Hanvey v Hunter’s Hill Council

Category: Principal judgment

Parties: Lisa Hanvey (Applicant)
Hunters Hill Council (Respondent)

Representation: Counsel:
D Briggs (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
DG Briggs and Associates (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/107140

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: A parcel of land at 66 High Street, Hunter’s Hill presents as a battle axe block – the entrance to which lies between 64 High Street and 66A High Street.

2. There are no existing structures on the site that otherwise falls steeply away from High Street and towards the Lane Cove River located to the north-east of the site.

3. On 25 July 2024, the owner of the site, Ms Lisa Hanvey, lodged development application No. DA2024-0107 with Hunter’s Hill Council, seeking consent for the construction of a dwelling house with in-ground swimming pool and driveway access on the land legally described as Lot 902 in DP 1112417.

4. The DA was refused by the Council on 26 November 2024, and on 19 March 2025, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

5. The Court arranged a conciliation conference between the parties on 20 October 2025, pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), at which I presided.

6. After an onsite view, the conciliation conference re-convened at Court, during which the parties reached in-principle agreement on those issues in dispute, subject to the preparation of amended plans.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court, dated 21 October 2025, and amended plans and other documents were filed on the same date.

8. The parties ask me to approve their decision as set out in the agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared on behalf of the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

9. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [32].

10. The site is located in an area designated by the Hunter’s Hill Local Environmental Plan 2012 (HHLEP) as a R2 Low Density Residential zone, in which development for the purpose proposed is permitted with consent, where consistent with the following objectives for development in the R2 zone:

• 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.

11. The parties agree that the proposed development complies with the relevant development standards at cll 4.3 and 4.4 of the HHLEP in respect of height and floor space ratio.

12. The site is identified within an area of Class 5 Acid Sulfate Soils (ASS) according to the relevant map at cl 6.1(2) of the HHLEP, and within 500m of Class 2 ASS. While excavation of up to 3m is proposed, I am satisfied that when regard is had to the Reduced Levels (RLs) on the survey prepared by Anthony & Associates Surveying dated 21 November 2022, the depth of excavation is unlikely to lower the water table.

13. A Geotechnical Investigation report prepared by D. Katauskas dated 26 March 2025 (Geotechnical Report) estimates the depth of excavation required by the proposal to be a maximum of 3m, and for that to occur 2m from the side boundaries. The Geotechnical Report records the results of two test pits indicating the presence of bedrock within 1.5m of the existing natural ground level, and sets out recommendations on pp 2-3 that are incorporated into agreed conditions of consent by reference to the Geotechnical Report. On this basis, and having considered the Stormwater Management prepared by Amuna Civil Engineering (Stormwater Plans), I am of the view that the matters to be considered at cl 6.2(3) of the HHLEP are adequately addressed.

14. Architectural drawing No. 23 depicts the area of landscaped area to be 50% of the site which complies with the provision at cl 6.9(2)(b) of the HHLEP, and so satisfies me that the development is designed to maximise the use of water permeable surfaces in accordance with cl 6.3(3) of the HHLEP. Additionally, the Stormwater Plans depict the onsite retention of stormwater in a 2,300L rainwater tank, fitted with first flush devices and reuse pump, which satisfies me that on site retention of water is proposed as alternative to mains water. I also accept the agreement of the parties that the absorption trench is suited to, and appropriately documented, for soil characteristics on the site and so, I accept that the proposed subsoil drainage depicted in the Stormwater Plans is sufficient to ensure adverse impacts arising from stormwater runoff are avoided.

15. Relatedly I note the Stormwater Plans provide for onsite detention (OSD) of water with overflow connected to a silt arrestor pit prior to the discharge into the absorption trench.

16. The site is identified on the relevant map at cl 6.7(2) of the HHLEP to be within the River Front Area, in which consent is precluded unless the consent authority, or the Court on appeal, is satisfied of those matters at subcl (3). On the basis of photographic images provided by the parties, I am satisfied that the proposed development is not visible from the nearest waterway, that the site is not identified to have any significance of a kind at cl 6.7(3)(b), and that the battle axe arrangement of the site, and the siting of the proposed dwelling will not obstruct view to a waterway.

17. On the basis of the landscaped areas depicted on architectural drawing 23F, I am satisfied that the landscape area proposed on the site is consistent with cl 6.9(4) of the HHLEP. For completeness, the landscaped area is identified in excess of 50% of the site area, but for the reduction for purposes limited to pathways, a terrace and pool of less than 40m2, and in circumstances where the parties agree the objectives of the provision are achieved.

