Dao v Inner West Council - [2025] NSWLEC 1741

Land and Environment Court

New South Wales

Medium Neutral Citation: Dao v Inner West Council [2025] NSWLEC 1741
Hearing dates: 26 and 27 June 2025
Date of orders: 13 October 2025
Decision date: 13 October 2025
Jurisdiction: Class 1
Before: Kullen AC
Decision:
The Court orders:
(1)   The appeal is dismissed.
(2)   Development consent for development application DA/2024/0420 as amended for the demolition of existing structures and construction of a three storey detached dwelling, including a double width garage with a first floor studio at the rear and removal of trees on the land at 162 Nelson Street, Annandale, NSW, 2038 is refused.
(3)   All exhibits are returned except for Exhibits A, B and C.

Catchwords:
DEVELOPMENT APPEAL – orders – cl 4.6 variation of floor space ratio development standard not upheld

Legislation Cited:
Environmental Planning and Assessment Act 1979, (NSW), s 8.7
Land and Environment Court Act 1979 (NSW), s 39
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Inner West Local Environmental Plan 2022 (NSW), cll 4.4, 4.6, Sch 5

Cases Cited:
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 82

Texts Cited:
Inner West Council Community Engagement Strategy 2022
Leichhardt Development Control Plan 2013

Category: Principal judgment
Parties: David Dao (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
M Astill (Applicant)
M Harker (Respondent)
Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)

File Number(s): 2024/271481
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application No. DA/2024/0420 (DA) which seeks consent for demolition of existing structures and construction of a three storey detached dwelling, including a double width garage with a first floor studio at the rear and removal of trees on the land at 162 Nelson Street, Annandale, NSW, 2038 legally known as Lot 7 in DP 1843 (the site).

Background

The DA was lodged by the Applicant with the Inner West Council (the Respondent) on 24 May 2024.
The DA was notified in accordance with the Inner West Council Community Engagement Strategy 2022 from 30 May 2024 to 13 June 2024. Four submissions were received by the Respondent during this initial notification period.

Evolution of the Appeal

On 24 July 2024 the Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the EPA Act.
On 27 May 2025, the Court granted the Applicant leave to amend the DA. The amended DA was re-notified from 3 June to 17 June 2025.
The Respondent filed an Amended Statement of Facts and Contentions (SOFAC) on 2 June 2025. The SOFAC addressed the amended DA and reiterated a number of contentions previously raised by the Respondent.

The Hearing

The hearing commenced with an on-site view on 26 June 2025 and continued in Court on 26 and 27 June…

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 Dao v Inner West Council

Details

AGLC: Dao v Inner West Council [2025] NSWLEC 1741
Case: [2025] NSWLEC 1741
Decision Date: 13 October 2025

CaseChat Overview and Summary

Dao v Inner West Council is an appeal by the applicant, Dao, against a decision by the Inner West Council to refuse development consent for a proposed residential development on a site at 162 Nelson Street, Annandale, NSW. The applicant sought development consent to demolish existing structures on the site and construct a three-storey detached dwelling with a double-width garage, a first-floor studio at the rear, and the removal of trees. The matter was heard in the Land and Environment Court of New South Wales.

The legal issues before the court were whether the decision of the council was lawful, whether the decision-maker failed to consider relevant matters, and whether the refusal of development consent was unreasonable. The applicant argued that the council had failed to properly consider the impact of the proposed development on the local environment and amenity, and that the refusal of development consent was unreasonable. The respondent, the Inner West Council, argued that the decision was lawful and that the applicant had failed to establish any grounds for appeal.

The court found that the decision of the council was lawful and that the decision-maker had properly considered all relevant matters. The court found that the proposed development would have a significant impact on the local environment and amenity, and that the refusal of development consent was reasonable. The court also found that the applicant had failed to establish any grounds for appeal, and that the appeal should be dismissed. The court returned all exhibits except for Exhibits A, B and C.

Orders

Orders of the court

The Court orders:

(1) The appeal is dismissed.

(2) Development consent for development application DA/2024/0420 as amended for the demolition of existing structures and construction of a three storey detached dwelling, including a double width garage with a first floor studio at the rear and removal of trees on the land at 162 Nelson Street, Annandale, NSW, 2038 is refused.

(3) All exhibits are returned except for Exhibits A, B and C.

Background

Background to the litigation

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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:	Dao v Inner West Council [2025] NSWLEC 1741
Hearing dates:	26 and 27 June 2025
Date of orders:	13 October 2025
Decision date:	13 October 2025
Jurisdiction:	Class 1
Before:	Kullen AC
Decision:	The Court orders: (1) The appeal is dismissed. (2) Development consent for development application DA/2024/0420 as amended for the demolition of existing structures and construction of a three storey detached dwelling, including a double width garage with a first floor studio at the rear and removal of trees on the land at 162 Nelson Street, Annandale, NSW, 2038 is refused. (3) All exhibits are returned except for Exhibits A, B and C.
Catchwords:	DEVELOPMENT APPEAL – orders – cl 4.6 variation of floor space ratio development standard not upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979, (NSW), s 8.7 Land and Environment Court Act 1979 (NSW), s 39 Environmental Planning and Assessment Regulation 2021 (NSW), s 38 Inner West Local Environmental Plan 2022 (NSW), cll 4.4, 4.6, Sch 5
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 82
Texts Cited:	Inner West Council Community Engagement Strategy 2022 Leichhardt Development Control Plan 2013
Category:	Principal judgment
Parties:	David Dao (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Astill (Applicant) M Harker (Respondent) Solicitors: Mills Oakley (Applicant) Inner West Council (Respondent)
File Number(s):	2024/271481
Publication restriction:	No