Fitzgerald v Inner West Council

Texts Cited: Inner West Council Community Engagement Framework

Category: Principal judgment

Parties: Paul Fitzgerald (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
S Paterson (Solicitor) (Applicant)
R Dunstan (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/246202

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: A single dwelling house, likely built in 1849, currently occupies a site consisting of two lots of land on the western side of Waterview Street in Balmain. The Applicant in these proceedings, Mr Fitzgerald, proposes to partly demolish the existing dwelling, subdivide the land into two lots and construct a new dwelling on the new lot to the rear of the site.

2. A driveway runs alongside the site, serving an adjoining battle-axe site to the rear, known as No 12 Waterview Street. That driveway is proposed to be widened, and for a right of carriageway, services and drainage to be registered on Lot 1 for the benefit of Lot 2 to the rear.

3. To this end, development application DA/2024/0555 was lodged by Mr Fitzgerald with Inner West Council on 5 July 2024 seeking consent for partial demolition of existing structures, Torrens title subdivision of the existing lots into two allotments, alterations and additions to the existing dwelling fronting Waterview Street and construction of a new three-storey detached dwelling to the rear of the site known as 10 Waterview Street, Balmain (the DA).

4. The DA was publicly advertised from 9-23 July 2024 in accordance with the Inner West Council Community Engagement Framework, in response to which nine submissions were received.

5. The DA was refused by the Inner West Local Planning Panel on behalf of the Council on 8 April 2025, and Mr Fitzgerald appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) on 27 June 2025.

6. The appeal was listed for mandatory conciliation on 27 November 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). I presided at the conciliation conference.

7. The conciliation conference commenced on site at which time parties reached in-principle agreement on those issues in dispute, subject to the preparation of amended plans and other documents.

8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court, dated 28 November 2025, and amended plans and other documents were filed on the same date.

9. The parties ask me to approve their decision as set out in the agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared on behalf of Mr Fitzgerald, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

10. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [32].

11. The site is located in an area of Balmain designated on the map in the Inner West Local Environmental Plan 2022 (IWLEP) as Zone R1 General Residential, in which dwelling house development is permitted with consent where consistent with the objectives of development in the zone, which 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.

12. Owner’s consent accompanies the DA, including the written consent of the owner of Lot 14 in DP 1124174, being the lot containing the driveway cited at [2].

13. The two lots that comprise the site are both greater than the minimum lot size of 200m2 at cl 4.1 of the IWLEP.

14. The proposal complies with the relevant development standards for landscape area and site coverage found at cl 4.3C(3) of the IWLEP. The landscape plans prepared by Bates Landscape depict Lot 1 to have a landscape area of 23% and a site coverage of 50.3%, and Lot 2 to have a landscaped area of 24% and a site coverage of 56.3%.

15. The proposal complies with the floor space ratio (FSR) standard of 0.9:1 by reference to cl 4.4(2B) of the IWLEP. Lot 1 is shown to have a FSR of 0.6:1 and Lot 2 is shown to have a FSR of 0.69:1.

16. The site is not listed in Sch 5 of the Inner West LEP for its heritage significance. However, it is considered a contributory building that is surrounded by numerous items listed for their heritage significance both in Waterview Street and properties fronting Campbell Street to the rear of the site, and is located within the Waterview Estate Heritage Conservation Area (Waterview HCA). As such, cl 5.10 of the IWLEP is engaged.

17. On the basis of the agreement between the heritage experts as to the effect of amendments on the presentation of the proposal from Waterview Street and from adjoining properties, and the historical documentation contained within the Heritage Impact Statement prepared by Mr John Oultram, I accept that the proposal does not adversely impact the Waterview HCA, or those heritage listed sites in the vicinity of the site.

18. The site is within an area identified on the relevant map at cl 6.1(2) of the IWLEP to have Class 5 Acid Sulfate Soils (ASS), and is within 500m of another class of ASS. While excavation is proposed, I am satisfied that the elevation of the site and extent of excavation proposed is unlikely to lower the watertable in the area.

