Tanous v Hunter's Hill Council [2019] NSWLEC 1175 | Case summary

Does the Court have jurisdiction to grant consent with regards to satisfaction of the requirements of cl 6.9 for landscaped area?

The issue that requires resolution relates to whether the proposed development satisfies or is capable of being satisfied (by a condition of consent), the requirements of cl 6.9 of the HHLEP, and if not, whether a cl 4.6 written request for variation is required to provide the Court with jurisdictional power to consider the granting of consent for this DA under appeal.
The planning experts do not agree whether the proposed landscaped area satisfies the numerical requirement of cl 6.9(2) of the HHLEP, and also whether, as the Mr Burrell proposes, the Court can be satisfied by way of a condition of consent to require the size of garden beds to be consistent with the definition of a 'landscaped area'.
The planning experts agree that no cl 4.6 written request seeking variation of cl 6.9 development standard of the HHLEP has been submitted as part of the supporting documents to this DA under appeal.
Clause 6.9 of the HHLEP is a development standard that the Court must consider and be satisfied to grant consent, as the DA relies on the provision of a landscaped area as part of the proposed development. Clause 6.9, with a relevant definition for a landscaped area, are provided below: 6.9 Landscaped area for dwelling houses and secondary dwellings (1) The objectives of this clause are as follows: (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. (2) The landscaped area of any site on which development for the purpose of a dwelling house or a secondary dwelling is carried out must not be less than: (a) for each site with a direct frontage to the Parramatta River or the Lane Cove River - 60% of the site area, or (b) for all other sites - 50% of the site area. (3) For the purposes of subclause (2), the site area is to be calculated under clause 4.5 (3) and any area that has a length or a width of less than 2 metres is not to be included in calculating the proportion of landscaped area. (4) Despite subclause (2), the minimum landscaped area may be reduced by not more than 33% for the purpose of accommodating a pathway, a patio, a terrace or a pool (if the pool has an area of less than 40 square metres), but only if the proposed development would be consistent with the objectives of this clause. Definition: landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.
Based on the definition of a 'landscaped area' in the HHLEP, which I consider does include the area excluded under this DA for works (due to the existing unapproved works), has a total area of the site of 741.38 m2. This is agreed by the experts.
There are two tests in assessment of cl 6.9 of the HHLEP that the Court must be satisfied to enliven its power to grant consent for this DA. The first test is whether the proposed development has met 50% of the site as 'landscaped area', pursuant to cl 6.9(2)(b) of the HHLEP. The second test includes a 'character' assessment, and whether 33% of the 'minimum landscaped area' can be provided as hard surfaces, pursuant cl 6.9(4).
The planning experts agree in their joint expert report that 50.5% of the site, equivalent to 374.2 m2, is shown as 'available' for landscaping based on the landscape plan, which includes both hard and soft surfaces. I however note that the amended landscape plans with the same issue 'B' reference that is before the Court, shows a total landscaped area of 397.2 m2 (52.7%), of which 293.1 m2 is 'soft' landscaping and 98.12 m2 is 'hard' landscaping. Hard landscaping includes paved areas and the pool; and soft landscaping includes the deep soil areas in the front and rear, and the terracing along the slope.
The issue on which the experts disagree is whether the total landscaped area shown on the landscape plan satisfies the definition of a 'landscaped area' in the HHLEP, due to the extent of hard surfaces (paths and pool) and (garden)terracing at widths of less than 2 m.
The experts and I agree that the plans before the Court show part of the proposed landscaped area is paved, includes a pool and is terraced with retaining walls at widths of less than 2 m. However, Mr Burrell contends that the dimensions of the terraces are capable of being re-designed to satisfy the requirements of the definition for a landscaped area by way of condition on the consent. In addition, he argues that by his calculation the requirement for landscaped area is satisfied.
I agree with Mr Adamson that based on the definition of a 'landscaped area' in the HHLEP and the plans before the Court, the proposed development does not provide sufficient landscaped area. I do not agree with Mr Burrell's calculations for the total landscaped area and find what is provided inconsistent with cl 6.9 of the HHLEP.
I find that based on the total site area and the requirements set out in cl 6.9(2)(b) of the HHLEP, the (minimum) landscaped area for this site is required to be 370.7 m2. This is the first test for satisfaction of cl 6.9, and I find that the proposed development fails this test because it only provides (at best using the amended landscape plans) 293.1 m2, which even without deleting the areas that the experts agree do not comply with the definition for widths greater than 2 m, is insufficient.
It is unreasonable to apply the second test, as the proposed development has not provided sufficient minimum landscaped area that an exception could be considered or applied, pursuant to cl 6.9(4) of the HHLEP.
I do not agree that the existing inconsistency in the landscaped area based on the proposed development before the Court, and as established in cl 6.9 of the HHLEP, can be satisfactorily addressed by way of condition as proposed by the applicant. The proposed condition (24) which is suggested to satisfy the requirements of cl 6.9 is provided below: 24. The approved architectural and landscape plans scheduled in Part A condition 2 above are to be amended as follows: (a) The system of terraced landscaping proposed for the transition between the pool area and the Patio to the Ground Floor Level is to be deleted; (b) The proposed timber batten treatment to the basement wall in the Southern (Kelly Street) Elevation and associated garage door is to be deleted; (c) The proposed timber batten treatment to the return of the basement wall in the Western (Dick Street) Elevation is to be deleted; (d) The external treatment of the basement wall to the Southern (Kelly Street) Elevation and the Western (Dick Street) Elevation is to be amended as follows: (i) The wall treatment is to be rock faced sandstone with common course bed joints and random vertical joints with an emphasis in the horizontal proportion; (ii) The garage door is to be recessed to provide a shadow line and to be finished in a dark colour already listed in the schedule of finishes; (iii) The rock faced sandstone wall treatment may be extended to the east, beneath the Family Room to the