COMMISSIONER: By orders made on 18 May 2010 (entered 4 June 2010) the Court granted development consent (Consent) to the Applicant to development application DA 2008/1096 in proceedings 10977 of 2009 for the construction of a new two-storey dwelling, double detached garage and indoor pool at Lot 3 in Deposited Plan 840284 known as 27 Nelson Parade, Hunters Hill (site) on the foreshore of Parramatta River.
The Second Respondent Dolly Diab (Mrs Diab) is the owner 29 Nelson Parade Hunters Hill (Number 29) the property generally to the west of the site.
This is the next chapter of a dispute between the Applicant and its principals, on the one hand and Mrs Diab and the Council on the other over many years. (See Diab v Cavasinni [2019] NSWLEC 204 and Diab v Cavasinni (No 3) [2020] NSWLEC 119).
The Consent was modified by the Court in proceedings 153799 of 2016 on 21 June 2017.
On 6 July 2021 I delivered judgment (Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 1392) (first judgment) in respect of a modification application the Applicant made to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to further modify the Consent (Modification Application). I will assume in this judgment that the reader is familiar with the first judgment, but I extract paragraph [58] of the first judgment which explains the modification application:
"58 At the heart of the application and the controversy are the proposals by the Applicant in relation to the unlawful work carried out. It is most convenient to summarise the Modification Application by reference to the factual findings made by Robson J (His Honour's findings are in italics):
The increased height of the ridges of the dwelling house and the gutter;
The Applicant does not propose any changes to the ridges and gutter.
Two doors added to the western façade;
The Applicant proposes to retain the doors.
Floor and walls of the garage and storage room are constructed partly over the easement for services;
The Applicant does not propose any change to the garage and storage room but proposes as a condition of consent that the easement be widened by 1.5m (in addition to its present width of 1.5m) so that any new services can be comfortably accommodated away from the garage and storage room.
Roof and eaves of the garage extend across the Easement for Services and the Right of Carriageway;
The Applicant does not propose any change and relies upon the increased width of the easement.
Steps and a landing have been constructed between the house and the western boundary (the boundary with Number 29) which was required to be a landscaped area;
The Applicant proposes to retain the steps and landing and will provide some perimeter landscaping.
The area to the north of the driveway was flattened and concreted rather than retained as a sandstone formation with vegetation.
The Applicant now proposes that the area be landscaped by the introduction of soil and retaining walls above the slab, whilst retaining the slab, but there is to be landscaping rather than carparking."
In the event I determined that part but not all of the proposed modifications were acceptable, anticipating the need for amended plans and stating at paragraph [156]:
"The amended plans and conditions will need to address at the very least the following matters:
(1) The landscaping in the northern area.
(2) The western treatment of the stairs and landing.
(3) The garage and storeroom.
(4) The privacy treatment of the windows to the western boundary."
I directed the Applicant to file agreed amended plans and conditions within 21 days.
That was not done, because the COVID-19 Pandemic and the illness of one of the principals of the Applicant interfered in a substantial way with the capacity of the Applicant to progress the matter.
In the event on 20 September 2021 the Applicant made an application to amend the modification application to give effect, it said, to my reasons and on 23 September 2021 Preston CJ (Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 104) made the following orders:
"(1) The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Hunter's Hill Council as the relevant consent authority under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant amending the application for modification of the development consent DA 2008/1096 granted by the Land and Environment Court on 18 May 2010 to rely upon the amended condition in Schedule A and the modified plans and documents in Schedule B, and to delete from the application the plans in Schedule C to the amended notice of motion filed 20 September 2021.
(2) The respondent, Hunter's Hill Council, as the relevant consent authority, is to lodge the amendment of the application for modification of the development consent on the NSW planning portal within 7 days of the date of this order and notify the applicant after it has been lodged.
(3) The applicant is to file a copy of the amended application for modification of the development consent within 7 days after the respondent has notified the applicant that the amendment has been lodged on the NSW planning portal.
(4) In the event the respondent is unable to lodge the amended application on the NSW planning portal referred to in (2) above, the respondent is to notify the Court via Online Court as soon as possible but no later than 14 days of the date of the order and request for the matter to be relisted for further directions."
The amended modification application was lodged on the NSW planning portal on 13 December 2021 and was filed in Court on 20 September 2021.
The amended modification application was then listed for hearing before me on 28 September 2021. It became quickly apparent that:
There remained issues between the parties as to whether the amended modification application and proposed conditions properly reflected the findings in the first judgment or were otherwise appropriate.
The issues were of varying significance to the parties, but relatively minor in the scheme of things.
