Exolo Pty Ltd v Inner West Council

Texts Cited: Inner West Council, Community Engagement Strategy 2025-29 (29 April 2025)
Leichhardt Development Control Plan 2013

Category: Principal judgment

Parties: Exolo Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
A Galasso SC (Applicant)
A Jucha (Respondent)
Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/393676

Publication restriction: Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application DA/2025/0694 (Development Application) seeking consent for alterations and additions to the approved conversion of an existing warehouse for two semi-detached dwellings, including a ground floor and first floor addition, vehicle entry changes, and construction of a rooftop terrace for each semi-detached dwelling on land identified as Lot 1 in Deposited Plan 904243, known as 50-58 Evans Street, Rozelle (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The D****evelopment A****pplication

3. As set out at [1], the Subject Land benefits from an existing development consent (DA/2024/1058) for the conversion of the existing warehouse into two semi-detached dwellings (Existing Consent).

4. The Development Application was lodged with the respondent on 27 August 2025.

5. The Development Application was notified in accordance with the Inner West Council Community Engagement Framework from 26 August to 9 September 2025. One submission was received in response to the notification.

6. On 13 October 2025, the proceedings were commenced, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

7. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 23 and 24 March 2026. I presided over the conciliation conference.

8. Amended plans and documents were filed with the Court on 24 March 2026 (Amended Development Application) cited at [39]. The amendments can be summarised as follows:

9. changing the proposed cut outs to the roof and decreasing the extent of demolition to the existing roof;

10. changing the proposed parking and access arrangements; and

11. reducing the floor level of the proposed roof terraces to decrease the overall height of the building.

12. 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. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

13. 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.

Jurisdictional considerations

11. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner*’*s consent

12. The applicant is the registered proprietor of the Subject Land and provided its consent to the lodgement of the Development Application (see Class 1 Application, tab 1).

State Environmental Planning Policy (Resilience and Hazards) 2021

13. I accept the parties’ submission that the requirements of cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because cl 4.6 of the RH SEPP was considered as part of the grant of the Existing Consent and the subject application does not propose any works beyond the extent of the excavation originally approved by the Existing Consent.

State Environmental Planning Policy (Sustainable Buildings) 20**22

14. The Amended Development Application is accompanied by a BASIX certificate (1789137M_03 dated 23 March 2026) prepared by Sustain Build Projects*.*

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Amended Development Application as the Subject Land is located within the Sydney Harbour Catchment. The following documents provide supporting information for consideration of this development under general controls for development in this catchment set out in Pt 6.2, Div 2:

16. Stormwater Management Report prepared by Sparks + Partners dated 24 July 2025 (Stormwater Plans); and

17. agreed conditions of consent.

18. Having regard to the above, the parties submit, and I accept that:

19. The Amended Development Application proposes two x minimum 5,000L on-site retention (OSR) tanks for the Subject Site to offset the requirement for OSD. The OSR tanks are in addition to the required rainwater tank under the BASIX requirements. Any water captured on-site will provide reuse for toilet flushing, irrigation and external taps.

20. The above measures meet the requirements of s 6.6 of the BC SEPP and the development will not result in increased pollutants during a flood event or impact the natural recession of waters

Inner West Local Environmental Plan 2022

17. The Subject Land is zoned R1 General Residential under the Inner West Local Environmental Plan 2022 (IWLEP). Accordingly, semi-detached dwellings are permitted with consent in the R1 zone. I have had regard to the zone objectives which are extracted below:

To provide for the housing needs of the community.

To provide 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.

18. The parties agree that cl 4.3 (height of buildings) does not apply to the Subject Land as there is no prescribed height of building control for the Subject Land under the IWLEP.

19. The parties agree that cl 4.3C (landscaped area for residential accommodation in Zone R1) applies to the Subject Land. Clause 4.3C(3)(a)(ii) requires the landscaped area to be at least 20% of the site area (for lot sizes larger than 235 m2) and cl 4.3C(3)(b) requires the site coverage to not exceed 60% of the site area (Landscape Standard).

