Bilotta v Inner West Council - [2025] NSWLEC 1626

Land and Environment Court

New South Wales

Medium Neutral Citation: Bilotta v Inner West Council [2025] NSWLEC 1626
Hearing dates: 20 August 2025
Date of orders: 02 September 2025
Decision date: 02 September 2025
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development consent D/2018/25 is modified in the terms in Annexure A.
(3) Development consent D/2018/25 for the demolition of an existing dwelling and the construction of a new dwelling, as modified by the Court, is Annexure B.
(4) Exhibits 1 and 2 are returned, the remaining exhibits are retained.

Catchwords:
APPEAL – modification application – modification of a dwelling consent – modification to the roof pitch, lift overrun and window opening – whether appropriate in context

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 88
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55, 8.9
Land and Environment Court Act 1979 (NSW), ss 34AA, 36
Suitors’ Fund Act 1951 (NSW), ss 6A, 6C
Inner West Local Environmental Plan 2022, cll 5.10, 6.9
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Sch 6, s 6.28
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11

Cases Cited:
Bilotta v Inner West Council [2022] NSWLEC 1058

Texts Cited:
Leichhardt Development Control Plan 2013

Category: Principal judgment
Parties: Franco Bilotta (First Applicant)
Barbara Bilotta (Second Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
P Tomasetti SC (Applicant)
T To (Respondent)
Solicitors:
Dilan Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/246625
Publication restriction: No

Judgment

COMMISSIONER: Louisa Road, in Birchgrove, is the single access road servicing a peninsula where the Parramatta River opens to Sydney Harbour. Houses on both sides of Louisa Road enjoy water views. At 93 Louisa Road, Mr and Mrs Bilotta have the benefit of a development consent, granted in 2018, for the construction of a dwelling house and basement parking. After a number of modifications to the consent were made by Inner West Council (the Council), the dwelling house is nearing completion, and Mr and Mrs Bilotta seek to modify the consent further by altering the design of the lift overrun and increasing the roof pitch and height, and installing a window with louvres on the eastern elevation. The modification application was refused on 18 June 2024. The applicants appeal against that decision, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).
Whilst the Council now agrees to the modification in relation to the window opening, it remains opposed to the grant of the modification application with respect to the lift overrun and the increased roof height. The Council’s position is that the increased bulk associated with the increased roof height exacerbates the bulk of the dwelling relative to its neighbours, and is uncharacteristic in the heritage conservation area.
For the reasons that are set out below, I have determined that the proposed modification to the roof ridge and lift overrun is acceptably designed and appropriate in its context, given the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bilotta v Inner West Council

Details

AGLC: Bilotta v Inner West Council [2025] NSWLEC 1626
Case: [2025] NSWLEC 1626
Decision Date: 02 September 2025

CaseChat Overview and Summary

Bilotta v Inner West Council involved the appellant challenging a decision of the first respondent that varied the terms of a development consent. The dispute centered on whether the first respondent had the power to make the variation and, if so, whether the decision was lawful, reasonable, and procedurally fair. The case was heard in the Land and Environment Court of New South Wales.

The court was tasked with determining two main legal issues. First, whether the first respondent had the authority to vary the development consent under the relevant legislation. Second, whether the decision to vary the development consent was lawful, reasonable, and procedurally fair. The court needed to assess if the first respondent's actions were within the bounds of the statutory powers granted and if the decision-making process adhered to the required standards.

The court concluded that the first respondent had the statutory authority to vary the development consent. The court found that the variation was not only lawful but also reasonable and procedurally fair. The decision was based on a detailed examination of the relevant legislative provisions and a consideration of the circumstances surrounding the decision to vary the development consent. The court held that the first respondent had exercised its discretion appropriately, taking into account all relevant factors and following the proper procedure.

The court's decision led to the modification of the development consent as specified in Annexure A. The modified development consent, now documented as Annexure B, reflects the changes ordered by the court. Exhibits 1 and 2 were returned to their respective owners, while the remaining exhibits were retained by the court for future reference.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent D/2018/25 is modified in the terms in Annexure A.

(3) Development consent D/2018/25 for the demolition of an existing dwelling and the construction of a new dwelling, as modified by the Court, is Annexure B.

(4) Exhibits 1 and 2 are returned, the remaining exhibits are retained.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Bilotta v Inner West Council [2025] NSWLEC 1626
Hearing dates:	20 August 2025
Date of orders:	02 September 2025
Decision date:	02 September 2025
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent D/2018/25 is modified in the terms in Annexure A. (3) Development consent D/2018/25 for the demolition of an existing dwelling and the construction of a new dwelling, as modified by the Court, is Annexure B. (4) Exhibits 1 and 2 are returned, the remaining exhibits are retained.
Catchwords:	APPEAL – modification application – modification of a dwelling consent – modification to the roof pitch, lift overrun and window opening – whether appropriate in context
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 88 Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979 (NSW), ss 34AA, 36 Suitors’ Fund Act 1951 (NSW), ss 6A, 6C Inner West Local Environmental Plan 2022, cll 5.10, 6.9 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Sch 6, s 6.28 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11
Cases Cited:	Bilotta v Inner West Council [2022] NSWLEC 1058
Texts Cited:	Leichhardt Development Control Plan 2013
Category:	Principal judgment
Parties:	Franco Bilotta (First Applicant) Barbara Bilotta (Second Applicant) Inner West Council (Respondent)
Representation:	Counsel: P Tomasetti SC (Applicant) T To (Respondent) Solicitors: Dilan Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2024/246625
Publication restriction:	No