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

1. 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

2. The DA was lodged by the Applicant with the Inner West Council (the Respondent) on 24 May 2024.

3. 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

4. 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.

5. 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.

6. 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

7. The hearing commenced with an on-site view on 26 June 2025 and continued in Court on 26 and 27 June 2025. One submitter (from the adjoining property at 2/158 Nelson Street, Annadale) who attended the on-site view made a submission to the Court in relation to impacts of the proposed development on his private open space areas and potential demolition of the internal courtyard boundary wall.

8. The on-site view provided the opportunity to inspect the internal courtyard and open space area on the property at 2/158 Nelson Street, Annandale. The parties also inspected the Nelson Street streetscape and development along Trafalgar Lane in the vicinity of the site.

9. At the commencement of the hearing, the Applicant made a request to further amend the plans, in accordance with plans dated 19 June 2025 (the further amended DA). The Court granted consent to the DA being amended in accordance with the bundle of plans and documents tendered by the Applicant as Exhibit A.

10. The Court in granting the Applicant leave to rely upon the amended plans and other documents the subject of the Notice of Motion and exercised, under s 39(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act), the functions and discretions of the Inner West Council, as the relevant consent authority, to approve the amending of the DA by the Applicant, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), in accordance with the amended plans and other documents for which leave was granted.

11. The expert witness reports making assessments based on the further amended DA were filed with the Court on 23 June 2025.

The Site and its Context

12. The site and adjoining properties are zoned R1 General Residential under the Inner West Local Environmental Plan 2022 (LEP). The site is located within the Annandale Heritage Conservation Area (HCA) in Sch 5 of the LEP.

13. The site characteristics were described in the SOFAC as follows:

1. The site is located on the western side of Nelson Street, between Booth Lane to the south and Rose Street to the north;

2. The site has a primary frontage to Nelson Street of 6.095m and a side boundary to 164 Nelson Street of 54.269m. The site has a secondary frontage to Trafalgar Lane of 6.095m;

3. The site is rectangular with a total area of 328.8m2;

4. The site falls from west to east, from RL 9.85 at the western boundary of the site, down to approximately RL 9.09 at the eastern boundary of the site;

5. The site currently contains a two storey infill brick dwelling with a metal roof form. At the western rear boundary is a double brick garage. Between the dwelling and the garage is a consolidated area of paving and synthetic grass. There are a number of existing trees on the site, including a Jacaranda towards the rear of the site;

6. There are various minor encroachments from the existing dwelling over the northern side boundary to 164 Nelson Street.

14. The Respondent further advises in the SOFAC that:

1. Development in the vicinity of the site contains a mixture of one and two storey semidetached or freestanding dwellings with some interspersed two storey terraces

2. The properties adjoining the site support a contributory single storey terrace with two storey rear addition to the north at 164 Nelson Street and a two storey non-contributory c.1980s attached infill dwelling to the south at 2/158 Nelson Street

3. Traditional roof forms in the vicinity include a mix of gable and hipped roof forms and skillion roof forms concealed behind parapets

4. Front facades to contributory dwellings present to the street with a single facade, without projecting bays, and contain front verandas and balconies with skillion roof forms set below the main roof forms above, where not altered from their original

5. Complementary materials in the streetscape include rendered, painted masonry, horizontally laid timber weatherboards and corrugated iron roof sheeting and terracotta tiles for roofing

6. Fenestration to contributory buildings in the streetscape is vertically proportioned with timber framed double hung sash windows and timber framed four panel front doors and pairs of timber framed French doors

7. Complementary front fences in the vicinity include vertical timber pickets, with some iron palisade fencing and masonry fences.

15. The Respondent in the SOFAC advises that:

“The character to Trafalgar Lane is mixed. Garage structures are single storey with a skillion roof, or 2 storey with studio above with pitched and gable roof forms. A zero setback from the lane is characteristic of building setbacks and balconies facing the laneway are not part of the original character. Sympathetic materials include face brick, rendered and painted masonry, horizontally laid timber weatherboards and corrugated iron roof sheeting”.

