Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187

Land and Environment Court New South Wales

Medium Neutral Citation: Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187 Hearing dates: 18 and 19 September 2013 Decision date: 04 October 2013 Jurisdiction: Class 1 Before: Moore SC Sullivan AC Decision: See (72) for directions that will lead to the appeal being upheld and the granting of development consent for additions and alterations to 7 De Milhau Road, Hunters Hill Catchwords: PLANNING PRINCIPLE: Consideration of the planning principle in Edgar Allan Planning Pty Ltd v Woollahra Municipal Council; PLANNING PRINCIPLE: New principle for determining if a development application should be described as being for additions and alterations rather than a new development; Heritage impact Legislation Cited: State Environment Planning Policy No 1 Hunters Hill Local Environmental Plan No 1 Hunters Hill Local Environmental Plan 2013 Cases Cited: Edgar Allan Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790; (2006) 150 LGERA 1 Category: Principal judgment Parties: J Coorey (Applicant)

Municipality of Hunters Hill (Respondent) Representation: Mr A Pickles, barrister (Applicant) Mr J Cole, solicitor (Respondent) Maclarens Lawyers (Applicant) HWL Ebsworth (Respondent) File Number(s): 10486 of 2013

Judgment 1COMMISSIONERS: Many of the early structures of Hunters Hill dating from the early to mid-19th century have been retained although, as is the case with the sandstone cottage that is the subject of these proceedings, many have been modified in the more recent past. 2In these proceedings, a small, four-room Georgian-style stone cottage at 7 De Milhau Road comprises the listed heritage item on the site of this appeal. The cottage is known as Waterside. An extensive addition was constructed to the heritage item in the 1970s. 3The present development proposal seeks to remove that more recent extension and replace it with new structures that would differ in both style and scale from that extension. The 1970s extension was constructed in sandstone and timber in a fashion apparently thought, at the time, to be sympathetic to and in keeping with the heritage structure. Those additions were a single-level structure mainly behind and to the side of the heritage item. 4That for which approval is sought in this development application is a distinctly different structure both in form and materials so that the heritage item, from public viewing points in De Milhau Road, will be read in a different (and, as a result of the proposal, a more open) fashion than is presently able to be observed from the public domain. 5Development application 2013/1002 describes the development proposal as alterations and additions to existing dwelling, including first-floor addition, single-storey cabana, barbecue shelter, pergola and front fence. The appropriateness of this description in light of the planning principle in Edgar Allan Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790; (2006) 150 LGERA 1 is discussed later in this decision, particularly in the context of whether or not that planning principle should be replaced. 6The development application was lodged on 4 January 2013 with Hunters Hill Municipal Council (the Council) and, in response to its notification, four submissions objecting to the proposal were received by the Council. On 28 May 2013, the Council refused the application for a variety of reasons, virtually all of which have been resolved as a consequence of the collaborative work undertaken by the heritage advisers and legal representatives of the parties. That collaborative and cooperative process continued throughout the hearing so that, in effect, only two comparatively minor design matters remained for our determination. 7It is fair to say that the application has undergone significant evolution in design and, to a lesser extent, in materials and finishes during the course of that collaborative process. It is not necessary, in our view, to traverse the totality of the changes that have now taken place in the proposed design compared to that which was originally submitted for the Council's consideration - save to observe that we are satisfied that the various changes that have evolved through that process, when coupled with our determination of the two remaining issues, will lead to an acceptable redevelopment of the site in a fashion that will not compromise the heritage item further. The finalised design will, indeed, provided a more appropriate heritage context for the viewing of the item from locations in the public domain in De Milhau Road. 8We are also satisfied that, in the form that the final approval will take, the proposal will provide appropriate protection to neighbouring properties and, indeed, to a modest extent, provide an enhanced view corridor toward the nearby waterway from at least one of those properties. 9We express our appreciation to the cooperative approach taken by the legal representatives and the heritage advisers during the course of the court process because, even though the matter has proceeded through a contested hearing, virtually all the matters that had remained in contention between the Council and the applicant at the commencement of the site inspection were able to be resolved during the course of the site inspection and the subsequent hearing.