Land and Environment Court New South Wales Medium Neutral Citation: Melocco & Moore Architects Pty Limited v Hunters Hill Council [2021] NSWLEC 1610 Hearing dates: Conciliation conference held on 26 August 2021 and 17 September 2021 Date of orders: 19 October 2021 Decision date: 19 October 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The Applicant is to pay the Respondents costs thrown away as a result of the amendments of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $20,000 within 28 days. (2) The Applicant's amended written request under clause 4.6 of the Hunters Hill Local Environmental Plan 2012 ('HHLEP'), prepared by ABC Planning dated September 2021 seeking a variation of the development standard for FSR under clause 4.4 of the HHLEP, is upheld. (3) The Applicant's amended written request under clause 4.6 of the Hunters Hill Local Environmental Plan 2012 ('HHLEP'), prepared by ABC Planning dated September 2021 seeking a variation of the development standard for minimum lot size under clause 4.1 of the HHLEP, is upheld. (4) The appeal is upheld. (5) Development Application No. DA2020/1064 for alterations to an approved Residential Flat Building, subdivision of the lot and the construction of a dwelling house at 2 Viret Street, Hunters Hill, is approved subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – common property subdivision – residential flat building and residential dwelling – amenity – minimum lot size and floor space ratio standards non-compliance – cl 4.6 written variation requests – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.15, 4.16 Environmental Planning and Assessment Regulation 2000, cl 55 Hunters Hill Local Environmental Plan 2012 Land and Environment Court Act 1979, s34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 65–Design Quality of Residential Apartment Development Strata Schemes Development Act 2015, s 13 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cl 5, 64 Texts Cited: Hunters Hill Consolidated Development Control Plan 2013 Category: Principal judgment Parties: Melocco & Moore Architects Pty Limited (Applicant) Hunters Hill Council (Respondent) Representation: Counsel: I Hemmings (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/132908 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 2020/1064 by Hunters Hill Council (hereafter the Council), which as amended, seeks the subdivision of the common property of a strata lot, alterations to an approved Residential Flat Building (RFB), and construction of a dwelling, with earth, landscaping and stormwater works on SP6693, also known as 2 Viret Street (hereafter the site). 2. The DA was submitted to Council on 30 April 2020, and internally assessed, before referral to the Hunters Hill Local Planning Panel (the Panel). The Panel recommended refusal of the DA, which was formally refused by the Council on 22 April 2021. The grounds of refusal relate to: insufficiency of Aboriginal Assessment Report; uncertainty in ownership of land relied upon; insufficiency of information relating to proposed subdivision and building standards compliance; and car parking. 3. The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties. The conciliation was held by MS Teams. One resident made an oral submission in objection, via telephone at the start of the conciliation. 5. The Court has not had the benefit of a site view, and therefore relies on the expert evidence, photographs, plans and documents supporting the DA that contextualise the site. 6. The site is approximately 1663m2 in area. The surrounding area includes variable size and design residential dwellings, typically oriented to take advantage of the water view. 7. The site is currently occupied by a two storey RFB that is situated on the elevated, southern portion of the site, towards the street frontage. The site is dissected by a vegetated, steep rock ledge, which separates the elevation of the site. The northern portion of the site is lower in elevation, located towards the Lane Cove River, and is generally grassed with trees along the western boundary. 8. The site is subject to two current development approvals, which relate to the existing RFB on the site, although neither consent has been activated. The proposed development seeks to amend the parking configuration that relates to the RFB (approved development) and subdivide the common area associated with the RFB. Proposed Lot 1, containing the approved RFB will be 901.5m2, and proposed Lot 2, containing the future dwelling, will be 1121.7m2. 9. The Council agreed for the applicant to amend the plans and documents, that support the amended DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). 10. Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council and resident concerns have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA2020/1064, with conditions. The respondent has advised the Court that it has appropriate delegation from the Panel to make the agreement. 11. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA2020/1064, with conditions in Annexure 'A'. 12. The parties identified the jurisdictional prerequisites of particular relevance for the Courts consideration as consistency with the: Strata Schemes Development Act 2015 (SSD Act); EPA Reg; State Environmental Planning Policy No 55 — Remediation of Land (SEPP 55); State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP 2005); and Hunters Hill Local Environmental Plan 2012 (HHLEP). In addition, the relevant requirements of the Hunters Hill Consolidated Development Control Plan 2013 (DCP) are considered in the merit assessment. 13. The proposed development seeks to subdivide a portion of the common property associated with the RFB, which is permissible pursuant to s 13(1) of the SSD Act. 14. The amended DA relies on land that is currently owned by Transport for NSW (TfNSW), which is a small portion of the site located adjacent to the Lane Cove River (northern boundary). It is explained that the applicant has written consent from TfNSW to consider the land in the DA, and is currently in the process to purchase this land, although not yet executed. The applicant relies on written owners consent from TfNSW for the amended DA, which satisfies the requirements of cl 49 of the EPA Reg. The parties agree that the relevant documents that support the amended DA address the requirements of cl 50. 