Yeh v Hunters Hill Council

Cases Cited: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Michael Yeh (Applicant)
Hunters Hill Council (Respondent)

Representation: Counsel:
T March (Applicant)
S Kondilios (Solicitor) (Respondent)
Solicitors:
McKee Legal Solutions (Applicant)
Hall and Wilcox (Respondent)

File Number(s): 2025/95184

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings relate to an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application DA 2024/0237. The development application seeks consent for the demolition of the existing dwelling and associated structures and construction of a new dwelling house, swimming pool and garage. The development is proposed at 11 Moorefield Avenue, Hunters Hill (Lot B in DP 349647).

2. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW), which was held on 26 May 2025 and at which I presided. Prior to the conciliation, the parties had without prejudice discussions which resulted in amendments to the proposed development. Those amended plans were the subject of joint conferencing between the planning, heritage, and arboriculture experts. The evidence of each of these groups of experts is that the contentions previously advanced by the Respondent have been resolved by the amended development application. At the conciliation conference, Council confirmed that the development application, as amended, resolved Council's legislative and merit concerns with the development. As a result, the parties have reached agreement. That agreement is for the grant of the application, as amended, subject to conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution. (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

4. The development application was lodged by Mr Steven Wu, the architect for the development, as agent for the owner of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation). The Applicant (as principal) has standing to commence the proceedings: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [43].

5. Between 18 December 2024 and 31 January 2025, the development application was notified by the Respondent to nearby properties. The notification period excluded the dates between 20 December and 10 January as required by Sch 1 of the EPA Act. The Respondent received 14 submissions. At the commencement of the proceedings on site the Court heard from two adjoining residents and attended their properties to hear and understand their concerns. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: subs 4.15(1)(d) of the EPA Act.

6. Pursuant to State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP BASIX), the development application, as amended, is supported by BASIX Certificate number 1774761S_02 dated 22 August 2025. The provided BASIX Certificate satisfying the requirement of s 27 in the EPA Regulation. The BASIX certificate outlines measures proposed in the development to meet relevant energy and water efficiency targets. The embodied energy report forms part of the online BASIX tool and is covered by the BASIX Certificate. The parties agree, and I accept, that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified: s 2.1(5) of SEPP BASIX.

7. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed residential use. The development application does not propose a change of use. The parties agree and I accept, on the details in the Statement of Environmental Effects by Just Property and Planning dated November 2024 (SEE) accompanying the development application, that s 4.6 of SEPP RH is satisfied.

8. Pursuant to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), the site is located within the Sydney Harbour Catchment and chapter 6 of the instrument applies. As required by s 6.6 of SEPP BC, I must consider the matters at subs (1) encompassing the impacts of the proposed development on water quality and quantity, including impacts from the development on groundwater and stormwater. Having regard to the amended Stormwater Management Plans, including Site Erosion & Sediment Control Plan prepared by, SYJ Consulting Engineers Geotechnical Investigation Report prepared by JK Geotechnics, dated 15 July 2025 I accept the agreement of the parties that I can be satisfied that subject to the installation and maintenance of sediment controls during building works and compliance with approved plans and conditions of consent:

(a) the development will have a neutral effect on the quality of water entering a waterway, (b) the development will not have an adverse impact on water flow in a natural waterbody, (c) the development will not increase stormwater runoff from the site due to the stormwater design, (d) the development incorporates on-site stormwater retention in the form of a rainwater tank, (e) the development will have no impact on the level and quality of the water table, (f) cumulative environmental impacts from the development on the regulated catchment are negligible, and (g) the development makes adequate provision to protect the quality and quantity of groundwater.

6. Further, in relation to the matters listed at s.6.6(2) for consideration I have had regard to the amended stormwater management plans (including Site Erosion & Sediment Control Plan prepared by, SYJ Consulting Engineers Geotechnical Investigation Report prepared by JK Geotechnics, dated 15 July 2025), and I accept the agreement of the parties that I can be satisfied that:

(a) the effect on the quality of water entering a natural waterbody will be as close as possible to neutral, and (b) the impact of the development on water flow in a natural waterbody will be minimised.

7. Pursuant to s 6.7 Aquatic Ecology of SEPP BC, the consent authority is required to consider the matters at subs (1). On the basis of the Statement of Environmental Effects by Just Property and Planning dated November 2024 (SEE), the architectural and stormwater plans I accept the agreement of the parties that:

(a) to the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the application. The nature of the proposal and what is decidedly an already cleared lot, there is no impact, (b) the development does not involve the clearing of riparian vegetation, (c) the development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway, (d) the development will not have an adverse impact on wetlands, (e) the development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures, and (f) the development includes natural biofilter so ensure a neutral or beneficial effect on water quality.

