Land and Environment Court New South Wales Medium Neutral Citation: Roberts v Hunters Hill Council [2020] NSWLEC 1661 Hearing dates: Conciliation conference on 29 October 2020 and 3 December 2020 Date of orders: 22 December 2020 Decision date: 22 December 2020 Jurisdiction: Class 1 Before: Smithson AC Decision: Refer to orders below at [31] 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 (Vegetation in Non-Rural Areas) 2017 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Texts Cited: Hunters Hill Development Control Plan 2013 Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 Category: Principal judgment Parties: Karen Lee Roberts (Applicant) Hunters Hill Council (Respondent) Representation: Counsel: S Berveling (Applicant) M Staunton (Respondent) Solicitors: Bartier Perry Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/65310 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal by Karen Lee Roberts (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Hunters Hill Council (the Council) of development application DA2018/1131 (the application). 2. The application seeks consent under the EPA Act for demolition of an existing dwelling and associated structures and construction of a new dwelling, with a pool, at 5 Huntleys Point Road, Huntley Point (the site). The site is legally identified as Lot 410 in Deposited Plan 1112650. 3. The site has a total area of 871.1m2. Annexed to the site, within the Parramatta River which adjoins to the rear (south), is a jetty for water access. 4. 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. 5. 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. 6. 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. 7. 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 pre-conditions to the granting of consent have been met. 8. The Statement of Facts and Contentions (SFC) filed with the Court by the Council raised a number of concerns with the proposal including: adverse visual impacts on the character of Hunters Hill and the Paramatta River; height; compliance with floor space ratio (FSR) and landscaped area standards under the Hunters Hill Local Environmental Plan 2012 (the LEP); vegetation impacts; the excessive amount of excavation; and amenity impacts on adjoining properties. 9. On 29 October 2020, I inspected the site with the parties and their town planning experts, and also attended the property at 7 Huntleys Point Road to hear from the owner of that property being the sole objector to the DA. 10. Following the site inspection, the parties participated in a conciliation conference by Microsoft Teams at which the parties reached an in-principle agreement to resolve the contentions and for consent to be granted by way of an agreement under s 34 of the LEC Act. 11. In essence, the agreement was subject to amended plans to address amenity and design concerns in terms of privacy impacts by way of changes to both side elevations, as well as confirmation that the landscaped area complied with the development standard in cl 6.9 of the LEP and therefore no FSR control would apply. 12. These amended plans were subsequently provided and filed with a s 34 agreement and a jurisdictional note to demonstrate compliance with the relevant statutory controls. 13. In this regard, the site is within the R2 Low Density Residential zone under the LEP and the proposed development is permissible with consent in that zone. The property is not listed as an item of environmental heritage significance nor is it located within a heritage conservation area. 14. I am satisfied that the aims of the LEP have been considered pursuant to cl 1.2 as have the objectives of the R2 Low Density Residential zone. 15. Pursuant to cl 4.3(2), the LEP permits buildings to a maximum height of 8.5m. The proposal complies with the requirements of cl 4.3(2) as it does not exceed 8.5m above ground levels (existing) in any part of the site. 16. Pursuant to cl 4.4(2), the applicable FSR for the site is 0.5:1. However, pursuant to cl 4.4(2A), if a dwelling house on any land complies with cl 4.3 in respect of height, and cl 6.9 in respect of landscaping, there is no maximum FSR for that dwelling house. As the proposal complies with both cl 4.3 and cl 6.9 (addressed below), there is no maximum FSR applicable to the proposal. 