15. The northern boundary of the site is located adjacent to the Lane Cove River, and therefore SREP 2005 is relevant for consideration. The parties agree that the land upon which the amended DA relies, is within the Foreshores and Waterways Area, pursuant to cl 3. The proposed subdivision of this land is permissible with consent, pursuant to cl 64. The parties also agree that the Council and the Court are the relevant consent authority for the DA, including the land belonging to TfNSW, pursuant to subcll 5(1) and (2). The TfNSW land is reclaimed from tidal waters and supported by retaining walls. This land is unzoned in the SREP 2005, although the parties accept is capable of being considered by the provision of the HHLEP, explained below. The parties agree that the requirements of the SREP 2005 are addressed to their satisfaction. 16. In compliance with the requirements of SEPP 55, the parties agree that the based on the historical use of the site for residential purposes, the land of proposed works is suitable, and together with the conditions of consent, address the requirements of cl 7 for consideration. It was explained to the Court that the proposed development does not seek excavation of the reclaimed TfNSW land. 17. In compliance with the requirements of SEPP 65, the DA is supported by amended plans and conditions of consent. The parties agree that the proposed development, as amended, does not alter the appropriate design quality and amenity previously approved by the consents for the RFB. The parties agree that the RFB provides sufficient parking and private open space, and amenity for the residents. 18. The proposed development (specifically the future dwelling) is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate, relevant to the proposed development, as amended is identified in the conditions of consent, in compliance with the SEPP BASIX provisions. 19. The parties accept that the land belonging to TfNSW is unzoned, pursuant to cl 2.3 of the HHLEP, although capable of being assessed by the HHLEP, pursuant to cl 1.3, when consideration of an error margin, being the accuracy of the boundary line, is applied to the Land Application Map. The remainder of the site is zoned R2 Low Density Residential, pursuant to cl 2.3. The proposed development is permissible with consent. The parties agree that the objectives of the zone, as described in the HHLEP, are satisfied. 20. The proposed development satisfies the relevant provisions of the HHLEP, however does exceed the numeric requirements of cl 4.4 (floor space ratio, (FSR)) and potentially cl 4.1 (minimum lot size, (MLS)). All other relevant numeric development standards are satisfied. 21. It is accepted by the parties that a cl 4.6 written request seeking a variation of the FSR and MLS standards, cll 4.4 and 4.1, respectively, is required, pursuant to cl 4.6 of the HHLEP, and that the Court must be satisfied to grant consent to the DA. 22. The written request for FSR variation explains that the proposed development exceeds the HHLEP (cl 4.4) FSR standard, primarily due to the subdivision of the land associated with the RFB, creating Lot 1. The amended DA exceeds the FSR control of 0.5:1 by 77.04%, proposed at 0.89:1, based on a site area of 901.5m2 for Lot 1. There is no exceedance in FSR for proposed Lot 2, the future dwelling. 23. The cl 4.6 written request for MLS variation explains that the proposed development exceeds the HHLEP (cl 4.1) MLS standard, if exclusion of the TfNSW land, as relied on by the DA, is considered, as it is currently in separate ownership. The TfNSW land was formerly named 'RMS land', as referenced in the cl 4.6 written request. The amended DA proposes that Lot 2 have an area of 1121.7m2, which includes an area of 289m2, being the TfNSW land. Excluding the TfNSW land, the area of proposed Lot 2 is 832.7m2, a variation of 67.3m2 from the MLS standard of 900m2. There is no exceedance in MLS for proposed Lot 1. 24. The cl 4.6 written requests explain that the FSR of the approved RFB remains unchanged, and that the non-compliance in the FSR and MLS standards result from the subdivision of the total site area. 25. It is explained that the relationship of the future dwelling to the RFB is softened by the retention of approved landscaping along the escarpment, significant separation in buildings and elevation differences across the site. The site still references the historic development (RFB) at the street and addresses the natural topographic form. The elements of the proposed subdivision will not perceptibly change the presentation of the RFB to the streetscape or result in adverse bulk/scale impacts to adjoining residents from the future dwelling. The exceedance in the relevant standards does not result in a development that is out of character with the local area, beyond what is approved and existing. The proposed development relates to the existing steeply sloping topography and seeks to reduce excavation/filling for the future dwelling. The non-compliant elements do not impact amenity adversely for adjoining residents, and there are sufficient environmental planning grounds for a variation in FSR (for the lot containing the RFB) and the MLS (for the future dwelling lot). 26. According to the written requests, there are no adverse impacts to visual bulk, solar access or privacy as a result of the non-compliance with the development standards for the proposed development. The proposed development is consistent with the zone objectives and relevant development standards for cll 4.1 and 4.4. The non-compliances are not readily discernible in the context of the site, and will appear compatible with existing and future buildings, and lot sizes in the surrounding area. Compliance with the standards of non-compliance would be unreasonable. 