Land and Environment Court New South Wales Medium Neutral Citation: Coral Sea Estates Pty Ltd v Hunters Hill Council [2023] NSWLEC 1235 Hearing dates: Conciliation conference on 17 March, 6 April and 26 April 2023 Date of orders: 17 May 2023 Decision date: 17 May 2023 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (2) The appeal is upheld. (3) Development Application DA2022/0114 for the fit out and change of use of the ground floor commercial tenancy within the approved development on the subject site for the purposes of a restaurant/cafe, first floor addition at the southern portion of first floor level for the purposes of the existing first floor dwelling house and business signage at 39 Alexandra Street, Hunters Hill is determined by the grant of consent subject to the conditions set out in Annexure A to this agreement. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to an existing commercial building in B1 Neighbourhood Centre – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.15 Environmental Planning and Assessment Regulation 2021, cl 37 Hunters Hill Local Environmental Plan 2012, Sch 5, cll 5.10, 6.1, 6.3 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, Sch 5 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Coral Sea Estates Pty Ltd (Applicant) Hunters Hill Council (Respondent) Representation: Counsel: A Gough (Solicitor) (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Storey & Gough (Applicant) HWL Ebsworth (Respondent) File Number(s): 2022/317582 Publication restriction: Nil Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Hunters Hill Council of development application DA2022/0114 seeking consent for the fit out and change of use of the ground floor tenancy within the approved development on the subject site, first floor addition at the southern portion of first floor level, including business signage (proposed use of ground floor), with 5-8 staff , trading between 7am-10pm at 39 Alexandra Street, Hunters Hill. 2. It is relevant to record here that development consent was granted to an earlier development application in May 2017, that was subsequently modified in May 2022. 3. The development application now the subject of these proceedings was lodged with the Respondent on 5 July 2022, and amended on 21 April 2023. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 March 2023, at which I presided. In accordance with the Court's usual practice, the conference commenced onsite following a number of public submissions from residents of nearby properties. 5. Following the onsite view, the parties and experts reconvened at Court to continue the conciliation conference, at which time the parties reached agreement as to the terms of a decision that would be acceptable to the parties. This agreement involved the Court upholding the appeal and granting development consent to the development application subject to the preparation of amended plans, and agreed conditions. 6. I granted an adjournment in order for the Applicant to prepare amended plans, and other documents, and for the parties to discuss conditions of consent. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 28 April 2023. 7. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. However, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. The parties identified the jurisdictional prerequisites in these proceedings and 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 [19]. 9. The site is located in the B1 Neighbourhood Centre zone, according to the Hunters Hill Local Environmental Plan 2012 (HHLEP), in which shop top housing, restaurant and café use was, at the time the development application was lodged, permitted with consent where consistent with the following objectives of the B1 zone: • To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. • To encourage mixed use developments that incorporate shop top housing. • To maximise levels of pedestrian and business activity along street frontages. 1. The site is occupied by a Victorian era shop and residence identified in Sch 5 of the HHLEP for its local heritage significance. It is also within the Hunters Hill Conservation Area. In considering the effect of the proposed development on the heritage significance of the site and the conservation area, pursuant to cl 5.10(4) of the HHLEP, I accept the conclusions of the Heritage Impact Statement prepared by Mr John Oultram dated June 2022 that the proposal is a 'sensible and well considered approach to altering the existing building', that will have 'little impact on the setting or significance of the conservation area and the heritage items in the vicinity'. 