17. In this regard, pursuant to cl 6.9, a minimum landscaped area development standard applies to the site. Subclause (2)(a) of the clause identifies the applicable minimum landscaped area as 60% of the site area. However, pursuant to subcl (4) of the clause, the minimum landscaped area may be reduced by not more than 33% for the purpose of accommodating a pathway, a patio, a terrace or a pool (if the pool has an area of less than 40m2), but only if the proposed development would be consistent with the objectives of cl 6.9. Having considered the amended application, the Council is satisfied as to compliance with cl 6.9(2)(4) and consistency with the objectives under cl 6.9(1). Therefore, the proposal is now acceptable to the Council. 18. Pursuant to cl 6.1(2) in relation to land classified as Class 5 acid sulphate soils, development consent is required for the carrying out of works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m AHD and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3 or 4 land. The LEP identifies the site as Class 5 acid sulphate soils land and, while located within 500m of Class 2 land (which is situated to the south-west and across the inlet of the Parramatta River adjoining the site), the proposal does not involve works below 5m AHD by which the water table will be lowered below 1m AHD on the adjacent Class 1, 2, 3 or 4 land. Therefore, the proposal does not require consent under cl 6.1(2) of the LEP. 19. Pursuant to cl 6.2(3) of the LEP, prior to the grant of any development consent for earthworks, the consent authority must consider the matters identified under (a) to (h) of the clause. Having considered those matters with reference to the amended application, which includes a significant reduction in the excavation proposed, the Council is satisfied that the proposal is now acceptable and that consent may be granted subject to conditions. 20. Pursuant to cl 6.3(3), development consent must not be granted unless the consent authority is satisfied of the flood planning matters identified under (a) to (e) of the clause. Having considered those matters with reference to the amended stormwater management plans included with the amended application, the Council is satisfied that the proposal is now acceptable and that consent may be granted subject to conditions. 21. Similarly, pursuant to cl 6.4(3) of the LEP, development consent must not be granted unless the consent authority is satisfied of the stormwater management matters identified under (a) to (c) of the clause. Having considered those matters with reference to the amended stormwater management plans, the Council is satisfied that the proposal is now acceptable and that consent may be granted subject to conditions. 22. Part of the site is located within the foreshore area and is affected by the foreshore building line as designated in the Foreshore Building Line Map of the LEP. However, the proposal does not involve any works within the part of the site that is affected by the foreshore area or the foreshore building line. Pursuant to cl 6.6(3), development consent must not be granted unless the consent authority is satisfied of the matters identified under (a) to (g) of the clause. Having considered those matters with reference to the amended application, the Council is satisfied that the proposal is now acceptable and that consent may be granted subject to conditions. 23. The site is also located within the river front area as designated on the River Front Area Map of the LEP. Pursuant to cl 6.6(3), development consent must not be granted unless the consent authority is satisfied of the matters identified under (a) to (c) of the clause. Having considered those matters with reference to the amended plans, the Council is so satisfied. 24. Pursuant to cl 7(1) of State Environmental Planning Policy 55 – Remediation of Land (SEPP 55), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be suitable for the development. The Council has considered whether the land is contaminated and, on account of the land being historically used for residential purposes, resolved that: 1. The site poses no risk of contamination; 2. No further investigation of the site is warranted; and 3. The site is considered to be suitable for the proposal. 1. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the application was accompanied by a BASIX certificate for the proposed dwelling and this certificate was updated and filed with the amended plans. 2. The application requires the removal of trees from the site. