Langton v Inner West Council

[2025] NSWLEC 1452

Land and Environment Court

New South Wales

Medium Neutral Citation:

Langton v Inner West Council [2025] NSWLEC 1452

Hearing dates:

Conciliation Conference held 18 and 19 June 2025

Date of orders:

24 June 2025

Decision date:

24 June 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development application number DA/2024/0835, as amended, for alterations and additions to the existing detached dwelling, including partial demolition of existing structures and construction of a lower ground, ground and first floor additions on land identified as Lot 7 in Deposited Plan 1063 and known as 12 Rose Street, Annandale is determined by the grant of development consent, subject to the conditions included at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – alterations and additions – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.1, 6.6

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

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

Texts Cited:

Inner West Council, Community Engagement Strategy, 2022-24

Category:

Principal judgment

Parties:

Joanne Langton (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

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

File Number(s):

2025/31382

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA/2024/0835 seeking consent for alterations and additions to an existing detached dwelling including partial demolition of existing structures, construction of a lower ground floor, ground floor and first floor addition (Proposed Development) at 12 Rose Street, Annandale legally described as Lot 7 in DP1063 (the Site).

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 has been held on 18 and 19 June 2025. I presided over the conciliation conference.

3. As a result of discussions between the respective experts of the parties, and as evidenced in the joint expert reports filed with the Court, the Applicant has prepared amended architectural plans and an updated BASIX Certificate (Amended Materials). The parties agree that the Amended Materials together with agreed conditions of consent resolve all contentions raised in the Respondent’s Statement of Facts and Contentions filed on 21 February 2025 (SOFAC).

4. 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.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of the Inner West Local Environmental Plan 2022 (IWLEP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note provided to the Court.

8. The DA was lodged on behalf of, and with the written consent of, the Applicant by her architect.

9. The Site is located within the Zone R1 General Residential (R1 Zone) and the Proposed Development, characterised as alterations and additions to a dwelling house, is development permitted with consent in the R1 Zone.

10. The Proposed Development complies with the development standards for minimum landscaped area of 15%, providing 29% of the Site as Landscaped Area and for maximum site coverage of 60%, providing no more than 57.2% of the Site as Site Coverage as depicted in Drawing DA-61, Revision N: cl 4.3C, IWLEP.

11. Clause 4.4 of the IWLEP provides a maximum floor space ratio (FSR) development standard of 0.8:1 as being applicable to the Site and the Proposed Development complies by providing an FSR of 0.66:1 as depicted in Drawing DA-60, Revision N.

12. The Site is not a heritage item and does not adjoin any heritage items. However, it is located within the Annandale Heritage Conservation Area (HCA). Therefore, pursuant to cl 5.10(2)(a)(iii) and (4) of the IWLEP, development consent is required for the Proposal and the Respondent has considered the effect of the Proposed Development on the HCA. In this regard the parties agree that the impact of the Proposed Development on the HCA has been generally addressed in the Statement of Heritage Impact filed with the Class 1 Application. The Respondent considers that the amendments made to the design of the proposed alterations and additions will reduce the impacts on the significance of the HCA and the Court notes the agreement reached between the parties’ heritage experts in the Joint Expert Report filed 16 June 2025 at par 15 that the association with Antigone Kefala should be acknowledged through the placement of a plaque at the street frontage of the property where it can be seen by members of the public. This agreement is effected by the agreed conditions 29 and 61.

13. The Site is mapped under the IWLEP as being Class 5 land. The Site is not within 500 metres of land classed as Class 1, 2, 3 or 4 land under the IWLEP and the Proposal does not comprise works that are below 5 metres Australian Height Datum and by which the water table is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. Hence, the parties are satisfied that the Proposal is satisfactory and does not require consent under cl 6.1 of the IWLEP and an acid sulfate soils management plan is not required.

14. The Proposal includes works that satisfy the IWLEP definition of earthworks. Thus, pursuant to cl 6.2(3) of the IWLEP, the consent authority must consider the matters under (a) to (g) of the clause prior to the grant of any development consent for earthworks. The parties have considered the DA (in particular the Geotechnical Investigation at Tab 6 of the Class 1 Application) in relation to cl 6.2(3)(a) to (g) of the IWLEP and are satisfied that it addresses those matters of consideration, subject to the agreed conditions of consent.

15. There are a number of provisions which relate to water in terms of flooding, stormwater management and water quality.

16. Firstly, the Site is not identified as a flood control lot. Nevertheless, the Respondent has considered subcll 5.21(2) and (3) of the IWLEP and based on the concept stormwater plans filed at Tab 11 of the Class 1 Application and the agreed conditions of consent, is satisfied with the Proposed Development.