27. The (cl 4.6) written requests consider that a variation of the FSR and MLS development standards, pursuant to cl 4.4 and 4.1, respectively, of the HHLEP is therefore satisfied, and flexibility of the standards is justified. There is no public benefit in maintaining these standards on the site, as the proposed development is consistent with the character, bulk and scale of the surrounding context. 28. Having reviewed the (cl 4.6) written requests, I agree that the written requests for variation of the FSR and MLS standards address the requirements of cl 4.6(3) of the HHLEP, by describing sufficient environmental planning grounds to justify the development standards exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. Therefore, cl 4.6(4)(a)(i) of the HHLEP is satisfied. 29. The proposed development as described to the Court is consistent with the objectives of the zone (for the R2 zone), and the FSR (cl 4.4) and MLS (cl 4.1) standards, as established in the HHLEP. The breach in these standards will not cause undue concern to (existing and future) surrounding residents, the streetscape, or those residing on the site. The concerns of residents are addressed by the proposed amendments to the design of the dwelling and do not result from the standard non-compliances. The proposed development is therefore in the public interest, satisfying cl 4.6(4)(a)(ii). 30. I accept the cl 4.6's explanation that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standards in this instance, and that there is no public benefit to maintaining the standards (of MLS and FSR) for the proposed development. Therefore, variation of cl 4.1 and 4.4 of the HHLEP development standards is consistent with cll 4.6(4)(b) or (5) of the EPA Act. 31. I am satisfied that the requirements of cl 4.6 of the HHLEP have been addressed and that a variation in the FSR and MLS standards, as provided in cl 4.4 and 4.1, respectively, should be granted. 32. The parties agree that stormwater for the future dwelling will be discharged to the Lane Cove River, after process through the proposed stormwater management system. The requirements of cl 6.3 of the HHLEP are addressed to the parties satisfaction. 33. The site is located within a heritage conservation area, and therefore the proposed development must address cl 5.10 of the HHLEP. The amended DA is supported by a Heritage Impact Statement and an Aboriginal Cultural Heritage Assessment Report. The parties are satisfied that the proposed development poses no adverse heritage impacts, and that cl 5.10 of the HHLEP is addressed. 34. The site is mapped as having Class 1 acid sulphate soils (ASS), pursuant to 6.1 of the HHLEP. The parties are satisfied that the proposed development will not adversely impact ASS on the site, as excavation is minor and considered in conditions of consent, therefore cl 6.1 is addressed. Further to this, cl 6.2 is addressed to the satisfaction of the parties. 35. The site is located within the Foreshore Building Line (FBL), pursuant to cl 6.6 of the HHLEP. It is agreed by the parties that the proposed dwelling is located outside of the FBL, based on the amended plans. The proposed swimming pool and outdoor space are permissible within the FBL. Therefore, the proposed development as amended is considered by the parties to satisfy the requirements of cl 6.6. 36. The site is located within 'River Front Area', pursuant to cl 6.7 of the HHLEP. The parties are satisfied that the proposed development will not cause adverse impact to the waterway and is visually consistent with the character of the waterway, thereby addressing cl 6.7. 37. The parties agree that the relevant requirements of the DCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The proposed development was publicly notified in accordance with the DCP. In response to the initial and subsequent notification periods for the DA, the submissions received by Council were considered in the merit assessment. The submission by the resident in the conciliation was also considered in the making of the agreement. The amended plans address the amenity concerns of the adjoining residents as it relates to the future dwelling. 38. Based on the amended plans and supporting documents to the DA including (cl 4.6) written requests for variation of the FSR and MLS development standards, the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties. The parties explain that there are no jurisdictional impediments to making the agreement or for the Court making the orders, as sought. The respondent has undertaken the appropriate merit assessment of the proposed development. 39. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA2020/1064 should be granted, as it satisfies the relevant requirements of s 4.15 of the EPA Act. 40. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 41. The Court notes: 1. That Hunters Hill Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA2020/1064. 2. The Applicant will upload the amended application on the NSW planning portal on 5 October 2021 3. The Applicant filed the amended application with the Court on 18 October 2021. 1. The Court orders that: 1. The Applicant is to pay the Respondents costs thrown away as a result of the amendments of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $20,000 within 28 days. 2. The Applicant's amended written request under clause 4.6 of the Hunters Hill Local Environmental Plan 2012 ('HHLEP'), prepared by ABC Planning dated September 2021 seeking a variation of the development standard for FSR under clause 4.4 of the HHLEP, is upheld. 3. The Applicant's amended written request under clause 4.6 of the Hunters Hill Local Environmental Plan 2012 ('HHLEP'), prepared by ABC Planning dated September 2021 seeking a variation of the development standard for minimum lot size under clause 4.1 of the HHLEP, is upheld. 4. The appeal is upheld. 5. Development Application No. DA2020/1064 for alterations to an approved Residential Flat Building, subdivision of the lot and the construction of a dwelling house at 2 Viret Street, Hunters Hill, is approved subject to the conditions at Annexure A. ………………………… Sarah Bish Commissioner of the Court Annexure A (330070, 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: 19 October 2021