Gestakovski v Inner West Council

[2025] NSWLEC 1662

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gestakovski v Inner West Council [2025] NSWLEC 1662

Hearing dates:

Conciliation Conferences on 15 and 16 July 2025

Date of orders:

12 September 2025

Decision date:

12 September 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA/2024/0959 for demolition of existing structures, Torrens title subdivision of the existing lot into two lots and construction of a two-storey semi-detached dwelling on each lot, including tree removal and off-street parking on the land at 33 College Street, Newtown, NSW, 2042, legally known as Lot 1 Section 7 in DP 316, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPEAL — conciliation conference — agreement between the parties — orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, cl 7

Land and Environment Court Act 1979 (NSW), ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

Inner West Local Environmental Plan 2022, cll 2.2, 2.6, 2.7, 4.1, 4.3, 4.4, 5.10, 5.21, 6.1, 6.3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Texts Cited:

Inner West Community Engagement Strategy 2022-2024

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Kire Gestakovski (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
M Pearce (Solicitor) (Respondent)

Solicitor:
Hartley Solicitors (Applicant)
Inner West Council (Respondent)

File Number(s):

2025/76469

Publication restriction:

Nil

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 by the Inner West Council of development application DA/2024/0959 (the DA). The DA seeks consent for the demolition of existing structures, removal of all trees within the site and 2 street trees, subdivision of the site into 2 Torrens title allotments and construction of a 2 storey demi-detached dwelling house on each lot with associated car parking and landscaping at 33 College Street, Newtown, NSW, 2042 (the site).

2. The site is legally identified as Lot 1 Section 7 in DP 316.

3. The DA was lodged with the Respondent on 5 November 2024. On 3 March 2025, the Applicant filed Class 1 proceedings with the Court.

4. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 28 March 2025. An amended SOFAC was filed by the Respondent with the Court on 2 April 2025.

5. The parties advise that the DA was amended (the amended DA) after the amended SOFAC was filed and was the subject of re-notification. Three submissions had been received in response to the original notification of the DA. Two submissions were received by Council in response to renotification.

6. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 15 and 16 July 2025. I presided over the conciliation conference. No submitters attended the on-site view.

7. Prior to the conciliation conference, the parties’ town planning, heritage and arboricultural experts participated in joint conferencing and joint reports were prepared in their respective fields and filed with the Court.

8. The parties advise that further amended plans (the further amended DA) were prepared in response to the joint reports and further discussions following the filing of the joint reports.

9. At the commencement of the conciliation conference, the parties confirmed that they were anticipating reaching an in-principle s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

10. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. The parties reached a s 34 agreement on 16 July 2025. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions, as agreed by the parties.

11. The parties advise that they agree that all contentions raised in the amended SOFAC are resolved by the further amended DA and conditions of consent.

12. The signed s 34 agreement, Annexure A (Conditions of Consent) and the amended plans and documents were filed with the Court on 16 July 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.

13. In particular the further amended DA provides amended architectural and landscape plan which address the following matters:

1. Agreement on size, specification and location of replacement street trees; and

2. Rework of layout of kitchen in the dwelling closest to the street tree in Kent Street.

14. 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. 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.

15. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

16. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s consent

17. The parties advise that the Applicant (as the owner of the Land) has standing to commence these proceedings under 8.7(1) of EPA Act.

18. It is noted that the proposed development includes works relating to replacement of street trees and changes to access from Kent Street. Council has agreed to these changes in the s 34 agreement.

Community Participation (Sch 1, Div 2, cl 7(1) EPA Act)

19. The DA was publicly notified from 14 November to 28 November to 2024 in accordance with the Inner West Community Engagement Strategy 2022-2024. Three submissions were received during the notification period.

20. The amended DA was re-notified from 27 June to 11 July 2025. Two submissions were received by Council in response to the renotification.

Conditions

21. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Inner WestLocal Environmental Plan 2022

22. The Inner West Local Environmental Plan 2022 (the LEP) applies to the site and to the proposed development. The site is zoned R2 Low Density Residential (R2 zone) pursuant to cl 2.2 of the LEP; and

1. The proposed development for the purposes of semi-detached dwellings is permissible with consent within the R2 Low Density Residential zone;

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

23. Clause 2.6 of the LEP provides that subdivision is permissible with consent.

24. Clause 2.7 of the LEP provides that demolition is permissible with consent.

25. The site is not subject to a minimum subdivision lot size under cl 4.1 the LEP.

26. The site is subject to cl 4.3 of the LEP in relation to a maximum height of 9.5m as shown in the Height of Buildings (HoB) Map in the LEP. The proposed development complies with the HoB development standard with a maximum building height of 6.99m.

27. The site is subject to cl 4.4 of the LEP in relation to the maximum floor space ratio (FSR) of 1:1 as shown in the Floor Space Ratio Map in the LEP. The proposed development, as amended, complies with the FSR development standard with a FSR of 0.88:1 and 0.80:1 for proposed lots 33 and 33B respectively.

28. Clause 5.10 of the LEP relates to heritage conservation. The parties advise that the existing building on the site is not a heritage item nor is the site located within a heritage conservation area under the LEP.

29. Clause 5.21 of the LEP is concerned with flood planning. The parties advise that the site is not identified as being situated within a Flood Planning Area under the LEP.

30. Clause 6.1 of the LEP relates to Acid sulfate soils. The parties advise that consent is not required under cl 6.1(2) of the LEP as the site is not in or within 500m of class 1, 2, 3 or 4 land (being land affected by acid sulfate soils).

