Kirris v Inner West Council

[2025] NSWLEC 1673

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kirris v Inner West Council [2025] NSWLEC 1673

Hearing dates:

Conciliation Conference 5 September 2025

Date of orders:

17 September 2025

Decision date:

17 September 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA/2024/0893, as amended, for alterations and additions to an existing dwelling, including partial demolition of existing structures, construction of ground floor, first floor addition and associated works including parking space accessed from rear lane and pool in the rear yard, at 241 Lilyfield Road, Lilyfield NSW 2040, also known as Lot 1 in Deposited Plan 1303588, is determined by the grant of consent, subject to the conditions at Annexure A.

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

(4)   The applicant’s written request under cl 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), prepared by Patch Planning & Development dated 18 August 2025, seeking a variation of the development standard for floor space ratio set out in cl 4.4 of the IWLEP is upheld.

(5) The applicant’s written request under cl 4.6 of the IWLEP, prepared by Patch Planning & Development dated 14 August 2025, seeking a variation of the development standard for landscaped area set out in cl 4.3C(3)(a) of the IWLEP is upheld.

(6) The applicant’s written request under cl 4.6 of the IWLEP, prepared by Patch Planning & Development dated 14 August 2025, seeking a variation of the development standard for site coverage set out in cl 4.3C(3)(b) of the IWLEP is upheld.

Catchwords:

APPEAL – Development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.10, 8.11, 8.14, 8.15

Land and Environment Court Act 1979 (NSW), ss 17, 34

Environmental Planning and Assessment Regulation 2021, ss 37, 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4,6

State Environment Planning Policy (Sustainable Buildings) 2022

Category:

Principal judgment

Parties:

Daniel Kirris (First Applicant)
Taya Kirris (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Hanna (Solicitor) (Applicants)
N Sheerazi (Solicitor) (Respondent)

Solicitors:
Merc Capital (Applicants)
Inner West Council (Respondent)

File Number(s):

2025/90259

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicants against the respondent’s deemed refusal of the applicants’ development application (DA/2024/0893) (Development Application) for alterations and additions to an existing attached dwelling house, including partial demolition of existing structures, construction of ground floor, first floor addition with balcony and associated works including parking spaces accessed from the rear lane and pool in the year yard, on land identified as Lot 1 in Deposited Plan 1303588, known as 241 Lilyfield Road, Lilyfield NSW 2040 (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 22 October 2024.

4. On 7 March 2025, the proceedings were commenced against the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

5. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was ultimately terminated.

6. Following the s 34 conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement reached is for consent to be granted to the Development Application in a modified form, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

7. The agreed amendments include:

1. increasing the rear first-floor setback of the development from Perry Lane so as to increase view sharing with adjoining property, 239 Lilyfield Road, Lilyfield;

2. introduction of a small balcony; and

3. amending the types of trees proposed to be planted,

(Amended Development Application).

8. 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 considerations

9. 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 for the reasons that follow.

Owner’s consent

10. The applicants are the registered proprietor of the Subject Land and provided consent to the Development Application as lodged (see Class 1 Application, tab 1).

11. For completeness, I note that the amended plans include the retention of the party wall on the boundary of the Subject Land and 239 Lilyfield Road, Lilyfield. The parties agree, and I accept, that no works are proposed on adjoining land (see also Condition 6 of the Agreed Conditions in Annexure A).

State Environment Planning Policy (Sustainable Buildings) 2022

12. The Amended Development Application is accompanied by an updated BASIX certificate prepared by Sustainability-Z Pty Ltd dated 18 August 2025 in accordance with the State Environmental Planning Policy (Sustainable Buildings) 2022 and the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation). Further, the Amended Development Application is accompanied by an Embodied Emissions Report prepared by the Newton Fisher Group dated 9 September 2025 which quantifies the embodied emissions attributable to the development.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events (see also the Statement of Environmental Effects prepared by Patch Planning & Development dated 19 August 2025 (SEE), p 16).

State Environmental Planning Policy (Biodiversity and Conservation)2021

14. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the proposed development as the Subject Land is located within the Sydney Harbour Catchment. Part 6.2 of Ch 6 of the BC SEPP sets out various matters in relation to which the consent authority must be satisfied, or must consider, before granting development consent.

