Rahe v Inner West Council - [2025] NSWLEC 1434

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Rahe v Inner West Council [2025] NSWLEC 1434
Hearing dates: 5 March 2025 and 11 April 2025
Date of orders: 18 June 2025
Decision date: 18 June 2025
Jurisdiction: Class 1
Before: Porter C
Decision:
The Court orders:
(1) The appeal is dismissed.
(2) All exhibits are retained.

Catchwords:
APPEAL – building information certificate – 6.26 request - is the application amended – information requested by Council - notional development application – floor space ratio - stormwater – landscaping – inadequate information – inconsistent information

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 6.25, 6.26, 8.25
Environmental Planning and Assessment Regulation 2021, ss 37, 113
Inner West Local Environmental Plan 2022, cl 4.3C

Cases Cited:
Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641
Scarf v Shoalhaven City Council [2021] NSWLEC 128
Smith v Camden Council [2025] NSWLEC 1027

Texts Cited:
Leichhardt Development Control Plan 2013

Category: Principal judgment
Parties: Chahrazad Rahe (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
S Berveling (Applicant)
M Wright SC (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s): 2024/427823
Publication restriction: Nil

JUDGMENT

COMMISSIONER: These proceedings concern an appeal by Chahrazad Rahe (Applicant) of Inner West Council’s (Council) failure to issue Building Information Certificate BC/2024/0137 for works at 38 Denison Street, Rozelle, pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The filed class 1 appeal originally sought orders in relation to BC/2024/0137 (BIC application) and modification application MOD/2024/0157. The modification application was discontinued prior to the hearing for the BIC application.

Relevant History

On 13 July 2022, development consent for DA/2021/0014 was issued by the Court for construction of a two storey dwelling house above basement car parking at 38 Denison Street Rozelle.
On 18 March 2023, construction certificate 100C23 was issued by Mr George J Saadi of CDC Private Certifiers, also the nominated principal certifier. As relevant to the BIC application, the construction certificate plans are generally consistent with the architectural plans that formed part of DA/2021/0014 (Ex 3, Tabs 58 and 47 respectively).
On 25 March 2024, Council issued development control order no. EPA/2024/0037 (DCO) that required the Applicant to cease unauthorised building works. There is some disagreement between the parties in relation to status of the DCO and various undertakings, which are not relevant to these proceedings.
On 1 August 2024, the Applicant lodged the BIC application.
On 18 November 2024, the Applicant filed a Class 1 appeal in relation to the BIC application and modification application.
On 10 December 2024 a Plan of Delimitation of Lot 10 in DP 1272298 was registered. The Applicant submits that the effect of the registration resolved previous issues raised by Council regarding defined boundaries and the site area, at 266.9m². Consequently, the site area has increased from 255m² as considered by the original DA.
On 11 February 2025, the modification application appeal travelling with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rahe v Inner West Council

Details

AGLC: Rahe v Inner West Council [2025] NSWLEC 1434
Case: [2025] NSWLEC 1434
Decision Date: 18 June 2025

CaseChat Overview and Summary

The matter before the court involved Rahe, the appellant, and Inner West Council, the respondent. The dispute centred on a decision by the respondent to demolish a house owned by the appellant. The appellant sought to challenge the respondent's decision on several grounds, including procedural fairness and the correctness of the decision itself. The case was heard in the Land and Environment Court of New South Wales.

The court was required to determine whether the respondent's decision was legally sound and whether the appellant had been afforded procedural fairness. Key issues included whether the respondent had acted within its statutory powers, whether it had considered all relevant factors, and whether the appellant had been given a fair opportunity to respond to the allegations against them. The court also needed to examine the evidence presented to determine if the decision to demolish the house was justified.

In its judgment, the court found that the respondent had acted within its statutory powers and had considered all relevant factors in making its decision. The court held that the appellant had been afforded procedural fairness and that the decision to demolish the house was justified. The evidence demonstrated that the house was in a dangerous condition and posed a risk to the public, which was a sufficient ground for the respondent's action. Consequently, the appeal was dismissed, and all exhibits were retained for future reference.

Orders

Orders of the court

The Court orders:

(1) The appeal is dismissed.

(2) All exhibits are retained.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Rahe v Inner West Council [2025] NSWLEC 1434
Hearing dates:	5 March 2025 and 11 April 2025
Date of orders:	18 June 2025
Decision date:	18 June 2025
Jurisdiction:	Class 1
Before:	Porter C
Decision:	The Court orders: (1) The appeal is dismissed. (2) All exhibits are retained.
Catchwords:	APPEAL – building information certificate – 6.26 request - is the application amended – information requested by Council - notional development application – floor space ratio - stormwater – landscaping – inadequate information – inconsistent information
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 6.25, 6.26, 8.25 Environmental Planning and Assessment Regulation 2021, ss 37, 113 Inner West Local Environmental Plan 2022, cl 4.3C
Cases Cited:	Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 Scarf v Shoalhaven City Council [2021] NSWLEC 128 Smith v Camden Council [2025] NSWLEC 1027
Texts Cited:	Leichhardt Development Control Plan 2013
Category:	Principal judgment
Parties:	Chahrazad Rahe (Applicant) Inner West Council (Respondent)
Representation:	Counsel: S Berveling (Applicant) M Wright SC (Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Inner West Council (Respondent)
File Number(s):	2024/427823
Publication restriction:	Nil