Ishak v Inner West Council

[2025] NSWLEC 1082

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ishak v Inner West Council [2025] NSWLEC 1082

Hearing dates:

Conciliation conference on 3 February 2025

Date of orders:

14 February 2025

Decision date:

14 February 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant shall pay the Respondent’s costs thrown away in the agreed sum of $7,000 within 28 days of these orders.

(2) The Applicant's written request pursuant to cl 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), prepared by Planning Ingenuity dated 26 November 2024, seeking a variation to the development standard for floor space ratio, set out in cl 4.4 of the IWLEP, is upheld.

(3) The appeal is upheld.

(4) Development Application No DA/2024/0309, as amended, for demolition of existing structures and construction of four, three-storey attached dwellings with car parking, each located on an existing Torrens title lot, and associated works, on land legally described as Lots 55, 56, 57 and 58, Section B DP 1663, known as 16-22 William Street, Leichhardt NSW 2040, is determined by grant of consent, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – attached dwellings – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Inner West Local Environmental Plan 2022, cll 4.3C, 4.4, 4.6, 5.21, 6.1, 6.2, 6.3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6,7, 6.8, 6.9, 6.10, 6.11

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

Category:

Principal judgment

Parties:

Natalie Ishak (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
R Metledge (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Inner West Council (Respondent)

File Number(s):

2024/260103

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from the deemed refusal, by Inner West Council, of development application DA/2024/0309. This application seeks consent for the demolition of existing structures and construction of four three-storey attached dwellings with car parking, each located on an existing Torrens title lot, and associated works on the property at 16-18 William Street, Leichhardt. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 February 2025. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application, subject to conditions.

4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address the Council’s contentions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified the in a jurisdictional note. From this I note the following points.

6. The site is legally described as Lots 55, 56, 57 and 58, Sec B DP 1663, and the application was made with the written consent of the owner of the subject land.

7. The development application was appropriately notified between 7 to 28 May 2024, during which time seven submissions were received. After the applicant filed the Class 1 appeal, the Council received a further fourteen submissions indicating support for the proposal. The application was re-notified to all submitters, with one additional submission being received in support as a result. Additionally, four neighbouring residents made oral submissions at the commencement of the conciliation. The parties submit, and I accept, that the matters raised in these submissions have been considered and adequately addressed in the assessment of this application.

8. Pursuant to s 27 of the EPA Regulation, a BASIX certificate that relates to the development as amended, accompanies the application.

9. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submission and the information contained in the Statement of Environmental Effects prepared by Planning Ingenuity dated 3 April 2024 (SEE), I accept that the land has historically been used for residential purposes, is not likely to be contaminated and is suitable for the proposed development.

10. The site is located within the Sydney Harbour Water Catchment and, accordingly, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies. From the parties’ submission, the concept stormwater design by Civil Stormwater Engineering Group Rev 4 dated 4 December 2024, and the amended architectural plans by Urban Style Design dated 21 November 2024, I accept that the requirements of Ch 6 of the Biodiversity and Conservation SEPP relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10), and is not located within 100m of a natural waterbody in a regulated catchment (s 6.11).

11. Pursuant to the Inner West Local Environmental Plan 2022 (IWLEP), the site is zoned R1 General Residential, within which development for the purposes of attached dwellings is permissible with consent. The parties submit, and I accept, that the development is consistent with the relevant objectives of the zone.

12. No maximum height of buildings is specified for this site in the IWLEP.

13. IWLEP cl 4.3C sets development standards for landscaped area and site coverage for residential accommodation in Zone R1. From the parties’ submission and the architectural drawings I accept that the proposed development has site coverage under the maximum 60% and landscaped area greater than 15% of the total site area for each lot, meeting the requirements of this clause.

14. Pursuant to IWLEP cl 4.4, a maximum floor space ratio (FSR) of 0.7:1 applies to the subject site. The proposed development exceeds this development standard by 12.3% for Lot 55, 12.7% for Lot 56, 11.9% for Lot 57, and 10.4% for Lot 58. This results in FSRs of 0.78:1, 0.789:1, 0.783:1 and 0.77:1 respectively.

15. As a result of this exceedance, cl 4.6(3) of the LEP allows the applicants to request a contravention of this development standard. This request must demonstrate that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicants have submitted a written request prepared by Planning Ingenuity (undated) (the cl 4.6 request). Pursuant to IWLEP cl 4.6, I am satisfied that:

1. The cl 4.6 request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both R1 General Residential Zone and the FSR development standard, notwithstanding the non-compliance.

2. The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. The variation will not be perceptible from the public domain, and the new dwellings will be compatible with the surrounding built form.

2. The proposal complies with all other development standards and relevant built form controls irrespective of the exceedance of the FSR standard.

3. The breach will not result in any significant additional amenity impacts including overshadowing, privacy or view loss.

3. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

16. The site is identified as a Flood Control Lot pursuant to cl 5.21 of the IWLEP. A Flood Impact Assessment by Civil Stormwater Engineering Group, dated 26 September 2023, was submitted with the Class 1 application, which demonstrates that the matters listed in cl 5.21(3) have been considered, and the proposed development meets the flood planning requirements of cl 5.21(2).

17. Pursuant to IWLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map. Based on the parties submission and the architectural drawings, I accept that the proposed development will not lower the watertable below 1m AHD and that subsequently, the requirements of cl 6.1 are met.

18. IWLEP cl 6.2 provides for matters relating to earthworks. From the parties’ submissions, the SEE and the concept stormwater design, I accept that the matters listed in cl 6.2(3) have been considered in the preparation of this development application, and are adequately addressed.

19. Based on the concept stormwater design and the parties’ submissions, I accept that the proposed development adequately meets the stormwater management requirements of IWLEP cl 6.3.

20. For these reasons, 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.

21. As the parties’ decision is one 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.

22. The Court notes:

1. The respondent, Inner West Council, as the relevant consent authority, has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021, the applicant amending Development Application No DA/2024/0309 in accordance with the following documents:

Plan, Revision and Issue No.	Plan Name	Date	Prepared by
Architectural Plans
Dwg # 00, Rev C	Title Page	21.11.2024	Urban Style Design
Dwg # 01, Rev D	Roof and Site Plan	21.11.2024	Urban Style Design
Dwg # 02, Rev D	Ground Floor Plan	21.11.2024	Urban Style Design
Dwg # 03, Rev D	First Floor Plan	21.11.2024	Urban Style Design
Dwg # 04, Rev D	Loft Floor Plan	21.11.2024	Urban Style Design
Dwg # 05, Rev D	Elevations	21.11.2024	Urban Style Design
Dwg # 06, Rev C	Elevations	21.11.2024	Urban Style Design
Dwg # 07, Rev C	Elevations	21.11.2024	Urban Style Design
Dwg # 08, Rev C	Sections	21.11.2024	Urban Style Design
Dwg # 09, Rev C	Sections	21.11.2024	Urban Style Design
Dwg # 16, Rev C	External Finishes and Colours Schedule	21.11.2024	Urban Style Design
Landscape Plans
Dwg # 23-4932 LO1 Rev B	Landscape Plan	20.11.2024	Zenith Landscape Designs
Dwg # 23-4932 LO2 Rev B	Landscape Plan	20.11.2024	Zenith Landscape Designs
Stormwater Plans
Dwg # 101 Sheet 2 Rev 4	Design Notes	04.12.2024	CSEG Pty Ltd
Dwg # 200 Sheet 3 Rev 4	Site Plan	04.12.2024	CSEG Pty Ltd
Dwg # 201 Sheet 4 Rev 4	Minor Works Design	04.12.2024	CSEG Pty Ltd
Dwg # 202 Sheet 5 Rev 4	Minor Works Long Section	04.12.2024	CSEG Pty Ltd
Dwg # 203 Sheet 6 Rev 4	Pipe Loading Design	04.12.2024	CSEG Pty Ltd
Dwg # 204 Sheet 7 Rev 4	Typical Pipe Installation Detail	04.12.2024	CSEG Pty Ltd
Dwg # 205 Sheet 8 Rev 4	First Floor Plan	04.12.2024	CSEG Pty Ltd
Dwg # 300 Sheet 9 Rev 4	First Floor Plan	04.12.2024	CSEG Pty Ltd
Dwg # 400 Sheet 10 Rev 4	Erosion and Sediment Control	04.12.2024	CSEG Pty Ltd
Dwg # 401 Sheet 11 Rev 4	Erosion and Sediment Standard Details	04.12.2024	CSEG Pty Ltd
Other Materials and Supporting Documents
Clause 4.6 Variation Request to the Floor Ratio Space Standard	26 November 2024	Planning Ingenuity
Supplementary Letter regarding Arboricultural and Landscaping Plans	27 October 2024	Ross Jackson, Jacksons Nature Works
Letter regarding Tenant Occupancy	15 November 2023	Exclusive Real Estate
Photomontage 2

23. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant shall pay the Respondent's costs thrown away in the agreed sum of $7,000 within 28 days of these orders.

2. The Applicant's written request pursuant to cl 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), prepared by Planning Ingenuity dated 26 November 2024, seeking a variation to the development standard for floor space ratio, set out in cl 4.4 of the IWLEP, is upheld.

3. The appeal is upheld.

4. Development Application No DA/2024/0309, as amended, for demolition of existing structures and construction of four, three-storey attached dwellings with car parking, each located on an existing Torrens title lot, and associated works, on land legally described as Lots 55, 56, 57 and 58, Section B DP 1663, known as 16-22 William Street, Leichhardt NSW 2040, is determined by grant of consent, subject to the conditions at Annexure A.

E Washington

Commissioner of the Court

Annexure A

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Amendments

17 February 2025 - Changed from Acting Commissioner to Commissioner in sign off at the end of the judgment.

Decision last updated: 17 February 2025