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (the Vegetation SEPP) concerns the protection/removal of vegetation identified under the Vegetation SEPP and gives effect to the local tree preservation provisions of the Hunters Hill Development Control Plan 2013 (the DCP). Having considered the relevant matters under the Vegetation SEPP, the Council is satisfied that the application, as amended, is acceptable subject to appropriate conditions relating to the removal or retention and protection of trees within the site, and for the protection of trees adjoining the site. 3. Pursuant to cl 3 of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the SREP), the site is located within the Sydney Harbour Catchment. The site is also located within the Foreshores and Waterways Area but is not located within a Wetlands Protection Area, identified as a strategic foreshore site, or identified as a heritage item or in the vicinity of a heritage item listed under the SREP. The Council has considered the amended application and is satisfied that the proposal is now consistent with the relevant objectives and controls of the SREP and the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005. 4. A number of provisions of the DCP apply to the application. Having considered the applicable parts of the DCP with reference to the amended proposal, the Council is satisfied that the proposal is now acceptable subject to conditions, with the merit issues resolved pursuant to an assessment under s 4.15 of the EPA Act. 5. Finally, I note that the Council placed the application on public notification during its assessment and received one submission by way of objection, which raised concerns over visual privacy impacts. 6. As previously indicated, the Court and the parties heard from the objector during the site inspection and design amendments were undertaken to address the objector's concerns. Therefore, all objections to the proposal have been addressed. 7. The orders to give effect to the parties' agreement are: 1. The Applicant is granted leave to amend Development Application No. DA2018/1131 and to rely upon the following amended plans and documents, copies of which are included at Annexure "A": Plan Reference Prepared by Date Architectural Plans: Dwg. No. 1712 DA00 – Cover Page + Drawing List, Revision B Dwg. No. 1712 DA01 – Site Plan & Analysis – Existing, Revision B Dwg. No. 1712 DA02 – Site Plan / Roof Plan – Proposed, Revision B Dwg. No. 1712 DA03 – Upper Floorplan – Proposed, Revision B Dwg. No. 1712 DA04 – Middle Floorplan – Proposed, Revision B Dwg. No. 1712 DA05 – Lower Floorplan – Proposed, Revision B Dwg. No. 1712 DA06 – East + West Elevations – Proposed, Revision B Dwg. No. 1712 DA07 – North + South Elevations – Proposed, Revision B Dwg. No. 1712 DA08 – Sections AA + BB Proposed, Revision B Dwg. No. 1712 DA09 – Front Fence Details, Revision B Sandberg Schoffel Architects 23 November 2020 Dwg. No. 1712 DA10 – GFA Calculations, Revision B Dwg. No. 1712 DA11 – Landscape Areas Calculations, Revision B Dwg. No. 1712 DA12 – External Finishes, Revision B Dwg. No. 1712 DA13 – Shadow Diagrams 9 am Plan, Revision B Dwg. No. 1712 DA14 – Shadow Diagrams 9 am Elevation, Revision B Dwg. No. 1712 DA15 – Shadow Diagrams 12 noon Plan, Revision B Dwg. No. 1712 DA16 – Shadow Diagrams 12 noon Elevation, Revision B Dwg. No. 1712 DA17 – Shadow Diagrams 3 pm Plan, Revision B Dwg. No. 1712 DA18 – Shadow Diagrams 3 pm Elevation, Revision B Dwg. No. 1712 DA19 – BASIX Requirements, Revision B Landscape Plans: Dwg. No. DA01 – Landscape Plan, Revision D Garden Life 20 November 2020 Dwg. No. DA02 – Front Landscape Plan, Revision D Dwg. No. DA03 – Rear Landscape Plan, Revision D Stormwater Management Plans: Dwg. No. C1 – Cover Sheet & Notes, Revision B Dwg. No. C2 – Upper & Middle Floors, Revision B Dwg. No. C3 – Lower GroundFloor, Revision B Acor Consultants (CC) Pty Ltd 21 November 2020 Dwg. No. C4 – Details Sheet No. 1, Revision B Dwg. No. C5 – Erosion & Sediment Control Plan, Revision B Dwg. No. C6 – Erosion & Sediment Control Notes & Details, Revision B Document Reference Prepared by Date BASIX Certificate No. 986783S_04 Integreco Consulting Pty Ltd 23 November 2020 NatHERS Certificate No. 0005417852 Integreco Consulting Pty Ltd 23 November 2020 1. The appeal is upheld. 2. Development Application No. DA2018/1131, as amended, for demolition of the existing carport and studio to the north-eastern corner, and the existing dwelling and swimming pool, and the construction of a new dwelling and attached swimming pool with associated site works on land identified as Lot 410 in Deposited Plan 1112650 and known as 5 Huntleys Point Road, Huntleys Point, be approved subject to the conditions included at Annexure "B". ……………………….. Jenny Smithson Acting Commissioner of the Court Annexure A (15816935, pdf) Annexure B (283104, 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: 22 December 2020