Land and Environment Court New South Wales Medium Neutral Citation: Vernier v Hunter's Hill Council [2024] NSWLEC 1439 Hearing dates: Conciliation conference 8 July 2024 Date of orders: 26 July 2024 Decision date: 26 July 2024 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: (1) Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005, Mr Carlo Vernier is removed as a party to the proceedings. (2) The appeal is upheld. (3) Development Application No DA 2023/0020 (as amended) for alterations and additions to the existing dwelling comprising of the construction of a basement level of 9 Lloyd Avenue, Hunters Hill is determined by the grant of consent, subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – Alterations and additions to a dwelling house – conciliation conference – amended plans – agreement between the parties – orders made. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.14 Fisheries Management Act 1994 Land and Environment Court Act 1979, ss 23, 34, 34AA, 36 Environmental Planning and Assessment Regulation 2021, s 23, 38 Hunters Hill Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6, 5.10, 6.2, 6.3, 6.7, 6.9 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 6, 10, Pts 6.2, 6.3, Divs 2, 3, ss 6.6, 6.7, 6.9, 6.11, 6.28 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 2.12, 2.13, 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022 State Environmental Planning Policy (Water Catchments) 2022 Uniform Civil Procedure Rules 2005, rr 23, 34, 34AA, 36 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 Texts Cited: Hunters Hill Development Control Plan 2013 Category: Principal judgment Parties: Katrina Vernier (Applicant) Hunter's Hill Council (Respondent) Representation: Counsel: B Dyer (Solicitor) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Maddocks Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2023/435961 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application DA 2023/0020. The development application seeks consent for alterations and additions to an existing dwelling house comprising of the construction of a dwelling house comprising construction of a basement level and associated earthworks. The development is proposed at 9 Lloyd Avenue, Hunters Hill (Lot B in DP 432065). 2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 8 July 2024. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was subsequently filed and is supported by a Jurisdictional Statement. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 4. 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 Class 1 Application filed with the Court on 1 December 2023, listed both Mr Carlos Vernier and Ms Katrina Vernier as property owners. A title search of the property the subject of the proceedings was tendered with the Court which notes that Ms Katrina Vernier is the sole property owner. Accordingly, the parties seek an order from the Court pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 removing Mr Vernier as an applicant in the proceedings. Pursuant to s 36(2) of the LEC Act, Commissioners of the Court have and can exercise all the functions of the Court. Section 23 of the LEC provides that "the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate". Given the preceding, I make the orders in accordance with the parties agreement. 2. 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). 3. The development application was lodged on the NSW Planning Portal on 24 February 2023. The development application was notified between 2 March and 16 March 2023. No submissions were received by the Respondent. 4. 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. 5. 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 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. 6. Pursuant to Ch 2 of SEPP RH the site is mapped as being within the 'Coastal Environment Area', the 'Coastal Use Area'. The site is also mapped as a Coastal Wetland. The effect of the exclusion of land within the Foreshores and Waterways Area at ss 2.10(3) and 2.11(3) of SEPP RH is that the remaining parts of ss 2.10 and 2.11 of SEPP RH do not apply to the development application. 7. The site is mapped as being within the Coastal Zone under SEPP RH. Sections 2.12 and 2.13 of SEPP RH apply to development within the Coastal Zone. Development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land and the consent authority has taken into consideration the relevant provisions of any certified coastal management program applying to the land. On the first matter, the proposed development is contained within the footprint of the existing dwelling and is set back some 10-15m from the mean high-water mark of Lane Cove River. The parties agree, and I accept, that the proposed development is not likely to cause an increased risk of coastal hazards on that or other land. On the second matter, no certified coastal management plan applies to the land. 8. Chapter 10 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the development application as it was made but not finally determined before the commencement of State Environmental Planning Policy (Water Catchments) 2022 on 21 November 2022. The site is located within the Sydney Harbour Catchment which is a regulated catchment under Ch 6 of SEPP BC. Division 2 in Pt 6.2 of Ch 6 of SEPP BC contains general controls applying to development in regulated catchments, including specific matters the consent authority is required to consider and matters about which the consent authority must be positively satisfied in granting consent to development in a regulated catchment. The proposed development comprises the construction of an additional level beneath an existing approved building footprint with minor alterations in the dwelling itself, planting an additional tree, and no material changes to the existing stormwater system. On this basis I accept the agreement of the parties that I can be satisfied that the development: 1. Ensures the effect on the quality of the water entering a natural waterbody will be close as possible to neutral or beneficial, and that the impact on water flow in a natural waterbody will be minimised (s 6.6(2) of SEPP BC). 2. Will not result in impacts in terrestrial, aquatic or migratory animals or vegetation, aquatic reserves or wetlands not within the mapped coastal wetlands and littoral rainforests area (s 6.7(2)(a)-(c) of SEPP BC). 3. Does not require a controlled activity approval or permit under the Fisheries Management Act 1994 in relation to the clearing of riparian vegetation (s 6.7(2)(c) of SEPP BC). 4. Will not cause erosion of land abutting a natural body or the sedimentation of a natural waterbody (s 6.7(2)(d) of SEPP BC). 5. Will not affect public access to or from natural waterbodies for recreational purposes (s 6.9(2) of SEPP BC). 1. The site is within 100m of a natural waterbody in the Sydney Harbour Catchment, being the Lane Cove River, and cl 6.11 in Div 3 in Pt 6.2 of Ch 6 of SEPP BC contains controls for specific purposes. None are relevant to the proposed development. 