Flannery v Inner West Council

[2025] NSWLEC 1185

Land and Environment Court

New South Wales

Medium Neutral Citation:

Flannery v Inner West Council [2025] NSWLEC 1185

Hearing dates:

Conciliation conference 6,7 March 2025

Date of orders:

28 March 2025

Decision date:

28 March 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) Development application number DA/2024/0097 for demolition of the existing dwelling and construction of a part-one and part-two storey dwelling house with basement garage and pool on land identified as Lot 1 in Deposited Plan 13384 and known as 40 Lucy Street, Ashfield is determined by the grant of development consent, subject to the conditions included in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: demolition of existing structures – heritage conservation area – contributory item – site contamination – structural damage to dwelling – conciliation - amended plans and information – agreement between the parties – orders made

Legislation Cited:

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

Fisheries Management Act 1994

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

Water Management Act 2000 

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38, Sch 7

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.3, 6.6, 6.7, 6.8, 6.9, 6.10, Ch 2

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Texts Cited:

Inner West Comprehensive Development Control Plan 2016

Category:

Principal judgment

Parties:

Edna Flannery (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Griffiths. solicitor (Applicant)
J Marsland, solicitor (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s):

2024/347788

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of its development application DA 2024/0097. The development application seeks consent for the demolition of an existing dwelling and construction of a part-one, part-two storey dwelling house with basement garage and pool (the development). The development is proposed at 40 Lucy Street, Ashfield (Lot 1 in DP 13384).

2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on the 6 and 7 March 2025. I presided over the conciliation conference. At the conciliation conference agreement was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. As part of that agreement the Respondent has provided its consent to the Applicant amending their development application. The agreement involves the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed in Court on 7 March 2025.

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). I form this state of satisfaction on the basis that:

1. The development application is made by the owner of the Site: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified by the Respondent between 13 to 27 March 2024. Twelve submissions were received by the Respondent. Further, a number of members of the public addressed the Court at the commencement of the proceedings on site. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by the submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. The proposed development falls within the meaning of BASIX affected building in accordance with sch 7 of the EPA Regulation. An updated BASIX certificate has been provided as part of the Amended Proposal satisfying s 27 of the EPA Regulation. The updated BASIX certificate meets the requirements of s 2.1 of State Environmental Planning Policy (Sustainable Buildings) 2022.

4. Pursuant to s 2.3(1)(a) and (b) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site as it is zoned R2 Low Density Residential and is located in the Inner West local government area. Chapter 2 of SEPP BC applies as the development application as it seeks consent for the removal of one tree on the site. The Court was assisted by an arboricultural report which concludes that the tree proposed for removal is not Koala habitat and is suitable for removal. Having reviewed the documents comprising the development application and the joint report, I am satisfied that the proposed development is consistent with Ch 2 of the SEPP BC.

5. The site is located within the Sydney Harbour Catchment as shown on the Sydney Harbour Catchment Map. Sections 6.6-6.10 of SEPP BC contain matters which the consent authority must consider before the grant of consent. In undertaking these considerations I am assisted by the statement of environmental effects and the stormwater plans which form part of the development application which confirm that the concept stormwater drainage design meets the requirements of SEPP BC.

6. Further, in determining the development application I am satisfied that the proposal appropriately considers the matters set out at ss 6.6, 6.7, 6.8, 6.9 and 6.10 of SEPP BC, which deal with mandatory water quality, aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, and adverse environmental impacts on any adjacent or downstream local government areas. The parties agree, and I accept, that no clearing is proposed nor is consent sought under the Water Management Act 2000 or the Fisheries Management Act 1994. There are no known wetlands or significant aquatic ecology that will be affected by the proposed development. Further, the proposed development will not result in the release of pollutants or affect water quality in the locality nor alter the natural recession of water.

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 it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. Whilst the site has historically been used for residential purposes, the Detailed Site Investigation which forms part of the development application notes that the site is contaminated, likely as a result of historical backfill. A Remediation Action Plan (RAP) has been prepared that recommends the excavation and removal of the contaminated material to landfill. The parties agree, and I accept, that the provisions of cl 4.6 of SEPP RH are satisfied by the RAP and the annexed conditions which require the works in the RAP to be completed and a site audit undertaken prior to occupation.

8. The Inner West Local Environmental Plan 2022 (LEP 2022) is the relevant environmental planning instrument that applies to the land. The land is zoned R2 Low Density Residential. The proposal is characterised as a ‘dwelling house’ which is permitted with consent in the zone. In determining the development application I have considered the objectives of the zone.

9. Demolition is permitted with consent pursuant to cl 2.7 ‘Demolition’ in LEP 2022.

10. Pursuant to cl 4.3 ‘Height of Buildings’ the maximum height of buildings standard that applies to the site is 8.5 m. The amended development application is compliant with the height development standard.

