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[2025] NSWLEC 1441
General information, not legal advice.
Land and Environment Court (NSW)
2025-06-19
Washington C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Russo v Hunters Hill Council [2025] NSWLEC 1441
Hearing dates: Conciliation conference on 11 June 2025
Date of orders: 19 June 2025
Decision date: 19 June 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application DA20240104, as amended, for the demolition of existing structures, and construction of a two (2) storey dwelling house with basement parking, swimming pool and landscaping at Lot 10 section 4 DP 810, commonly known as 7 Sherwin Street Henley, is determined by grant of consent, subject to the conditions in Annexure A.
Catchwords: DEVELOPMENT APPLICATION – construction of a dwelling house – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Land and Environment Court Act 1979, ss 34, 34AA
Environmental Planning and Assessment Regulations 2021, s 38
Hunters Hill Local Environmental Plan 2012, Pt 1, cll 4.3, 4.4, 6.1, 6.2, 6.3, 6.7, 6.9, Sch 5
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Category: Principal judgment
Parties: Samuel Russo (Applicant)
Hunters Hill Council (Respondent)
Representation: Counsel:
L Nurpuri (Applicant)
S Kondilios (Respondent)
Solicitors:
Madison Marcus (Applicant)
Hall and Willcox (Respondent)
File Number(s): 2024/467270
Publication restriction: No
COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Hunters Hill Council, of Development Application DA20240104, which seeks consent for the demolition of existing structures and construction of a 2-storey dwelling house with basement parking, swimming pool, cabana and landscaping at 7 Sherwin Street, Henley.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 June 2025. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments are further to an earlier amendment granted by the leave of the Court, and include amendments to the façade and front landscape treatment, resolving the Council’s contentions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties outlined in a jurisdictional submission, and from this I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 24 July 2024 for ten days. Three submissions were received, and one resident made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.
The subject site is zoned R2 Low Density Residential under the Hunters Hill Local Environmental Plan 2012 (HHLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.
Pursuant to HHLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development complies with this development standard with a maximum height of 6.8m.
HHLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.5:1, which the development complies with, with an FSR of 0.49:1. However, pursuant to cl 4.4(2A), the FSR control does not apply as the proposed development is compliant with HHLEP cll 4.3 and 6.9.
The site contains a low sandstone wall on the front boundary, which is listed as a heritage item as part of a large group listing of stone walls across the municipality (I287, HHELP Sch 5 Pt 1). Other than this wall, the dwelling and garden have no identified heritage significance, and the site is not within a heritage conservation area. As part of this application, the stone wall is to be retained, repaired and re-pointed, and the front gate is to be replaced. From the parties’ submission and the Statement of Heritage Impact by Weir Phillips dated June 2024, I accept that the proposed development will not adversely impact the heritage significance of the wall.
Pursuant to HHLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, however works are not proposed within 500m of Class 1, 2, 3 or 4 land. From the Geotechnical Investigation and Acid Sulfate Soils Assessment Report by AE Geotechnical Engineers dated 18 March 2024 (Geotechnical Report), I accept that an acid sulfate soils management plan is not required.
From the Statement of Environmental Effects by Planning Ingenuity dated 17 April 2025 (the SEE), the Geotechnical Report, the stormwater plans by AE Consulting Engineers dated 10 March 2025, the architectural plans by Habitat Housing dated 11 June 2025, and the parties’ submission, I accept that the matters listed for consideration in HHLEP cl 6.2(3) have been considered, and the proposed earthworks are acceptable, subject to the conditions of consent.
From the amended application, in particular the stormwater plans, the agreed conditions of consent, and the parties’ submissions, I accept that the proposed development meets the stormwater management requirements of HHLEP cl 6.3(3).
From the parties’ submissions and the observations I was directed to make on site, I accept that the proposed development will not have a visual impact to or from the nearest waterway, nor impact existing views towards the waterway from public roads or reserves. Further, the proposed development maintains the significance of the land, and of surrounding land, in accordance with HHLEP cl 6.7 Development on river front areas.
The proposed development includes landscaping as defined by HHLEP cl 6.9 (3) and (4) to 388.7m2, exceeding the minimum landscaped area of 50% of the site area as required by this clause, as demonstrated by the landscape plans by Ecodesign Outdoor Living Environments dated 11 June 2025.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the SEE, I accept that subject to the agreed conditions of consent, the site has historically been used for residential purposes and there is no record of any contamination, or contaminating activity on site. Accordingly, I accept that in terms of contamination, the site is suitable for the intended use.
The site is located within the designated hydrological catchment of Sydney Harbour. From the parties’ submission, the SEE and the stormwater plans, I accept that the requirements of Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).
A BASIX certificate has been issued that relates to the development as amended.
For these reasons, 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 and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes
The respondent, as the relevant consent authority has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021 an amendment to development application DA20240104 to rely on the following plans and reports:
(a) Architectural Plans (Rev G) prepared by Habitat Housing dated 11 June 2025, and, (b) Landscape Plans (Rev G) prepared by Eco Design Ecodesign Outdoor Living Environments dated 11 June 2025.
The Court orders:
The appeal is upheld.
Development Application DA20240104, as amended, for the demolition of existing structures, and construction of a two (2) storey dwelling house with basement parking, swimming pool and landscaping at Lot 10 section 4 DP 810, commonly known as 7 Sherwin Street Henley, is determined by grant of consent, subject to the conditions in Annexure A.
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Russo
Hunters Hill Council [2025] NSWLEC 1441