D'Amico v Inner West Council

[2025] NSWLEC 1468

Land and Environment Court

New South Wales

Medium Neutral Citation:

D’Amico v Inner West Council [2025] NSWLEC 1468

Hearing dates:

Conciliation conference 16 June 2025

Date of orders:

01 July 2025

Decision date:

01 July 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA/2024/0726 as amended, for partial demolition, alterations and additions to the existing dwelling, and associated works at 38 Tillock Street, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – heritage conservation area - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environmental Court Act 1979, ss 34AA, 34

Environmental Planning and Regulation 2021, ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation), ch 6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

Inner West Local Environmental Plan 2022, cll 2.7, 4.3, 4.4, 5.10, 6.1, 6.2, 6.3, 6.20

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245

Category:

Principal judgment

Parties:

Stefania Anna D’Amico (First Applicant)
Matthew William Dimos (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Pikes Verekers Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2025/00026970

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 deemed refusal of development application 2024/0726. The development application seeks development consent for the partial demolition of the existing dwelling and alterations and additions to the existing detached dwelling including basement garage and detached studio (DA) at 38 Tillock Street Haberfield (Lot 28 Section 7 DP 7508) (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 to the Applicant amending DA/2024/0726 in accordance with the documents listed below (amended DA):

Plan, Revision and Issue No.	Plan Name	Date Issued/Received	Prepared by
DA2.03 rev F	Ground floor demolition plan	03 June 2025	Bayside Built
DA3.02 rev H	Proposed lower ground floor	03 June 2025	Bayside Built
DA3.03 rev H	Proposed ground floor	03 June 2025	Bayside Built
DA3.04 rev H	Proposed mezzanine floor	03 June 2025	Bayside Built
DA3.05 rev H	Proposed roof plan	03 June 2025	Bayside Built
DA4.01 rev G	Sections AA, BB	03 June 2025	Bayside Built
DA4.02 rev F	Sections CC, DD, EE	03 June 2025	Bayside Built
DA5.01 rev F	General elevations	03 June 2025	Bayside Built
DA7.01 rev C	Materials board	03 June 2025	Bayside Built
A1745394_03	BASIX Certificate	16 June 2025	Bonnefin Consulting Pty Ltd
DA-001 rev B	Landscape Plan	12 June 2025	Growing rooms
DA-002 rev B	Planting Plan	12 June 2025	Growing rooms
DA-003 rev B	Specifications / Details	12 June 2025	Growing rooms
D00 Rev A	Concept stormwater drawings for proposed alterations and additions	12 June 2025	Smart Structures Australia
D01 Rev B	Lower ground floor stormwater drainage plan	13 June 2025	Smart Structures Australia
D02 Rev B	Ground floor stormwater drainage plan	13 June 2025	Smart Structures Australia
D04 Rev A	Roof stormwater drainage plan	12 June 2025	Smart Structures Australia
D10 Rev A	Stormwater drainage sections and details sheet 1	12 June 2025	Smart Structures Australia
D11 Rev B	Stormwater drainage sections and details sheet 2	13 June 2025	Smart Structures Australia
D15 Rev A	Erosion and sediment control plan and details	12 June 2025	Smart Structures Australia
SK1 rev 5 (5 pages)	Structural drawings	10 June 2025	SMART Structures Australia
Traffic Letter	13 June 2025	TTPA

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 16 June 2024. Further information was provided to the Court 20 June 2025. I 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. 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. 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.

Jurisdictional Prerequisites

5. 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.

6. I am satisfied that owner’s consent has been provided, as the Applicants are the owners of the site. The Respondent notified the DA between 5 September and 19 September 2024. Two submissions objecting to the development were received.

7. At the commencement of the proceedings, two objectors expressed their concerns orally and provided a further written submission. The Court and parties were assisted by viewing some of the concerns raised from the objectors’ property.

8. As the parties have entered into an agreement, the Court’s role is limited to ensuring that there is jurisdiction / power to grant consent, and not the merits of the issues raised (Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [217]). In reaching agreement, the parties have advised the Court that they considered the concerns raised in the written and oral objections.

Inner West Local Environmental Plan 2022

9. The site is zoned R2 Low Density Residential under the Inner West Local Environmental Plan 2022 (IWLEP). The proposed development for alterations and additions to a dwelling house is permitted with consent and I have had regard to the objectives of the zone.

10. The parties agree and I accept that the following applicable IWLEP provisions are met:

1. Clause 2.7 requires development consent for demolition, as proposed within the amended DA.

2. Clause 4.3 height of buildings applies, with a maximum height of 7m. As demonstrated by the architectural plans prepared by Bayside Built dated 3 June 2025 (architectural plans), the development is below 7m, at 4.7m in height.

3. Clause 4.4 floor space ratio (FSR) applies to the site, with a maximum FSR of 0.5:1. The architectural plans demonstrate that the proposed FSR is 0.41:1.

4. Clause 5.10 heritage conservation applies to the site, which is located in the Haberfield Conservation Area. With consideration of the Statement of Heritage Impact prepared by Perumal Murphy Alessi Heritage Consultants (SHI), I accept that the provisions have been adequately considered.

5. Clause 6.1 acid sulfate soils applies as the site is mapped as Class 5. The parties submit that the proposed works are not located 5m below the Australian Height Datum and accordingly, the provisions of cl 6.1 (2) and (3) do not apply.

6. Clause 6.2 earthworks applies to the amended DA. I accept the parties’ submissions that the amended DA meets the provisions as supported by the Geotechnical Investigation Report prepared by GCA dated 19 March 2024.

7. Clause 6.3 stormwater management applies to the amended DA. On the basis of the stormwater drainage plans dated 13 June 2025 prepared by Smart Structures Australia (stormwater plans) and enforced through the conditions of consent, I accept the parties’ agreement that the provisions are met.

8. Clause 6.20 Development on land in Haberfield Heritage Conservation Area applies. I accept that the provisions have been satisfied as the parties’ agreed submissions, evidence in the town planning joint expert report, architectural plans and landscape plans demonstrate that none of the provisions are exceeded and 50% of the site will be landscaped.

Environmental Planning and Assessment Regulation 2021 and State Environmental Planning Policy (Sustainable Buildings) 2022

11. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate that meets the provisions of s 27 of the EPA Reg and the SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

12. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site, which is located within the Sydney Harbour Catchment. Sections 6.6, 6.7, 6.8, 6.9 and 6.10 are relevant.

13. The amended DA is accompanied by stormwater plans that demonstrate how stormwater impacts from the amended DA have been minimised. In particular, the parties set out in the jurisdictional statement that the quality of water will likely be beneficial and the stormwater plans demonstrate measures including a tanked basement, rainwater tank and discharge to the street. The stormwater plans form part of the conditions of consent at Annexure A and further conditions within Annexure A will appropriately regulate ongoing stormwater management and required the detailed design of the stormwater management system prior to a construction certificate. I accept that the proposed development is unlikely to have an adverse environmental impact.

14. With consideration of the above and the jurisdictional statement, the parties agree and I accept that the provisions of SEPP BC have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The SHI details the site’s history of residential use for many years. There is no evidence of any contamination. Accordingly, the parties agree and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

Heads of consideration

16. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

17. 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.

18. 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.

19. 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

20. The Court orders:

1. The appeal is upheld.

2. Development Application DA/2024/0726 as amended, for partial demolition, alterations and additions to the existing dwelling, and associated works at 38 Tillock Street, is determined by the grant of consent subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

Annexure A (260 KB, pdf)

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Decision last updated: 01 July 2025