16. The site is located in the Nelson Street Distinctive Neighbourhood under the Leichhardt Development Control Plan 2013 (DCP). In part the existing character of Nelson Street (described at C2.2.1.6 of the DCP) demonstrates the following:

“The architectural style found throughout the neighbourhood consists of Victorian and Federation style dwellings, with some contemporary development. Development along Nelson Street reflects the dwelling hierarchy of Annandale, with larger terraces and villas from the later Victorian period on the higher elevations and smaller developments and subdivisions located on the lower slopes. Because the lots within the neighbourhood were historically sold and developed individually, there is considerable diversity in architectural style, resulting in streetscapes which have varying building heights and setbacks of between 1m to 3m often with no front gardens.”

Development Standards – Inner West Local Environmental Plan 2022

17. The LEP contains a number of numeric controls relating to development standards for landscaped areas, site coverage, and floor space ratio (FSR) which apply to the site. There is no mapped maximum building height for the site in the LEP.

18. The Respondent submits that the proposed development complies with the landscaped area and site coverage development standards. However, there is a significant variation sought to the FSR development standard for the site by the Applicant

19. The Applicant has submitted a cl 4.6 variation request to vary the FSR development standard (by 39%) for the proposed development in the further amended DA. This is discussed in at paras [27]-[51] below.

Remaining Contentions (prior to further amended DA)

20. Prior to the filing of the further amended plans, there were a number of contentions raised by the Respondent that had not been fully resolved, as stated in the SOFAC and summarised as follows:

1. Desired future character – the proposed development is not compatible with the character and style of surrounding buildings and does not protect and enhance the amenity of existing and future residents and the neighbourhood;

2. Heritage – the proposed development would have an adverse impact on built heritage, is contrary to the aims and controls of the LEP and DCP, as it is inconsistent with the form, height, detail, design, fenestration, colours and materials characteristic to the HCA;

3. FSR – the proposed development contravenes the maximum FSR development standard in cl 4.4 of the LEP. The submitted amended cl 4.6 request has not met the requirements of cl 4.6(3) of the LEP. The proposed FSR variation contributes to unacceptable amenity impacts to surrounding properties, particularly overshadowing to 2/158 Nelson Street;

4. Solar impacts – the proposed development would result in adverse solar access impacts on the adjoining residential property at 2/158 Nelson Street.

21. Based on the submissions made by the Respondent at the hearing, and the Joint Reports of the town planning and heritage experts, I consider that these remaining contentions, initially applying to the May 2025 amended plans, also apply to the further amended plans dated 19 June 2025 as submitted by the Applicant.

Expert Evidence

22. The Court was assisted by expert evidence in the following disciplines:

1. Town Planning:

1. Ms Julie Horder, on behalf of the Applicant; and

2. Mr Anthony Roydhouse, on behalf of the Respondent.

2. Flooding:

1. Mr Ian Warren, on behalf of the Applicant; and

2. Mr Joseph Bertacco, on behalf of the Respondent.

3. Heritage:

1. Mr James Phillips, on behalf of the Applicant; and

2. Ms Lisa Trueman, on behalf of the Respondent.

23. The experts in these areas filed supplementary joint reports with the Court (all dated 23 June 2025) responding to the further amended DA. It is noted that the Joint Heritage Experts’ Report referred to the site being in Summer Hill. It was obvious from the evidence given at the hearing that the Heritage Experts were referring to the correct site in Annandale in their Joint Report.

24. In addition, Ms Horder (as the Applicant’s Town Planner) prepared the cl 4.6 variation request (as amended 20 June 2025) in support of the request to vary the FSR development standard for the further amended DA.

Submitter’s concerns

25. As previously stated, the on-site view provided the opportunity to assess the impacts of the proposed development from within the neighbouring residential unit at 2/158 Nelson Street, Annandale.

26. It is my view that the potential impacts on the submitter’s property are significant, and that they arise from the proposed distribution of the floor space exceedence in the proposed development. This finding is examined in the following sections.