31. Clause 6.3 of the LEP relates to Stormwater management. The parties advise that the Court can be satisfied that the matters listed under cl 6.3(3) of the LEP have been addressed on the basis of the stormwater plans, prepared by Stronghold Engineers, revision F, dated 30 October 2024, and the conditions of consent.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

32. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) is concerned with the protection of the biodiversity values, and the preservation of amenity, provided by trees and other vegetation in non-rural areas of NSW. Five trees are proposed to be removed in the proposed development, including two street trees.

33. The Town Planning experts in their Joint Planning Report agreed that:

1. Additional tree planting on the site allows for an appropriate degree of tree canopy replacement, which is integrated with the design and scale of the 2 x semi-detached dwellings; and

2. Overall, the proposal strikes an appropriate balance in retention of trees, provision of new trees, and the provision of 2 high-quality dwellings with acceptable amenity.

State Environmental Planning Policy (Resilience and Hazards) 2021

34. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

35. The parties have advised that:

1. The historical use of the site for residential purposes ensures that contamination is unlikely; and

2. Section 4.6 of the Resilience SEPP is satisfied.

36. The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Sustainable Buildings) 2022

37. The parties advise that BASIX Certificate (Number1761994M_02 prepared by AENEC dated 14 July 2025) has been provided demonstrating compliance with s. 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022. The conditions of consent require compliance with this certificate.

State Environmental Planning Policy (Transport and Infrastructure) 2021

38. The proposed development involves work within proximity to an electricity transmission or distribution work. The parties advise that Ausgrid has been notified of the DA as required by s 2.48(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 and conditions of consent have been imposed giving effect to the recommendations of Ausgrid in response to Council’s referral.

Marrickville Development Control Plan 2011

39. As stated in par [11] above, the parties have advised that they agree that all contentions raised in the SOFAC are resolved by the further Amended Plans and conditions of consent. This includes contentions related to non-compliance with the Marrickville Development Control Plan 2011.

Conclusion

40. Having considered the advice of the parties provided above at [17]-[38], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. approval of the proposed development is in the public interest.

41. Further, 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.

42. 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.

Notes

43. The Court notes:

1. That Inner West Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to development application DA/2024/0959 made on 16 July 2025 to rely on the amended plans and documents specified below:

1. Architectural plans, prepared by Play Co Architects

Drawing No.	Drawing Title	Revision	Date
A000	COVER SHEET & LOCATION PLAN	F	15.07.2025
A100	EXISTING SITE PLAN	F	15.07.2025
A101	DEMOLITION PLAN	F	15.07.2025
A200	PROPOSED SITE PLAN	F	15.07.2025
A201	PROPOSED SUBDIVISION PLAN	F	15.07.2025
A211	PROPOSED GROUND FLOOR PLAN	F	15.07.2025
A212	PROPOSED FIRST FLOOR PLAN	F	15.07.2025
A214	PROPOSED ROOF PLAN	F	15.07.2025
A300	FINISHES MATERIAL BOARD	F	15.07.2025
A301	PROPSOED NORTH SOUTH ELEVATIONS	F	15.07.2025
A302	PROPOSED EAST ELEVATION	F	15.07.2025
A303	PROPOSED WEST ELEVATIONS	F	15.07.2025
A401	PROPOSED SECTION A	F	15.07.2025
A402	PROPOSED SECTION C	F	15.07.2025
A403	PROPOSED SECTION D	F	15.07.2025
A530	FSR AND POS DIAGRAM	F	15.07.2025

2. Landscape plans, prepared by Conzept Landscape Architects

Drawing No.	Drawing Title	Revision	Date
LPDA 24 – 16/1	HARDSTAND PLAN	G	16.07.2025
LPDA 24 – 16/2	LANDSCAPE PLAN - GF	G	16.07.2025
LPDA 24 – 16/3	DETAILS 1	G	16.07.2025
LPDA 24 – 16/4	DETAILS 2	G	16.07.2025
LPDA 24 – 16/5	SPECIFICATION	G	16.07.2025

3. Letter by Robert Frew, Conzept Landscape Architects, dated 14 July 2025

4. Survey Plan, issue 0, prepared by Survey Corp dated 13 July 2025

5. Arboricultural Impact Assessment prepared by Arboriculture Consultancy Australia dated 2 July 2025

6. Aircraft Noise Intrusion Report, prepared by Acoustic Logic, revision 1 dated 14 July 2025

7. BASIX Certificate Number1761994M_02 prepared by AENEC dated 14 July 2025

8. NATHERS Certificates No. #HR-RA044e-02, #HR-41D030-02 and #HR-E0FZO6-02 dated 14 July 2025

Orders

44. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA/2024/0959 for demolition of existing structures, Torrens title subdivision of the existing lot into two lots and construction of a two-storey semi-detached dwelling on each lot, including tree removal and off-street parking on the land at 33 College Street, Newtown, NSW, 2042, legally known as Lot 1 Section 7 in DP 316, subject to the conditions of consent at Annexure A.

G Kullen

Acting Commissioner of the Court

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Annexure A (348 KB, pdf)

Amendments

29 September 2025 - Correction is made to par [43] for the architectural and landscape plan references that are provided under Condition 1 of the Conditions of Consent approved by the Court (Annexure A of the Judgment).

29 September 2025 - Amended Commissioner Signature.

Decision last updated: 29 September 2025