20. The landscape area of the proposed development is 7.88% for Dwelling A and 5.7% for Dwelling B. Site coverage is 84.55% for Dwelling A and 83.31% for Dwelling B. Therefore, the parties agree that the Amended Development Application does not comply with the Landscape Standard.

21. The Amended Development Application is accompanied by a cl 4.6 variation request prepared by SJB Planning dated 10 March 2026 (Landscape Request). The Landscape Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6(3) of the IWLEP and concludes that:

22. Compliance with the Landscape Standard is unreasonable or unnecessary in the circumstances because the Amended Development Application is consistent with the objectives of the Landscape Standard set out in cl 4.3C(1) of the IWLEP notwithstanding the non-compliance.

23. There are sufficient environmental planning grounds to justify the contravention because:

(a) The Subject Land presently has a site coverage of 94.16% that is occupied by the existing warehouse building and the non-compliance with the Landscape Standard is a direct consequence of the existing warehouse building. The proposal will actually reduce site coverage. (b) There is no existing vegetation on the site and therefore no existing significant vegetation will be affected by the proposal. The proposal will actually increase the landscaped area compared to existing conditions. (c) The proposal will not have any additional residential amenity impacts on the basis that the existing envelope will be preserved.

22. In respect of the Landscape Request, the applicant has demonstrated that compliance with the Landscape Standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the Landscape Standard in accordance with the requirements under cl 4.6(3) of the IWLEP.

23. Pursuant to cl 4.4(2) of the IWLEP, a maximum floor space ratio (FSR) development standard of 0.7:1 applies to the Subject Land (FSR Standard). The Amended Development proposes a FSR of 1.16:1 for Dwelling A and 1.18:1 for Dwelling B. The parties agree that the Amended Development Application does not comply with this standard, but notes that the Existing Consent approved a FSR in excess of the present proposal. The parties further note that there is disagreement as to whether the FSR Standard applies to the Amended Development Application, having regard to cl 6.12(5) and whether cl 6.12 applies to the proposal.

24. For abundance of caution, the Amended Development Application is accompanied by a cl 4.6 variation request prepared by SJB Planning dated 19 March 2026 (FSR Request). The FSR Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6(3) of the IWLEP and concludes that:

25. Compliance with the FSR Standard is unreasonable or unnecessary in the circumstances because the Amended Development Application is consistent with the objectives of the FSR Standard set out in cl 4.4(1) of the IWLEP notwithstanding the non-compliance.

26. There are sufficient environmental planning grounds to justify the contravention because:

(a) The area of the proposed contravention will remain compatible with the built form character of the existing warehouse building and adjoining development. The proposed contravention will be contained inside the existing warehouse building. (b) The proposed contravention will have no unreasonable amenity impact.

25. In respect of the FSR Request, to the extent it is required, the applicant has demonstrated that compliance with the FSR Standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the FSR Standard in accordance with the requirements under cl 4.6(3) of the IWLEP.

26. Pursuant to cl 5.10 of the IWLEP relating to heritage conservation, the Subject Land is relevantly located within The Valley Heritage Conservation Area (HCA) under Sch 5 of the IWLEP. The parties agree, and I accept, that the Amended Development Application is capable of approval under cl 5.10 of the IWLEP having regard to the:

27. the Heritage Impact Statement prepared by Weir Phillips Heritage dated 8 August 2025;

28. Joint Report of the Heritage Experts filed 25 February 2026; and

29. agreement of the heritage experts following amendments to the proposal.

30. Pursuant to cl 6.1 of the IWLEP, development consent is required for the carrying out of specified works on land shown on the Acid Sulfate Soils Map. The parties agree that the Subject Land is mapped as “Class 5” on the Acid Sulfate Soils Map, however, the Amended Development Application does not propose the carrying out of work that would engage the provisions of cl 6.1 of the IWLEP.

31. Pursuant to cl 6.2 of the IWLEP, the consent authority must consider the matters set out in cl 6.2(3) of the IWLEP in deciding whether to grant consent for earthworks.

32. The parties agree, and I accept, that the Amended Development Application can be approved having regard to the matters set out in cl 6.2(3) of the IWLEP for the following reasons:

33. Earthworks were considered as part of the grant of the Existing Consent and the proposal reduces the extent of earthworks approved under the Existing Consent.

