Edmonds v Hunter’s Hill Council

Representation: Counsel:
G Visentin (Solicitor) (Applicants)
S Frost (Solicitor) (Respondent)
Solicitors:
McKee Legal Solutions (Applicants)
Hall and Wilcox (Respondent)

File Number(s): 2025/76810

Publication restriction: No

Judgment

1. COMMISSIONER: These proceedings, brought by the applicants under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Hunter’s Hill Council (Council) of development application DA2024/0234 (DA). The DA seeks consent for proposed dwelling alterations and additions including enclosed courtyard and lift at 4 View Street, Woolwich (legally described as Lot 1 in DP861902) (site).

2. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 11 July 2025, after the parties indicated they had come to an agreement in relation to the terms of a decision in the proceedings that would be acceptable to the parties. I presided over the conciliation conference.

3. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, as amended, and subject to agreed conditions. The parties seek orders to this effect. 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 one that the Court could have made in the proper exercise of its functions.

4. The point of attention here, rather than a broader evaluative exercise, is whether there are any jurisdictional constraints on the power of the Court to make the order agreed to be the parties (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [62]-[65]). It is my finding that there are no such constraints. But there are certain queries, relating to jurisdiction, which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties’ agreed jurisdictional statement dated 14 July 2025.

Jurisdiction

State Environmental Planning Policy (Resilience and Hazards) 2021

5. Section 4.6 requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. I accept the advice of the parties that given the existing residential buildings on site and its residential history, there is no reason to suspect the site is contaminated. The requirements of s 4.6 are met.

Hunters Hill Local Environmental Plan 2012 (HLEP)

6. The site is zoned R2 Low Density Residential and the proposed development is permissible with consent.

7. I accept the advice of the parties that the proposal does not breach any development standards contained within HLEP.

8. The parties’ jurisdictional statement indicates how there has been consideration of relevant matters including in regard to cl 5.10 (in relation to heritage conservation given the site is a locally listed heritage item), cl 6.1 (in relation to acid sulfate soils) and cl 6.2 (in relation to earthworks).

9. The provisions at cl 6.3 (in relation to stormwater management) are jurisdictional. I can confirm that I accept the parties’ advice, which has considered relevant particulars of the development’s stormwater requirements (JS par 23); and am satisfied in relation to each of the matters at subcll 6.3(3).

10. Similarly, in relation to cl 6.7 (in relation to development on riverfront areas, which applies in this instance), I can confirm that I accept the parties' advice, which has noted various relationships between the proposal details, it’s visual setting and the relationship to the riverfront (JS par 27); and am satisfied in relation to each of the matters at subcll 6.7(3).

11. Clause 6.9 relates to landscaped area. The parties advise that this control would require a minimum landscape area of 60% of the site (643.2m2); which could comprise 430.94m2 of soft landscape and 212.26m2 of hard landscaped area if the proposed development would be consistent with the objectives of this clause. The parties advise that the proposal would contravene this control, providing for a landscaped area of 596.6m2 or 55.7%, albeit with a soft landscape area of 435.5m2 or 40.6% and that the proposal relies on cl 4.6 of HLEP, concerned with exceptions to development standards, in that regard. In accordance with the Environmental Planning and Assessment Regulation 2021, the DA is accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the requirements of cl 4.6(3) have been met. The parties indicate this documentation (prepared by Minto Planning Services and dated 21 May 2025 (Minto Planning documentation)) is well-founded and satisfies the said requirements. I too find that the applicant has demonstrated that:

12. Compliance with the development standard is unreasonable or unnecessary in the circumstances. This is through the Minto Planning documentation working through each of the objectives of the clause and demonstrating they are relevantly satisfied. The Minto Planning documentation addresses the particular objectives and then applies those objectives to the detailed aspects of the proposal in this individual site setting. The finding is that the essence of things is that an existing non-prominent hard stand area would be built over and otherwise no loss of existing vegetation would occur nor would there be a reduction in the ability of the site to support landscaping. There is no need for strict compliance with the standard because the objectives of the clause have been achieved in any event.