19. I have considered those matters at cl 6.2(3) of the WLEP, and on the basis of the following plans that are incorporated into the agreed conditions of consent, I conclude that the earthworks will not have a detrimental impact on environmental function and processes, neighbouring uses, heritage items or on features of surrounding land:

20. Architectural plans prepared by Utz Sanby.

21. Landscape plans prepared by Bates Landscape.

22. Civil engineering plans prepared by Maroubra Consulting Pty Ltd.

23. As the proposal complies with standards in respect of landscape area and site coverage, and proposes the onsite detention and reuse of stormwater, I am satisfied that the development is designed to maximise the use of water permeable surfaces, includes onsite stormwater retention and will avoid a significant adverse impact of stormwater runoff on adjoining properties in accordance with cl 6.3(3) of the IWLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. As the site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map, Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies.

22. Section 6.6 of the 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.

23. I am satisfied that the Civil Engineering plans cited at [19(3)] provides for the retention and treatment of stormwater on the site in such a way as it will firstly improve the quality of water entering a natural waterbody and so it 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. In particular, I note the proposal relies on a 3,000L rainwater tank, a 5,000L detention tank for reuse on site with water quality treatment chamber, and a combined onsite detention and retention tank identified as Pit F.

24. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied, there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion.

25. I 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

26. I have considered whether the site is contaminated pursuant to s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021*.* On the basis of the historical chronology of the site set out in the Heritage Impact Statement cited at [17], I am satisfied that the site is suitable for the development.

State Environmental Planning Policy (Sustainable Buildings) 2022

27. The application is accompanied by two BASIX certificates prepared by BASIX Certificate Centre in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

28. Certificate No. A1750726_02 dated 24 November 2025 relates to the dwelling fronting Waterview Street (Certificate No. 1).

29. Certificate No. 1750728S_02 dated 26 November 2025 relates to the new dwelling located to the rear of the site (Certificate No. 2).

30. Certificate 1 is accompanied by a BASIX Materials Report dated 28 November 2025 and an Embodied Letter of the same date prepared by BASIX Certificate Centre that quantifies the embodied emissions attributable to the alterations and additions to the dwelling on Lot 1, and Certificate 2 includes an assessment of embodied emissions such that I am satisfied that the DA, as amended, complies with 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

29. 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.

30. 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.

31. The Court notes that Inner West Council, as the relevant consent authority, approves the amending of development application No. DA/2024/0555 by those amended plans and other documents listed below, and that were filed with the Court on 28 November 2025.

32. Inner West Council, as the relevant consent authority, has agreed in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) for Mr Fitzgerald to amend the development application and rely upon the amended plans and documents in accordance with the documents listed below:

| 1. | Architectural Plans Rev F prepared by Utz Sanby Architects | 27 November 2025 | | 2. | Landscape Plans Rev E prepared by Bates Landscape | 28 November 2025 | | 3. | Revised Engineering Plans prepared by Maroubra Consulting: | | | | • C1 - Rev G | 24 November 2025 | | | • C2 - Rev G | 24 November 2025 | | | • C3 – Rev K | 28 November 2025 | | | • C4 – Rev F | 26 November 2025 | | | • C5 – Rev J | 28 November 2025 | | | • C6 – Rev C | 27 November 2025 | | 4. | Updated BASIX Certificates: | | | | • Certificate No: A1750726_02 | 24 November 2025 | | | • Certificate No: 1750728S_02 | 26 November 2025 | | 5. | NatHERS Certificate for Site 2: | | | | • Certificate No: 0012411682 | 26 November 2025 | | 6. | Arborist Letter prepared by Arbor Express | 26 November 2025 | | 7. | BASIX Materials Report | 28 November 2025 | | 8. | Energy score breakdown | 28 November 2025 | | 9. | Embodied energy letter | 28 November 2025 |

2. Those amended plans and other documents listed above were filed with the Court on 28 November 2025.

Orders

32. The Court orders that:

33. The appeal be upheld.

34. Development Consent is granted to Development Application No. DA/2024/0555 for the partial demolition of existing structures; Torrens title subdivision of the existing lot into two allotments; alterations and additions to an existing dwelling on lot fronting Waterview Street, including construction of a first floor addition; and the construction of a new 3 storey detached dwelling house located on the proposed rear lot at 10 Waterview Street Balmain, subject to the conditions of consent at Annexure A.

T Horton

Commissioner of the Court

Annexure A (382 KB, pdf)

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