Land and Environment Court New South Wales Medium Neutral Citation: Terrano v Hunters Hill Council [2024] NSWLEC 1269 Hearing dates: Conciliation conference 3 May 2024 Date of orders: 22 May 2024 Decision date: 22 May 2024 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No. DA20230039, as amended, for demolition of the existing dwelling and construction of a new dwelling, front fence, swimming pool and landscaping at 4 Paul Street, Hunters Hill, is determined by the grant of consent subject to the conditions at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION: demolition and new residential dwelling – amended plans and information – agreement between the parties – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 23, 37, 38 Hunters Hill Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 5.10, 6.2, 6.3, 6.9 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Biodiversity and Conservation) 2021 Texts Cited: Hunters Hill Development Control Plan 2013 Category: Principal judgment Parties: Enza Terrano (Applicant) Hunters Hill Council (Respondent) Representation: Counsel: J Oldknow, solicitor (Applicant) D Johnson, solicitor (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth (Respondent) File Number(s): 2023/432137 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to subs 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the actual refusal of development application DA20230039. The development application seeks consent for the demolition of the existing dwelling and construction of a new dwelling, front fence, swimming pool and landscaping. The development is proposed at 4 Paul Street, Hunters Hill (Lot A in Deposited Plan 378198). 2. The Court arranged a mediation conference under s 26 of the Civil Procedure Act 2005 between the parties which was held on 19 February 2024. The mediation was adjourned to allow the parties to continue discussions but was ultimately concluded on 27 March 2024. 3. Following the mediation the Applicant has made amendments to the development application and provided additional material. The key changes are: 1. Re-design of the driveway 2. Relocation of the A/C and pool 3. Increased landscape area 4. Amendments to the materials and finishes to the dwelling and front fence 5. Increased roof pitch 6. Re-design of rear terrace and front façade 7. Reconfiguration of internal floor level to create step in hallway. 1. The parties have continued discussions and have reached an agreement as to the resolution of the proceedings. The parties' agreement is for the grant of consent to the application, as amended, subject to conditions. The parties advised the Court of their agreement, and the proceedings were listed for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference. 2. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction on the basis that: 1. The development application was made with the written consent of the registered proprietors of the lot which comprises the site: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) 2. Between 29 March and 28 April 2023, the development application was notified by the Respondent. Two submissions were received which have been provided to the Court. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: subs 4.15(1)(d) of the EPA Act. 3. The development application was lodged, but not finally determined prior to 1 October 2023. Hence, the now repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies to the application rather than State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to SEPP BASIX and the EPA Regulation, the development application is a BASIX affected development. A BASIX certificate has been provided as part of the development application meeting the requirements of SEPP BASIX. 4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The residential history of the site is documented in the Amended Heritage Impact Statement. The development application does not propose a change of use. The parties agree and I accept, on the details in Statement of Environmental Effects accompanying the development application, that s 4.6 of SEPP RH is satisfied. 5. The development application involves the removal of existing vegetation on the site and accordingly is accompanied by an Aboricultural Impact Assessment and a Tree Transplanting Methodology. Part 2.2 'Clearing of vegetation in non-rural areas' of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. In granting consent to the development application, I have considered the matters at s 2.10 of the SEPP BC. The parties agree, and I accept, that I can be satisfied that: 1. The amended development application is acceptable, 2. The annexed conditions require the protection and monitoring of nominated trees and appropriately grant consent for the removal and replacement of others. 1. The site is mapped on the Sydney Harbour Catchment Map. As required by cl 6.6 of SEPP BC in granting consent to the development application I must consider the matters at subcl (1) encompassing the impacts of the proposed development on water quality and quantity, including impacts from the development on groundwater and stormwater. The development application is accompanied by Drainage Plans (Rev A), prepared by ACE Civil & Hydraulic Engineers which demonstrate how the stormwater runoff will be managed to minimise the impact on the adjoining properties and surroundings of the Site. Further the Statement of Environmental Effects confirms the: * Development Application provides compliant areas of deep soil vegetation; * The existing stormwater and drainage qualities will remain unaltered; * A rainwater tank is provided onsite; and * The works will not result in any runoff to the adjoining sites. 1. Having considered the mattes at cl 6.6(2) of SEPP BC I am satisfied that none preclude the grant of consent. 2. Hunters Hill Local Environmental Plan 2012 (LEP 2012) applies to the land. Development for the purposes of a residential dwelling is permitted with consent in the R2 Low Density Residential zone. As required by cl 2.3(2) I have had regard to the R2 Low Density Residential zone objectives in determining the development application. The objectives of the zone are: 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. Clause 2.7 of the LEP 2012 requires development consent to be granted for and prior to the demolition of a building or work. The development application proposes the demolition of the existing structures on the Site. 2. Pursuant to cl 4.3 'Height of Buildings' and the Height of Buildings Map the site has a maximum height development standard of 8.5m. The development application, as amended, complies with the 8.5m height control. 