Land and Environment Court New South Wales Medium Neutral Citation: Melocco v Hunters Hill Council [2019] NSWLEC 1510 Hearing dates: Conciliation conference on 17 September 2019; 8 October 2019; 10 October 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders: (1) The Applicant is granted leave to rely on the amended plans and supporting documentation as set out in condition 2 of the conditions of development consent contained at Annexure A. (2) The Applicant is to pay the Respondents costs in accordance with s 8.15(3) of Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000 within 28 days of the date of these orders. (3) The Applicant's written request under clause 4.6 of the Hunters Hill Local Environmental Plan 2012, prepared by ABC Planning, dated October 2019 for the contravention of the maximum height development standard imposed by clause 4.3 of the Hunters Hill Local Environmental Plan 2012 is upheld. (4) The appeal is upheld. (5) Approval is granted to development application no. DA2018-1126 for the demolition of the existing building and construction of four residential apartments including basement car parking and storage at 2 Viret Street Hunters Hill subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Hunters Hill Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No.65 – Design Quality of Residential Apartment Development Category: Principal judgment Parties: David Melocco (Applicant) Hunter Hill Council (Respondent) Representation: Counsel: M Staunton (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Clayton Utz (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/17666 Publication restriction: No Judgment 1. COMMISSIONER: The applicant is appealing the deemed refusal of development application DA2018/1126 which seeks consent for the demolition of an existing residential flat building and the construction of four residential apartments and basement car parking with ancillary landscape works at 2 Viret Street, Hunters Hill. 2. The site is legally described as Strata Plan 6693 and has an area of approximately 1663m² with a southern frontage to Viret Street and a steep fall of around 18m in height to the Lane Cove River to the north where a 15m Foreshore building line applies. 3. Relevantly, the existing structure on the site is a residential flat building constructed in 1957, and in respect of which a strata plan was registered on 16 October 1972. 4. The site is within a Heritage Conservation Area, identified in the Hunters Hill Local Environmental Plan 2012 (HHLEP) as 'C1' containing a number of heritage items in close proximity, and is also identified in cl 6.7 of the HHLEP as a Riverfront Area for which consent must not be granted unless the consent authority, or the Court on appeal, is satisfied in relation to certain matters. 5. 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 September 2019, 8 and 10 October 2019 and 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 adjoining properties. 6. Following the onsite view, the parties and experts reconvened at the Council Chambers 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. 7. I granted an adjournment in order for the Applicant to prepare amended plans, and a revised written request to justify the contravention of the height of buildings development standard, and for the parties to agree the conditions of consent. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 9 October 2019. 8. The parties' decision involves the Court exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the development application. However there are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. The parties identified the jurisdictional prerequisites in these proceedings including a written request to justify the contravention of the development standard for the height of buildings set out in cl 4.3 of the HHLEP, pursuant to cl 4.6 of the HHLEP. The parties explained to me during the conference as to how the requirements of the HHLEP have been satisfied in order to allow the Court to make the agreed orders at [19]. 10. I note that the proposed development is within the R2 Low Density Residential zone in which residential apartment development is prohibited. The objectives of the zone 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 parties are agreed, and I concur, that the use on the site as established by registration of a strata plan on 16 October 1972 has not been abandoned and so the site enjoys existing use rights under Division 4.11 of the EPA Act and I am satisfied that pursuant to cl 4.67(3) of the EPA Act, the prohibition on the use of the site for residential apartment development does not derogate those existing use rights. 2. I have read the Applicant's written request seeking to justify the contravention of the height of buildings development standard, prepared by ABC Planning dated October 2019, which states that the maximum height of building proposed is 16.2m, which is 7.7m above the maximum permissible height of 8.5m in cl 4.3 of the HHLEP at the intersection of Gridlines F and 4. 