Yuan v Hunter's Hill Council

[2025] NSWLEC 1183

Land and Environment Court

New South Wales

Medium Neutral Citation:

Yuan v Hunter’s Hill Council [2025] NSWLEC 1183

Hearing dates:

Conciliation conference held 29 November, 18 December 2024, 10 February, 25 February 2025

Date of orders:

27 March 2025

Decision date:

27 March 2025

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA 2021/1245 and rely upon the amended plans and documents referred to in Condition A1 at Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $27,000 within 28 days of the date of these orders.

(3) The Applicant’s written request, pursuant to cl 4.6 of the Hunter’s Hill Local Environmental Plan 2012 (HHLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the HHLEP, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application DA 2021/1245 (as amended) for the demolition of existing structures, subdivision of the site into two lots, excavation and construction of a dual occupancy (attached) on the front lot (with associated strata subdivision) and a dwelling house on the rear lot, with associated earthworks, tree removal and landscaping at 22 Barons Crescent, Hunters Hill, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy – single dwelling house – subdivision – cl 4.6 written request – height of buildings – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 7, ss 7.3, 7.7

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Hunters Hill Local Environmental Plan 2012, cll 2.3, 2.6, 2.7, 4.1, 4.3, 4.6, 6.1, 6.2, 6.3, 6.5, 6.6, 6.7, 6.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, 10 ss 2.7, 6.8, 10.18, 10.19, 10.23, 10.24

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

State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, ss 2.8, 2.10, 2.11, 2.12, 2.13, 4.6

Texts Cited:

NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020

Category:

Principal judgment

Parties:

Tu He Yuan (Applicant)
Hunter’s Hill Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2024/227803

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), brought by Tu He Yuan (the Applicant), against the refusal of Development Application DA 2021/1245 (the DA) by Hunter’s Hill Council (the Respondent).

2. At the date of its lodgement on 4 November 2021, the DA sought consent for the demolition of the existing dwelling, construction of a two-storey dual occupancy and construction of a separate, single dwelling house with swimming pool, and associated subdivision of the parent lot, at 22 Barons Crescent, Hunters Hill (the site).

3. A brief history of the DA is useful in establishing context to the dispute. Subsequent to the DA’s lodgment on 4 November 2021, Class 1 proceedings were commenced with the Court on 11 March 2022 appealing against the Respondent's deemed refusal.

4. On 17 June 2022 these proceedings were discontinued and at this point the DA remained lodged but undetermined.

5. On 16 January 2023, the Applicant lodged an amended DA.

6. On 29 February 2024, this amended DA was determined by way of refusal by the Respondent.

7. Accordingly, these proceedings relate to an appeal against the actual refusal of the amended DA.

8. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 November, 18 December 2024, 10 February and 25 February 2025. I presided over the conciliation conference.

9. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to a (further) amended DA, subject to conditions.

10. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent. These contentions included issues of loss of trees of high value, inadequate landscaping, incompatibility with existing and desired future character, inappropriate building height, bulk and scale, potential impacts of the DA upon ecology and waterways, and excessive excavation, amongst other contentions.

11. Agreed design amendments have been made to improve the proposed buildings’ relationship to the site, the street and wider context and the desired future character of this part of Hunters Hill. Changes have also been made to increase the number of trees to be retained and to improve tree protection more generally. These agreed amendments also have the effect of reducing the perceived scale and bulk of the DA from key vantage points.

12. 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 amended DA.

13. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

14. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

15. The original DA was publicly notified for 10 working days from 8 November 2021. A total of nine submissions were received by the Respondent.

16. The amended DA was publicly notified for 14 calendar days from 1 February 2023. A total of twelve submissions were received by the Respondent.

17. Cumulatively, these submissions raised concerns including:

1. Tree loss and associated loss of biodiversity values.

2. Excessive building height and bulk.

3. Overshadowing impacts and loss of solar access.

4. Inadequate provision for waste management.

5. Privacy impacts and cross viewing.

6. Inadequate driveway access for vehicles.

7. Inappropriate and inconsistent building character.

8. Excessive excavation.

9. Construction phase impacts including noise, vibration and potential damage to neighbouring structures.

18. Additionally, during the conciliation phase, the Applicant provided amended plans for the Respondent to informally notify those objectors who addressed the Court at the commencement of the s34 conference. No further submissions were made in response to this notification.

19. The parties agree, and I am satisfied, that the final amended DA and conditions of consent now satisfactorily address the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

20. The parties agree, and I am satisfied, that the Hunters Hill Local Environmental Plan 2012 (HHLEP) is the relevant local environmental planning instrument. The site is zoned R2 Low Density Residential. The final amended DA - characterised as dual occupancy and dwelling house development - is permissible with consent within the R2 zone.

21. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the HHLEP - Zone objectives and Land Use Table - the amended DA is consistent with the R2 Low Density Residential zone objectives.

