COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Hunter's Hill Council of Development Application No DA20230023 seeking alterations and additions to an existing dwelling comprising a lift from the existing garage, a new kitchen, family and dining with pantry, a library, laundry and bathroom and staircase to new first floor containing master suite with ensuite and walk in robe, two additional bedrooms, bathroom, sitting room and balcony, with associated landscaping works at 8 Dick Street, Henley.
The development application was lodged on 24 February 2023, and was notified to residents in the area in April 2023.
The appeal was listed for mandatory conciliation on 19 October 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).
The Applicant amended the proposal prior to the conciliation conference, which had the effect of resolving the contentions. As a consequence, an agreement, under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 18 October 2023, and a corrected agreement was submitted 24 October 2023.
The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by 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.
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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [28].
I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.
The site is located within the R2 Low Density Residential zone, according to the Hunters Hill Local Environmental Plan 2012 (HHLEP) in which development for the purposes of a dwelling house is permitted with consent, where consistent with the objectives of the R2 zone, that 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 proposed development exceeds the height standard of 8.5m, at cl 4.3 of the HHLEP, and the Applicant relies upon a written request authored by Paro Planning dated October 2023 to justify the contravention in terms consistent with cl 4.6 of the HHLEP.
The extent of the exceedance, when the ground level is extrapolated in the manner adopted in Bettar v Council of the City of Sydney [2014] NSWLEC 1070, is depicted in a section drawing that shows a breach of the height standard by 660mm at the ridgeline of the gable roof at the first floor of the proposal.
I am satisfied compliance with the height standard is unreasonable or unnecessary because the proposal is consistent with the objectives of the height standard at cl 4.3 of the HHLEP, notwithstanding the breach for the reasons set out in the written request, summarised as follows:
1. The non-compliance relates to a portion of pitched roof that responds to the architectural style of the federation-era dwelling, which is a local heritage item. As such, the proposal achieves a greater compatibility with the streetscape character than if another roof form was adopted.
2. Despite the exceedance, the proposal remains a two-storey height that does not result in excessive overshadowing, complies with the solar access provisions at Section 3.5.2 of the Hunters Hill Development Control Plan 2013, and does not compromise privacy, views or impose a visual impact.
For completeness, the objectives at cl 4.3 of the HHLEP are as follows:
(a) to specify limits for the size and scale of development that would be compatible with the character, amenity and potential of particular locations,
(b) to maintain the character and identity of Hunters Hill by limiting the scale of buildings to a maximum of two storeys in the low density residential zone, heritage conservation areas and foreshore areas facing Lane Cove River or Parramatta River,
…
(d) to protect existing dwellings from excessive overshadowing, loss of privacy, obstruction of views and general visual impacts
I am also satisfied the environmental planning grounds advanced in the written request are sufficient in terms of justifying the contravention of the height standard. The exceedance of the height standard by the gable roof form is an architectural feature consistent with the existing federation era detailing of the existing dwelling, that I note is agreed by the heritage experts to be a preferred roof form suited to alterations and additions to a local heritage item.
The parties agree, as do I, that the proposed development will be in the public interest for the reasons set out in Section 7 of the written request, and that the contravention of the height standard does not raise any matter of significance for State or regional environmental planning pursuant to cl 4.6(5) of the HHLEP.
[2]
Hunters Hill Local Environmental Plan 2012
The maximum Floor Space Ratio (FSR) permitted on the site under cl 4.4(2) of the HHLEP is 0.5:1. The proposed FSR is 0.5:1 and so complies.
The site is identified in Sch 5 of the HHLEP as an item of local heritage significance. The proposal is supported by a Statement of Heritage Impact prepared by GBA Heritage dated December 2022, and is also supported by a joint expert report prepared by heritage experts on behalf of the parties that records the agreement of the experts that the effect of the proposal on the heritage item is acceptable, in accordance with cl 5.10 of the HHLEP.
The site is identified on the relevant map at cl 6.1(2) of the HHLEP as being located within an area of Class 5 Acid Sulfate Soils, and is within 500m of Class 2 soil. The proposal will require the removal of more than one tonne of soil, however, on the basis of the Preliminary Acid Sulfate Soil Assessment prepared by JK Environments dated 23 October 2023, I accept the proposed development is unlikely to lower the water table given the prevalence of sandstone on the site.
The development proposes excavation beneath the existing dwelling, that is the subject of a Geotechnical Assessment prepared by JK Geotechnics dated 12 January 2023, and a further Geotechnical Review by the same author dated 27 September 2023. A Letter of Structural Feasibility prepared by E2 Civil and Structural Design dated 27 September 2023 also assists in considering those matters at cl 6.2(3) of the HHLEP such as the effect of the development on the future use of the land, the quality of the soil, or sandstone to be excavated, and the effect of the development on adjoining properties.
