Studio Johnston Architects Pty Ltd v Inner West Council

[2025] NSWLEC 1354

Land and Environment Court

New South Wales

Medium Neutral Citation:

Studio Johnston Architects Pty Ltd v Inner West Council [2025] NSWLEC 1354

Hearing dates:

Conciliation conference on 9 May 2025

Date of orders:

21 May 2025

Decision date:

21 May 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The applicant is granted leave to amend the application.

(2) The applicant is to pay the respondent costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(3) The appeal is upheld.

(4) Development Application No. 2023/1124, as amended, for alterations and additions to the existing heritage-listed dwelling, construction of two attached dwellings at the rear of the site (multi-dwelling housing), excavation, Category 1 remediation work and associated removal of all existing trees, at 1 Campbell Lane, Balmain, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling housing and alterations and additions to an existing Victorian villa – heritage item – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.15, 8.7

Fisheries Management Act1994, s 201

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Inner West Local Environmental Plan 2022, cll 4.3C, 4.4, 5.10, 5.21, 6.2, 6.3, 6.5, 6.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.28, 6.32, 6.33

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.12, 2.13, 4.6

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Studio Johnston Architects Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
R White (Respondent)

Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/126860

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2023/1124 for multi-dwelling housing comprising of three dwellings, including alterations and additions to the existing dwelling and construction of two attached dwellings over basement parking, tree removal, landscaping, boat shed and slipway, reconstruction and raising the level of the seawall and a new swimming pool (the proposal), at 1 Campbell Lane, Balmain (the site), by Inner West Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 May 2025. I presided over the conciliation conference. 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. 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.

3. 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 preconditions to the exercise of power to grant development consent for the proposal.

The application is amended

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are set out at Annexure B.

The site and its context

5. The site is accessed across a side boundary to Campbell Lane. The site has a north-eastern frontage to Mort Bay.

6. The site’s south-western rear boundary is shared with 15 and 17 Trouton Street, and the north-western side boundary is shared with 19, 21 and 23 Thames Street. The site has a narrow pedestrian access from Trouton Street between 17 and 19 Trouton Street.

7. The site has an area of 1,756.8m². The site contains a two-storey Victorian dwelling with a single storey rear wing.

The proposal

8. The existing dwelling is a two-storey Victorian Georgian stone villa orientated to the harbour, with verandahs along both levels of the primary elevation and a single storey rear wing. The proposal is to carry out internal alterations and additions to the existing dwelling and restoration works, as well as additions to the rear wing. The proposal includes a basement level to the existing dwelling with a plant room and cellar.

9. The proposal includes a basement garage accessed from Campbell Lane, with parking for each dwelling on the site. There are 2 two-storey attached dwellings proposed for the rear of the site, both with pedestrian access from Campbell Lane and the western pavilion with pedestrian access also from Trouton Street.

10. The proposal is to remove the trees on the site, de-contaminating the site and provide new landscaping. The proposal includes a new swimming pool and boatshed at the foreshore frontage of the site.

11. The proposal is to reconstruct and raise the seawall to a height of RL2.0.

Public submissions

12. The Court, in the company of the parties and their experts, viewed the site from 15 and 17 Trouton Street and 19 and 23 Thames Street on 7 April 2025. Two resident objectors and a representative of another two resident objectors gave evidence on site. Their concerns can be summarised as:

• The removal of the Camphor Laurel (Tree 4) on the southern side of the existing dwelling will compromise the visual amenity of 19 Thames Street; and the proposed attached dwellings will impinge on the visual amenity of 19 Thames Street, and they are an overdevelopment of the site;

• The proposed attached dwellings will impinge on the visual amenity and obstruct the views of the harbour from the ground floor rear open space and living areas of 15 and 17 Trouton Street; and

• The proposed pavilion in the foreshore setback of the existing dwelling will compromise the amenity of the units at 23 Thames Street because it will occupy the landscaped foreshore area, the rooftop is trafficable and the side elevation is a blank wall.

Expert evidence

13. The applicant relied on the expert evidence of John Oultram (heritage), Anthony Betros (town planning), Peter Castor (arboriculture), Rebecca Organo (contamination) and Peter Horton (coastal engineering).