Clause 4.6 Variation – Floor Space Ratio

27. The Applicant submitted the formal cl 4.6 variation request prepared by Ms Horder, Director of Planning Bricks, as amended 20 June 2025 (the cl 4.6 variation request) which had been updated to address the further amended DA.

28. The Court had a range of material put to it in relation to the proposed cl 4.6 variation by the parties.

29. In the Joint Export Report of the Town Planners (the Joint Report), co-authored by Ms Horder (for the Applicant) and Mr Roydhouse (for the Respondent), the cl 4.6 variation request was addressed in some detail.

30. Both expert town planners provided a detailed assessment of the impacts of the proposed development on the adjoining property at 2/158 Nelson Street, Annandale.

31. I consider that in this case the key to the assessment of the further amended DA is in the evaluation of the cl 4.6 variation request to increase the FSR of the proposed development to exceed the FSR development standard for the site. If the cl 4.6 variation request cannot be supported then it follows in this case that the proposed development would require a significant re-design to achieve the residential outcome sought by the Applicant for the site.

32. Clause 4.6(1) - (3) in force in the LEP at the date of the lodgement of the DA is as follows:

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 to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a)  compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b)  there are sufficient environmental planning grounds to justify the contravention of the development standard.

33. The cl 4.6 variation request has been made by the Applicant to demonstrate the matters at cl 4.6(3)(a) and (b).

Town Planning Experts’ Evidence

Matters in Agreement

Calculation of Floor Space Ratio

34. In the Joint Expert Report, the expert town planners advised the following matters were in agreement:

1. Clause 4.4 establishes a maximum FSR of 0.7:1 for the site;

2. The proposed FSR is 0.97:1 (Gross Floor Area (GFA) of 319.85sqm) and the extent of FSR variation is 39% or 89.39sqm; and

3. The proposal exceeds the maximum FSR and a cl 4.6 variation request was provided.

Matters in Disagreement

Calculation of Gross Floor Area

35. Ms Horder submitted that:

“Notwithstanding the agreement [of the expert town planners] on the maximum GFA/FSR proposed by the development … it is standard planning practice that parking is not included in the calculation of GFA where parking is classified as ‘required’, as per the standard template definition of GFA. However, in this case, an unusual situation arises due to the provisions of the LDCP, which specifies a minimum parking requirement of zero spaces and a maximum of two spaces for dwelling houses.”

36. Mr Roydhouse stated in response that:

“The double garage is included in GFA as it does not meet any of the exclusions under the definition of ‘gross floor area’ in the LEP. Section C1.11 of the DCP provides a minimum parking rate of nil, therefore any car parking provided is GFA. This interpretation was confirmed by Porter C in Rahe v Inner West Council [2025] NSWLEC 1434 at [59]”.

37. I agree that the assessment as agreed by the town planning experts is correct. This leads to a FSR variation of 39% for the development proposed in the further amended DA.

Clause 4.6 variation request

38. The expert town planners did not agree that the written cl 4.6 request demonstrated that there are sufficient environmental planning grounds to justify the variation to the FSR development standard in this case.

Assessment of cl 4.6 variation request – Applicant’s position

39. Ms Horder expressed the opinion at para 53 of the Joint Report that “compliance with the FSR development standard is unnecessary in the circumstances as the objectives of the FSR standard are achieved despite the non-compliance with the standard and there are sufficient environmental planning grounds justifying contravention of the development standard”. Ms Horder summarised the environmental planning grounds she relied upon as follows:

1. Distribution of built form and massing: the proposal distributes building mass effectively across two forms, responding sensitively to both street frontages and the varying built character and density of the surrounding area;

2. Internal amenity and design: strict FSR compliance would diminish internal amenity without meaningful improvement in bulk or scale. The proposed design contributes positively to the character of the locality;

3. Visual impact: the additional floor area does not create adverse visual impacts. The built form uses articulation, recessed upper levels, and a pitched roof to reduce visual bulk and maintain compatibility with the streetscape;

4. Neighbour compatibility: despite exceeding the maximum FSR, the proposal minimises adverse impacts on neighbours and integrates appropriately with the urban character;