34. Earthworks remain subject to appropriate conditions of consent.

35. Pursuant to cl 6.3(3) of the IWLEP relating to stormwater management, development consent must not be granted unless the consent authority is satisfied of the matters set out at cl 6.3(3). The parties agree, and I accept that, the matters in cl 6.3(3) are satisfied having regard to the Stormwater Plans and conditions of consent.

36. The parties disagree as to whether cl 6.12 of the IWLEP relating to adaptive reuse of existing buildings for dwellings in residential zones, applies to the Amended Development Application. If it does apply, the parties agree that the proposal does not comply with cl 6.12(4)(c) which relevantly requires any increase in the FSR to be contained in the envelope of the existing building (BE Standard). This is because there is a potential increase in FSR outside the building envelope of 1.65 m2 (being the two stair landings to the rooftop private open space). For abundance of caution, the Amended Development Application is accompanied by a cl 4.6 variation request prepared by SJB Planning dated 23 March 2026 (BE Request). The BE Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6(3) of the IWLEP and concludes that:

37. Compliance with the BE Standard is unreasonable or unnecessary in the circumstances because the Amended Development Application is consistent with the objectives of the BE Standard as set out in cl 6.12(1) of the IWLEP notwithstanding the non-compliance.

38. There are sufficient environmental planning grounds to justify the contravention because:

(a) The proposed contravention (being 1.65 m2) will be visually contained in the perceived form of the existing building and the retained roof pitch to Goodsir Street. (b) The contravention assists in the accommodation of and provision of residential amenity in the form of private open space that has good solar access and outlooks that would be highly valued in a reused former industrial building. (c) The proposed contravention will not have an unreasonable amenity impact.

32. In respect of the BE Request, to the extent it is required, the applicant has demonstrated that compliance with the BE Standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the BE Standard in accordance with the requirements under cl 4.6(3) of the IWLEP.

Leichhardt Development Control Plan 201**3

33. I note that the parties have considered the Leichhardt Development Control Plan 2013 (LDCP) in relation to the Amended Development Application and are satisfied that the Amended Development Application is acceptable and can be granted subject to conditions (see also Statement of Environmental Effects prepared by SJB Planning dated August 2025 (SEE), pp 20-25).

Remaining matters in s 4.15(1) of the EPA Act

34. The matters set out in s 4.15(1)(a), (b), (c), and (e) of the EPA Act have been generally considered above (see also pp 26-27 of the SEE).

35. In relation to s 4.15(1)(d) of the EPA Act, the Development Application was notified in accordance with the Inner West Council Community Engagement Framework from 26 August to 9 September 2025. One submission was received in response to the notification raising concerns including:

36. impact on heritage and streetscape;

37. view loss;

38. proposed FSR more than approved under the Existing Consent;

39. the public interest, consistent application of development controls and integrity of the development application process; and

40. available alternative options to increase outdoor/landscaped area within the Subject Land.

41. I am satisfied that the written submission received has been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

37. 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.

38. 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.

39. The Court notes that:

40. The respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending Development Application DA/2025/0694 in accordance with the following amended plans and additional information listed below:

