Kanazaki v Inner West Council

[2025] NSWLEC 1708

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kanazaki v Inner West Council [2025] NSWLEC 1708

Hearing dates:

Conciliation conference 23 September 2025

Date of orders:

30 September 2025

Decision date:

30 September 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away in the agreed quantum of $6,000 within 28 days of these orders.

(2) The appeal is upheld.

(3) Development Application DA/2023/1003 for alteration and additions to an existing dwelling, including a lower ground floor extension, internal reconfiguration of ground floor and the construction of a new first floor addition at rear, new detached pool and single hard stand car parking space at 15 Slade Street, Rozelle is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – heritage conservation area – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.15

Land and Environmental Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, s 6.6

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

State Environmental Planning Policy (Sustainable Buildings) 2022

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Category:

Principal judgment

Parties:

Ria Kanazaki (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
J Marsland (Solicitor) (Respondent)

Solicitors:
Storey and Gough Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/389451

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 of DA/2023/1003. The development application seeks development consent foralterations and additions to an existing contributory dwelling (DA) at 15 Slade Street, Rozelle (Lot 50 in Deposited Plan 1273864 and Lot 57 in Deposited Plan 1274013) (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) to the Applicant amending DA/2023/1003 in accordance with the documents listed below (amended DA):

Plan, Revision and Issue No.	Plan Name	Date Issued/Received	Prepared by
DA2.03 rev F	Ground floor demolition plan	03 June 2025	Bayside Built
DA3.02 rev H	Proposed lower ground floor	03 June 2025	Bayside Built
DA3.03 rev H	Proposed ground floor	03 June 2025	Bayside Built
DA3.04 rev H	Proposed mezzanine floor	03 June 2025	Bayside Built
DA3.05 rev H	Proposed roof plan	03 June 2025	Bayside Built
DA4.01 rev G	Sections AA, BB	03 June 2025	Bayside Built
DA4.02 rev F	Sections CC, DD, EE	03 June 2025	Bayside Built
DA5.01 rev F	General elevations	03 June 2025	Bayside Built
DA7.01 rev C	Materials board	03 June 2025	Bayside Built
A1745394_03	BASIX Certificate	16 June 2025	Bonnefin Consulting Pty Ltd
DA-001 rev B	Landscape Plan	12 June 2025	Growing rooms
DA-002 rev B	Planting Plan	12 June 2025	Growing rooms
DA-003 rev B	Specifications / Details	12 June 2025	Growing rooms
D00 Rev A	Concept stormwater drawings for proposed alterations and additions	12 June 2025	Smart Structures Australia
D01 Rev B	Lower ground floor stormwater drainage plan	13 June 2025	Smart Structures Australia
D02 Rev B	Ground floor stormwater drainage plan	13 June 2025	Smart Structures Australia
D04 Rev A	Roof stormwater drainage plan	12 June 2025	Smart Structures Australia
D10 Rev A	Stormwater drainage sections and details sheet 1	12 June 2025	Smart Structures Australia
D11 Rev B	Stormwater drainage sections and details sheet 2	13 June 2025	Smart Structures Australia
D15 Rev A	Erosion and sediment control plan and details	12 June 2025	Smart Structures Australia
SK1 rev 5 (5 pages)	Structural drawings	10 June 2025	SMART Structures Australia
Traffic Letter	13 June 2025	TTPA

3. These proceedings were initially listed for a hearing on 23-24 September 2025. Prior to the hearing commencing and subject to the above amendments, the parties agreed that the contentions had been resolved and requested a conciliation conference. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 23 September 2025. I presided over the conciliation conference.

4. 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.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there “are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement” and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

7. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]). For the reasons set out below, 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.

Owners consent

8. I am satisfied that owners’ consent has been provided for the DA as the Applicants are the owners.

Community notification and objections

9. The Respondent notified the DA between 5 December 2023 to 19 December 2023 and 26 August 2025 and 9 September 2025. During the first notification period, two submissions were received. Two submissions were received during the second notification period.

10. At the commencement of the conciliation, one objector expressed their concerns orally and through a written objection. The Court and parties were assisted by hearing these concerns. As the parties have reached agreement, the Court is not able to consider the merits of the proposal. The parties have taken the Court through their consideration of the concerns raised by the objector in the amended DA.

Inner West Local Environmental Plan 2022

11. The site is zoned R1 General Residential under the Inner West Local Environmental Plan 2022 (IWLEP). The proposed development for alterations and additions to a dwelling house is permitted with consent and the parties have had regard to the objectives of the zone.

12. The parties agree and I accept that the following applicable IWLEP provisions are met:

1. Clause 2.7 requires development consent for minor demolition works, as proposed within the amended DA.

2. Clause 4.3C landscaped areas for residential accommodation in Zone R1 requires more than 20% landscaped area and less than 60% site coverage. The proposal results in 29.5% landscaping and 40% site coverage.

3. Clause 4.4(2B) floor space ratio (FSR) applies to the site, with a maximum FSR of 0.8:1. The architectural plans demonstrate that the proposed FSR is 0.73:1.

4. Clause 5.10 heritage conservation applies to the site, which is located in the Valley Conservation Area. With consideration of the Amended Heritage Impact Statement prepared by Damian O’Toole Town Planning and Heritage Services (HIS) and Jurisdictional Statement, I accept that the provisions have been adequately considered.

5. Clause 6.3 stormwater management applies to the amended DA. On the basis of the Floor Report prepared by NY Civil Engineering dated 5 May 2025 and Stormwater Plans prepared by NY Civil Engineering Issue A (stormwater plans) and enforced through the conditions of consent, I accept the parties’ agreement that the provisions are met.

Environmental Planning and Assessment Regulation 2021 and State Environmental Planning Policy (Sustainable Buildings) 2022

13. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate that meets the provisions of s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) and the State Environmental Planning Policy (Sustainable Buildings) 2022.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site, which is located within the Sydney Harbour Catchment. The site is not located in the Foreshores Waterways Area and is not adjacent to any waterway. Accordingly, I accept that only s 6.6 applies.

15. The amended DA is accompanied by stormwater plans that demonstrate how stormwater impacts from the amended DA have been minimised. In particular, the parties set out in the jurisdictional statement the that the quality of water will be neutral through the stated sediment controls during construction and the stormwater plans demonstrate acceptable ongoing management of water and water quality, including use of an existing easement. The stormwater plans form part of the conditions of consent at Annexure A and further conditions within Annexure A. I accept that the proposed development is unlikely to have an adverse environmental impact.

16. With consideration of the above and the jurisdictional statement, the parties agree and I accept that the provisions of SEPP BC have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The HIS details the site’s history of residential use for many years. There is no evidence of any contamination. Accordingly, the parties agree and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

Heads of consideration

18. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

19. 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.

20. 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.

21. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

22. The Court orders:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away in the agreed quantum of $6,000 within 28 days of these orders.

2. The appeal is upheld.

3. Development Application DA/2023/1003 for alteration and additions to an existing dwelling, including a lower ground floor extension, internal reconfiguration of ground floor and the construction of a new first floor addition at rear, new detached pool and single hard stand car parking space at 15 Slade Street, Rozelle is determined by the grant of consent subject to conditions contained in Annexure A.

S Porter

Commissioner of the Court

Annexure A.349 KB.pdf

**********

Amendments

03 October 2025 - 3 October 2025 – Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip" rule) the final sentence of paragraph [9] has been amended from "no" to "two".

Decision last updated: 03 October 2025