3. I am satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6 of the HHLEP for the following reasons: 1. I am satisfied the objectives of the development standard are achieved notwithstanding the non-compliance with cl 4.3 of the HHLEP and so strict compliance with the development standard can be said to be unreasonable or unnecessary for the following reasons: * Despite the contravention of the height control towards the centre and rear of the site, the proposal presents as a two-storey building to Viret Street within the height limit specified of 8.5m, and is compatible with the scale and character of the street. * The scale of the building reflects the character and identity of Hunters Hill because the portion of the proposal that exceeds the height control does not adversely impact overshadowing to neighbouring properties. * No.2A and No.4 Viret Street will continue to receive more than the 3 hours of sunlight required by the Hunters Hill Development Control Plan 2013. Furthermore, the contravention of the height control will not adversely impact views to or from the Lane Cove River, or privacy to neighbouring properties due to the substantial rear setback and recessed nature of the apartments and screening devices. 1. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the standard as the proposal presents as a two-storey residential building when viewed from the public domain, and the contravention of the height control results, in part, due to the steep and abrupt slope of the site which is reflected, in part, in the stepped form of the development which serves to mitigate adverse overshadowing, visual or privacy impacts to neighbouring properties. Furthermore, a substantial rear setback which acts to mitigate these adverse impacts has a resultant impact on overall height. 2. For the reasons stated at [11], I am satisfied that the proposal appropriately relies on its existing use rights to propose the rebuilding of a residential flat building with the same number of apartments in the R2 zone, and so cannot be expected to be consistent with the objectives of the R2 zone. 3. However for the reasons stated at [13(1)] I am of the view that the proposed development is consistent with the objectives of the particular standard, and as there are no issues of significance for State or regional environmental planning, I am satisfied in relation to the Secretary's concurrence pursuant to cl 4.6(4)(b) of the HHLEP and consequently it is in the public interest that the written request is upheld. 1. In relation to cl 5.10 of the HHLEP, I am satisfied on the basis of the side and rear setback of the proposed development from the heritage item 'Craigie-Lea', and the agreed materials and finishes that the proposed development will not adversely impact the heritage items or their setting in the C1 Heritage Conservation Area. 2. I have considered the matters set out in cl 6.7(3) of the HHLEP and am satisfied on the basis of the amended Landscape drawings, amended stormwater drawings and Arboricultural Impact Appraisal and Method statement that appropriate measures will be taken in relation to the visual impact of the proposed development given the significance of the land and the views to and from the Lane Cove River. 3. For the reasons set out on page 46 of the Statement of Environmental Effects, prepared by ABC Planning, I am satisfied that the site is not contaminated pursuant to cl 7(1)(b) of the State Environmental Planning Policy No 55—Remediation of Land. 4. The parties agree that the proposed development satisfies the provisions of State Environmental Planning Policy No.65 – Design Quality in Residential Apartment Development (SEPP 65) in all respects. Where an application relates to residential apartment development, cl 50 (1A) of the EPA Regulations requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50 (1AB), which include attestations in relation to cl 28 (2)(b) and (c). I am satisfied the statement prepared by David Melocco, architect, is consistent with the provisions of the EPA Regulations, and so satisfies cl 28(2)(b) of the SEPP 65. 5. As I am satisfied that 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. 6. The Court orders as follows: 1. The Applicant is granted leave to rely on the amended plans and supporting documentation as set out in condition 2 of the conditions of development consent contained at Annexure A. 2. The Applicant is to pay the Respondents costs in accordance with s 8.15(3) of Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000 within 28 days of the date of these orders. 3. The Applicant's written request under clause 4.6 of the Hunters Hill Local Environmental Plan 2012, prepared by ABC Planning, dated October 2019 for the contravention of the maximum height development standard imposed by clause 4.3 of the Hunters Hill Local Environmental Plan 2012 is upheld. 4. The appeal is upheld. 5. Approval is granted to development application no. DA2018-1126 for the demolition of the existing building and construction of four residential apartments including basement car parking and storage at 2 Viret Street Hunters Hill subject to the conditions set out in Annexure A. ………………………… T Horton Commissioner of the Court Annexure A (330 KB) Architectural Plans Numbers 102-110 (1.24 MB) Architectural Plans Numbers 253-254 (395 KB) Plans (6.25 MB) Landscape Plan (1.31 MB) ********** 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: 24 October 2019