Zoran Pusic v The Council of the Municipality of Hunters Hill

[2017] NSWLEC 1312

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zoran Pusic v The Council of the Municipality of Hunters Hill [2017] NSWLEC 1312
Hearing dates:	30 May 2017
Date of orders:	30 May 2017
Decision date:	30 May 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See orders par 10.
Catchwords:	DEVELOPMENT APPLICATION: demolition of all existing improvements, the subdivision and construction of a dual occupancy development – consent orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hunters Hill Local Environmental Plan 2012
Texts Cited:	Practice Note Class 1 Development Appeals
Category:	Principal judgment
Parties:	Zoran Pusic (Applicant) The Council of the Municipality of Hunters Hill (Respondent)
Representation:	Counsel: Mr D Briggs, solicitor (Applicant) Mr M Staunton, barrister (Respondent)   Solicitors: D G Briggs & Associates (Applicant) HWL Ebsworth Lawyers.(Respondent)
File Number(s):	2016/165361
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a refusal of Development Application No. 2015/1029 for the demolition of all existing improvements, the subdivision and construction of a dual occupancy development at 8 Barons Crescent, Hunters Hill (the site).

2. The site is Lot 4 in DP 9261 and contains a single storey painted brick and tile dwelling with a detached garage at the front of the site and vehicular access to Barons Crescent.

3. The site has a total area of 2,172.7 sqm and is rectangular in shape. It has a frontage to Barons Crescent of 20.115 m and is located at the northern side of Barons Crescent and is bounded by Lane Cove National Park and the Lane Cove River. It falls significantly from the street frontage, including natural rock escarpments and features.

4. The fall is in a northerly direction, approximately 31 m down from the street, where it joins Buffalo Creek Reserve. The reserve and large parts of the private land adjourning is urban bushland in its natural state. The site is heavily vegetated with mature native trees and shrubs. The site also contains a large rock outcrop. The rock outcrop, cave, and vegetation contribute in defining the bushland character of the site and the area.

The site is zoned R2 Low Density Residential under Hunters Hill Local Environmental Plan 2012 and the proposed development is permissible with consent in the zone. The council originally filed a Statement of Facts and Contentions that identified the following areas that they maintain warranted the refusal of the application:

1. overdevelopment and inconsistent with the character of Hunters    Hill;

2. impact on natural features on the site, being topography, rock    outcrops, caves, and vegetation;

3. unacceptable vehicular and pedestrian access;

4. insufficient width of the right of way for pedestrians;

5. location of dwellings in relation to bushfire threat;

6. unacceptable elevated parking platform;

7. potential bush impacts; and

8. impacts on Aboriginal heritage.

5. Prior to the application coming to Court, the applicant produced amended plans which were provided to the council. This resulted in the concerns previously raised by the council in their Statement of Facts and Contentions as being satisfactorily addressed, with the council now seeking to enter into consent orders.

6. In this regard the Court’s Practice Note Class 1 Development Appeals (the Practice Note) relevantly provides [at 99]:

99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account.

Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

7. In summary, the Practice Note requires:

evidence to show that approval is lawful and appropriate including whether any statutory provisions have been complied with;

whether any objection has properly been taken into account; and

whether reasonable notice has been given to all persons who objected to the proposal, the date of the hearing and the opportunity to be heard at the hearing.

8. In response the parties provided a joint expert report that addressed the matters previously raised by the council. The report took the form of a joint report from a number of experts. These were Mr Mark Adamson and Mr Kim Burrell on planning matters, Ms Jacqui Vollmer and Mr Martin James on ecology issues, Mr Guy Paroissien and Mr Peter Castor on arboricultural matters, Mr Graham Swain and Mr Scott Jarvis on bushfire issues, Mr Craig McLaren and Mr Dean Brodie on traffic and parking matters and Ms Mary Dallas and Dr Susan McIntyre-Tamwoy on aboriginal heritage experts.

9. I have read the document provided by the experts and I am satisfied that those matters previously raised by the council have been addressed by the experts in their joint report. Of the other matters raised by the Practice Note, I note that no objector sought to be heard in the hearing of the consent orders, although the council tendered copies of the documentation provided to the residents advising them of the time and location and conditions associated with the consent orders appeal. Consequently, I accept that reasonable notice has been given to those persons in accordance with the Practice Note.

10. There being no reason why development consent should not be granted, I make the following orders, by consent:

1 The appeal is upheld.

2. Development Application DA 2015-1029 for the demolition of existing structures, subdivision into two Torrens Title allotments, the construction of an attached dual occupancy with strata subdivision upon the proposed Lot 1, identification of a dwelling house footprint on the proposed Lot 2, a driveway, drainage works, landscaping and tree removal at 8 Barons Crescent, Hunters Hill is approved subject to conditions of consent set out as Annexure "A" to these Orders.

3. Leave is granted to the applicant to rely on the following plans:

a.. Architectural Plans prepared by Architex;

i. Cover sheet, DA00, Issue H, dated 9 November 2016

ii. Site Analysis, DA01, Issue H, dated 9 November 2016

iii. Site Plan, DA02, Issue K, dated 7 December 2016

iv. Lot 1 Level 1, DA03, Issue H, dated 9 November 2016

v. Lot 1 Level 2, DA04, Issue H, dated 9 November 2016

vi. Lot 1 Level 3, DA05, Issue J, dated 9 November 2016

vii. Lot 1 Roof Plan, DA06, Issue H, dated 9 November 2016

viii. . Lot 1 North and South Elevations, DA07, Issue H, dated 9 November 2016

ix. Lot 1 East and West Elevations, DA08, Issue H, dated 9 November 2016

x. Sections, DA09, Issue J, dated 9 November 2016

xi. 2 Lot Torrens Title Sub-Division, Issue I, dated 9 November 2016

xii. FSR Plan, DA11, Issue H, dated 9 November 2016

xiii. Tree Protection Zones, DA12, Issue I, dated 9 November 2016

xiv. Shadow Diagrams, DA13, Issue I, dated 9 November 2016

xv. Landscape Calculation Plan, DA14, Issue H, dated 9 November 2016

xvi. Proposed Strata Sub-Division of Lot 1, Issue H, dated 9 November 2016

xvii. Site Analysis 2, DA16, Issue B, dated 9 November 2016

xviii. Lot 2 - Plans and Sections, DA17, Issue D, dated 7 December 2016

xix. Driveway Section, DA18, Issue C, dated 7 December 2016

b. Geotechnical Engineer's Report prepared by JK Geotechnics dated 17 November 2016.

c. Revised Stormwater Management Plan prepared by Istruct Consulting Engineers Project No. 141012, Drawing No.D01, Revision J, dated 19 May 2017.

d. Landscape Plan, prepared by JCA, Revision L dated 19 May 2017.

e. Work Method Statement - Stormwater Installation prepared by Tree Wise Men and dated 22 May 2017.

4. The applicant is to pay the Council's costs thrown away by reason of its amendment pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in the sum of $10,000 within 28 days of the date of this order.

5. The exhibits are returned with the exception of exhibits 1 and A.

___________

G Brown

Commissioner of the Court

165361.16 Brown (C) (425 KB, pdf)

Decision last updated: 20 June 2017