3. Clause 4.4 of the LEP 2012, provides that if a dwelling house on any land complies with cl 4.3, in respect of the Height of Buildings standard, and cl 6.9, in respect of landscaped area for dwelling houses and secondary dwellings, there is no maximum floor space ratio for that dwelling house. The proposed development complies with cl 4.3 (see [(10)]) and cl 6.9 (see [(17)]), therefore no maximum floor space ratio applies. 4. Pursuant to cl 5.10 of the LEP 2012, consent must not be granted to a development unless the consent authority has considered the impact of the development with respect to a heritage item or if the development is located within a heritage conservation area. The Site is located within the Hunter's Hill Conservation Area No. 1 - The Peninsula (HCA) and is in close proximity to several heritage items. The development application is accompanied by an Amended Heritage Impact Statement prepared by Damian O'Toole Town Planning & Heritage Services dated June 2023 which confirms that the development: * Does not result in the loss of heritage fabric as the existing dwelling is not considered to be a contributory item; * Is considerate to the heritage character of the conservation area; and * The development will be of minimal impact to the conservation area. 1. Further, the parties agree, and I accept, that the retention of the Phoenix canariensis – Canary Island date palm (Tree 18), which may be transplanted in accordance with the approved transplanting methodology/ conditions of consent, is a significant and important matter in relation to the heritage conservation area and cl 5.10 of LEP 2012. In determining the development application, I have considered the impact of the development on the significance of the HCA and conclude that it does not warrant the refusal of the development application. 2. The development is proposed on land which is mapped as Class 5 Acid Sulfate soil on the Acid Sulfate Soils map in LEP 2012. However, I am satisfied that the site is not located within 500m of Class 1,2,3 or 4 land nor proposes works that will cause the water table to be lowered below 1m Australian Height Datum. I am satisfied that an Acid Sulfate Soils management plan is not required. 3. The extent of earthworks proposed by the development application are minimal. As required by cl 6.2 'Earthworks' of LEP 2012, in granting consent to the development, with the assistance of the Statement of Environmental Effects and the stormwater and architectural plans which form part of the development application, I have given consideration to the matters listed in subcl (3). Having considered the listed matters I am satisfied that none warrant the refusal of the development application. 4. Pursuant to clause 6.3 of the LEP 2012, the consent authority must be satisfied that the development will not result in adverse impacts of stormwater runoff on the adjoining properties, native bushland and receiving waters. The amended development application includes civil design plans prepared by ACE Civil & Hydraulic Engineers dated 28 February 2024 which the parties agree, and I accept, demonstrate how the stormwater runoff will be managed to minimise the impact on the adjoining properties and surroundings of the Site. In addition, the Statement of Environmental Effects accompanying the development application confirms that: 1. Development application provided compliant areas of deep soil vegetation; 2. The existing stormwater and drainage qualities will remain unaltered; 3. A rainwater tank is provided onsite; and 4. The works will not result in any runoff to the adjoining sites. 1. On this basis I accept the parties agreement that the extent of stormwater runoff is unlikely to result in a significant impact on the adjoining properties, native bushland and receiving waters. 2. Pursuant to cl 6.9 'Landscaped area for dwelling houses and secondary dwellings', the landscaped area of any site for which development for a dwelling is sought, must not be less than 50% or 306.5m² of the site area. This area may be reduced by no more 33% for the purposes of accommodating a pathway, patio, terrace or pool if the development is consistent with the objectives of the clause. The amended development application is consistent with objectives of cl 6.9 of LEP 2012 as it provides a landscaped area of 259.41m² of 'soft'/ deep soil landscaping, together with another 47.21m² for the purposes of a pool, terrace and hard paving. This results in a total landscaped area for the purposes of cl 6.9 of the LEP 2012 of 50% in compliance with the clause. 3. Hunters Hill Development Control Plan 2013 (DCP 2013) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2013. In determining the development application, I have considered the provisions of the development control plan: subs 4.15(1) of the EPA Act. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, subs 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" (subs 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 notes that: 1. The Respondent, Hunters Hill Council, as the relevant consent authority, agrees, pursuant to cll 37 and 38 of the EPA Regulation to the Applicant amending development application DA 2023/39 to incorporate the following amended plans and additional information: TAB DOCUMENT DATE Architectural Plans (Rev K), prepared by David DeChiara Cover Page – 2022 – 1 – 1/17 Ground Floor Plan – 2022 – 1 – 2/17 First Floor Plan – 2022 – 1 – 3/17 Roof Plan – 2022 – 1 – 4/17 Front & Rear Elevations – 2022 – 1 – 5/17 Side Elevations – 2022 – 1 – 6/17 Section & Driveway Section – 2022 – 1 – 7/17 3 May 2024 Site Plan – 2022 – 1 – 8/17 Site Analysis – 2022 – 1 – 9/17 Areas – 2022 – 1 – 10/17 BASIX – 2022 – 1 – 14/17 Waste Management Plan – 2022 – 1 – 15/17 Safety Notes – 2022 – 1 – 16/17 Notification Plan – 2022 – 1 – 17/17 Colour Schedules, prepared by David DeChiara 20 March 2024 Tree Transplanting Methodology – Tree 18, prepared by EziGrow 19 March 2024 Landscape Plan, prepared by EziGrow 25 March 2024 LP01 Drainage Plan, prepared by ACE Civil & Hydraulic Engineers Sheet 1 Sheet 2 28 February 2024 Sheet 3 Sheet 4 Schedule of Amendments, prepared by David DeChiara 20 March 2024 1. The Applicant provided the amended development application to the Court on 3 May 2024. 1. The Court orders that: 1. The appeal is upheld. 2. Development Application No. DA20230039, as amended, for demolition of the existing dwelling and construction of a new dwelling, front fence, swimming pool and landscaping at 4 Paul Street, Hunters Hill, is determined by the grant of consent subject to the conditions at Annexure 'A'. D Dickson Commissioner of the Court Annexure A ********** 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: 22 May 2024