Adaimy v Inner West Council

Category: Principal judgment

Parties: Charlotte Adaimy (First Applicant)
Anthony Adaimy (Second Applicant)
Inner West Council (Respondent)

Representation: Counsel:
C Ireland (Applicant)
A Jucha (Respondent)
Solicitors:
Milad S Raad & Associates (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/118080

Publication restriction: Nil

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: Empire Street lies to the east of Algie Park in the Sydney suburb of Haberfield. An existing dwelling at 17 Empire Street is proposed for demolition to permit the construction of a new detached dwelling with basement and attic levels, removal of two trees and associated landscaping.

2. To this end, development application DA/2024/0995 was lodged by the applicants in these proceedings, Charlotte and Anthony Adaimy (together the Adaimy’s), with Inner West Council on 15 November 2024.

3. The Development Application was notified by the Council for a period of 14 days from 21 November 2024.

4. As the development application was otherwise undetermined, the Adaimy’s filed an appeal against its deemed refusal in Class 1 of the Court’s jurisdiction on 27 March 2025, under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

5. The appeal was listed for mandatory conciliation on 13 August 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act).

6. The proceedings commenced on site at which the Court, in the company of the legal representatives and experts, was taken to a number of agreed viewpoints on Empire Street and in Algie Park, and was asked to observe the streetscape and several dwellings in the streetscape.

7. The conciliation conference then reconvened at Court where without prejudice discussions were held. The Adaimy’s agreed to amend the proposal, producing amended plans the following day that resulted in agreement between the parties.

8. Accordingly, the parties reached agreement on the matters in contention and a signed agreement was submitted to the Court on 14 August 2025, in accordance with s 34(10) of the LEC Act.

9. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

10. In general terms, the agreement approves the development subject to amended plans that were prepared by the Adaimy’s, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

11. 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. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised.

12. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

13. The site is located within an area designated R2 Low Density Residential zone by the Inner West Local Environmental Plan 2022 (IWLEP) in which dwelling house development is permitted with consent, where consistent with the following objectives for development in the R2 zone:

• To provide for the housing needs of the community within a low density residential environment.

• 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.

Basement area exceeds 25% of the existing ground floor

14. The existing building on the site has a ground floor area of 123.8m2. The proposed development includes a basement comprising a cellar, sauna, storage, gym and cinema. When the area occupied by stairs and circulation is also considered, the basement area measures 61m2. As such, the basement represents an area that is in excess of the area permitted by cl 6.20(3)(a)(ii) of the IWLEP.

15. The provision at cl 6.20(3) of the IWLEP relevantly provides:

6.20 Development on land in Haberfield Heritage Conservation Area

(1) The objective of this clause is to maintain the single storey appearance of dwellings in the Haberfield Heritage Conservation Area.

(2) This clause applies to land identified as “C54” on the Heritage Map.

(3) Development consent must not be granted to development for the purposes of dwelling houses on land to which this clause applies unless the consent authority is satisfied that—

(a) if the development involves an existing dwelling, or alterations or additions to an existing building—

…

(ii) development below the existing ground floor level will not exceed 25% of the gross floor area of the existing ground floor, and

…

16. The Adaimy’s rely on a written request prepared by Lockrey Planning and Development Solutions Pty Ltd dated 26 March 2025 to justify the contravention of the provision that the parties agree is a development standard.

17. The parties agree, and I am satisfied, that the objective at cl 6.20(1) of the IWLEP, to maintain the single storey appearance of dwellings in the Haberfield Heritage Conservation Area (Haberfield HCA), is achieved notwithstanding the non-compliance, for reasons summarised as follows:

18. The basement is wholly below ground so does not contribute to an appearance other than that of a single storey. While a master bedroom, walk in robe, ensuite and mezzanine are also proposed at first floor, these are wholly contained within a roof.

19. Proposed ground floor levels are lower than the existing floor levels, demonstrating that the basement has no effect on the height, bulk or scale of the proposed dwelling nor how it appears when viewed from Empire Street.

20. The proposal complies with the height standard of 7m applicable to the site.

21. While other reasons are given in the written request, they are not relevant to the objective and so are not necessary to re-produce.

22. The parties agree, and I am also satisfied that there are sufficient environmental planning grounds to justify the contravention. Many are similar to those summarised at [17]. Additionally, the following are relevant:

23. The existing dwelling is modest in area, and so unreasonably constrains the area of the basement when regard is had to the development standard.

24. The basement contains an area of storage that permits the removal of existing storage structures that occupy areas better suited to deep oil landscape.

25. The exceedance of the basement area standard does not result in amenity impacts on the site, or beyond.

26. While I regard a number of the grounds advanced above to merely promote the benefits of the development as a whole, I accept that the proposed development does not appear other than a single storey dwelling in the Haberfield HCA notwithstanding the exceedance of the basement area.

27. I note here that the Council is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the IWLEP and does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard.

28. Accordingly, the Council raises no issue regarding cl 4.6 and accepts that a variation of the basement area development standard under cl 6.20(3)(b) of the IWLEP is justified.

29. I am satisfied under cl 4.6(3) that the Adaimy’s have demonstrated the matters required to be demonstrated by subcl (3) of the IWLEP.

Other jurisdictional preconditions

24. The height of the proposed development and the floor space ratio comply with the relevant standards at cll 4.3 and 4.4 of the IWLEP.

