Land and Environment Court New South Wales Medium Neutral Citation: Polykandriotis v Hunters Hill Council [2020] NSWLEC 1598 Hearing dates: Conciliation conference on 06 November 2020 Date of orders: 01 December 2020 Decision date: 01 December 2020 Jurisdiction: Class 1 Before: Smithson AC Decision: The Court orders that: (1) The Applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to at condition 1 in Annexure A. (2) The appeal is upheld. (3) Development application DA2019/1034 seeking consent for a new two storey dwelling house with basement parking, front boundary fence and landscaping at 14 Ellesmere Road, Hunters Hill is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – dwelling house – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Hunters Hill Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Hunters Hill Development Control Plan 2013 Category: Principal judgment Parties: Anthony Polykandriotis (Applicant) Hunters Hill Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) M Staunton (Respondent) Solicitors: Conomos Legal (Applicant) HWL Ebsworth (Respondent) File Number(s): 2020/75876 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Anthony Polykandriotis (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Hunters Hill Council (the Council) of development application DA2019/1034 (the application). 2. The application seeks consent under the EPA Act for demolition of an existing dwelling and construction of a 2 storey dwelling house (with basement car park), front boundary fence, and landscaping at 14 Ellesmere Road, Hunters Hill (the site). 3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 5. The LEC Act also requires me to set out in writing the terms of the decision; s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 6. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met. 7. The Statement of Facts and Contentions (SFC) filed with the Court by the Council indicates that the site is located on the corner of Ellesmere Avenue and Foss Street and currently contains a single storey dwelling house. 8. The site is within the R2 Low Density Residential zone under the Hunters Hill Local Environmental Plan 2012 (the LEP) and the proposed development is permissible with consent in that zone. In terms of the LEP, the site is also located within a nominated Heritage Conservation Area (HCA) and River Front Area and is in the proximity of a listed heritage item, being 15 Foss Street. 9. In the SFC, the Council raised a concern that the proposed new dwelling would be inconsistent with the character of the streetscape, HCA and riverfront area, and was an overdevelopment of the site. It was also contended that the proposal would have overshadowing and privacy impacts to neighbours. The major concern however, also raised in written objections to the application, was the view loss impacts to neighbouring properties in Ellesmere Avenue and Foss Street in terms of views to the river and Gladesville Bridge. 10. In response to the contentions raised, the applicant undertook a view loss impact assessment from affected neighbouring properties and amended the application. A joint report filed by planning, heritage and visual impact experts indicated that the amended plans responded to the contentions raised. This included that view sharing outcomes would be reasonable and that the revised built form, landscaping, and solar access and privacy to neighbours, would all be satisfactory. 11. Following viewing of the site and from neighbouring properties, conditions of consent were agreed between the parties which will further reduce the pitch of the roof to further minimise view loss to neighbouring properties, and to further address privacy concerns. The conditions also require retention and protection of 4 existing bangalow palms on the site. 12. A jurisdictional note was provided with the agreement. This demonstrated that the objectives of the R2 zone had been considered in assessing the amended proposal, and confirmed that the development complies with the maximum height standard and minimum landscaped area standard at cll 4.3 and 6.9 of the LEP respectively, and therefore no floor space ratio applies pursuant to cl 4.4(2A) of the LEP. 13. I am also satisfied by the information provided and the amended proposal, as I am required to be by the relevant provisions of cl 6.7 of the LEP, that measures have been taken to minimise the impact of the development to and from the river (as the nearest waterway) and in terms of not obstructing existing views from public roads and reserves. 14. Based on the same information, I am also satisfied that the proposed demolition and new development has been considered in terms of the heritage requirements of cl 5.10 of the LEP, including that the development will have an acceptable impact on the HCA and the nearby heritage item. 15. A Certificate was also provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate. 16. Finally, I have considered the requirements of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). I note the advice that the site has only ever been used for residential purposes and, accordingly, the land is not likely to be contaminated. 17. The orders to give effect to the parties' agreement are: 1. The Applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to at condition 1 in Annexure A. 2. The appeal is upheld. 3. Development application DA2019/1034 seeking consent for a new two storey dwelling house with basement parking, front boundary fence and landscaping at 14 Ellesmere Road, Hunters Hill is approved subject to the conditions in Annexure A. ……………………….. Jenny Smithson Acting Commissioner of the Court Annexure A (274514, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2020