22. The parties agree, and I am satisfied, that pursuant to cl 2.6 of the HHLEP - Subdivision—consent requirements - subdivision of the site is permissible with consent. The amended DA proposes subdivision.

23. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the HHLEP - Demolition requires development consent - demolition of existing structures is permissible with consent. The amended DA proposes demolition of the existing structures occupying the site.

24. The parties agree, and I am satisfied, that pursuant to cl 4.1 of the HHLEP - Minimum subdivision lot size - the resultant size of any subdivided lot is not to be less than the minimum size of 700sqm. The amended DA proposes subdivision of the existing lot to create two new lots, being 746.6sqm and 1,939sqm (1,707sqm excluding access handle), for the proposed dual occupancy and single dwelling respectively.

25. The parties agree, and I am satisfied, that all other principal development standards of the HHLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings.

26. In such an instance, cl 4.6 of the HHLEP requires consideration of a written request from the Applicant demonstrating that compliance with the height of building development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

27. Clause 4.6 of the HHLEP then requires the consent authority (the Court in this instance) to be satisfied that the Applicant’s written request adequately addresses the matters set out at cl 4.6, and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard (for height of buildings) and the objectives for development within the zone (R2 Low density residential) in which the development is proposed to be carried out.

28. Additionally, cl 4.6 of the HHLEP requires the concurrence of the Planning Secretary be obtained, and requires the Planning Secretary to consider whether the proposed contravention of the development standard raises matters of significance for State environmental planning, and the public benefits of maintaining the standard.

29. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter.

30. The Applicant has provided a written request seeking to vary the height of buildings development standard, prepared by Planning Ingenuity and dated 4 November 2024.

31. Pursuant to cl 4.3 of the HHLEP the site is subject to a height of building development standard of 8.5m.

32. The amended DA proposes a maximum building height of 8.9m, exceeding the relevant height of building development standard by 400mm and representing a variance of approximately 4.7%.

33. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

1. The final amended DA is agreed to be an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

2. The area of building height exceedance relates to a minor portion of the down-hill trailing edge of the proposed roof to the dual occupancy situated away from the primary street presentation.

3. The proposed building height exceedance results from the steeply sloping topography of the site and is confined to the northernmost part of the dual occupancy. The proposed variation is numerically minor and will not be distinguishable from neighbouring properties, the street or nearby waterways when compared with a compliant scheme.

4. The amended DA is now consistent with anticipated building setbacks, and results in reduced site coverage, increased landscape areas and the retention of significant trees.

5. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

6. The portion of the final amended DA contributing to the height of building exceedance does not give rise to adverse impacts of building character and appearance.

7. The relevant objectives of the HHLEP Zone R2 Low Density Residential land use zone include to provide for the housing needs of the community within a low density residential environment; 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; and to provide for high levels of amenity that are consistent with a low density residential environment. I am satisfied the amended DA is consistent with these objectives.

8. The relevant objectives of cl 4.3 of the HHLEP include to specify limits for the size and scale of development that would be compatible with the character, amenity and potential of particular locations; to maintain the character and identity of Hunters Hill by limiting the scale of buildings to a maximum of two storeys in the low density residential zone, heritage conservation areas and foreshore areas facing Lane Cove River or Parramatta River; and to protect existing dwellings from excessive overshadowing, loss of privacy, obstruction of views and general visual impacts. I am satisfied the amended DA meets these objectives.

34. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

35. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the HHLEP - Acid sulfate soils - the site is mapped within a Class 5 acid sulfate soils area. However, the amended DA involves works that are not likely to lower the water table below 1m AHD on any class of land within 500m of the site and therefore an acid sulfate soils management plan is not required to be prepared.

36. The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the HHLEP - Earthworks. The Applicant has provided a Geotechnical Investigation, prepared by JK Geotechnics and dated 27 April 2021. I am satisfied those matters set out at cl 6.2(3) have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works in accordance with the recommendations of the Geotechnical Investigation.

37. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the HHLEP - Stormwater management - those matters set out at cl 6.3(3), including the use of water permeable surfaces, on-site stormwater retention for use as an alternative supply to mains water, and avoiding any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, have been have been given appropriate consideration.

38. The parties agree, and I am satisfied, that pursuant to cl 6.5 of the HHLEP - Riparian land and adjoining waterways - the northern portion of the site is mapped within the Riparian Land and Waterways Map. The final amended DA is agreed to be designed and sited, and will be managed, to avoid significant adverse environmental impacts.

39. The parties agree, and I am satisfied, that pursuant to cl 6.6 of the HHLEP - Limited development on foreshore area - the site is mapped within the Foreshore Area Map. However, the final amended DA situates proposed building form entirely on land outside the Foreshore Area.

40. The parties agree, and I am satisfied, that pursuant to cl 6.7 of the HHLEP - Development on river front areas - the site is mapped within the River Front Area Map. The final amended DA is agreed to be sited and designed to minimise visual impacts to and from Buffalo Creek and designed to maintain the natural significance of the site, and designed to not obstruct existing views to waterways from a public road.

