Raad v Hunter’s Hill Council

Representation: Counsel:
V Conomos (Solicitor) (Applicant)
A Foley (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Marsdens (Respondent)

File Number(s): 2024/392648

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application 2024/0075. The development application sought consent for demolition of an existing dwelling house, removal of four trees and construction of a dwelling house with associated earthworks and landscaping (DA) at 38 Huntleys Point Road, Huntleys Point, legally described as Lot 1 in DP 17829 and Lot A in DP 391033 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the Applicant amending DA2024/0075 in accordance with the documents listed below (amended DA):

| Drawing No. | Plan Title | Prepared By | Rev | Date | | DA – 0000 | Cover Sheet | Place Studio | 5 | 02/04/2025 | | DA – 0001 | Diagrams | 3 | 28/02/2025 | | DA – 0002 | Location Plan | 3 | 28/02/2025 | | DA – 0100 | Compliance Plan | 4 | 18/03/2025 | | DA – 0100 | Site Analysis | 3 | 28/02/2025 | | DA – 0102 | Site Plan | 4 | 18/03/2025 | | DA – 0104 | Demolish Plan | 4 | 18/03/2025 | | DA – 0105 | BASIX Certificate | 4 | 18/03/2025 | | DA – 1001 | Basement Plan / Landscape Calculations | 4 | 18/03/2025 | | DA – 2000 | Ground Floor Level | 4 | 18/03/2025 | | DA – 2001 | Level 01 | 4 | 18/03/2025 | | DA – 2002 | Roof Plan | 3 | 28/02/2025 | | DA – 2003 | Landscape Intent Plan | 4 | 18/03/2025 | | DA – 3000 | AXNO View 1 | 5 | 02/04/2025 | | DA – 3001 | AXNO View 2 | 5 | 02/04/2025 | | DA – 3002 | AXNO View 3 | 3 | 28/02/2025 | | DA – 3003 | Perspective Street View 1 | 4 | 18/03/2025 | | DA – 3004 | Perspective Street View 2 | 4 | 18/03/2025 | | DA – 3005 | Perspective Street View 3 | 4 | 18/03/2025 | | DA – 3006 | Perspective Neighbour View | 3 | 28/02/2025 | | DA – 3007 | Perspective Heritage Street View | 3 | 28/02/2025 | | DA – 3008 | Heritage Impact View - 01 | 2 | 28/02/2025 | | DA – 3009 | Heritage Impact View – 02 | 2 | 28/02/2025 | | DA – 4000 | Elevation – North South | 4 | 18/03/2025 | | DA – 4001 | Elevation – East West | 3 | 28/02/2025 | | DA – 4004 | Street Elevations | 4 | 18/03/2025 | | DA – 4005 | Front Fence Elevation | 1 | 02/04/2025 | | DA – 5001 | Section 01 | 3 | 28/02/2025 | | DA – 5002 | Section 02 | 3 | 28/02/2025 | | DA – 5003 | Ramp Section 1-25 | 4 | 02/04/2025 | | DA – 5004 | Ramp Section 1-50 | 1 | 02/04/2025 | | DA – 6001 | Area Calculation Plans | 3 | 28/02/2025 | | DA – 7000 | View from Sun 9AM Jun 21 | 3 | 28/02/2025 | | DA – 7001 | View from Sun 10AM Jun 21 | 3 | 28/02/2025 | | DA – 7002 | View from Sun 11AM Jun 21 | 3 | 28/02/2025 | | DA – 7003 | View from Sun 12PM Jun 21 | 3 | 28/02/2025 | | DA – 7004 | View from Sun 1PM Jun 21 | 3 | 28/02/2025 | | DA – 7005 | View from Sun 2PM Jun 21 | 3 | 28/02/2025 | | DA – 7006 | View from Sun 3PM Jun 21 | 3 | 28/02/2025 | | DA – 7007 | Shadow Diagram | 3 | 28/02/2025 | | DA – 7008 | Height Plane Diagram | 3 | 28/02/2025 | | DA – 8000 | External Finish Schedule | 3 | 28/02/2025 | | DA – 8001 | Glazing Schedule | 4 | 18/03/2025 | | 000 | Cover Sheet Plan | Civil & Stormwater Engineering Services Pty Ltd | A | 03/05/2024 | | 101 | Stormwater Concept Plan Basement Level Sheet 1 of 2 | C | 20/03/2025 | | 102 | Stormwater Concept Plan Basement Level Sheet 2 of 2 | B | 20/03/2025 | | 103 | Stormwater Concept Plan Ground Level | C | 21/03/2025 | | 104 | Catchment Plan and MUSIC Results | B | 19/03/2025 | | 105 | Sediment & Erosion Control Plan & Details | A | 03/05/2024 | | 106 | Maintenance Schedule & Miscellaneous Details Sheet | A | 03/05/2024 | | L001 | Title Page | Place Landscape | - | 24/03/2025 | | L002 | Landscape Calculations | 24/03/2025 | | L003 | Planting Plan | 24/03/2025 | | Document | Prepared By | Date | | Arboricultural Impact Assessment | Tree Repairs | 19 March 2025 | | BASIX Certificate No. 1746230S_02 | Gradwell Consulting | 21 March 2025 | | NatHERS Certificate No. 0009429432-01 | Gradwell Consulting | 21 March 2025 | | Assessor Construction Summary | Gradwell Consulting | 21 March 2025 |

3. 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 30 May 2025. I have presided over the conciliation conference.

