Land and Environment Court New South Wales Medium Neutral Citation: Frigo v Hunter's Hill Council [2022] NSWLEC 1141 Hearing dates: Conciliation conference on 15 March 2022 Date of orders: 23 March 2022 Decision date: 23 March 2022 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [21] Catchwords: DEVELOPMENT APPLICATION – heritage conservation – bulk and scale – conciliation conference – agreement between parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, ss 34, 34AA Environmental Planning and Assessment Regulation 2000, cl 55 Hunters Hill Local Environmental Plan 2012, cll 4.3, 4.4(2A), 5.10, 6.1, 6.2. 6.3, 6.9, Sch 5, dictionary State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Daniela Frigo (First Applicant) Marc Avery (Second Applicant) Hunter's Hill Council (Respondent) Representation: Counsel: C Ireland (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Dentons Australia (Applicant) HWL Ebsworth (Respondent) File Number(s): 2021/329818 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 Appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 appealing the deemed refusal by Hunter's Hill Council (the Respondent) of Development Application 2021/1191 seeking consent for the demolition of existing remnant structures on site, including fencing associated with a former tennis court, site preparation, excavation and construction of a new two storey dwelling, plus basement level together with swimming pool, drainage, and associated works at 31 Woolwich Road, Hunters Hill (the site). 2. The appeal was listed for mandatory conciliation on 15 March 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). 3. Prior to the conciliation conference, the Applicant prepared amended architectural plans that, in the view of the Respondent at the commencement of proceedings, largely addressed the matters in contention. 4. The proceedings commenced onsite at which the Court, in the company of the legal representatives and experts, visited the subject site, a neighbouring property, and a number of locations in the vicinity of the site. 5. Following the onsite view, I presided at the conciliation conference at which the Applicant agreed to a further amendment that the parties accept can be reasonably described in the conditions of consent. 6. On the basis of the amendment described in the conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). 7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 16 March 2022. 8. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement. 9. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [21]. 10. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow. 1. The site is located within the R2 Low Density Residential zone identified in the Hunters Hill Local Environmental Plan 2012 (HHLEP) in which dwelling houses are permitted, where consistent with the objectives of the R2 zone that are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities. • To provide for high levels of amenity that are consistent with a low density residential environment. 1. The site is also within the Hunters Hill Conservation Area No 1 – The Peninsula (the Hunters Hill HCA), and is in the vicinity of a number of heritage items on Woolwich Road and immediate surrounds. 2. The site results from a subdivision of the adjoining site at 29 Woolwich Road, known as 'Eurondella', and was the former site of a garden and tennis court associated with the adjoining property. 'Eurondella' is a single storey 'Italianate' sandstone villa identified as an item of heritage significance in Schedule 5 of the HHLEP. Sandstone walls to the Woolwich Road frontage are also identified as part of the listing for stone walls in Schedule 5 (item 287). 3. Clause 5.10 of the HHLEP deals with heritage conservation in the following relevant terms: "… (1) Objectives The objectives of this clause are as follows— (a) to conserve the environmental heritage of Hunters Hill, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (2) Requirement for consent Development consent is required for any of the following— (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)— … (iii) a building, work, relic or tree within a heritage conservation area, … (e) erecting a building on land— (i) on which a heritage item is located or that is within a heritage conservation area, or … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development— … (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause." 1. In considering the effect of the proposed development on the Hunters Hill HCA, I have had regard to the following: 1. Statement of Heritage Impact, prepared by TKD Architects dated June 2021, and 2. Joint expert report of the planning and heritage experts, filed with the Court on 11 March 2022. 1. On the basis of the agreement between the heritage experts that the relationship between the proposed development and 'Eurondella' is satisfactory, the Applicant's amended plans that retain the existing height of the stone walls fronting Woolwich Road, and the further reduction in height agreed by the terms of Condition 2 of the agreed conditions of consent, I consider the impact of the proposed development acceptable in respect of the heritage item, and the Hunters Hill HCA. 2. The proposed development complies with the height of buildings control at cl 4.3 of the HHELP, and so also complies with the terms of cl 4.4(2A) of the HHLEP with respect to floor space ratio. 3. Compliance with cl 4.4(2A) is contingent upon satisfying cl 6.9(2)(b) of the HHLEP that requires at least 50% of the site to be landscaped area. Landscaped area is defined in the dictionary of the HHLEP in the following terms: landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area. 1. I am satisfied that the method of calculation for landscaped area depicted on Drawing DA 7001 is consistent with the terms of cl 6.9. 2. While the site is identified as being within class 5 Acid Sulfate Soils by the relevant map at cl 6.1(2) of the HHLEP, and is within 500m of class 2 land that is below 5m AHD, I am satisfied that the proposed excavation will not lower the water table on that class 2 land. In arriving at this conclusion, I also note the results of the site investigation did not encounter groundwater, and there is negligible likelihood of encountering Acid Sulfate Soils, according to p4 of the Geotechnical Investigation prepared by Douglas Partners dated May 2021. 3. On the basis of the report cited above, the Stormwater Drainage Concept plan prepared by ITM Design dated May and June 2021, and the extent of permeable surfaces on the land documented on the landscape plans prepared by Spirit Level dated 24 February 2022, I am satisfied in respect of those matters at cl 6.2(3) of the HHLEP as regards earthworks and, relatedly, that stormwater management has been satisfactorily addressed within the terms of cl 6.3(3) of the HHELP. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 1202216S_02), prepared by Efficient Living Pty Ltd dated 25 February 2022 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000. Conclusion 1. 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. Orders 1. The Court notes that: 1. The Respondent, as the relevant consent authority, agrees under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) to the Applicant amending development application No 2021/1191, filed with the Court on 19 November 2021 by including and substituting the amended plans and documents listed in order (1). 2. The Applicant has lodged the amended plans and other documents on the NSW Planning Portal on 16 March 2022. 1. The Court orders that: 1. The Applicant is given leave to rely on the amended plans and documents referred to below: Item no Document Prepared by Date Amended Architectural Plans • Cover sheet, locatin plan & site analysis, Drawing no AR.DA.0000, Revision B • Demolition Plan, Drawing no. AR.DA.1101, Revision B • Proposed Basement Floor Plan, Drawing no.AR.DA.2001, Revision B • Proposed Ground Floor Plan, Drawing no. AR.DA.2002, Revision B 25.02.22 for Revision B and 15.03.2022 1 • Proposed First Floor Plan, Drawing no. AR.DA.2003, Revision B TKD Architects for Revision C • Proposed Roof and Site Plan, Drawing no. AR.DA.2004, Revision B • Proposed Elevations 01, Drawing no. AR.DA.3001, Revision C • Proposed Elevations 02, Drawing no. AR.DA.3002, Revision C • Proposed Sections 01, Drawing no. AR.DA.3101, Revision C • Proposed Sections 02, Drawing no. AR.DA.3102, Revision C 2 NatHERS and BASIX Assessment Efficient Living 25.02.2022 3 Landscape Concept Plan, Drawing no. L100, Revision F Spirit Level Designs 24.02.2022 4 Addendum 1 to Aboriculture Impact Assessment Report Earthscape Horticultural Services 20.02.2022 1. The Appeal is upheld. 2. Development Application 2021/1191 for the demolition of existing remnant structures on site, including fencing associated with a former tennis court, site preparation, excavation and construction of a new storey dwelling, plus basement level, together with a swimming pool, drainage, and associated works at 31 Woolwich Road, Hunters Hill is approved, subject to the conditions of consent at 'Annexure A'. ………………….. T Horton Commissioner of the Court Annexure A (436198, 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: 23 March 2022