There were a number of "issues" which were readily capable of agreement, and any other issues should be resolved between the parties.
A hearing in Court was not the most efficient or effective way of dealing with the outstanding matters.
Whilst my expectation that the parties would reach agreement may have been a triumph of optimism over experience (adapted from Oscar Wilde), I adjourned the hearing and made the following directions:
"(1) Applicant is to serve proposed final plans and conditions on respondents by 6 October 2021.
(2) Respondents reply to the Applicant by 13 October 2021.
(3) Parties are to file agreed plans and conditions by 20 October 2021, but in default of agreement file competing versions together with any submissions in support of their competing version, such submissions not to exceed 2 pages.
(4) Liberty to restore on 2 days' notice by arrangement with the List Manager."
There is not agreement. The parties have filed submissions in support of their respective positions. Conveniently, the Applicant in its submissions in reply annotated the Respondents' submissions with its submissions in reply.
This judgment would be unnecessarily prolix, esoteric and lengthy if I set out the conditions in dispute and the competing arguments. Rather I have taken the course of annexing the Applicant's submissions in reply which, as I stated, contain the Respondents' respective submissions and the Applicant's reply. I will set out the condition in issue and the determination, including appropriately brief reasons.
[2]
Condition 1
The additions identified by the Applicant should be made to Schedule A and Schedule B for completeness.
[3]
No garden shed is/are to be placed in the northern area of the site.
It appears unreasonable to prevent the Applicant from placing a shed in the landscaped area in circumstances where it is exempt development. An absolute prohibition is not necessary to ensure that the landscaping achieves its goal in that area. Prior to the unlawful construction of the concrete slab in that area, it was far from pristine, but nevertheless the role of this landscaped area is to assist in creating a landscaped setting for the dwelling house and to provide an appropriate streetscape presence.
The following phrase should be added to the condition:
"… other than if the shed is exempt development and it is placed in the area marked LC1A on Plan 6 Issue L and as near to the northern boundary as reasonably practicable and located where the proposed landscaping has a mature height of no more than 1m according to the Panting Schedule on drawing L02 Issue F."
Condition 62 is similar:
"No work, structure, movable or immovable object of any kind (including waste/recycling bins, garden sheds, or any like object), nor any item other that those works specifically shown on the approved plans (as amended by these conditions of consent) is to be placed upon the landscaped area to the north of the ROW."
This proposed condition is extravagantly prohibitive in effect, presumably inadvertently so. As drafted the condition would prohibit a person tending the garden from placing their rake or hoe or other garden tool on the ground whilst they refreshed themselves, or accidentally left it there overnight.
The condition should reflect the qualification I have made to condition 5B(b) and otherwise read as follows:
"No work, structure, immovable object or garden shed or any moveable object such as waste/recycling bins or the like is to be placed upon the landscaped area to the north of the ROW. This condition is subject to condition 5B(b)."
It is to be noted that the consent will require that the development be carried out in accordance with, inter alia, the landscape plan. If there is a failure to do so by placing objects where vegetation should be then one would expect that there is a non-compliance with the landscape plan and the development consent. A condition such as condition 62(c) is a reminder to the beneficiary of the consent of the obligations thereunder.
[4]
Condition 5B (e), (i) and (o)
There is no reason why the word "sliding" in condition 5B(e) should not be deleted as the door is no longer a sliding door.
The Applicant agrees with the updated proposed conditions 5B(i) and 5B(o).
[5]
Landing - western end of no 27
Mrs Diab objects to the use of Hebel power panels for the landing as she submits it is not "lightweight" as required by the first judgment. The Council does not raise a concern and the Applicant has provided material which satisfies me that the Hebel product is acceptable in that location.
[6]
Existing Murraya screen
Mrs Diab says that it should be removed and replaced with grass. Planting of Japanese Box was shown on the landscape plans in the original consent and I accept that there is no requirement that that area be only grass.
The plants encroach upon the easement for services but do not constitute any material interference with the easement. There is little effective difference between removing Murraya plants of 2m in height or removing grass if access to the services beneath the easement is necessary at that point. I accept the Applicant's submission and do not consider that the Murraya hedge needs to be removed.
[7]
Pine trees on Council land and "replanting on Council nature strip"
The consent as proposed to be modified does not approve any work outside the boundary of the site.
This matter can now be brought to a finality. I make the following direction:
1. The Council is to file within 2 days conditions of the approval of the modification application and the modified consent in accordance with this judgment.
Upon receipt of those conditions I will make final orders.
[8]
Acting Commissioner of the Court
TAB A (3211370, pdf)
TAB B (3163973, pdf)
[9]
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Decision last updated: 21 December 2021