Shen v Hunters Hill Council [2021] NSWLEC 1334

Land and Environment Court New South Wales

Medium Neutral Citation: Shen v Hunters Hill Council [2021] NSWLEC 1334 Hearing dates: Conciliation conference on 20 May 2021 Date of orders: 09 June 2021 Decision date: 09 June 2021 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to the orders below at [12] Catchwords: DEVELOPMENT APPLICATION – dwelling house – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Hunters Hill Local Environmental Plan 2012, cll 4.3, 4.4, 6.1, 6.3, 6.9 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Category: Principal judgment Parties: Hua Shen (Applicant) Hunters Hill Council (Respondent) Representation: Counsel: A Hudson (Solicitor) (Applicant) S Kondilios (Solicitor) (Respondent)

Solicitors: Wilshire Webb Staunton Beattie (Applicant) Hall & Wilcox (Respondent) File Number(s): 2020/322096 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Hunters Hill Council (Council) of Development Application DA19/1101 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 819m2 parcel of land at 30 Park Road, Hunters Hill and identified as Lot 15 in DP 250735 (the site). The DA, as originally lodged with Council, sought consent for the demolition of the existing dwelling and swimming pool and construction of a new dwelling, fencing and landscaping. 3. The DA was notified by Council commencing on 5 March 2020, resulting in the receipt of one submission. On 17 June 2020 the DA was refused under delegation and on 11 November 2020 the Applicant lodged this Class 1 Appeal with the Court. On 22 December 2020 the Council filed its Statement of Facts and Contentions (SOFC). 4. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), held on 20 May 2021. The proceedings commenced with the taking of an oral submission on site from the adjoining neighbour who had lodged the written submission of objection, and then proceeded to a site inspection and conciliation conference. 5. At the conclusion of the s 34 conference on 20 May 2021 the parties had reached an agreement, based on amended plans made to address matters raised in the SOFC and in the public submission. A final copy of the s34 agreement and conditions of consent forming Annexure A of the agreement was filed on 21 May 2021. 6. The main changes between the original DA and the amended application the subject of the s34 agreement are: 1. The area of the basement has been reduced in size from 76.44m2 to 50.3m2, with the size of the meter room reduced and the playroom replaced by a storeroom. 2. The flat roof has been replaced by a pitched roof, incorporating eaves. 3. Privacy screens have been added to the south facing first floor windows to Bedroom 5 and obscure glazing added to the two south facing ensuites (Bedrooms 1 and 5) in order to protect the privacy of 28 Park Road. 1. 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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings and agreed that there are no jurisdictional constraints to the Court exercising its function under s 34(3) of the LEC Act.