Thomas v Inner West Council

[2025] NSWLEC 1223

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Thomas v Inner West Council [2025] NSWLEC 1223

Hearing dates:

Conciliation Conference on 4 April 2025

Date of orders:

4 April 2025

Decision date:

04 April 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $2,300 within 28 days of the date of these orders.

(2) The Appeal is upheld.

(3) Development Application No. DA/2024/0177, as amended, for the alterations and additions to an existing dwelling, including partial demolition, new additions to the ground and first floor, two storey garage structure with studio and associated landscaping on land legally described as Lot C in Deposited Plan 107230 and known as 91 Wells Street, Newtown, NSW, 2042, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – 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

Inner West Local Environmental Plan 2022, cll 2.7, 4.3, 4.4, 6.1, 6.2, 6.3, 6.8

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

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

Environmental Planning and Assessment Regulation 2021, ss 27 and 38

Texts Cited:

Inner West Community Engagement Strategy 2022-2044

Category:

Principal judgment

Parties:

Robert James Thomas (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
E Flemming (Solicitor)(Applicant)
S Turner (Solicitor)(Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/391788

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/2024/0177 seeking consent for the partial demolition of existing dwelling, alterations and additions including a ground and first floor addition, two storey garage structure with studio on the first floor and associated landscaping (Proposed Development) at 91 Wells Street, Newtown legally described as Lot C in Deposited Plan 107230. (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 4 April 2025. I presided over the conciliation conference.

3. 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.

4. 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.

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

6. 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 various provisions of the Inner West Local Environmental Plan 2022 (IWLEP), s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) regarding proximity to overhead powerlines, and s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) regarding the consideration of the contamination status of the Site. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.

7. The Applicant is the owner of the Site.

8. The Respondent has approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending the DA in accordance with the amended plans and documents as set out at [13].

9. In accordance with the Respondent’s Community Engagement Strategy, the Amended DA was not renotified as the amendments are considered to have the same or a lesser impact as the original DA and deemed to have no measurable adverse effect on adjoining properties.

10. The Site is zoned R2 Low Density Residential under the IWLEP. Development for the purposes of “dwelling houses” is permissible with consent in the R2 Zone. Demolition works are permissible with consent under cl 2.7 of the IWLEP.

11. The DA does not seek consent for integrated development.

12. The Proposed Development was referred to Ausgrid in accordance with s 2.48 of the Transport and Infrastructure SEPP as the development is to be carried out within 5 metres of an exposed overhead electricity power line. Ausgrid issued its correspondence in response confirming that it does not object to the Proposed Development and the recommended conditions have been incorporated into the Agreed Conditions, where appropriate.

13. The Site is subject to a maximum building height development standard of 9.5 metres under clause 4.3(2) of the IWLEP. The development proposes a compliant building height of 6.585 metres as depicted in Drawing No. A112 dated 26 February 2025 Rev B.

14. The Proposed Development proposes a compliant floor space ratio of 0.95:1 as shown in Drawing No. A100 dated 12 February 2024. The parties explain that the relevant provision is found at cl 4.4(2C) of the IWLEP which provides that the maximum floor space ratio development standard for the purposes of attached dwellings on land identified as “F” on the Floor Space Ratio Map with a site area between 150 and 200 square metres is 1:1.

15. The Site is mapped as Class 5 Acid Sulfate Soils pursuant to cl 6.1 of the IWLEP. The Proposed Development does not propose any works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum and by which the water table is likely to be lowered below 1m Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. Accordingly, development consent under the provisions of cl 6.1 of the IWLEP is not required nor is an Acid Sulfate Soils Management Plan required.

16. As the Proposed Development proposes minor excavation works for the purposes of the ground floor slab, the parties have considered the matters arising under cl 6.2(3) of the IWLEP.

17. As required by cl 6.3(3) of the IWLEP the Court is satisfied that the Proposed Development is designed to maximise the use of water permeable surfaces on the Site and avoids a significant adverse impact of stormwater runoff on adjoining properties, native bushland and receiving waters. The Court is so satisfied because:

1. the Proposed Development includes a Certificate of Stormwater Design Adequacy and accompanying stormwater design drawings (refer to Tab 11 of the Class 1 Application) which provides stormwater management design for the Proposed Development; and

2. Condition 17 of the Agreed Conditions provides appropriate stormwater drainage measures.

18. Clause 6.8 (Aircraft noise) of the IWLEP applies to the Site as it is located within the Australian Noise Exposure Forecast (ANEF) 25-30 contour. The Proposed Development is accompanied by an Aircraft Noise Intrusion Assessment prepared by Michael Phillips Acoustic dated 16 December 2022 and filed at Tab 9 of the Class 1 Application. The Court is required to be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015: cl 6.8(3)(c), IWLEP and the parties explain that the Aircraft Noise Intrusion Assessment concludes that the Proposed Development is capable of achieving full compliance with this Table 3.3, subject to the minimum construction recommendations. These recommendations have been appropriately included in the Agreed Conditions at Conditions 23 and 39.

19. Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties explain that the Proposed Development continues the existing residential use of the Site and that based on historical records, there is no suggestion that the Site would have been contaminated and that there are no immediate site conditions which would require remediation of the Site.

20. The Proposed Development relates to a BASIX Building and BASIX Development, as defined in the Environmental Regulations (see Schedule 7 ‘Dictionary’). The Applicant has provided a complying BASIX Certificate No. A1734411_02 issued 19 March 2025. As required by s 27(1) of the Environmental Planning and Assessment Regulation 2021.

21. 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 I have set out in this judgment.

22. 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:

23. The Court notes that the Respondent has approved, as the relevant consent authority, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA/2024/0177 to rely upon the following amended documents (Amended Development Application), as filed with the Court:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No. A106 Revision B	Proposed Floor Plans	Cracknell & Lonergan Architects Pty Ltd	26 February 2025
	Drawing No. A110 Revision B	South Elevations		26 February 2025
	Drawing No. A111 Revision B	North Elevations		26 February 2025
	Drawing No. A112 Revision B	East Elevations		26 February 2025
	Drawing No. A113 Revision B	West Elevations		26 February 2025
	Drawing No. A115 Revision B	Long Sections		26 February 2025
	Drawing No. DA117 Issue B	Turning Circle		25 February 2025
Documents
2	BASIX Certificate No. A1734411_02		Cracknell & Lonergan Architects Pty Ltd	19 March 2025

Orders:

24. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $2,300 within 28 days of the date of these orders.

2. The Appeal is upheld.

3. Development Application No. DA/2024/0177, as amended, for the alterations and additions to an existing dwelling, including partial demolition, new additions to the ground and first floor, two storey garage structure with studio and associated landscaping on land legally described as Lot C in Deposited Plan 107230 and known as 91 Wells Street, Newtown, NSW, 2042, is determined by the grant of development consent subject to the conditions at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A

**********

Amendments

08 April 2025 - Annexure A is uploaded as a PDF document.

Decision last updated: 08 April 2025