Land and Environment Court New South Wales Medium Neutral Citation: Shad v Hunters Hill Council [2020] NSWLEC 1677 Hearing dates: Conciliation conference on 1 December 2020 Date of orders: 24 December 2020 Decision date: 24 December 2020 Jurisdiction: Class 1 Before: Gray C Decision: Refer to orders below at [7] Catchwords: APPEAL – development application – dwelling house – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Hunters Hill Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Coastal Management) 2018 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Texts Cited: Lane Cove River Coastal Zone Management Plan (July 2013) Category: Principal judgment Parties: Matthew Albert Shad Hunters Hill Council Representation: Counsel: H El-Hage (Applicant) S Puckeridge (Solicitor) (Respondent) Solicitors: Shad Partners (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/118256 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of an existing dwelling and construction of a new dwelling with an in ground pool at 15 Bonnefin Road, Hunters Hill. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 ("LEC Act"). The conciliation conference commenced on 1 December 2020. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was subsequently filed on 16 December 2020, and is supported by a Jurisdictional Statement provided by the parties prior to the conciliation conference, on 30 November 2020. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments minimise the visual impact of the dwelling by making changes on the upper level to allow the proposal to recede into the surrounding built form context. 4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone in which the site is located, pursuant to the Hunters Hill Local Environmental Plan 2012 ("HHLEP"). * The proposed development complies with the applicable development standards in the HHLEP for landscaped area, height and floor space ratio. * A local heritage item I287 'Stone walls' is located on the western boundary of the site. The development includes the removal of a metal fence attached to the top of the item, and carrying out repairs to the item. Based on the Statement of Heritage Impact filed with the Class 1 Application, I have considered the effect of the proposed development on the heritage significance of the item, consistent with cl 5.10(4) of the HHLEP. * The Site is classed as Class 5 on the Acid Sulfate Soils Map, but the proposed development is not likely to lower the water table on adjacent Class 1, 2, 3 or 4 land, such that development consent is not required pursuant to cl 6.1(2) of the HHLEP. * Clause 6.7 of the HHLEP applies to the development, and based on the document annexed to the Jurisdictional Statement, I am satisfied of the matters about which I am required to be satisfied pursuant to cl 6.7(3) of the HHLEP. * The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for the purposes of residential dwelling houses, it is unlikely to be contaminated. * Consistent with cll 15 and 16 of the State Environmental Planning Policy (Coastal Management) 2018, the development is not likely to cause an increased risk of coastal hazards on the site or other land, and there is nothing in the Lane Cove River Coastal Zone Management Plan (which is the applicable Coastal Management Program) that warrants refusal of the application. * I am satisfied, based on the document annexed to the Jurisdictional Statement, that the development is consistent with the aims of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 ("SREP 2005"), consistent with the requirement of cl 17(2) of the SREP 2005. * The development application was required by cl 29(1) of the SREP 2005 to be referred to the Advisory Committee, which was done on 11 November 2020. No response has been received within the 30 days specified by cl 20(1)(b). 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. The Applicant is granted leave to amend development application DA2019-1141 to rely upon the following plans and documents: 1. Drawing Notes DA:01, Dwg 01/18A, Revision B, dated 1 September 2020, 2. Site Analysis DA:02, Dwg 02/18B, Revision B, dated 1 September 2020, 3. Basement Floor Layout DA:03, Dwg 03/18B, Revision B, dated 1 September 2020, 4. Ground Floor Layout DA:04, Dwg 04/18B, Revision B, dated 1 September 2020, 5. First Floor Layout DA:05, Dwg 05/18B, Revision B, dated 1 September 2020, 6. Elevations A DA:06, Dwg 06/18B, Revision B, dated 1 September 2020, 7. Elevations B DA:07, Dwg 07/18B, Revision B, dated 1 September 2020, 8. Landscape Calculation Layout DA:08, Dwg 08/18B, Revision B, dated 1 September 2020, 9. Site/Roof Layout DA:09, Dwg 09/18B. Revision B, dated 1 September 2020, 10. Cross Sections DA:10, Dwg 10/18B, Revision B, dated 1 September 2020, 11. Cross Sections & Pool Details DA:11, Dwg 11/18B, Revision B, dated 1 September 2020, 12. Excavation / Existing Floor Layout DA:12, Dwg 13/18B, Revision B, dated 1 September 2020, 13. Streetscape Analysis DA:13, Dwg 13/18B, Revision B, dated 1 September 2020, 14. List of Materials, Revision B, dated 1 September 2020, 15. Landscape Concept Plan, Dwg LCP1, Issue C, dated 10 December 2020 16. Landscape Concept Plan, Dwg LCP2, Issue B, dated 15 September 2020, 17. Driveway Section, Stormwater Drainage & Sediment Control Details, Dwg S889 – S1/3, Revision B, dated 18 September 2020, 18. Stormwater Drainage & Sediment Control Details, Dwg S889 – S2/3, Revision B, dated 18 September 2020, 19. Stormwater Drainage & Sediment Control Details, Dwg S889 – S3/3, Revision B, dated 18 September 2020, 20. BASIX Certificate No. 1060927S_03, Version 3.0, dated 4 September 2020, 21. Details of compliance with BASIX Certificate No. 1060927S_03, Version 3.0, dated 4 September 2020, 22. Waterscape Analysis, Drawing No. 18/18B, Revision B, dated 1 September 2020, 23. Survey Plan, reference 18202, dated 6 July 2020. 1. The appeal is upheld. 2. Development consent is granted to development application DA2019-1141 for the demolition of an existing dwelling and construction of a new dwelling with in ground pool at 15 Bonnefin Road Hunters Hill, subject to the conditions of consent set out in Annexure 'A'. ………………………. Commissioner of the Court J Gray 118256.20 Attachment 1 (60560, pdf) 118256.20 Annexure A (278165, pdf) 118256.20 Plans (29606922, 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: 24 December 2020