25. The site is located within the Haberfield HCA, identified in Sch 5, Part 3 of the IWLEP. It is not listed as an item of heritage significance. A Revised Heritage Impact Statement prepared by John Oultram dated November 2024 details the historical development of Haberfield and the chronology of ownership of the site from 1909. Additionally, a peer review of the Revised Heritage Impact Statement undertaken by Urbis dated 6 March 2025 concludes that, subject to certain amendments, the proposal is appropriate. The heritage experts agree the amended plans and other documents are acceptable. I have considered the effect of the proposed development on the Haberfield HCA in accordance with cl 5.10 of the IWLEP, and I conclude the proposal does not adversely impact the Haberfield HCA.

26. The site is designated on the relevant Acid Sulfate Soils Map at cl 6.1(2) as Class 5. However, as it is not within 500m of another class of acid sulfate soils, I accept that an acid sulfate soils management plan is not required.

27. On the basis of the following plans and other documents, I accept that those matters required to be considered at cl 6.2(3) in respect of earthworks are satisfactorily addressed:

28. Geotechnical Investigation prepared by D Katauskas Geotechnical Engineer dated 28 August 2024, that summarises the results of three boreholes and provides recommendations as to foundations appropriate for the basement,

29. Stormwater Plans prepared by Ross Engineers, and

30. a statement at p 24 of the Statement of Environmental Effects prepared by Lockrey Planning and Development Solutions Pty Ltd dated 31 October 2024 that the proposed basement is to be a tanked basement.

31. Relatedly, on the basis of the Council Control Diagrams (Dwg No.2401-X-03) prepared by the architect Benn + Penna that depict 50% landscape area on the site, consistent with cl 6.20(3)(d) of the IWLEP, I am also satisfied that the development is designed to maximise the use of water permeable surfaces, and includes a 2,000L rainwater tank such that adverse impacts from stormwater runoff are avoided in accordance with cl 6.3 of the IWLEP, and which also complies with the requirement at cl 6.20(3)(d) of the IWLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

29. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. The parties agree the site is not a strategic foreshore site, a heritage item on the Sydney Harbour heritage map or land within a wetlands protection area.

30. Section 6.6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) precludes the grant of consent unless the Respondent Council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

31. For reasons identical to those at [28], and on the basis of the first flush diverter and fine filter proposed on the Stormwater Plans at [27(2)], I am satisfied that s 6.6 of the Biodiversity SEPP is achieved by providing water filtration to water in the post-development scenario in a manner that achieves a neutral or beneficial effect on the water quality, and that the rainwater tank and proposed reuse of collected water minimises water flow into the harbour.

32. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied that the retention of water and post development flows will keep any direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and will not have an adverse impact on aquatic reserves, or in terms of erosion. I also note that the site is not identified as flood liable land to which s 6.8 of the SEPP is directed and so does not apply. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

33. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the historical chronology set out for the site in the Revised Heritage Impact Statement cited at [24] and the agreed conditions of consent that deal with unexpected finds, I am satisfied the site is suitable for the purpose for which development is proposed to be carried out.

State Environmental Planning Policy (Sustainable Buildings) 2022

34. The application is accompanied by a BASIX certificate (Cert No. 1769834S_02 dated 10 August 2024) prepared by AENEC in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP). An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

35. 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.

36. 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.

37. The Court notes that Inner West Council as the relevant consent authority approves under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant amending the development application number DA/2024/0995 in accordance with the plans and documents listed below:

| Architectural Drawings | | Plan, Revision and Issue No. | Plan Name | Date Issued | Prepared by | | 2401-E-01 rev G | Existing ground plan | 14 August 2025 | Benn + Penna | | 2401-E-02 rev G | Existing roof plan | 14 August 2025 | Benn + Penna | | 2401-E-03 rev G | Existing elevations (N + S) | 14 August 2025 | Benn + Penna | | 2401-E-04 rev G | Existing elevations (W + E) | 14 August 2025 | Benn + Penna | | 2401-E-05 rev G | Existing Sections | 14 August 2025 | Benn + Penna | | 2401-P-00 rev G | Proposed Site plan | 14 August 2025 | Benn + Penna | | 2401-P-01 rev G | Proposed Basement plan | 14 August 2025 | Benn + Penna | | 2401-P-02 rev G | Proposed Ground plan | 14 August 2025 | Benn + Penna | | 2401-P-03 rev G | Proposed First floor plan | 14 August 2025 | Benn + Penna | | 2401-P-04 rev G | Proposed Roof plan | 14 August 2025 | Benn + Penna | | 2401-P-05 rev G | Proposed Elevations (N + S) | 14 August 2025 | Benn + Penna | | 2401-P-06 rev G | Proposed Elevations (W + E) | 14 August 2025 | Benn + Penna | | 2401-P-07 rev G | Proposed Sections | 14 August 2025 | Benn + Penna | | 2401-P-08 rev G | Proposed Sections | 14 August 2025 | Benn + Penna | | 2401-P-09 rev G | Detailed front elevation | 14 August 2025 | Benn + Penna |

Orders

38. The Court orders that:

39. The appeal is upheld.

40. Development Application DA/2024/0995 for the demolition of an existing dwelling and erection of a new dwelling at 17 Empire St, Haberfield at Lot 58 in DP 1252132, is determined by the grant of consent subject to the conditions set out in Annexure ‘A’.

T Horton

Commissioner of the Court

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Amended Annexure A.315 KB.pdf

Amendments

22 August 2025

Pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the judgment and Amended Annexure A has been uploaded.