17. Secondly, regarding stormwater management, pursuant to cl 6.3(3) of the IWLEP, development consent must not be granted unless the consent authority is satisfied that the development:

(a)  is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b)  includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)  avoids a significant adverse impact of stormwater runoff on adjoining properties, native bushland and receiving waters, or if an impact cannot be reasonably avoided, minimises and mitigates the impact.

18. Based on the concept stormwater plans filed at Tab 11 of the Class 1 Application and the agreed conditions of consent, the Proposed Development is satisfactory because:

1. The Proposal has been designed to maximise water permeable surfaces, noting compliance with the minimum landscaped area development standard;

2. The proposal includes on-site retention of stormwater through a proposed rainwater tank; and

3. The amended concept stormwater plans of the Amended Materials propose a suitable stormwater drainage system which, subject to conditions, will ensure adverse impacts of stormwater runoff are minimised.

19. Finally, having considered the relevant matters under s 6.6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, the Proposed Development will have a neutral effect on the quality of water entering waterways.

20. The Amended Materials includes an amended BASIX certificate which also includes a materials index to calculate and report on the embodied emissions as required by s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

21. The Respondent carried out notification of the Proposed Development between 15 October 2024 and 29 October 2024 and five submissions were received by the Respondent. None of the objectors registered or attended to address the Court at the Site inspection.

22. The Respondent has considered the Submissions and is satisfied that the Amended Materials have addressed the issues raised, to the extent warranted in the circumstances. As the Amended Materials result in the Proposed Development being a lesser development with reduced impacts, the Respondent is satisfied, pursuant to the Inner West Council, Community Engagement Strategy, 2022-24, that no further notification is required.

23. 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. I adopt the reasons given by the parties as set out in this judgment.

24. 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.

Notations:

25. The Court notes that:

1. The Respondent has agreed to the Applicant amending the Class 1 Application, pursuant to subss 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to rely on the following additional and amended materials:

1. Architectural plans (Revision N) prepared by Alexander Symes Architect, dated 16 June 2025:

a) Cover Page and Drawing Register

b) DA-01 – Existing Site Plan and Site Analysis Plan

c) DA-02 – Proposed Site Plan

d) DA-03 – Lower Ground Floor Demolition Plan

e) DA-04 – Ground Floor Demolition Plan

f) DA-05 – First Floor Demolition Plan

g) DA-06 – Demolition Roof Plan

h) DA-07 – Lower Ground Floor Plan

i) DA-08 – Ground Floor Plan

j) DA-09 – First Floor Plan

k) DA-10 – Proposed Roof Plan

l) DA-11 – Elevation-West

m) DA-12 – Elevation-North

n) DA-13 – Elevation-East

o) DA-14 – Elevation-South

p) DA-15 – Section A

q) DA-16 – Section B

r) DA-17 – Section C

s) DA-18 – Shadow Diagrams-9AM Winter

t) DA-19 – Shadow Diagrams-10AM Winter

u) DA-20 – Shadow Diagrams-11AM Winter

v) DA-21 – Shadow Diagrams-12PM Winter

w) DA-22 – Shadow Diagrams-1PM Winter

x) DA-23 – Shadow Diagrams-2PM Winter

y) DA-24 – Shadow Diagrams-3PM Winter

z) DA-25 – Landscape Concept Plan

aa) DA-60 – FSR Calculation Sheet

ab) DA-61 – Site Coverage Sheet

ac) DA-62 – Landscape Area Sheet

ad) DA-72 – View from Sun (9am)

ae) DA-73 – View from Sun (10am)

af) DA-74 – View from Sun (11am)

ag) DA-75 – View from Sun (12pm)

ah) DA-76 – View from Sun (1pm)

ai) DA-77 – View from Sun (2pm)

aj) DA-78 – View from Sun (3pm)

2. BASIX Certificate reference number A1760780_02 prepared by Alexander Symes Architect Pty Ltd, dated 17 June 2025

3. Arboricultural Impact Assessment (v2) prepared by Arbor Express, dated 3 April 2025

2. The Applicant provided the Court with the abovementioned amended materials (with the consent of the Respondent) on 19 June 2025.

Orders:

26. The Court orders:

1. The appeal is upheld.

2. Development application number DA/2024/0835, as amended, for alterations and additions to the existing detached dwelling, including partial demolition of existing structures and construction of a lower ground, ground and first floor additions on land identified as Lot 7 in Deposited Plan 1063 and known as 12 Rose Street, Annandale is determined by the grant of development consent, subject to the conditions included at Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A (257 KB, pdf)

Decision last updated: 24 June 2025