18. A portion of the site is proposed to be paved for the purpose of vehicle access to the subject site, and for future access to the adjoining site at Lot 901, 66A High Street. I note owners' consent signed in respect of works proposed on the adjoining land, dated 15 October 2025, has been provided.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. As the site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map, Part 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies.

20. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

21. For the reasons stated at [14]-[15], I am satisfied that the onsite detention and retention of stormwater, combined with the filtration depicted on the Stormwater Plans, will result in a neutral or beneficial effect on water quality in the catchment. I am also satisfied that the proposal appropriately manages the flow of water into that catchment.

22. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied, there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion.

23. I note that the site is not identified as flood liable land to which s 6.8 of the SEPP is directed and so does not apply. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

24. The site is also identified within the Foreshores and Waterways Area to which the provisions of s 6.28 of the Biodiversity SEPP are directed. When those matters at subs (1) as are relevant to the proposal are considered, I conclude the proposal is consistent with the principles at subs (1)(a), and will not have an adverse impact on the Foreshore and Waterways Area. I am also satisfied that the proposal will have no impact on the character or functions of the harbour, does not adjoin land used for industrial or commercial maritime purposes and does not intersect with the foreshore. Finally, as stated at [16], I am also satisfied that neither the site nor the proposed development on that site is visible from the harbour such that the unique visual qualities of the Foreshore and Waterways Area will be maintained.

State Environmental Planning Policy (Resilience and Hazards) 2021

25. A portion of the site is identified on the relevant map at s 2.8 of the State Environmental Planning Policy (Resilience and Hazards) 2021 to be land within proximity to coastal wetlands. For reasons set out at [14]-[15] I am satisfied that the Stormwater Management depicted in the Stormwater Plans will not significantly impact on the biophysical, hydrological or ecological integrity of the coastal wetlands within the Buffalo Creek area because the quantity and quality of surface water is largely contained within the site, and that groundwater will be filtered by geotextile fabric prior to dispersal.

26. I have considered whether the land is contaminated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. There is no use or activity that would suggest the site is contaminated or requires remediation. As such, I am satisfied the site is suitable for the purpose for which the development is proposed to be carried out.

State Environmental Planning Policy (Sustainable Buildings) 2022

27. The application is accompanied by a BASIX certificate (Cert No. 1750238S_02 dated 4 June 2024) prepared in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

28. On the basis of the certificate prepared by EcoMaxhomes the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified as required by s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

29. As 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.

30. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

31. The Court notes that Hunter’s Hill Council, as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), approves the Applicant amending Development Application no. DA2024-0107 in accordance with the following plans and documents:

32. Architectural Plans prepared by Danny Bank, Job No. 24.022 dated 31-05-24, Amendment F, dated 20-10-25:

| Drawing No. | Plan Title | | 00 | Cover | | 01 | Site Analysis | | 02 | Site Plan | | 03 | Ground Floor Plan | | 04 | Lower First Floor Plan | | 05 | Lower Second Floor Plan | | 06 | Roof Plan | | 07 | Driveway + Driveway Turning Circle DP 112417 Lot 901 | | 08 | Rear Deck and Pool | | 09 | Elevations – Front + Rear | | 10 | Elevations – Side - West | | 11 | Elevations – Side - East | | 12 | Sections – Long Section – A-A | | 13 | Sections – Cross Section B-B + C-C | | 14 | Sections – Cross Section D-D + E-E | | 15 | Sections – Cross Section F-F + G-G | | 16 | Window Schedule | | 17 | Drainage Plan (Expired) | | 18 | Shadow Diagram | | 19 | Erosion and Sediment Plan | | 20 | Landscape Plan | | 21 | Shadow Diagram – 21 June at 9.00am (ex. ground level) | | 22 | Shadow Projection – Lot 2 DP 508361 | | 23 | Landscaped Area Calculations |

Orders

32. The Court orders that:

33. The appeal is upheld.

34. Development Application No. DA2024-0107 (PAN 453147) for the construction of a new dwelling and inground swimming with new driveway access and associated landscaping on the land known as No. 66 and 66A High Street Hunters Hill (Lots 901 and 902 in DP 1112417), is determined by the grant of consent subject to the conditions in Annexure A.

T Horton

Commissioner of the Court

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Annexure A (237 KB, pdf)