2. The site is within the Foreshores and Waterways Area and Pt 6.3 of Ch 6 of SEPP BC applies. Section 6.28 in Div 3 of Pt 6.3 specifies matters for consideration and matters about which the consent authority must be satisfied before granting consent to development. The considerations in s 6.28(1) of SEPP BC are not of relevance to the development proposed by this development application. Further, regarding the matters of satisfaction at subss 6.28(2)(a)-(e), I am satisfied that subss (a)-(c) are not relevant to the development and the matter at (d) is unaffected by the proposed works. In relation to the matter at (e), I am satisfied the development application has been amended to address any impact on the unique visual qualities of the site and views to and from it. I find that the matters listed at s 6.28 of SEPP BC are satisfied. 3. 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) of LEP 2012, 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. Pursuant to cl 4.3 'Height of Buildings' in LEP 2012 and the Height of Buildings Map, the site has a maximum height development standard of 8.5m. The development application, excavation and construction of a basement level, will not cause the development to exceed the maximum height standard. 2. Clause 6.9 'Landscaped area for dwelling houses and secondary dwellings' in LEP 2012 sets the minimum landscaped area standard for the site. Applying subcl (2)(b), the landscaped area standard for the site is 50% of the site, or 259.6m2. The amended development application proposes landscaped area of 288.1m2, compliant with the provision. 3. The site is subject to a maximum floor space ratio (FSR) of 0.5:1 pursuant to cl 4.4 of LEP 2012. The development application complies with the FSR standard. 4. Pursuant to cl 6.9(2)(a) of LEP 2012 the development is required to provide a minimum landscaped area of 60% of the site area as the site has a direct frontage to the Lane Cove River. Clause 6.9(4) of LEP 2012 allows the amount of landscaped area to be reduced by 33% of the otherwise required amount to accommodate a pathway, patio, terrace or pool (of less than 40m2 in area) but only if the development would be consistent with the objectives in cl 6.9(1). The development proposes 383m2 of landscaped area capable of meeting the definition under LEP 2012. This represents a shortfall of 82.12m2. The Applicant relies on a written request prepared by Tony Moody Planning and Development, in support of the variation. The written request addresses the matters set out at cl 4.6(3) of LEP 2012, including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118. 1. Pursuant to cl 4.6(3) of LEP 2012, the Court, in exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(3) being: 1. that compliance with the development standard in cl 4.4 of LEP 2012 is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of LEP 2012); and, 2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.4 of LEP 2012 (subcl 4.6(3)(b) of LEP 2012). 1. Only if the requirements in cl 4.6(3) are met, will the power in cl 4.6(2) to grant consent to development that contravenes the development standard, be enlivened: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 per Preston CJ at [23]. 2. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the landscape area development standard in the circumstances of this case as the objectives of the standard are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard. 3. The parties agree, and I accept, that the proposed development is in the public interest because it is consistent with the objectives of the landscape area standard and the objectives for development within the R2 Low Density Residential zone for the reasons detailed in the written request. 4. I accept the agreed submission of the parties that despite the exceedance of the standard by greater than 10%, the Court has the power to determine the application without the concurrent of the Planning Secretary pursuant to s 8.14(3) of the EPA Act and s 39(6) of the LEC Act. 5. Having regard to all of the above matters I am satisfied that I should uphold the cl 4.6 variation request in relation to the landscape area standard in LEP 2012. 1. 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 parties agree and I accept that the development, being contained within the footprint of the existing dwelling, will not have a detrimental impact on the HCA. 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 and predominately contained within the footprint of the existing dwelling. 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 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 cl 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 will not impact on the existing stormwater design of the dwelling, with the exception of replacing the existing rainwater tank with a new rainwater tank. In granting consent to the development, with the assistance of the Statement of Environmental Effects, 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. 5. The site is identified as being within the "River Front Area" on the River Front Area Map referred to in cl 6.7 of the LEP 2012, which requires the consent authority to be satisfied in relation to the following: (a) measures will be taken, including in relation to the location, design and appearance of the development and conservation of existing trees, to minimise the visual impact of the development to and from the nearest waterway, and (b) any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out, and of surrounding land, will be maintained, and (c) existing views towards waterways from public roads and reserves would not be obstructed. 1. The parties agree that the Court can be satisfied as to these matters based on the plans and documents submitted with the development application. In particular I note that the proposed basement level will be screened from the waterway. I find that cl 6.7 of LEP 2012 is satisfied. 2. 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: s 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, s 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 Court notes that Hunter's Hill Council, as the relevant consent authority, approves under s 38(1) of the Environmental Planning and Assessment Regulation 2021 the Applicant amending Development Application no DA2023/002 in accordance with the following documents which were filed with the Court on 4 July 2024: 1. The Applicant's written request prepared by Tony Moody, dated 4 July 2024 and made pursuant to cl 4.6, to vary the landscaped area development standard in cl 6.9 of the LEP 2012, is upheld. 1. The Court orders that: 1. Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005, Mr Carlo Vernier is removed as a party to the proceedings. 2. The appeal is upheld. 3. Development Application No DA 2023/0020 (as amended) for alterations and additions to the existing dwelling comprising of the construction of a basement level of 9 Lloyd Avenue, Hunters Hill is determined by the grant of consent, subject to the conditions in Annexure A. D Dickson Commissioner of the Court 435961.23 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: 26 July 2024