15. The parties submit, and I accept, that the Amended Development Application will not have any significant impact on the environmental quality of the Syndey Harbour Catchment, and the matters for consideration and satisfaction under Pt 6.2 have been addressed in the Amended Stormwater Drainage Plans prepared by E2 Civil & Structural Design, dated 21 June 2024.

16. I otherwise accept the parties’ consideration of the matters in Pt 6.2 of the BC SEPP as set out in the jurisdictional statement.

Inner West Local Environmental Plan 2022

17. The Subject Land is zoned R1 General Residential under the Inner West Local Environmental Plan 2022 (IWLEP). Accordingly, the proposed development is permissible with consent in the R1 zone. I have had regard to the zone objectives which are extracted below:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide residential development that maintains the character of built and natural features in the surrounding area.

18. Pursuant to cl 4.3C of the IWLEP relating to landscaped areas for residential accommodation in Zone R1, development consent must not be granted to development unless the development will result in a specified landscaped area pursuant to cl 4.3C(3)(a) (Landscape Standard) and the site coverage does not exceed 60% of the specified area pursuant to cl 4.3C(3)(b) (Site Coverage Standard). The Amended Development Application proposes a:

1. variation of 27.5% to the Landscape Standard (providing for a landscaped area equivalent to 10.9% of the Subject Land as opposed to the required minimum of 15%); and

2. variation of 17.5% to the Site Coverage Standard (providing a site coverage of 70.5% as opposed to the required maximum of 60%).

19. As such, the Amended Development Application seeks to vary the Landscape Standard and Site Coverage Standard and is supported by a:

1. Clause 4.6 request seeking to vary the Landscape Standard prepared by Patch Planning & Development dated 14 August 2025 (Landscape Standard Request); and

2. Clause 4.6 request seeking to vary the Site Coverage Standard prepared by Patch Planning & Development dated 14 August 2025 (Site Coverage Standard Request).

20. In respect of the Landscape Standard, the Landscape Standard Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6(3) of the IWLEP and concludes that:

1. Compliance with the Landscape Standard is unreasonable or unnecessary in the circumstances because:

1. The Amended Development Application achieves the objectives of the Landscape Standard set out in cl 4.3C(1) of the IWLEP, despite the numerical non-compliance. The landscaped area proposed will:

1. allow for additional grasses, shrubs and trees to be planted for the use and enjoyment of residents;

2. introduce landscaped corridors between adjoining properties;

3. promote the desired character of the neighbourhood;

4. encourage ecologically sustainable development by increasing pervious surfacing, environmental management of stormwater run-off and infiltration and temperature control; and

5. retain the low density residential nature of the site.

2. The Subject Land presently contains nil landscaped area and the Amended Development Application therefore proposes significantly more landscaped area than currently exists.

2. There are sufficient environmental planning grounds to justify the contravention because:

1. The Subject Land accommodates a low-density residential dwelling, which currently provides no landscaped area pursuant to the relevant definition in the IWLEP. The existing site therefore does not provide for the growth of grasses, shrubs or trees and the proposal will drastically improve this situation.

2. The enhancement of landscaped area in the Amended Development Application promotes both the orderly and economic use of land, and good design and amenity of the built environment.

21. Having regard to the Landscape Standard Request, I am satisfied that the applicant has demonstrated that compliance with the Landscape Standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the Landscape Standard in accordance with the requirements under cl 4.6(3) of the IWLEP.

22. In respect of the Site Coverage Standard, the Site Coverage Standard Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6(3) of the IWLEP and concludes that:

1. Compliance with the Site Coverage Standard is unreasonable or unnecessary in the circumstances because:

1. The Amended Development Application achieves the objectives of the Site Coverage Standard set out in cl 4.3C(1) of the IWLEP (being the same as those for the Landscape Standard), despite the numerical non-compliance. This is largely due to the increased landscaping to be provided which, as with the Landscape Standard Request will:

1. allow for additional grasses, shrubs and/or trees to be planted for the use and enjoyment of residents;

2. introduce landscaped corridors between adjoining properties;

3. promote the desired character of the neighbourhood;

4. encourage ecologically sustainable development by increasing pervious surfacing, environmental management of stormwater run-off and infiltration and temperature control; and

5. retain the low density residential nature of the site.