5. Contextual design response: the proposal aligns with the desired future character of the Nelson Street Distinctive Neighbourhood through sympathetic scale, pitched roof design, and appropriate setbacks;

6. Efficient use of urban land: the proposal promotes sustainable use of land as the site is within an established area, being within walking distance of the Annandale town centre;

7. Compliance with key controls: while exceeding FSR, the proposal complies with site coverage and landscaped area development standards under the LEP;

8. Realisation of objectives: the variation supports the objectives of the FSR standard and the R1 General Residential zone, including maintaining amenity and achieving appropriate scale and built form;

9. Established precedent: there is clear local precedent for similar FSR exceedances that have been approved without adverse planning impacts, reinforcing the reasonableness of the variation.

40. Ms Horder pointed out that with regard to amenity impacts on 2/158 Nelson Street, as discussed under Contention 1 of the SOFAC, the further amended DA has amended the ground floor rear setback so as to align with the setback of 164 Nelson Street. As a result of this amendment to the proposed development Ms Horder contended that the amenity relationship between the proposed development and 2/158 Nelson Street would be improved.

Assessment of cl 4.6 variation request – Respondent’s position

41. Mr Roydhouse stated that “…the submitted Clause 4.6 request has not met the requirements of Clause 4.6(3) of the [LEP]. In particular, the written request relies upon the first test under Wehbe, which is that the objectives of the development standard are achieved notwithstanding non-compliance with the standard.”

42. The relevant objectives under cl 4.4(1) of the LEP relating to FSR are:

1. to establish a maximum floor space ratio to enable appropriate development density,

1. to ensure development density reflects its locality,

2. to provide an appropriate transition between development of different densities,

3. to minimise adverse impacts on local amenity,

4. to increase the tree canopy and to protect the use and enjoyment of private properties and the public domain.

43. Mr Roydhouse provided a response in terms of each of these objectives in cl 4.4 of the LEP. His evidence relating to these five objectives is discussed below.

44. In terms of cl 4.4(1) Objective (a), Mr Roydhouse was of the view that this objective had not been achieved for the following reasons:

1. The proposed development does not result in an appropriate development density, particularly considering the lack of consistency in scale and height and associated amenity impacts. Contrary to the written request, the extent of floor space exceedance is most apparent when viewed from Nelson Street, where a three storey built form will not integrate with its context; and

2. Compliance with the landscaped area and site coverage standards is of relevance to providing an appropriate development density, as the proposal is for an over-scaled building envelope (in lieu of a larger building footprint). Considering the list of recent approvals provided in the written request, similar infill applications have not resulted in a development density to the scale proposed.

45. In terms of cl 4.4(1) Objective (b), Mr Roydhouse was of the view that this objective had not been achieved for the following reasons:

1. The development and associated GFA do not ensure a development density that reflects its locality;

2. Greater weight should be placed on the specific locality of Nelson Street, as opposed to Trafalgar Street and Booth Street, as there is a clear delineation in built form and scale between those contexts;

3. One and two storey buildings are the pre-eminent scale on the western side of Nelson Street, as acknowledged by the existing character statement for the Nelson Street Distinctive Neighbourhood in the DCP. Trafalgar Street and Booth Street are in separate distinct neighbourhoods, hence the difference in scale between them. Development to the scale of those areas would result in a development density that does not reflect the specific locality of the subject site, undermining this objective.

46. Mr Roydhouse observed that the list of 29 development and modification applications made between 2011 and 2024 (as quoted in the FSR Study in the cl 4.6 variation request) did not establish a development density similar to that proposed on the site, for the following reasons:

1. Twenty were on Nelson Street, while other examples are not within the same visual catchment;

2. Two were for a similar development type (infill), while the remaining applications were for alterations and additions or subdivision;

3. Four were subject to the same FSR standard, of 0.7;

4. Three related to a similar extent of breach, though each application was for alterations and additions.

47. After analysing the FSR study in the cl 4.6 variation request, Mr Roydhouse concluded that lots with the same maximum permitted FSR (0.7:1) are those most suitable for comparison. From the list submitted, these result in a median FSR of 0.735:1 and a mean FSR of 0.79:1. Comparatively, the proposed FSR of 0.98:1 is considerably greater, a further indication of the development density not reflecting the locality.

