Hecek v Inner West Council

Category: Principal judgment

Parties: Robert Mark Hecek (First Applicant)
Leila Frances Hogan (Second Applicant)
Inner West Council (Respondent)

Representation: Counsel:
S Griffiths (Solicitor) (Applicants)
S Turner (Solicitor) (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicants)
Inner West Council (Respondent)

File Number(s): 2025/78804

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by Robert Mark Hecek and Leila Frances Hogan (together the Applicant), against the refusal of Modification Application MOD/2024/0409 (the MA) by Inner West Council (the Respondent).

2. The MA seeks to modify Development Consent DA/2024/0185 (the parent DA), which granted consent for the partial demolition, and alterations and additions to the existing semi-detached dwelling to provide a roof terrace and associated access, at 18 Rose Street, Birchgrove (the site).

3. Consent for the parent DA was granted by the Respondent on 30 September 2024.

4. At the date of its lodgement on 18 November 2024, the MA sought consent for the demolition of the remainder of the hipped roof form over the front section of the existing dwelling to enlarge the trafficable area of the approved roof terrace, and the provision of additional balustrades to define the expanded roof terrace to achieve compliance with the National Construction Code.

5. The Respondent refused the MA on 30 January 2025.

6. The Applicant lodged a Class 1 appeal with the Court on 27 February 2025.

7. The Court arranged a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 3 July 2025. I presided over the conciliation conference.

8. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting approval to an amended MA, subject to conditions.

9. Of note, the MA has been amended to resolve the contentions originally pressed by the Respondent, which included concerns that the MA was not substantially the same development for which consent was originally granted, that the MA results in unacceptable impacts upon the heritage significance and desired future character of the immediate locality, and that the MA results in unacceptable acoustic and visual privacy impacts for neighbours.

10. Agreed design amendments have now been made to rationalise the form and extent of the roof terrace, pulling it away from sensitive front and side boundaries, and by the introduction of a planter bed, privacy screening and vegetation to mitigate against cross viewing. Together these changes are agreed to resolve each of the contentions in this matter.

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 4.55 of the EPA Act to modify the parent DA.

12. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

13. In that regard, I am satisfied the MA was made with the consent of the owners of the land, evidenced within the Class 1 Application accompanying this matter.

14. The MA was publicly notified from 28 November to 12 December 2024 in accordance with the Respondent’s Community Participation Plan. No submissions were received by the Respondent. Accordingly, I am satisfied that s 4.55(2)(c) and (d) of the EPA Act has been appropriately addressed.

15. Pursuant to s 4.55(2)(a) of the EPA Act, the parties agree, and I am satisfied, that the amended MA remains substantially the same as the parent DA. The qualitative and quantitative elements and impacts of the proposal are essentially or materially the same. The amended MA proposes development within effectively the same envelope as the parent DA, apart from some relatively minor adjustments to the balustrade line and introduction of a rooftop planter bed. There is no additional floorspace and no additional building height proposed. The amended MA does not result in unacceptable amenity impacts on adjoining neighbours or the streetscape. The use as a single residential dwelling remains the same, and the appearance of the building is largely unchanged by the amended MA, resulting in a development that presents to the surrounding context in a similar manner as the parent DA.

16. Pursuant to s 4.55(3) of the EPA Act, the parties agree, and I am satisfied, that the reasons given by the Respondent for the grant of consent to the parent DA have been appropriately considered by the parties in reaching their agreement in this matter.

17. The Respondent’s reasons for the original grant of consent to the parent DA included:

18. The parent DA is consistent with the objectives of the relevant land use zone.

19. The parent DA is generally consistent with the relevant development controls.

20. The parent DA will not unreasonably compromise the amenity of nearby properties.

21. The parent DA is compatible with the character of the area.

22. The parent DA is suitable for the site.

23. The parent DA is not contrary to the public interest.

24. The parties agree, and I am satisfied, that the Inner West Local Environmental Plan 2022 (IWLEP) is the relevant local environmental planning instrument. The site is zoned R1 General Residential. The amended MA - characterised as alterations and additions to an existing semi-detached dwelling house - is permissible with consent.

25. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the IWLEP, the amended MA is consistent with the relevant R1 General Residential zone objectives which include:

• 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. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the IWLEP, consent is required to carry out demolition, and accordingly consent for the partial demolition of the existing dwelling house is sought within the amended MA.

21. The parties agree, and I am satisfied, that all principal development standards of the IWLEP, including for height of building and floor space ratio are unaffected by the amended MA.

22. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the IWLEP - Heritage conservation - the site is not a listed heritage item, nor in close proximity to any heritage item, but is situated within the Birchgrove Heritage Conservation Area (HCA). The parties’ experts agree that the amended MA brings with it no unreasonable impacts upon the heritage significance of the HCA.

23. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the IWLEP - Stormwater management - the amended MA proposes an appropriate means of collecting and disposing of stormwater. Agreed conditions are imposed to ensure the appropriate management of stormwater.

24. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, the parties agree, and I am satisfied, that any potential site contamination has been appropriately considered in the assessment of the parent DA and continues to be managed by the imposition of conditions of consent.

25. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

26. Chapter 6 of SEPP BC deals with water catchments. The site is situated on land identified as being within the Sydney Harbour Catchment. Relevant provisions of SEPP BC were satisfied in the assessment of the parent DA and continue to be managed by the imposition of conditions of consent. The parties agree, and I am satisfied, that the amended MA will have a neutral effect on the quality of any water entering Sydney Harbour.

27. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022. The parties agree, and I am satisfied, that the parent DA was accompanied by a BASIX certificate and conditions of consent were imposed to ensure compliance with the BASIX certificate.

28. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended MA warrants the grant of consent, subject to the imposition of conditions.

29. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

30. The Court notes that:

31. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the MA with the approval of the Respondent.

32. The Applicant has lodged the amended MA with the Court on 2 July 2025.

Orders

31. The Court orders that:

32. Leave is granted to the Applicant to amend Modification Application MOD/2024/0409 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

33. The appeal is upheld.

34. Development Consent DA/2024/0185 is modified subject to the conditions of consent set out at Annexure A.

35. Development Consent DA/2024/0185, as modified by the Court, is subject to the consolidated conditions of consent set out at Annexure B.

M Pullinger

Acting Commissioner of the Court

Annexure A (183 KB, pdf)

Annexure B (233 KB, pdf)

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