2. The Subject Land presently contains nil landscaped area and the Amended Development Application therefore proposes significantly more landscaped area than currently exists which supports the exceedance in site coverage.

2. There are sufficient environmental planning grounds to justify the contravention because:

1. The Subject Land accommodates a low-density residential dwelling which currently exceeds the Site Coverage Standard notwithstanding the proposal. The existing dwelling does not contain sufficient living spaces for the occupants, and the proposed extension comprises a modest addition.

2. 16.3m² of additional site coverage is derived from the cantilevered first floor extension, and the swimming pool and associated plant room. Notably, underneath the cantilevered first floor will be landscaped area, free of any structures, and the swimming pool does not add to the bulk, scale, or massing of the site.

3. The minor extension to site coverage promotes the orderly and economic use of the land and promotes good design and amenity of the built environment.

23. In respect of the Site Coverage Standard Request, I am satisfied that the applicant has demonstrated that compliance with the Site Coverage Standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the Site Coverage Standard in accordance with the requirements under cl 4.6(3) of the IWLEP.

24. Pursuant to cl 4.4(2) of the IWLEP relating to floor space ratio (FSR), a maximum FSR standard of 0.8:1 applies to the Subject Land (FSR Standard). The Amended Development Application proposes a FSR of 1.01:1 and is supported by a cl 4.6 variation request prepared by Patch Planning & Development dated 18 August 2025 (FSR Request).

25. In respect of the FSR Standard, the FSR Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6(3) of the IWLEP and concludes that:

1. Compliance with the FSR Standard is unreasonable or unnecessary in the circumstances because:

1. The Amended Development Application achieves the objectives of the FSR Standard set out in cl 4.4(1) of the IWLEP, despite the numerical non-compliance. This is because the proposal will retain the low-density nature of the dwelling and is consistent with the prevailing character of the locality, minimise adverse impacts on local amenity through a sensitive design having regard to the surrounding pattern and grain of development, retain tree canopy, and there will be an increase in landscaped area.

2. The Subject Land presently exceeds the FSR Standard notwithstanding the proposal and any addition to the dwelling would constitute a variation.

2. There are sufficient environmental planning grounds to justify the contravention because:

1. The Subject Land accommodates a low-density residential dwelling which currently exceeds the FSR Standard notwithstanding the proposal. The existing dwelling does not contain sufficient living spaces for the occupants, and the proposed extension comprises a modest addition.

2. The minor FSR exceedance proposed by the Amended Development Application promotes both the orderly and economic use of land and promotes good design and amenity of the built environment.

26. Having regard to the FSR Request, I am satisfied that the applicant has demonstrated that compliance with the FSR Standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the FSR Standard in accordance with the requirements under cl 4.6(3) of the IWLEP.

27. Pursuant to cl 6.1 of the IWLEP relating to acid sulfate soils, the parties agree and I accept that the proposal is unlikely to lower the water table below 1m AHD and this clause is not enlivened.

28. Pursuant to cl 6.2 of the IWLEP relating to earthworks, the parties agree and I accept that the earthworks proposed are minor and there is no impediment to the grant of consent having regard to this clause.

29. Pursuant to cl 6.3 of the IWLEP relating to stormwater management, development consent must not be granted unless the consent authority is satisfied of the matters listed in cl 6.3(3). Having regard to the Amended Stormwater Drainage Plans prepared by E2 Civil and Structural Design dated 21 June 2024 and the Agreed Conditions (in particular Condition 18 in Annexure A), I accept that the matters in cl 6.3(3) have been satisfied.

Remaining matters under s 4.15(1) of the EPA Act

30. The matters set out in s 4.15(1), subss (b), (c) and (e) of the EPA Act are addressed in the SEE (see p 29).

31. For the purposes of s 4.15(1)(d) of the EPA Act, the Development Application was notified in accordance with the respondent’s Community Engagement Framework from 29 October to 12 November 2024.

32. Five submissions were received raising issues regarding:

1. View corridor and view loss;

2. Bulk and scale including inadequate setbacks;

3. Streetscape character;

4. Variation to development standards;

5. Solar access impacts;

6. Visual privacy impacts

7. The existing common wall within the rear yard;

8. Inadequacy of the documentation submitted;

9. Landscaping; and

10. Proposed materials and colour.

33. Further amended architectural plans prepared by AUDAA dated 17 February 2025 were received by the respondent on 26 February 2025 and the Development Application was re-notified from 18 March to 1 April 2025. Two submissions were received upon re-notification, one in support and one in objection.

