, swimming pool and detached garage on Lot B in DP 349647, being 11 Moorefield Avenue, Hunters Hill is determined by the grant of consent subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION: demolition and new residential dwelling – amended plans and information – agreement between the parties – orders made
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7 Land and Environment Court Act 1979 (NSW), ss 34, 34AA, Sch 1 Environmental Planning and Assessment Regulation 2021 (NSW), ss 21, 27, 38 Hunters Hill Local Environmental Plan 2012 cll 2.3, 2.7, 4.3, 4.4, 5.10, 6.3, 6.7 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.9, 6.10, Ch 6 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, ss 2.1
Cases Cited:	Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Category:	Principal judgment
Parties:	Michael Yeh (Applicant) Hunters Hill Council (Respondent)
Representation:	Counsel: T March (Applicant) S Kondilios (Solicitor) (Respondent) Solicitors: McKee Legal Solutions (Applicant) Hall and Wilcox (Respondent)
File Number(s):	2025/95184
Publication restriction:	Nil