wall offset to the Kitchen; (iv) The rock faced sandstone wall treatment is to return to the Western (Dick Street) Elevation and: (A) for the full extent of the elevation, extend down from the Patio Terrace RL 21.69 a minimum of 1200mm to RL 20.49; (B) extend full height of the basement wall a minimum of 1200mm in a northerly direction measured from the vertical face of the Southern elevation; (e) With the existing stone rubble walls and the bedrock and stone floaters unearth during excavation, the landscape terracing treatment between the pool level and the Western (Dick Street) Elevation is to replicate the exposed bedrock already present upon the property (adjacent to Tree 5 and adjacent to the northern boundary within the existing rear yard) and is to be detailed as follows: (i) The larger bedrock boulders/stone floaters are to be placed in an informal manner in the space to act as retaining structures for soil; (ii) The smaller rubble and bedrock exposed during excavation is to be introduced as dry stack retaining walls or similarly arranged to provide for additional infilling with soil suitable for planting; (iii) The garden beds created by the retaining walls are to include at least 10 square metres of deep soil (minimum soil depth of 1000mm) within areas all of which must have internal dimensions in any plane of no less than 2 metres. (A) at least 3 areas measuring 5 square metres (with deep soil and/or hold a minimum soil depth of 1000mm); (B) otherwise to have a minimum depth of 500mm; (f) The overall landscape treatment to the space between the pool level and the Western (Dick Street) Elevation is to largely represent a natural landscape treatment such that: (i) The proposed plantings are a mix of locally indigenous species which may include some formal hedging; (ii) The rock faced sandstone wall treatment to the Western (Dick Street) Elevation is to rise up and out of the landscape treatment and for that purpose, the extent of the rock faced sandstone may extend beyond that detailed above. Plans detailing compliance with this condition are to be submitted to and approved by the Principal Certifying Authority prior to the issue of a Construction Certificate.
To adopt this approach would be contrary to the planning principle of Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison), which seeks to ensure that conditions imposed as part of a consent are certain and do not leave open the possibility of the development being carried out contrary to an approved DA. In the DA that is before the Court, I consider there is uncertainty in the proposed condition for the following reasons. First and foremost, there is a question in my mind as to whether, based on the proposed design of the site, including extent of the building envelope, slope constraints and pool location, that a redesign of the garden terracing will alone have the desired effect to provide a complaint landscaped area. I have already assessed that there is a deficiency in soft landscaping of 77 m2 that would need to be found in the removal of hard surfaces and/or reduction in the building envelope. This is not contended in the proposed condition of consent.
Secondly, there is no geotechnical or structural information that has been provided which supports whether the proposed garden terraces can be constructed with a width of greater than 2 m, as required. The extent of 'rock floaters' and actual battering required for the slope has not been determined. I do not agree that this can be left to after the consent of the development, as it may result in garden beds that need to be realigned to support the slope and rock formation, and consistent with the existing geotechnical constraints. The slope and presence of the rock floaters are strong features that relate to the character of the area, and the experts agree these must be maintained at this site.
The reliance on the proposed condition of consent that defers detail is inconsistent with the legal principal established in the Mison judgment, where Preistley JA, Clarke JA and Meagher JA conclude that a condition cannot leave open the possibility that a development may be carried out not in accordance with the consent granted. Clarke JA states: "Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final."
Preistley JA, Clarke JA and Meagher JA, in their opening statements of the Mison judgment recognise the significance of ensuring conditions complement the consent being sought, as described below: "[1] If a condition imposed upon a purported consent to a particular development application pursuant to s 91(1) of the Environmental Planning and Assessment Act 1979 has the effect of significantly altering the development in respect of which the consent is made or if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which application was made then the purported consent is not a consent to the application."
Therefore to give the Court jurisdictional power to grant consent of the DA under appeal, a cl 4.6 written request seeking variation of the cl 6.9(2) development standard, pursuant to cl 4.6(3) of the HHLEP is required to support the DA for the proposed development. 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence.
A recent decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 clarifies the correct approach in assessing a variation to a development standard. Preston CJ explored in detail the 'preconditions' that must be satisfied, as established in cl 4.6(4) of the HHLEP, to provide the consent authority (in this appeal, the Court) power to grant development consent.
He explained that the first precondition is established in cl 4.6(4)(a), which requires the Court to form two positive opinions of satisfaction: initially, as set out in cl 4.6(4)(a)(i), the (cl 4.6) written request has adequately addressed the requirements relating to unreasonableness/necessity of compliance (cl 4.6(3)(a)), and there is sufficient environmental planning grounds (cl 4.6(3)(b)); and finally, variation is in the public interest because it is consistent with the zone and standard objectives (cl 4.6(4)(a)(ii)).
The second precondition to be satisfied is that the Court has the relevant power to grant development consent, as set out in cl 4.6(4)(b), and has considered the elements for concurrence of the Secretary, as described in cl 4.6(5).
The appeal for this DA falls at the first hurdle. No cl 4.6 written request for variation of the cl 6.9 development standard of the HHLEP has been submitted for the Court's consideration, pursuant to cl 4.6(3), and therefore, the Court does not have the jurisdictional power to grant consent to this DA.
I find that, for the proposed development, cl 6.9(2)(b) of the HHLEP has not been satisfied and that consent for the DA cannot be granted as it contravenes the standard (and definition) for landscaped area.

Tanous v Hunter's Hill Council

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Judgment (9 paragraphs)

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Cases Cited (2)