On the basis of the Stormwater Plans prepared by E2 Civil and Structural Design Pty Ltd, dated 17 December 2022, and Landscape Plans prepared by GoodManors, I am satisfied, pursuant to cl 6.3(3) of the HHLEP, that the development is designed to maximise the use of permeable surface, and includes provision for on-site detention of water and avoids adverse impacts of stormwater runoff by connecting to kerb drainage via silt arrestor pits.
Clause 6.9(2)(b) of the HHLEP requires at least 50% of the site to be landscaped area, defined in the Dictionary of the HHLEP as "a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area." That said, subcl (4) permits the minimum landscaped area to be reduced by a maximum of 33% for the purposes of accommodating a pathway, patio or pool, where the pool is less than 40m2, and only where the resulting development is consistent with the objectives at subcl (1).
The objectives of cl 6.9 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.
A landscaped area of 51% is shown indicated on plan No DA07 'Existing and Proposed BUA and Landscaped Area Calculations Plans'.
[3]
State Environmental Planning Policy (Sustainable Buildings) 2022
A BASIX Certificate (Certificate No _02 dated 13 October 2023) accompanies the application, prepared by Lifestyle Home Designs in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 that, notwithstanding its repeal, continues to operate according to s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022.
[4]
State Environmental Planning Policy (Resilience and Hazards) 2021
I have considered whether the site is contaminated pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the historical chronology set out in the Statement of Heritage Impact cited at [16], I accept that there is evidence supporting the assertion of continued use of the site for low density residential purposes unlikely to lead to contamination requiring remediation. Accordingly, I conclude the site is not contaminated.
[5]
Conclusion
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.
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.
The Court notes that:
1. The Respondent as the relevant consent authority has approved, under section 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant's amending Development Application DA20230023 in accordance with the plans and documents listed below:
Document Prepared by Drawing Issue Date
No
Site Plan Lifestyle Home Designs DA01 V1 16 October 2023
Floor Plans Lifestyle Home Designs DA02 V1 16 October 2023
Proposed Floor plans Lifestyle Home Designs DA03 V1 16 October 2023
Elevations Lifestyle Home Designs DA04 V1 16 October 2023
Sections Lifestyle Home Designs DA05 V1 16 October 2023
Shadow Diagrams Lifestyle Home Designs DA06 V1 16 October 2023
Existing and Proposed BUA & Landscape Calculation Plans Lifestyle Home Designs DA07 V1 16 October 2023
Perspective Views Lifestyle Home Designs DA08 V1 16 October 2023
Existing and Proposed Floor Space Calculations Lifestyle Home Designs DA09 V1 16 October 2023
Shadow Diagram - 9am 21 June Lifestyle Home Designs DA10 V1 16 October 2023
Shadow Diagram - 10am 21 June Lifestyle Home Designs DA11 V1 16 October 2023
Shadow Diagram - 11am 21 June Lifestyle Home Designs DA12 V1 16 October 2023
Shadow Diagram - 12pm 21 June Lifestyle Home Designs DA13 V1 16 October 2023
Shadow Diagram - 1pm 21 June Lifestyle Home Designs DA14 V1 16 October 2023
Shadow Diagram - 2pm 21 June Lifestyle Home Designs DA15 V1 16 October 2023
Shadow Diagram - 3pm 21 June Lifestyle Home Designs DA16 V1 16 October 2023
Shadow Diagram - 4pm 21 June Lifestyle Home Designs DA17 V1 16 October 2023
Elevational Shadows 21 June Lifestyle Home Designs DA18 V1 16 October 2023
BASIX Certificate Lifestyle Home Designs _02 13 October 2023
Landscape Plan GoodManors CLP01 B 13 October 2023
Planting Plan GoodManors PP01 B 13 October 2023
External finishes and Colour Sample Board Lifestyle Home Designs 18 October 2023
Letter in support of Lift Access JK Geotechnics 33919Blet 27 September 2023
Letter of Structural Feasibility E2 Civil and Structural Design 21.138-001a-cl 27 September 2023
Clause 4.6 Variation Request Paro Consulting 2 13 October 2023
Preliminary Acid Sulfate Soil Assessment JK Environments E33919Blet 23 October 2023
[6]
The amended plans and documents referred to in Order (1) above were filed with the Court on 18 October 2023 and 24 October 2023.
[7]
Orders
The Court orders that:
1. The Applicant's written request pursuant to cl 4.6 of the Hunters Hill Local Environmental Plan 2012 seeking a variation to the development standard for height of buildings set out in cl 4.3 of the Hunters Hill Local Environmental Plan 2012 prepared by Paro Consulting dated 13 October 2023 is upheld.
2. The appeal is upheld.
3. Development consent is granted to development application number DA20230023, seeking consent for alterations and additions to existing dwelling, including lift and swim spa at Lot 17, Section 5 in DP810 also known as 8 Dick Street, Henley, subject to the conditions of consent at Annexure A.
[8]
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: 06 November 2023