2. The site is located within an area identified to be affected by Class 5 Acid Sulfate Soils at cl 6.1(2) of the HHLEP. However, the development for which consent is sought does not comprise excavation below 5m AHD, and is not likely to lower the water table. 3. The site is served by a stormwater management system approved by a prior consent that is now proposed to be amended by operation of conditions 17 and 18 of the agreed conditions of consent. The development application also proposes to substantially retain the existing development footprint that determines the extent of water permeable surfaces on the site, and the addition of onsite stormwater retention. On this basis, I am satisfied as to those matters at cl 6.3(3) of the HHLEP. 4. On the basis of the historical chronology of ownership and use of the site contained in the Heritage Impact Statement cited at [10], and the nature of the application being within the envelope of development for which consent has been granted prior, I accept the site is not contaminated and suitable for the purpose for which consent is sought, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. 5. The proposed development comprises business identification signage for which an assessment against Sch 5 of State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP) has been prepared. On that basis I am satisfied that the assessment demonstrates the proposed signage is consistent with the objectives of Ch 3 of the Industry SEPP and that the signage satisfies the assessment criteria specified in Sch 5 of the Industry SEPP. 6. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Cert No. A463658 dated 20 June 2022), prepared by GAT and Associates in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2021. 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. 3. The Court notes that: 1. That Hunters Hills Council as the relevant consent authority has agreed, under cl 37(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending development application DA2022/0114 with the following material; and Title Revision Date Drawing No. Amended Architectural Plans Cover Page D 21 March 2023 DA.000 D Site Analysis Plan C 8 March 2023 DA.010 C Site Plan C 8 March 2023 DA.011 C GFA Plans C 8 March 2023 DA.060 C Landscape Area Plans E 10 April 2023 DA.061 E Proposed Ground Floor Plan E 10 April 2023 DA.100 E Proposed Level 1 Plan E 10 April 2023 DA.101 E Proposed Roof E 10 April 2023 DA.190 E Proposed Section 1 D 21 March 2023 DA.200 D Proposed Section 2 C 21 March 2023 DA.201 C Proposed Section 3 D 21 March 2023 DA.202 D Proposed Section 4 C 21 March 2023 DA.203 C Proposed North Elevation D 21 March 2023 DA.300 D Proposed South Elevation D 21 March 2023 DA.301 D Proposed East Elevation D 21 March 2023 DA.302 D Proposed West Elevation D 21 March 2023 DA.303 D Proposed Ground Floor Lighting Plan B 10 April 2023 DA.600 B Proposed Level 1 Lighting Plan B 10 April 2023 DA.601 B Shadows – Winter Solstice – Existing C 8 March 2023 DA.700 C Shadows – Winter Solstice – Proposed C 8 March 2023 DA.701 C Shadows 41 Alexandra Street C 8 March 2023 DA.719 C Proposed Kitchen Detail Plan D 21 March 2023 DA.800 D External Ramp A 21 March 2023 DA.815 A Alexandra St Fence A 21 March 2023 DA.816 A Proposed Signage B 8 March 2023 DA.850 B Proposed Finish D 21 March 2023 DA.900 D Proposed 3D Views D 21 March 2023 DA.910 D Proposed 3D Views D 21 March 2023 DA.911 D Amended Landscape Plans Site Plan & Cover Page B 4 April 2023 WD_00 Ground Floor Landscape Plan B 4 April 2023 WD_01 First Floor Landscape Plan A 4 April 2023 WD_02 Planting Detail Sheet A 3 February 2023 WD_03 Supporting Documentation Operational Plan of Management prepared by Chapman Planning Pty Ltd 26 April 2023 Acoustic Report prepared by Acouras Consultancy 14 April 2023 Supplementary Traffic Advice prepared by McLaren Traffic Engineering 29 March 2023 Ventilation Information prepared by Stoddart 3 April 2023 "the amended development application" 1. That the amended development application was filed with the Court on 27 April 2023. 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The Appeal is upheld. 3. Development Application DA2022/0114 for the fit out and change of use of the ground floor commercial tenancy within the approved development on the subject site for the purposes of a restaurant/cafe, first floor addition at the southern portion of first floor level for the purposes of the existing first floor dwelling house and business signage at 39 Alexandra Street, Hunters Hill is determined by the grant of consent subject to the conditions set out in Annexure A to this agreement. T Horton Commissioner of the Court 317582.22 Annexure A (287878, 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: 17 May 2023