Hitchcock v Inner West Council

[2025] NSWLEC 1271

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hitchcock v Inner West Council [2025] NSWLEC 1271

Hearing dates:

Conciliation Conference on 25 March 2025

Date of orders:

29 April 2025

Decision date:

29 April 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application number DA/2024/0379, as amended, for alterations and additions to the existing detached dwelling, including partial demolition of existing structures and construction of ground floor and first floor additions on land identified as Lot 1 in Deposited Plan 957712 and known as 26 Ferris Street, Annandale is determined by the grant of consent, subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – development application – alterations and additions to detached dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

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

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

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

Inner West Local Environmental Plan 2022, cll 2.3, 2.7, 4.3C, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.8

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, Ch 6, Ppt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

State Environmental Planning Policy (Sustainable Buildings) 2022, Sch 1

Category:

Principal judgment

Parties:

Hannah Joy Sonia Hitchcock (First Applicant)
Joanne Sonia Hitchcock (Second Applicant)
Paul Warren Hitchcock (Third Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
M Pearce (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/358193

Publication restriction:

Nil

JUDGMENT

Introduction

1. COMMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA/2024/0379 for alterations and additions to an existing detached dwelling, including partial demolition of existing structures and construction of ground floor and first floor additions on land known as 26 Ferris Street, Annandale (Lot 1 DP 957712) (the site) by Inner West Council.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference, which I presided over, was held on 25 March 2025.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint reports and the documents that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Council as the consent authority consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 25 March 2025 and are listed under Condition 1 of the conditions of consent at Annexure A.

Jurisdictional matters

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

State Environmental Planning Policy (Resilience and Hazards) 2021

7. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the site has a long history of residential use and therefore contamination is considered unlikely. No further investigation in accordance with the SEPP is therefore required.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

8. Consideration has been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) in respect of vegetation in non-rural areas. The proposal does not include any tree removal however conditions of consent have been recommended to protect trees on site and in the vicinity.

9. The site is located within the Sydney Harbour Catchment in accordance with the BC SEPP. Chapter 6 of the BC SEPP requires consideration of the impacts of development on land located within the Sydney Harbour Catchment, which is a ‘regulated catchment’. Part 6.2 precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to: water quality and quantity, aquatic ecology, flooding, recreation and public access, and total catchment management.

10. I am satisfied, on the basis of the agreement of the parties, and the Flood Risk Management Report (Amuna Civil Engineering, 3 May 2024) that the concept stormwater plans for the proposal ensure that the effect on the quality of water entering a natural waterbody will be neutral or beneficial and the impact on water flow in a natural waterbody will be minimised (s 6.6(2)). The proposal will not have any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; will not impact land abutting a natural waterbody or the sedimentation of a natural waterbody; and does not affect any wetlands (s 6.7). The proposal is also very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8); does not affect public access to and from natural waterbodies (s 6.9); and is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10).

State Environmental Planning Policy (Sustainable Buildings) 2022

11. The proposal is BASIX affected development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. An amended BASIX Certificate has been submitted prepared by Mr Michael Mantzi (Cert No. A1788244 dated 20 March 2025) as required by s 27 of the EPA Reg.

Inner West Local Environmental Plan 2022

12. The development is for the purposes of alterations and additions to a dwelling house, which is a permissible use in the R1 General Residential zone in which the site is located pursuant to Inner West Local Environmental Plan 2022 (IWLEP).

13. The development has regard to the objectives of the R1 General Residential zone as required by cl 2.3 of IWLEP including notably “to provide for the housing needs of the community”, “to provide for a variety of housing types and densities” and “to provide residential development that maintains the character of building and natural features in the surrounding area”.

14. As required by cl 2.7 of IWLEP consent is sought as part of the subject application for the proposed partial demolition.

15. The parties advise that the proposed development complies with the landscaped area and site coverage development standards set out in cl 4.3C of IWLEP which provides for a minimum landscaped area of 15% of the total site area and a maximum site coverage of 60% similarly of the total site area.

16. The proposed development complies with the floor space ratio development standard set out in cl 4.4 of IWLEP which provides for a minimum Floor Space Ratio (FSR) of 0.8:1.

17. The site is located within the Annandale Heritage Conservation Area in accordance with IWLEP. In respect of the requirements of cl 5.10, on the basis of the parties’ agreement, the amended plans and the statement of heritage impact (Weir Phillips Heritage and Planning, May 2024), I am satisfied that consideration has been given to the effect of the proposed development on the heritage significance of the heritage conservation area.

18. The site is identified as a flood control lot and therefore cl 5.21 of the IWLEP applies. On the basis of the parties’ agreement, the Flood Risk Management Report (Amuna Civil Engineering, 3 May 2024), the amended concept stormwater plans and recommended conditions of consent I am satisfied that the matters set out in subcll 5.21(2) and (3) have been satisfied and/or considered, as relevant.

19. The site is mapped as having Class 5 Acid Sulfate Soils but is not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres AHD. Accordingly, no further assessment is required in accordance with cl 6.1 of IWLEP.

20. I am satisfied on the basis of the parties’ agreement and the recommended conditions of consent that consideration has been given to the matters required to be considered prior to the granting of development consent to earthworks under cl 6.2(3) of IWLEP.

21. Clause 6.3 in respect of stormwater provides that the consent authority must not grant consent unless it is satisfied of the specified matters in respect of water permeability, water retention and stormwater runoff. Having regard to the submitted Flood Risk Management Report (Amuna Civil Engineering, 3 May 2024), amended concept stormwater plans and the recommended conditions of consent I am satisfied of the relevant matters. Specifically, the parties advise that the proposed development has been designed to maximise water permeable surfaces, on site retention is provided in the form of a rainwater tank and the amended stormwater plans illustrate a suitable stormwater drainage system that will minimise adverse impacts due to stormwater runoff.

22. The site is located within an Australian Noise Exposure Forecast (ANEF) contour of 20 or greater therefore cl 6.8 of IWLEP applies. Having regard to the submitted Aircraft Noise Assessment (Renzo Tonin & Associates, 8 April 2024) and recommended conditions of consent, I am satisfied that consideration has been given to the matters outlined in cl 6.8(3) as required.

Other Matters

23. The development application is made with the written consent of the owners of the site in accordance with s 23 of the EPA Reg.

24. The Respondent notified the original development application between 23 May and 6 June 2024. Three submissions were received. Following amendment to the plans the respondent notified submitters, and two further submissions were made in respect of the amended plans. An oral submission was also heard at the commencement of the conciliation on behalf of the adjoining neighbour at 24 Ferris Street. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submissions.

Conclusion

25. 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” (s 34(3)(b)).

26. In making the orders to give effect to the agreement between the parties, 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.

Orders

27. The orders of the Court are:

1. The appeal is upheld.

2. Development Application number DA/2024/0379, as amended, for alterations and additions to the existing detached dwelling, including partial demolition of existing structures and construction of ground floor and first floor additions on land identified as Lot 1 in Deposited Plan 957712 and known as 26 Ferris Street, Annandale is determined by the grant of consent, subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 29 April 2025