48. In terms of cl 4.4(1) Objective (c), Mr Roydhouse was of the view that this objective had not been achieved for the following reasons:

1. The proposed development has not provided an appropriate transition between development of different densities;

2. Approximately 45 metres to the south is Booth Street, which is part zoned E1 Local Centre under the LEP and has buildings up to three storeys in height. The FSR standard for those properties (being 1:1) is near identical to the FSR for the proposed development. The written request places an undue reliance upon those developments to support an increased scale on the site; and

3. The proposed development limits the potential for an appropriate transition between the bulkier and denser developments on Booth Street and Trafalgar Street to the reduced scale of developments fronting Nelson Street. This would create a visible outlier in Nelson Street, contrary to the intent of Objective (c) of cl 4.4 of the LEP.

49. In terms of cl 4.4(1) Objective (d), Mr Roydhouse was of the view that this objective had not been achieved for the following reasons:

1. The proposed development has not minimised adverse impacts on local amenity, namely overshadowing impacts and overall bulk and scale as perceived from neighbouring properties on Nelson Street and from the public domain;

2. In addition to the FSR variation, use of generous floor to ceiling heights of 3m-3.92m at the proposed ground floor and 2.6m-2.7m at upper levels, providing internal stairs rather than external stairs to the street, generous slab depths of between 450mm and 500mm and an over scaled roof form contribute to the overall building envelope;

3. When viewed from the private open space of 2/158 Nelson Street, the proposed development will present a solid wall of approximately 3m in height and 5.8m in length built to the shared boundary. This will effectively enclose the private open space of that property at its northern side;

4. Similarly, the southern elevation of the proposed third storey presents a height of 9.8m to the central courtyard of 2/158 Nelson Street;

5. The proposed development will result in the following shadowing impacts:

1. Additional shadowing to the private open space of 1, 2 and 3/158 Nelson Street;

2. Additional shadowing to windows (serving a bedroom and lounge room) at the western elevation of 2/158 Nelson Street; and

3. Additional shadowing to the central courtyard and associated windows of 2/158 Nelson Street.

6. Considering the inherent link between these impacts and the FSR variation, which could itself be reduced to minimise the amount of shadowing, the development has not minimised adverse impacts on solar access. Such an identifiable impact may be attributed to the inappropriateness of the overall floor space exceedance.

50. In terms of cl 4.4(1) Objective (e), Mr Roydhouse was of the view that this objective had not been achieved for the following reasons:

1. The second component of this objective, which is ‘to protect the use and enjoyment of private properties and the public domain’ has not been adequately addressed by the written request. This is predominately due to the amenity impacts of the proposed development which will not protect the use and enjoyment of 2/158 Nelson Street, particularly during winter.

Clause 4.6 Variation Request – Respondent’s view on Environmental Planning Grounds

51. Mr Roydhouse’s view is that the cl 4.6 variation request has not demonstrated that there are sufficient environmental planning grounds to justify the variation. He referred to the environmental planning grounds put forward by the Applicant (at [39] above), submitting that many of the grounds seemingly promote the development in general, rather than justifying the cl 4.6 variation itself.

Solar Access

52. The expert town planners provided an assessment of solar access in the Joint Report. They disagreed on the extent to which the proposed development (in the further amended DA) would result in adverse solar access impacts to the adjoining site at 2/158 Nelson Street.

53. Although changes incorporated in the further amended DA have reduced the impact of the proposed development on the solar access of the adjoining property, both parties acknowledge that the dwelling at 2/158 Nelson Street is directly south of the site and is thus vulnerable to being overshadowed.

