Ainsworth v Hunters Hill Council

Land and Environment Court (NSW)|2022-04-26

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2021/1115 for a boundary realignment with 16 Viret Street, Hunters Hill, demolition of garden structures and construction of a new dwelling (the proposal), at 24 Viret Street, Hunters Hill (the site), by Hunters Hill Council (the Council).
The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 April 2022. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
There are preconditions to the exercise of power to grant development consent for the proposal, including under cl 4.6(2) of the Hunters Hill Local Environmental Plan 2012 (LEP 2012).

The application is amended

The parties agreed on an amended proposal during the conciliation conference. The amended application was uploaded to the NSW planning portal on 17 May 2022 and filed with the Court on 17 May 2022.
The site area of the proposed Lot 101 (24 Viret Street), following the boundary adjustment between 16 and 24 Viret Street, is 903m2.

Planning framework

The Environmental Planning and Assessment Regulation 2000 continues to apply to the application because the application was lodged on 6 May 2021, the Class 1 application was filed with the Court on 28 January 2022 and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021).
The site is zoned R2 Low Density Residential pursuant to LEP 2012 and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, 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.
The landscaped area for dwelling houses and secondary dwellings under cl 6.9 of LEP 2012 must be 60% of the site area for each site with a direct frontage to the Parramatta River or the Lane Cove River, at subcl (2)(a). The objectives of the clause are: (a) to maintain the character and identity of Hunters Hill by ensuring that dwelling houses and secondary dwellings are surrounded and separated by individual gardens, (b) to soften the visual impacts of dwelling houses and secondary dwellings when viewed from any waterway, park or road by providing sufficient space for trees and plantings around every building, (c) to protect and preserve native vegetation in general, and in particular, native vegetation that occurs in a riverfront area or on riparian land, (d) to ensure that the size and scale of dwelling houses and secondary dwellings are compatible with the existing character of their surrounding locality, (e) to minimise the discharge of stormwater from any site, whether by drainage or by overland flow.
Clause 6.6 of LEP 2012 is in the following terms: 6.6 Limited development on foreshore area The objective of this clause is to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the significance and amenity of the area. (2) Development consent must not be granted to development on land in the foreshore area except for the following purposes - (a) the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area, (b) the erection of a building in the foreshore area, if the levels, depth or other exceptional features of the site make it appropriate to do so, (c) boat sheds, sea retaining walls, wharves, slipways, jetties, waterway access stairs, swimming pools, fences, cycleways, walking trails, picnic facilities or other recreation facilities (outdoors). (3) Development consent must not be granted under this clause unless the consent authority is satisfied that - (a) the development will contribute to achieving the objectives for the zone in which the land is located, and (b) the appearance of any proposed structure, from both the waterway and adjacent foreshore areas, will be compatible with the surrounding area, and (c) the development will not cause environmental harm such as - (i) pollution or siltation of the waterway, or (ii) an adverse effect on surrounding uses, marine habitat, wetland areas, fauna and flora habitats, or (iii) an adverse effect on drainage patterns, and (d) the development will not cause congestion or generate conflict between people using open space areas or the waterway, and (e) opportunities to provide continuous public access along the foreshore and to the waterway will not be compromised, and (f) 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 (g) in the case of development for the alteration or rebuilding of an existing building wholly or partly in the foreshore area, the alteration or rebuilding will not have an adverse impact on the amenity or aesthetic appearance of the foreshore. (4) In this clause - foreshore area means the land between the foreshore building line and the mean high water mark of the nearest natural waterbody. foreshore building line means the line shown as the foreshore building line on the Foreshore Building Line Map. Note - Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 also applies to the Foreshores and Waterways Area defined by that Plan.
Clause 6.7 of LEP 2012 is in the following terms: 6.7 Development on river front areas (1) The objectives of this clause are as follows - (a) to identify river front areas that have particular scenic value when viewed from waterways and adjacent foreshore areas, (b) to ensure that development in these areas minimises visual impacts by appropriate siting and design of buildings together with the conservation of existing trees, (c) to maintain existing views and vistas towards waterways from public places. (2) This clause applies to land identified as "River Front Area" on the River Front Area Map. (3) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that - (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. Note - Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 also applies to the Foreshores and Waterways Area defined by that Plan.

Contravention of the landscaped area development standard under cl 6.9 of LEP 2012

The proposal's landscaped area, calculated in accordance with the requirements under cl 6.9 of LEP 2012, is 370m2. The applicant provided a written request seeking to justify the contravention of the landscaped area development standard, prepared by Mecone and dated 2 May 2022.
Clause 4.6(4) of LEP 2012 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ('Initial Action')). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
On appeal, the Court has the power under cl 4.6(2) of LEP 2012 to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

The applicant's written request to contravene the landscaped area development standard

The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ('Wehbe') and repeated in Initial Action [17]-[21]: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).
The applicant's written request justifies the contravention of the landscaped area development standard on the basis that compliance is unreasonable or unnecessary because the proposal would comply with the landscaped area development standard under cl 6.9 of LEP 2012 if the area of the access handle is excluded from the site area. In other words, the proportion of built upon area and paved terrace, to landscaped garden around the dwelling, is consistent with the development standard.
The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the non-compliance with the landscaped area development standard as a justified response to the unique configuration of the site's layout, because a proportion of the site located within the access handle does not contribute to the landscaped setting of the new dwelling. I am satisfied that justifying the aspect of the development that contravenes the development standard can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).
I am satisfied that the proposal is consistent with the zone and development standard objectives for the reasons set out by the applicant in the written request at pages 8-9 and 12.

Stormwater management

I accept the Council's submission that the stormwater management of the proposal, pursuant to cl 6.6 of LEP 2012:

is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water;
includes on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water;
avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or otherwise minimises and mitigates the impact; and
that these matters are addressed in the stormwater engineering drawings prepared by Indesco dated 5 May 2022.

Development on foreshore area

Part of the proposal is within the foreshore area pursuant to cl 6.7 of LEP 2012. I accept the Council's submission that the proposal will, according to the Statement of Environmental Effects prepared by Mecone and dated April 2021 on p 26:

contribute to achieving the objectives for the R2 zone in which the land is located;
have an appearance compatible with the surrounding area from both the waterway and adjacent foreshore areas;
not cause environmental harm;
not cause congestion or generate conflict between people using open space areas or the waterway;
not compromise opportunities to provide continuous public access along the foreshore and to the waterway; and
maintain 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.

Conclusion

I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 17 May 2022 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 2021/1115 for a boundary realignment with 16 Viret Street, Hunters Hill, and construction of a new dwelling at 24 Viret Street, Hunters Hill, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O'Neill Commissioner of the Court Annexure A.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: 09 June 2022

(2018) 236 LGERA 256

(2007) 156 LGERA 446

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Judgment (12 paragraphs)

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Cases Cited (7)