41. The parties agree, and I am satisfied, that pursuant to cl 6.9 of the HHLEP - Landscaped area for dwelling houses and secondary dwellings - the final amended DA meets the requirement for 50% of the site area to be configured as landscaped area.

42. The parties agree, and I am satisfied, that the Biodiversity Conservation Act 2016 (BC Act) applies to the amended DA. Part 7 of the BC Act deals with the biodiversity assessment of various types of development approvals under the EPA Act.

43. More specifically, s 7.3 of the BC Act sets out a test for when a proposed development is likely to significantly affect threatened species or ecological communities, or their habitats.

44. The parties agree, and I am satisfied, that the final amended DA is not likely to significantly affect threatened species, and accordingly a Biodiversity Development Assessment Report otherwise required pursuant to s 7.7(2) of the BC Act is not required.

45. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

46. Given the history and timing of the DA, and given various amendments made to SEPP BC, different versions of a number of chapters are relevant to the final amended DA.

47. Chapter 2 of SEPP BC deals with clearing of vegetation in non-rural areas. The parties agree and I am satisfied, that the final amended DA proposes the removal of vegetation and proposes appropriate replacement trees.

48. The necessary permit to clear vegetation required by s 2.7 of SEPP BC is provided by the development consent made pursuant to this appeal.

49. The relevant earlier version of Chapter 6 of SEPP BC (in force at the date the DA was originally lodged) deals with bushland in urban areas and remains applicable to the final amended DA. The site is agreed to adjoin bushland zoned or reserved for public open space purposes.

50. Former s 6.8(2) of SEPP BC requires the consideration of a series of matters in the assessment of the final amended DA. The parties agree, and I am satisfied, that the final amended DA appropriately addresses the matters set out at s 6.8(2)(c)-(e).

51. Similarly, an earlier relevant version of Chapter 10 of SEPP BC (in force at the date the DA was originally lodged) deals with the Sydney Harbour Catchment and remains applicable to the final amended DA.

52. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment and within the Foreshores and Waterways Area.

53. Former s 10.18 of SEPP BC requires the consideration of a series of matters in the assessment of the final amended DA. The parties agree, and I am satisfied, that the final amended DA appropriately addresses those relevant matters set out at ss 10.19, 10.23 and 10.24 of SEPP BC.

54. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.

55. Chapter 2 of SEPP Resilience deals with coastal management. Pursuant to s 2.8 of SEPP Resilience, the parties agree and I am satisfied, that the final amended DA will not significantly impact on the biophysical, hydrological or ecological integrity of the adjacent coastal wetland, or the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland.

56. Pursuant to s 2.10 of SEPP Resilience, the parties agree and I am satisfied, that the final amended DA has been designed to avoid the adverse impacts of those matters set out at s 2.10(1)(a)-(g) of SEPP Resilience.

57. Pursuant to s 2.11 of SEPP Resilience, the parties agree and I am satisfied, that the final amended DA has been designed to avoid the adverse impacts of those matters set out at s 2.11(1)(a) of SEPP Resilience.

58. Pursuant to s 2.12 of SEPP Resilience, the parties agree and I am satisfied, that the final amended DA has been designed in a manner not likely to cause increased risk of coastal hazards.

34. Pursuant to s 2.13 of SEPP Resilience, the parties agree and I am satisfied, that consent must not be granted to development on land within the coastal zone unless the consent authority (the Court) has taken into consideration the relevant provisions of any certified coastal management program that applies to the land.

35. In this instance, a Parramatta River Estuary Coastal Zone Management Plan (PCZMP) has been prepared, although it is currently not a certified coastal management program. If certified, the PCZMP will apply to the site, and in any event the parties agree, and I am satisfied, the final amended DA meets the management objectives set out in the PCZMP.

36. Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, I am satisfied that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated and that the final amended DA does not propose a change from the current residential use. Accordingly, a Preliminary Site Investigation is not required.

37. The parties agree, and I am satisfied, that the amended DA remains subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), a BASIX certificate, No 1244731M_04, dated 5 February 2025, has been provided with the final amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

38. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to agreed conditions.

39. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

40. The Court notes that:

1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 24 February 2025.

Orders

66. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA 2021/1245 and rely upon the amended plans and documents referred to in Condition A1 at Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $27,000 within 28 days of the date of these orders.

3. The Applicant’s written request, pursuant to cl 4.6 of the Hunter’s Hill Local Environmental Plan 2012 (HHLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the HHLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA 2021/1245 (as amended) for the demolition of existing structures, subdivision of the site into two lots, excavation and construction of a dual occupancy (attached) on the front lot (with associated strata subdivision) and a dwelling house on the rear lot, with associated earthworks, tree removal and landscaping at 22 Barons Crescent, Hunters Hill, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A (298760, pdf)

**********

Decision last updated: 27 March 2025