| Plan and Revision No. | Plan Name | Date Issued | Prepared by | | DA-10-01 (Rev J) | Floor Plan Basement | 23 March 2026 | Carter Williamson | | DA-10-02 (Rev J) | Floor Plan Ground | 23 March 2026 | Carter Williamson | | DA-10-03 (Rev J) | Floor Plan First | 23 March 2026 | Carter Williamson | | DA-10-04 (Rev J) | Floor Plan Roof | 23 March 2026 | Carter Williamson | | DA-21-01 (Rev J) | Section AA – Roof Terrace | 23 March 2026 | Carter Williamson | | DA-21-02 (Rev J) | Section BB – Roof Terrace | 23 March 2026 | Carter Williamson | | DA-21-03 (Rev J) | Section CC – Roof Terrace | 23 March 2026 | Carter Williamson | | DA-21-04 (Rev J) | Section DD– Roof Terrace | 23 March 2026 | Carter Williamson | | DA-21-05 (Rev J) | Garage Sections – 1 and 2 | 23 March 2026 | Carter Williamson | | DA-21-06 (Rev J) | Garage Sections - 3 and 4 | 23 March 2026 | Carter Williamson | | DA-21-07 (Rev J) | Garage Sections - 5 | 23 March 2026 | Carter Williamson | | DA-30-01 (Rev J) | North Elevation | 23 March 2026 | Carter Williamson | | DA-30-02 (Rev J) | East Elevation | 23 March 2026 | Carter Williamson | | DA-30-03 (Rev J) | West Elevation | 23 March 2026 | Carter Williamson | | DA-30-04 (Rev J) | South Elevation | 23 March 2026 | Carter Williamson | | DA-60-01 (Rev J) | Material Finishes Schedule | 23 March 2026 | Carter Williamson | | DA-72-01 (Rev J) | GFA Diagrams | 23 March 2026 | Carter Williamson | | DA-72-02 (Rev J) | Site Coverage and Landscaping Diagrams | 23 March 2026 | Carter Williamson | | DA-73-01 (Rev J) | View from Neighbours | 23 March 2026 | Carter Williamson | | DA-81-02 (Rev J) | 3D Views -View 1 – Reduced Roof Terrace | 23 March 2026 | Carter Williamson | | DA-81-04 (Rev J) | 3D Views -View 2 – Reduced Roof Terrace | 23 March 2026 | Carter Williamson | | DA-81-06 (Rev J) | 3D Views -View 3 – Reduced Roof Terrace | 23 March 2026 | Carter Williamson | | DA-81-08 (Rev J) | 3D Views -View 4 – Reduced Roof Terrace | 23 March 2026 | Carter Williamson | | DA-81-10 (Rev J) | 3D Views -View 5 – Reduced Roof Terrace | 23 March 2026 | Carter Williamson | | DA-81-12 (Rev J) | 3D Views -View 6 – Reduced Roof Terrace | 23 March 2026 | Carter Williamson | | DA-81-14 (Rev J) | 3D Views -75 Evans Balcony – Reduced Roof Terrace | 23 March 2026 | Carter Williamson | | DA-81-16 (Rev J) | 3D Views -75 Evans Dormer – Reduced Roof Terrace | 23 March 2026 | Carter Williamson | | BASIX Certificate | 23 March 2026 | Sustain Build Projects | | Landscape Plans (Up to Rev B) | 14 November 2024 | Dangar Barin Smith | | Stormwater Management Plans (Rev 4) | 24 July 2025 | Sparks + Partners | | Sediment and Erosion Control Plan (Rev 4) | 24 July 2025 | Sparks + Partners | | Waste and Recycling Management Plan | 6 August 2025 | Carter Williamson | | Traffic and Parking Impact Assessment | 7 August 2025 | Hemanote Consultants | | Heritage Impact Statement | 8 August 2025 | Weir Phillips Heritage | | Statement of Environmental Effects | August 2025 | SJB Planning | | Clause 4.6 Variation Request - Floor Space Ratio | 19 March 2026 | SJB Planning | | Clause 4.6 Variation Request - Landscaped Areas | 10 March 2026 | SJB Planning | | Precautionary Clause 4.6 Variation Request – Adaptive reuse of existing buildings for dwellings in residential zones Prepared | 23 March 2026 | SJB Planning | | Swept Path Drawings (Rev A) | 26 February 2026 | PDC Consultants | | Ground Clearance Assessment Drawing No 002 | 27 February 2026 | PDC Consultants | | Goodsir Street On-Streetcar Parking Sketches (Rev C) prepared by PDC Consultants | 27 February 2026 | PDC Consultants |

2. The applicant filed the amended plans outlined above with the Court on 24 March 2026.

Orders

40. The Court orders that:

41. The appeal is upheld.

42. Development Application No. DA/2025/0694, as amended, for alterations and additions to the approved semi-detached dwellings including ground floor and first floor addition, vehicle entry changes and construction of a rooftop terrace for each semi-detached dwelling at 50-58 Evans Street, Rozelle NSW 2039, is determined by the grant of consent subject to the conditions at Annexure A.

N Targett

Commissioner of the Court

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Annexure A (189 KB, pdf)