11. Pursuant to cl 4.4 ‘Floor Space Ratio (FSR)’ the FSR standard that applies to the site is 0.5:1. The amended development application is compliant with the FSR standard.

12. Clause 5.10 ‘Heritage conservation’ of LEP 2022 applies to the site as it is located within the Hammond Park Estate Heritage Conservation Area (HCA). Pursuant to cl.5.10(4) the Court cannot grant development consent to the development application unless it has considered the effect of the proposal on the significance of the item and the HCA. The development application includes a Heritage Impact Assessment (HIA) prepared by Weir Phillips Heritage. The impact of the proposed development on the significance of the HCA was also the subject of expert evidence. The parties agree, and I accept, that the impact of the proposed development on the heritage significance of the HCA is acceptable in the circumstances as the existing dwelling has structural damage, the site requires remediation which involves the excavation of contaminated material across the site, and the replacement building proposed is satisfactory. In considering the impact of the development application on the significance of the HCA I am satisfied that it is acceptable.

13. Clause 6.1 ‘Acid sulfate soil’ applies to the site. The acid sulfate soil map nominates the site as being affected by Class 5 acid sulfate soils. The site is not located within 500m of adjacent Class 1, 2, 3, or 4 land. The proposal does not involve works below 5m and is therefore unlikely to lower the water table below 1m AHD on adjacent Class 1, 2, 3, or 4 land. Further, acid sulfate soils have been addressed in the Geotechnical Investigation Report which forms part of the development application. The parties agree, and I accept, that the site is suitable for the proposed development.

14. Clause 6.2 ‘Earthworks’ applies to the development application as it proposes excavation. The development application includes a Geotechnical Investigation Report. Compliance with the recommendations of the Geotechnical Investigation Report forms part of the annexed conditions. In determining the development application, I have considered the matters listed at cl 6.2(3) and I am satisfied that none would warrant the refusal of the development application.

15. In relation to required considerations at cl 6.3(3) Stormwater in LEP 2021, I accept the agreed position of the parties that:

1. The proportion of water permeable surfaces is within reasonable expectations for this form of development.

2. It is not practicable to provide onsite stormwater retention for use as an alternative supply to mains water, and

3. Significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, will not arise and to the extent they do arise, can be mitigated by conditions, including by the provision of sediment and erosion controls during earthworks and construction phases.

16. Inner West Comprehensive Development Control Plan 2016 (DCP 2016) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2016. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

4. 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” (subs 34(3)(b)).

5. 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.

6. The Court notes that:

1. The Respondent has agreed to the Applicant amending the development application pursuant to ss 38(1) and (4) of the EPA Regulation to rely on the following additional and amended materials:

1. Architectural plans (issue C) prepared by Nathalie Scipioni Architects, dated 7 March 2025:

Plan Number	Plan Name	Revision	Date
DA03	Site Analysis Plan	C	7 March 2025
DA05	Demolition Plan	C	7 March 2025
DA07	Proposed Basement Floor Plan	C	7 March 2025
DA06	Proposed Ground Floor Plan	C	7 March 2025
DA08	Proposed Level 1 Floor Plan	C	7 March 2025
DA09	Building elevations: front	C	7 March 2025
DA10	Building elevations: rear	C	7 March 2025
DA11	Building elevations: east	C	7 March 2025
DA12	Building elevations: west	C	7 March 2025
DA13	Building Section A	C	7 March 2025
DA14	Building Section B	C	7 March 2025
DA15	Schedule of External Finishes	C	7 March 2025

2. Stormwater plans prepared by Development Engineering Solutions

C01	Roof and first floor drainage	C	21 October 2024
C02	Ground floor and basement drainage	C	21 October 2024
C03	Stormwater Sections	C	21 October 2024

3. Stormwater submission prepared by Development Engineering Solutions dated 8 October 2024.

4. Remediation Action Plan reference number 24-1745 prepared by Econ Environmental dated 25 October 2024.

5. Letter of Advice titled ‘Suitability to excavate to remove 800mm of existing contaminated soil’ prepared by D’Ambrosio Consulting Structural Engineers dated 29 January 2025.

6. Detailed Cost Plan 1,2& Sunroom Remedial Works estimate reference number 2024-181 prepared by BerCo Consulting dated 6 March 2025.

7. Detailed Cost Plan New Build Estimate reference number 2024-181 prepared by BerCo Consulting dated 6 March 2025.

8. Letter of Advice titled “RAP Report: 40 Lucy Street, Ashfield NSW” prepared by Econ Environmental dated 6 March 2025.

2. The Applicant provided the Court with the abovementioned amended materials on 7 March 2025.

7. The Court orders that:

1. The appeal is upheld

2. Development application number DA/2024/0097 for demolition of the existing dwelling and construction of a part-one and part-two storey dwelling house with basement garage and pool on land identified as Lot 1 in Deposited Plan 13384 and known as 40 Lucy Street, Ashfield is determined by the grant of development consent, subject to the conditions included in Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 28 March 2025