13. There are sufficient environmental planning grounds to justify the contravention. This is through Minto Planning documentation’s demonstration of the compatibility of the proposal with the local setting that the landscape and visual character of the area would be maintained.

Other matters for consideration under section 4.15(1) of the EPA Act

12. Hunters Hill Consolidated Development Control Plan 2013 applies. While no jurisdictional matters arise, the parties advise that relevant provisions have been considered.

13. The parties advise the proposal was notified in accordance with requirements. One objecting submission was received. The parties advise me that issues raised have been considered.

14. The parties advise that no other jurisdictional considerations arise with this particular application.

Conclusion

15. Based on the above details, I am satisfied that there is no jurisdictional bar and the parties’ decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

17. The Court notes that Hunter’s Hill Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the applicants amending the development application DA Number DA2024/0234 in accordance with the plans and documents listed below:

| Reference/ DWG No | Title/Description | Revision | Prepared by | Date | | Architectural Plans | | 1-a | Site Plan & Roof Plan-1 | B | Tom Simmat and Associates Architects Pty Ltd | 21/08/2024 | | 1-b | Site Plan & Roof Plan-2 | B | Tom Simmat and Associates Architects Pty Ltd | 21/08/2024 | | 2 | Existing Living & Drawing Floor Level | B | Tom Simmat and Associates Architects Pty Ltd | 21/08/2024 | | 3 | Existing Lower Floor Plan & Swimming Pool | B | Tom Simmat and Associates Architects Pty Ltd | 21/08/2024 | | 4 | Existing North and East & Garage Elevations | B | Tom Simmat and Associates Architects Pty Ltd | 21/08/2024 | | 5 | Existing South and West & Garage Elevations | B | Tom Simmat and Associates Architects Pty Ltd | 21/08/2024 | | 6 | Proposed Lower Floor Level & Swimming Pool | C | Tom Simmat and Associates Architects Pty Ltd | 7/05/2025 | | 7 | Proposed Living & Drawing Floor Level | C | Tom Simmat and Associates Architects Pty Ltd | 7/05/2025 | | 8 | Loft Level | C | Tom Simmat and Associates Architects Pty Ltd | 7/05/2025 | | 9 | Proposed Roof Plan | C | Tom Simmat and Associates Architects Pty Ltd | 7/05/2025 | | 10 | Existing North & Proposed East Elevations | C | Tom Simmat and Associates Architects Pty Ltd | 7/05/2025 | | 11 | Section A-A & South Proposed West Elevations | C | Tom Simmat and Associates Architects Pty Ltd | 7/05/2025 | | 18 | Landscape Area Calculation | B | Tom Simmat and Associates Architects Pty Ltd | 16/05/2025 | | 1d | Floor Space Plan 1 | A | Tom Simmat & Associates Architects Pty Ltd | 19/05/2025 | | 1e | Floor Space Plan 2 | A | Tom Simmat & Associates Architects Pty Ltd | 19/05/2025 | | Schedule of External Materials | | Schedule of External Materials | Tom Simmat & Associates Architects Pty Ltd | n.d | | Clause 4.6 – Exceptions to Development Standards | | Clause 6.9 – Landscape Area | Minto Planning Services | 21/05/2025 | | BASIX Certificate | | Certificate number: A1762491_02 | Efficient Living Pty Ltd | 15/05/2025 |

Orders

18. The Court orders:

19. The appeal is upheld.

20. Development Application DA2024/0234 for dwelling alterations and additions including enclosed courtyard and lift to a heritage listed property on Lot 1 in DP861902, being 4 View Street, Woolwich NSW 2110 is determined by the grant of consent subject to the conditions set out in Annexure A to this agreement.

P Walsh

Commissioner of the Court

Annexure A (271 KB, pdf)

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