4. 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. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

Jurisdictional Prerequisites

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

8. I am satisfied that owners consent accompanied the DA.

9. The DA was lodged to the Respondent on 12 June 2024. The Respondent notified the DA from 13 June 2024 to 27 June 2024. One submission was received.

10. As the parties have reached agreement, the parties have considered the merits of the amended DA and how the issues raised in the submissions have been addressed.

Hunters Hill Local Environmental Plan 2012

11. The site is zoned R2 Low Density Residential under the Hunters Hill Local Environmental Plan 2012 (HHLEP). The proposed development for a dwelling is permitted with consent and I have had regard to the objectives of the zone.

12. The parties agree and I accept that the following applicable HHLEP provisions are met:

13. Clause 2.7 is engaged as demolition forms part of the proposed works.

14. Clause 4.3 height of buildings applies to the site and allows a maximum building height of 8.5m. The amended DA, as shown on the architectural plans prepared by Place Studio dated (architectural plans) confirm that the proposed building is less than 8.5m (Election drawings DA-4000 and DA-4001).

15. Clause 4.4 prescribes a maximum FSR. However pursuant to cl 4.4 (2A), the maximum does not apply as the amended DA complies with cll 4.3 and 6.9.

16. Clause 5.10 heritage conservation applies to the site as it adjoins a heritage item. The amended DA is accompanied by a Statement of Heritage Impact prepared by GBA Heritage and the architectural plans which considers the proposed development’s impacts on heritage significance and concludes that there are no adverse heritage impacts.

17. Clause 6.1 acid sulfate soils applies to the site as the site is mapped as Class 5. However the proposed works are not within 500m of class 1-4 soils that are below 5m AHD and do not lower the watertable. The provisions of subcl 6.1 (2) and (3) do not apply.

18. Clause 6.3 stormwater management applies to the amended DA. The amended DA is supported by stormwater plans prepared by Place Studio dated 3 April 2025 which show the proposed system discharges stormwater to the street as well as reuse mechanisms of water, thereby satisfying the provisions of subcl 6.3(3).

19. Clause 6.7 development on river front areas applies to the site. The amended design does not create any adverse visual impacts to and from the nearest waterway, the listed environmental qualities will be maintained, and views will not be obstructed as shown on the architectural plans.

20. Clause 6.9 landscaped areas for dwellings houses applies to the development and requires 50% of the site area to be landscaped. The amended DA includes 327.73m2 of landscaping, being over 50% of the site area.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. Chapter 6 applies as the site is located within the Sydney Harbour Catchment. The parties agree that the minor scope of the works will not result in adverse impacts as set out in the jurisdictional statement. The amended DA is accompanied by stormwater plans prepared by C&S Engineering Services that demonstrate a neutral or beneficial impact on the quality and reduction in the flow of water post development. There are no impacts on any waterways, foreshore area, ecology or flooding. With consideration of the above and the detailed jurisdictional statement, the parties agree, and I accept that the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 are met.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The Statement of Environmental Effects prepared by BMA Urban dated May 2024 states that the site has a history of residential use and is unlikely to be contaminated. Accordingly, the parties agree and I accept that the provisions of s 4.6 of SEPP RH have been satisfied.

State Environmental Planning Policy (Sustainable Buildings) 2022

15. The proposed development is BASIX affected development (s 27 of EPA Reg). The parties agree and I accept that the amended DA is accompanied by an amended BASIX Certificate (1746230S_02) that satisfies the State Environmental Planning Policy (Sustainable Buildings) 2022.

Conclusion

16. 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.

17. 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.

18. I have considered the jurisdictional prerequisites 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

19. The Court orders:

20. The appeal is upheld.

21. Development Application No. DA2024/0075 (as amended) for the demolition of an existing dwelling house, removal of four trees and construction of a two storey dwelling house over basement parking and associated earthworks and landscaping at 38 Huntleys Point Road, Huntleys Point, being Lot 1 in DP 17829 and Lot A in DP 391033, is determined by a grant of consent subject to conditions contained in Annexure A.

S Porter

Commissioner of the Court

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Annexure A.189 KB.pdf