8. Accordingly, in relation to the s 6.7(2) of SEPP BC, on the basis of the SEE, the stormwater plans, and the Landscape Plan prepared by Paul Scrivener Landscape, Revision D, dated 19 August 2025, I accept the agreement of the parties that I can be satisfied that:

(a) Any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development, (b) The development will not have a direct, indirect or cumulative adverse impact on aquatic reserves, (c) No approval or permit is required under the Water Management Act 2000 (NSW) or Fisheries Management Act 1994 (NSW). (d) The land does not abut a natural waterbody, and (e) There will be no adverse impact on wetlands.

9. Pursuant to s 6.8 Flooding of SEPP BC, in deciding whether to grant development consent to development on land in a regulated catchment, I must consider the likely impact of the development on periodic flooding that benefits wetlands and other riverine ecosystems. I note that the site is remote from any wetland areas and is not flood liable land. This section is not applicable.
10. Pursuant to s 6.9 Flooding of SEPP BC, I accept the parties agreement that the Proposed Development does not affect recreational land use or public access to and from foreshores or natural waterbodies on the basis of the scope of the development sought and the site parameters Further, I accept that the criteria at s 6.9(2) do not apply as:

(a) the development has no impact on public access to and from natural waterbodies for recreational purposes, (b) the development does not involve new or existing points of public access to natural waterbodies, and (c) the land does not form part of a foreshore of a natural waterbody.

11. In relation to the remaining relevant clauses in Ch 6 I find that:

(a) the Proposed Development is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10 of the SEPP BC), (b) the Proposed Development is not located within a natural waterbody (s 6.11 of the SEPP BC), (c) the Proposed Development is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10 of the SEPP BC), and (d) the Proposed Development is not located within a natural waterbody (s 6.11 of the SEPP BC).

12. Hunters Hill Local Environmental Plan 2012 (LEP 2012) applies to the land. Development for the purposes of a residential dwelling is permitted with consent in the R2 Low Density Residential zone. As required by cl 2.3(2) I have had regard to the R2 Low Density Residential zone objectives in determining the development application. The objectives of the zone 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.

13. Clause 2.7 of the LEP 2012 requires development consent to be granted for and prior to the demolition of a building or work. The development application proposes the demolition of the existing structures on the Site.
14. Pursuant to cl 4.3 Height of Buildings and the Height of Buildings Map the site has a maximum height development standard of 8.5m. The development application, as amended, complies with the 8.5m height control.
15. Pursuant to cl 4.4 Floor Space Ratio and the Floor Space Ratio (FSR) Map, the site has a maximum FSR development standard of 0.5:1. The development application, as amended, complies with the FSR control.
16. Pursuant to cl 5.10 of the LEP 2012, consent must not be granted to a development unless the consent authority has considered the impact of the development with respect to a heritage item or if the development is located within a heritage conservation area. The Site is located within the Hunter's Hill Conservation Area No. 2 - The Peninsula Significance (HCA). The proposal is supported by a Heritage Impact Statement prepared by Graham Hall & Partners dated October 2024. The impacts of the proposed development on the HCA have been considered. The parties’ heritage experts in their joint expert report agree that the amended development application provides for a building that will sit neutrally within the conservation area. In determining the development application, I have considered the impact of the development on the significance of the HCA and conclude that it does not warrant the refusal of the development application.
17. Pursuant to clause 6.3 of the LEP 2012, the consent authority must be satisfied that the development is designed to maximise the use of water permeable surfaces, on site detention and will not result in adverse impacts of stormwater runoff on the adjoining properties, native bushland and receiving waters. With the assistance of the amended Stormwater Management Plan by SYJ Consulting Engineers I accept the agreement of the parties that the stormwater design and the annexed conditions will minimise environmental impact on the catchment.
18. Pursuant to cl 6.7(2) as the site is mapped as being within a River Front Area, development consent must not be granted for development on land unless the consent authority is satisfied that;

(a) measures will be taken, including in relation to the location, design and appearance of the development and conservation of existing trees, to minimise the visual impact of the development to and from the nearest waterway, (b) any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out, and of surrounding land, will be maintained, and (c) existing views towards waterways from public roads and reserves would not be obstructed.

19. Clause 6.7 Development on River Front areas applies to the site. It is agreed between the experts and the parties that the development complies with this clause and that the precondition at cl 6.7(3) is met. The parties submit and I accept that:

(a) measures have been taken in the location, design and appearance of the development to minimise its visual impact from the waterway through the retention and planting of large canopy trees, the location of the dwelling within the existing dwelling footprint and the design of the development to respect and enhance the scenic qualities of the site, as viewed from the water, (b) the development will maintain the historic, natural and aesthetic significance of the site through the high quality and respectful design of the dwelling and the retention and provision of significant landscaping, and (c) the dwelling is located generally within the footprint of the existing dwelling and is set into the site slope and as such will not result in an impact on existing views towards the waterway from adjoining public roads and reserves.