14. The Council relied on the expert evidence of Sinclair Croft (heritage), Eltin Miletic (town planning), Melanie Howen (arboriculture) and Bredan Page (contamination).

Jurisdiction pre-conditions and mandatory considerations to the grant of consent

15. Chapter 2 - Coastal Management of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to all land within the coastal zone. The site is identified as being within the “Coastal use area” and “Coastal Environment Area”. Sections 2.12 and 2.13 of the Resilience and Hazards SEPP provide that a consent authority must not grant development consent to development in costal zones generally unless it is satisfied that the proposed development is not likely to cause increased risk of coastal hazard and has taken into consideration the relevant provisions of any certified coastal management program. The Geotechnical Investigation prepared by Crozier dated 26 October 2023 provides recommendations to ensure geotechnical hazards, if any, will be mitigated or avoided. I am satisfied that the development is not likely to cause increased risk of coastal hazards on the land at the site, or other land; and in relation to s 2.13, no certified coastal management program applies to the site.

16. The application has sought consent for Category 1 Remediation Work and is accompanied by an Amended Remediation Action Plan prepared by JK Environments dated 3 April 2025 (RAP). The RAP and its recommendations have been incorporated into the Conditions of Consent. On the basis of the agreement of the contamination experts, I am satisfied that the site will be appropriately remediated as part of the development, pursuant to s 4.6(1)(c) of the Resilience and Hazards SEPP.

17. The application proposes to dismantle and rebuild the existing seawall and construct a skid ramp. Accordingly, a permit to carry out dredging or reclamation work is required under s 201 of the Fisheries Management Act1994. On 24 February 2025, the Department of Primary Industries and Regional Development issued General Terms of Approval to the application.

18. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity) applies to the proposal because the site is located within the Sydney Harbour Catchment. I am satisfied that the proposal is consistent with Ch 6 for the following reasons:

• To the extent that the matters to be considered under Ch 6 relate to the impact on the natural water body, the Department of Primary Industries and Regional Development has issued General Terms of Approval to the application.

• Pursuant to s 6.6, the stormwater plans include appropriate controls for treatment and control of stormwater run-off; and propose a stormwater arrangement which has been designed to improve the quality of stormwater and minimise pollutant transfer to receiving waters. The application is also accompanied by a statement confirming compliance with s 6.6.

• Pursuant to s 6.7, the development will not have an impact on terrestrial, aquatic or migratory animals, vegetation or aquatic reserves; the development will not involve the clearing of riparian vegetation; the development is designed to minimise stormwater runoff and will therefore minimise or avoid the erosion of land abutting a natural waterbody or sedimentation of a natural waterbody; the development is designed to avoid adverse impacts on wetlands and protect aquatic ecology.

• Pursuant to s 6.8, the development will not result in the release of pollutants that may have an adverse impact on water quality of a natural waterbody or on the natural recession of floodwaters into wetlands or other riverine ecosystems.

• Pursuant to s 6.9, the site is not located in the direct vicinity of any public access points to natural waterbodies and therefore will not have an impact on those areas.

• Pursuant to s 6.10, the development is not likely to have an adverse environmental impact.

• Pursuant to s 6.11, the site is within 100m of Mort Bay, which is part of Sydney Harbour. The use of the land is residential and there will be no conflicts between land uses.

• As the site is located in the Foreshores and Waterways Area, the matters under s 6.28 are addressed by the application and have been considered.

• Pursuant to s 6.32, the northern part of the site is identified as a significant seagrass area on the Rocky Foreshores and Significant Seagrasses Map. As set out in the Marine Habitat Survey prepared by Waterfront Surveys dated 28 August 2024, the development will seek to avoid and minimise impacts on seagrasses.

• The proposed boatshed is consistent with the matters listed under s 6.33.

19. The site is zoned R1 General Residential under the Inner West Local Environmental Plan 2022 (LEP 2022) and the proposal for multi-dwelling housing is a nominate use permitted with consent. The objectives of the zone, to which regard must be had, are:

• 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.