34. A further submission was provided on 4 September 2025, and a resident addressed the Court at the s 34 conference on 5 September 2025 raising further concerns regarding view loss, accuracy of plans, impacts to the party wall and adequacy of documentation.

35. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

36. 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.

37. 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.

38. The Court notes that:

1. The respondent, as the relevant consent authority, has approved under ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending Development Application No DA/2024/0893 in accordance with the following amended plans and reports:

Plans

Plan, Revision and Issue No.	Plan Name	Date	Prepared by
Sheet No. A102 with rear setback dimension	Site Plan / Site Coverage	14/08/2025	Architecture & Urban Design Atelier Australia
Sheet No. A105	Ground Floor Demolition Plan	14/08/2025	Architecture & Urban Design Atelier Australia
Sheet No. A106	First Floor Demolition Plan	14/08/2025	Architecture & Urban Design Atelier Australia
Sheet No. A107 with rear setback dimension	Ground Floor Plan	14/08/2025	Architecture & Urban Design Atelier Australia
Sheet No. A108 Rev 2 the rear setback dimension	First Floor Plan	14/08/2025	Architecture & Urban Design Atelier Australia
Sheet No. A109 with rear setback dimension	Roof Plan	14/08/2025	Architecture & Urban Design Atelier Australia
Sheet No. A110	Landscape Plan	14/08/2025	Architecture & Urban Design Atelier Australia
Sheet No. A113	Car Park Plan	14/08/2025	Architecture & Urban Design Atelier Australia
Sheet No. A200	North & South Elevations	14/08/2025	Architecture & Urban Design Atelier Australia
Sheet No. A201	East & West Elevations	14/08/2025	Architecture & Urban Design Atelier Australia
Sheet No. A202	External North Elev & Sections	14/08/2025	Architecture & Urban Design Atelier Australia
Sheet No. A400	Schedule of Colours & Materials	14/08/2025	Architecture & Urban Design Atelier Australia

Reports and Documents

Document Title	Date	Prepared by
Visual Impact Assessment	14/08/2025	Urbaine Design Group
Written Clause 4.6 Variation request, FSR	18/08/2025	Patch Planning & Development
Written Clause 4.6 Variation request – Site Coverage	14/08/2025	Patch Planning & Development
Written Clause 4.6 Variation request – Landscaping	14/08/2025	Patch Planning & Development
Statement of Environmental Effects	19/08/2025	Patch Planning & Development
BASIX Certificate	18/08/2025	Sustainability-Z
Registered Plan of Redefinition	7/06/2024	Ivan Babic
Embodied Emissions Report	9/09/2025	Newton Fisher Group

2. The above documents were provided to the Court on 3 and 10 September 2025.

Orders

39. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/2024/0893, as amended, for alterations and additions to an existing dwelling, including partial demolition of existing structures, construction of ground floor, first floor addition and associated works including parking space accessed from rear lane and pool in the rear yard, at 241 Lilyfield Road, Lilyfield NSW 2040, also known as Lot 1 in Deposited Plan 1303588, is determined by the grant of consent, subject to the conditions at Annexure A.

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

4. The applicant’s written request under cl 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), prepared by Patch Planning & Development dated 18 August 2025, seeking a variation of the development standard for floor space ratio set out in cl 4.4 of the IWLEP is upheld.

5. The applicant’s written request under cl 4.6 of the IWLEP, prepared by Patch Planning & Development dated 14 August 2025, seeking a variation of the development standard for landscaped area set out in cl 4.3C(3)(a) of the IWLEP is upheld.

6. The applicant’s written request under cl 4.6 of the IWLEP, prepared by Patch Planning & Development dated 14 August 2025, seeking a variation of the development standard for site coverage set out in cl 4.3C(3)(b) of the IWLEP is upheld.

N Targett

Commissioner of the Court

Annexure A (248 KB, pdf)

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Amendments

25 September 2025 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, with the parties consent, the date for the “Written Clause 4.6 Variation request, FSR” referred to in the second table at paragraph 38(1) of the judgment and order 4 has been amended to 18 August 2025.

Decision last updated: 25 September 2025