20. Hunters Hill Development Control Plan 2013 (DCP 2013) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2013. In determining the development application, I have considered the provisions of the development control plan: subs 4.15(1) of the EPA Act.

21. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

22. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

6. The Court notes that:

7. Hunter’s Hill Council, as the relevant consent authority has agreed, under s 38 of the EPA Regulation, to the applicant amending the development application DA Number DA2024/0237 in accordance with the plans and documents listed below:

| Reference/DWG No | Title/Description | | Date | Prepared By | | Reference/ DWG No | Title/Description | Revision | Prepared by | Date | | Architectural Plans: | | DA-01/F | Cover page | F | SWA Group | Undated | | DA-02/A | Site Context | A | SWA Group | 25/11/2024 | | DA-03/B | Survey Plan | B | SWA Group | 30/07/2025 | | DA-09/F | Site Plan/Demolition Plan | F | SWA Group | 05/08/2025 | | DA-11/G | Floorplan – Lower Ground & Ground – Overall | G | SWA Group | 08/08/2025 | | DA-12/G | Floorplan – Level 1 & Roof Plan – Overall | G | SWA Group | 08/08/2025 | | DA-13/G | Floorplan – Wharf (Water Level) | G | SWA Group | 08/08/2025 | | DA-14/G | Floorplan – Lower Ground | G | SWA Group | 08/08/2025 | | DA-15/G | Floorplan – Ground Level | G | SWA Group | 08/08/2025 | | DA-16/G | Floorplan – Level 1 | G | SWA Group | 08/08/2025 | | DA-17/F | Floorplan – Site/Roof Plan | F | SWA Group | 05/08/2025 | | DA-21/F | Elevations – Overall | F | SWA Group | 08/08/2025 | | DA-22/F | Elevation – North & South | F | SWA Group | 08/08/2025 | | DA-23/F | Elevation – East | F | SWA Group | 08/08/2025 | | DA-24/F | Elevation -West | F | SWA Group | 08/08/2025 | | DA-25/F | Elevation – Water Front | F | SWA Group | 08/08/2025 | | DA-31/F | Sections - Overall | F | SWA Group | 05/08/2025 | | DA-32/D | Section A | D | SWA Group | 04/08/2025 | | DA-33/F | Section 1 | F | SWA Group | 05/08/2025 | | Landscape Plans | | 1 of 3 | Ground Floor & Level 1 Plan | D | Paul Scrivener Landscape | 19/08/2025 | | 2 of 3 | Detail Plans. Details & Notes | D | Paul Scrivener Landscape | 19/08/2025 | | 3 of 3 | Planting plans, Notes and Schedule | D | Paul Scrivener Landscape | 19/08/2025 | | Stormwater Management Plans | | D00 | Cover Page | E | SYJ Consulting Engineers | 21/08/2025 | | D01 | Site Stormwater Management Plan | E | SYJ Consulting Engineers | 21/08/2025 | | D02 | Lower Ground and Ground Floor Drainage Plan | E | SYJ Consulting Engineers | 21/08/2025 | | D03 | Level 1 and Roof Drainage Plan | E | SYJ Consulting Engineers | 21/08/2025 | | D04 | Post-Dev Site Catchments Plan | E | SYJ Consulting Engineers | 21/08/2025 | | D05 | Stormwater Details | E | SYJ Consulting Engineers | 21/08/2025 | | D06 | Site Erosion and Sedimental Control Plan | E | SYJ Consulting Engineers | 21/08/2025 | | Driveway Long Section | | TR-001 | Driveway Longsection | A | Fernway Engineering | 09/07/2025 | | Name | Prepared by | Date | | Geotechnical Investigation Report | JK Geotechnics Pty Ltd | 15/07/2025 | | Geotechnical Assessment of Existing Cliff Face | JK Geotechnics Pty Ltd | 07/07/2025 | | BASIX Certificate No. 1774761S_02 | Building Sustainability Assessments | 22/08/2025 | | NatHERS Certificate No. #HR-OTVRWV-02 | Building Sustainability Assessments | 22/08/2025 | | Arboricultural Impact Assessment | Australis Tree Management | 04/06/2024 | | Waste Management Plan | SWA Group | November 2024 |

Orders

7. The Court orders that:

8. The appeal is upheld.

9. Development Application DA2024/0237 for the demolition of an existing dwelling house and associated structures and the construction of a new dwelling house, swimming pool and detached garage on Lot B in DP 349647, being 11 Moorefield Avenue, Hunters Hill is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

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Annexure A