20. Pursuant to cl 4.3C of LEP 2022, 20% of the site area is to be landscaped area and the site coverage is not to exceed 60%. The proposal complies with the terms of cl 4.3C with a total landscaped area (calculated in accordance with the definition of landscaped area) of 20.3% and a site coverage of 42%.

21. The proposal complies with the floor space ratio development standard under cl 4.4 of LEP 2022 of 0.7:1. There is no height of buildings development standard applying to the site under LEP 2022.

22. The site is listed as a local heritage item (Item 477, ‘The Old Place” including interiors) and is within the Waterview Estate Heritage Conservation Area under LEP 2022. Pursuant to cl 5.10(4) of LEP 2022, the consent authority must, before granting consent in respect of a heritage item or a heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. There are heritage items within the vicinity of the site.

23. The Leichhardt Development Control Plan 2013 (DCP 2013) applies to the site. The objectives of section C1.4 include that new development protects and enhances views of the existing building from the public domain.

24. Control C7 of section C1.12 of DCP 2013 is for existing trees on the site and on adjoining sites to be protected from root damage and/or substantial canopy pruning. Objectives for tree management, at C1.14, include to protect trees within ad adjacent to development sites, to manage the urban landscape so trees continue to make a significant contribution to its quality, character an amenity, and to maintain and enhance the amenity of the Inner West Local Government Area.

25. The Leichhardt Heritage Study includes a heritage inventory sheet for the site dated 23 July 1989, which is cited as a source on the State Heritage Inventory listing sheet (the listing sheet). The description of the place in the Leichhardt Heritage Study is, “Two storey large sandstone house in Victorian Free Classical (or Filigree Style). Two chimneys, terracotta tile roof. The building addresses the waterfront.” The statement of significance for the place is, “Early urban development phase, no “street front” – water front of building more important. Significant as an early building from the times when water transport was more important. Large trees on grounds.”

26. The heritage item is described as “House, The Old Place, including interiors” in the schedule to LEP 2022. The listing sheet for the item includes the following statement of significance:

“No. 1 Campbell Lane is of local historic, aesthetic and technological significance as an example of an early Victorian Georgian stone dwelling that was constructed, enlarged and modified in the Victorian period. Despite additions, the building significantly retains a sense of its original and early form and fabric form successive alterations including face stone and rendered walls, roof form, open verandah and balcony and rear outbuilding. The building is a prominent element in Campbell Land and is enhanced by its large site, mature trees and waterfront and garden setting.”

27. The historical significance statement in the listing sheet includes, “the building address to the water indicates the importance of water transport…”.

28. On the basis of the evidence before me, I am satisfied that the proposed development is acceptable and will maintain the identified heritage significance of the item. I accept the agreement of the heritage experts, as follows:

• The proposed internal alterations and additions to the existing dwelling, including the insertion of a basement, and the additions to the existing rear wing, are acceptable and will maintain the identified heritage significance of the item.

• The form, height and detail of the proposed attached dwellings are acceptable and will maintain the identified heritage significance of the item.

• The swimming pool, deck, boatshed and landscaping within the foreshore setback are acceptable and do not unreasonably impact on the setting and heritage significance of the item.

• The reconstruction of the sandstone seawall is acceptable.

• The removal of the Tree 4 in the southern rear setback of the existing dwelling is acceptable provided the tree is replaced with a mature canopy tree in a similar location.

• The design and location of the swimming pool and deck, to be located directly behind the seawall and separated by a garden bed, are acceptable.

29. The proposed reconstructed seawall at a height of RL2.0 is acceptable and will not detrimentally impact on the setting of the heritage item. I accept the following in relation to the reconstructed seawall:

• Owner’s consent from Transport for NSW, the authority responsible for management waterways, was issued on 26 March 2025.

• The existing seawall is degraded and needs to be repaired. Repair of the seawall require the existing wall to be dismantled and rebuilt.

• A seawall crest level of RL2.0 Australian Height Datum is the minimum seawall crest level that should be adopted at the site based on coastal engineering considerations such as acceptable wave overtopping volumes over the 60-year design life, at a site directly exposed to high energy vessel traffic and wind-waves.