54. Both expert town planners presented an assessment of the impact on solar access to 2/158 Nelson Street, continuing to disagree about the extent of the impact. Mr Roydhouse reiterated his point that the further reduction to solar access at 2/158 Nelson Street can be considered to be a function of the Applicant seeking consent for a development that is, having regard to the extent of FSR exceedance, a fundamental overdevelopment of the subject site. Mr Roydhouse submitted that the proposed development is therefore contrary to Objective O1(d) and (f) of s C3.9 of the DCP, as it does not protect residential amenity for 2/158 Nelson Street adjoining and does not minimise the degree of overshadowing to that property.

Heritage Experts’ Evidence

55. The Heritage experts provided the following overview of the proposed development in their Joint Report:

“The Experts agree that the Revision D architectural drawings (Revision D plans) result in an improved outcome in terms of the presentation of the presentation of the proposed dwelling to the street and Annandale HCA. However, they disagree on whether the Revision D plans have fully resolved the heritage contention. The remaining heritage contentions can be summarised as follows:

a) The scale of the proposed dwelling in relation to the streetscape and Heritage Conservation Area, in particular the third storey;

b) The compatibility of the proposed materials and details with the character of the streetscape and the HCA; and

c) The form of the upper level of the garage.”

56. Ms Trueman (for the Respondent) advised that in her view:

“The proposed new dwelling introduces a building that has a scale and character that Is uncharacteristic to the surrounding historic streetscape. The houses In Nelson Street are predominantly modest single storey cottages or two storey terraces. The proposed dwelling is three storey, with materials and details that do not respond to the character of the HCA. As a consequence, the proposed dwelling will erode the predominant scale and cohesive character of the streetscape”.

57. I consider this to be a valid concern with the proposed development to be addressed in any potential future design, which would also need to respond to the redistribution of floor space on the site and the extent to which any cl 4.6 variation of the FSR development standard could be supported.

Conclusion

58. In assessing the proposed development I have commenced with considering the proposed cl 4.6 FSR variation. I have reached the conclusion that the case has not been established for the proposed FSR variation of 39%, which I consider cannot be described as modest in scale and in its proposed distribution on the site leads to unacceptable impacts on the adjoining property and the streetscape.

59. In Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, the approach to determining a cl 4.6 request is outlined by Preston CJ at [5] – [29]. In particular, it is stated at [15] that:

“The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters”.

60. Further, in Initial Action at [17] Preston CJ stated that “The first and most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42] and [43]”.

61. It is noted that the provisions of cl 4.6 in the LEP have been amended since these judgments were made. However, the approach to determining a cl 4.6 request has not changed.

62. I agree with the Respondent’s conclusions (as discussed above) that the proposed development in the further amended DA has not met objectives of the FSR development standard at cl 4.4(1) of the LEP. In particular, I consider that the objectives at cl 4.4(1)(c)-(e) of the LEP related to transition between development of different densities, minimising adverse impacts on local amenity, and protecting the use and enjoyment of private properties have not been achieved by the proposed development.

63. I refer to par [49(6)] and Mr Roydhouse’s statement that:

“Considering the inherent link between these impacts [on the property at No. 2/158 Nelson Street] and the FSR variation, which could itself be reduced to minimise the amount of shadowing, the development has not minimised adverse impacts on solar access. Such an identifiable impact may be attributed to the inappropriateness of the overall floor space exceedance.”

64. This statement succinctly summarises the challenges inherent in any redevelopment of the site that seeks to increase the floor space beyond that allowed under the LEP. In particular, in my view the proposed distribution of the 39% FSR exceedence on the site in the further amended DA would lead to unacceptable amenity impacts on the adjoining property at 2/158 Nelson Street. An alternative design which distributes floor space in a different way on the site might be justifiable in terms of a cl 4.6 variation request. This was not an alternative supported or proposed by the Applicant.

65. I conclude, based on the evidence presented by the expert Town Planners as discussed above, that the development as proposed in the further amended DA has not achieved the objectives of the FSR development standard at cl 4.4 of the LEP, and that the further amended DA be refused.

Orders

66. The Court orders:

1. The appeal is dismissed.

2. Development consent for development application No. 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.

……………………….

G Kullen

Acting Commissioner of the Court

**********

Decision last updated: 13 October 2025