• Raising the seawall to RL2.0 will satisfy the requirements of s 6.28(1)(e) of the SEPP Biodiversity, to minimise risk to the development from rising sea levels or changing flood patterns as a result of climate change.

• In relation to s 6.33(f)(i) of the SEPP Biodiversity, raising the seawall to RL2.0 is required to avoid the development being adversely affected by the wave environment in relation to safety and utility.

30. I accept the agreed evidence of the arboriculture experts that it is acceptable to remove the trees on the site with regard to the following:

• The existing trees on the site significantly affect the development potential of the site.

• The agreed evidence of the contamination experts (Ex 4) that the site is contaminated with the presence of lead and carcinogenic polycyclic aromatic hydrocarbons present within historic fill material and must be remediated to ensure the site is suitable for its ongoing residential use. The remediation rationale responds to the built form and landscaping design of the proposal and includes the excavation and offsite disposal of contaminated fill material, as well as some areas where a ‘cap and contain’ approach is to be taken. The required remediation of the site makes retaining trees, including transplanting trees that would otherwise be suitable for transplanting, fraught or impossible.

• The agreed evidence of the heritage experts that the landscaping in the foreshore setback has little or no heritage value and could be replaced by a more sympathetic garden such as a terraced formal garden as proposed. The removal of Tree 4, a camphor laurel, in the southern rear setback of the existing dwelling is acceptable because it is being replaced with a mature canopy tree in a similar location. The existing treatment of the rear setback with hardstands and a carport is not sympathetic to the heritage item.

31. Pursuant to cl 5.21 – Flood Planning of LEP 2022, the site is identified as being partly impacted by flooding (estuarine inundation). The application is accompanied by a Flood and Foreshore Risk Management Report prepared by Horton Coastal Engineering dated 8 December 2023 and an Updated Foreshore Risk Management Advice prepared by Horton Coastal Engineering dated 12 February 2025. These documents consider the matters listed under cl 5.21(2) and (3). I am satisfied that the matters under cl 5.21 have been adequately addressed.

32. Clause 6.2 of LEP 2022 sets out the matters that the consent authority is required to consider before granted development consent with respect to earthworks. The proposed earthworks are not expected to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. The application is accompanied by a Geotechnical Investigation prepared by Crozier dated 26 October 2023.

31. Clause 6.3 of LEP 2022 sets out the matters that the consent authority is required to consider before the grant of development consent with respect to stormwater management. The application is accompanied by stormwater plans which demonstrate how the proposal has been designed to maximise water permeable surfaces and avoids significant impact of stormwater runoff on adjoining properties and receiving waters.

32. Clause 6.5 of LEP 2022 sets out the matters that the consent authority is required to consider before the grant of development consent with respect to development in the foreshore area. A portion of the site is identified as being within the Foreshore Area on the Foreshore Building Line Map. The development in this area is permissible pursuant to cl 6.5(3). The development otherwise achieves the objectives of the zone, is compatible with the surrounding area, will not cause environmental harm, will not cause congestion, will not impact public access to the waterway, will not adversely impact heritage significance, and the sea level rise has been considered by the Flood and Foreshore Risk Management Report prepared by Horton Coastal Engineering dated 8 December 2023 and Updated Foreshore Risk Management Advice prepared by Horton Coastal Engineering dated 12 February 2025.

33. Pursuant to cl 6.6(1) of LEP 2022, the application does not impact public access to the foreshore.

Conclusion

36. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 9 May 2025 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

37. The orders of the Court are:

1. The applicant is granted leave to amend the application.

2. The applicant is to pay the respondent costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development Application No. 2023/1124, as amended, for alterations and additions to the existing heritage-listed dwelling, construction of two attached dwellings at the rear of the site (multi-dwelling housing), excavation, Category 1 remediation work and associated removal of all existing trees, at 1 Campbell Lane, Balmain, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

S O’Neill

Commissioner of the Court

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Annexure A.371.KB.pdf

Annexure B.112.KB.pdf

Decision last updated: 21 May 2025