Howarth v Inner West Council

Parties: John Howarth (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
J Zeljkovic (Solicitor)(Applicant)
R Dunstan (Solicitor)(Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/335228

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA/2025/0292 (DA) seeking consent for demolition of existing structures and construction of a three-storey detached dwelling at 7 Bradford Street, Balmain legally described as Lot 1 DP 1093531 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 27 February 2026. I have presided over the conciliation conference.

3. The parties’ experts agree that all contentions raised in the Statement of Facts and Contentions filed on 19 September 2025 have been resolved by the preparation of the:

4. amended plans and documents, and

5. agreed conditions of consent.

6. The DA, as amended, seeks consent for the demolition of existing structures, excavation works and construction of a two-storey detached dwelling with basement (Proposed Development).

7. 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.

8. 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.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

10. 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 the terms of the Inner West Local Environmental Plan 2022 (IWLEP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.

11. The DA was notified from 6 May 2025 to 20 May 2025. Five submissions were received which have been considered by the parties.

12. The Site is zoned R1 General Residential under the IWLEP where, pursuant to the land use table, development for the purposes of dwelling houses is permissible with development consent.

13. Demolition works are permissible with consent under cl 2.7 of the IWLEP and excavation for the basement is permissible as earthworks with consent under cl 6.2 of the IWLEP.

14. There is no maximum height of building development standard applicable to the Site: cl 4.3 of the IWLEP.

15. The Site has a lot size of 203.7m2 and therefore a minimum landscaped area development standard of 30.6m2 or 15% applies to the Site: cl 4.3C of the IWLEP. The Proposed Development provides a compliant landscaped area of 45.03m2 or 22.1%.

16. The Proposed Development proposes site coverage of 95.08m2 or 46.7% which complies with the maximum 60% site coverage development standard under cl 4.3C(3)(b) of the IWLEP.

17. As the Site has a site area of more than 150m2 and less than 300m2, a maximum Gross Floor Area (GFA) of 183.33m2 and a maximum floor space ratio (FSR) of 0.9:1 development standard applies pursuant to cl 4.4(2B(b) of the IWLEP The Proposed Development has a compliant GFA of 172.55m2 and FSR of 0.85:1 calculated in accordance with cl 4.5 of the IWLEP.

18. The Site is located within The Valley Heritage Conservation Area (HCA) and in the vicinity of two heritage items which are located at 11-13 Jane Street, Balmain. Therefore, cl 5.10 of the IWLEP applies by imposing requirements in relation to heritage conservation.

19. The Court can be satisfied that the heritage impact of the Proposed Development has been adequately addressed pursuant to cl 5.10 of the IWLEP because the Applicant relies on a heritage impact statement (HIS) prepared by Three + One Heritage dated 14 April 2025 filed at Tab 5 with the Class 1 Application. The requirements of cl 5.10 are also discussed at pp 12-13 of the Statement of Environmental Effects prepared by Chapman Planning Pty Ltd date 15 April 2025 (SEE) contained at Tab 4 of the Class 1 Application. The HIS, at p 32 concludes that:

“The existing two-storey subject dwelling was constructed in c. 1966/67. The dwelling is not part of the core period of significance for the HCA, and the building itself does not contribute to the local streetscape or HCA. As such, its proposed demolition will have nil impact on significant fabric and negligible impact on the streetscape/HCAs.

The proposed new development to replace the existing building has been designed in a generally contemporary architectural style, which does not attempt to mimic the traditional detailing of original dwellings within the street, but rather provide a contemporary interpretation utilising detailing, form and materials to respond to these characteristics.”

18. The Site is identified as containing Class 5 Acid Sulfate Soils on the Acid Sulfate Soils Map and is located within 500 metres (m) of Class 1 Acid Sulfate Soils. A geotechnical investigation report is contained at Tab 12 of the Class 1 Application. The DA does not include works 4m below Australian Height Datum. The Court can thereby be satisfied that cl 6.1 of the IWLEP has been adequately addressed.

19. The terms of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 are addressed at p 11 of the SEE. The Applicant has also provided a geotechnical investigation report filed at Tab 12 of the Class 1 Application and stormwater engineering plans contained at Tab 9 of the Class 1 Application which provide that the proposed excavation will not affect drainage patterns or soil stability, nor affect the structural integrity of adjoining properties. The proposed excavation is contained within the building footprint. As the Site has historically been used for residential purposes and the excavation is unlikely to disturb contaminated soil, the Court is satisfied that the contamination status of the Site has been appropriately considered and that consent may be granted.

20. Clause 5.21 of the IWLEP regarding flood planning does not apply to the Site. The provision of the stormwater engineering plans referred to above at [19] satisfy the terms of cl 6.3 of the IWLEP regarding stormwater management.

21. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) deals with Water Catchments and applies to the Site as it is located within the Sydney Harbour Catchment. In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must be satisfied of the matters set out under ss 6.6, 6.7, 6.8 and 6.9 of the Biodiversity and Conservation SEPP. Development in accordance with the stormwater plans contained at Tab 9 of the Class 1 Application and the geotechnical investigation report contained at Tab 12 of the Class 1 Application satisfies ss 6.6, 6.7, 6.8 and 6.9. Having considered relevant matters under s 6.6, the parties agree that the Proposed Development is consistent with the relevant general development controls under Pt 6.2 and would not have an adverse impact on water quality and quantity, aquatic ecology, flooding or recreation and public access.

22. Clause 6.9 Design excellence of the IWLEP does not apply to the Site as the DA proposes a building height of less than 14m as can be calculated from the reduced levels (RL) in Drawing 401.

23. A BASIX certificate No 1791102S dated 9 April 2025 accompanies the DA and satisfies Ch 2 of the State Environmental Planning Policy (Sustainable Buildings) 2022 which applies standards for BASIX residential development. The Applicant has filed an updated BASIX certificate in accordance with the amendments to the Proposed Development.

24. 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 set out in this judgment.

25. 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:

26. The Court notes:

27. Inner West Council as the relevant consent authority for the purposes of section 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) approves the amendment to the development application DA2025/0292 to rely on the following amended plans and documents:

(a) Architectural plans (Revision D) prepared by AE Design Pty Ltd dated 29 January 2026 as follows:

| Drawing No. | Description | | DA 000 | Cover Page | | DA 001 | Schedule Of Basix Commitment | | DA 100 | Site Plan | | DA 110 | Existing Plans | | DA 111 | Existing Roof Plan | | DA 120 | Existing Sections | | DA 130 | Existing Elevation | | DA 135 | Demolition Plan | | DA 140 | Site Analysis | | DA 200 | Proposed Basement Floor Plan | | DA 201 | Proposed Ground Floor Plan | | DA 202 | Proposed Upper Floor Plan | | DA 203 | Proposed Roof Plan | | DA 300 | Sections | | DA 301 | Sections | | DA 400 | Elevations | | DA 401 | Elevations | | DA 600 | Calculations | | DA 700 | Views From The Sun | | DA 701 | Views From The Sun | | DA 800 | Shadow Diagram Plans | | DA 801 | Shadow Diagram Plans | | DA 802 | Shadow Diagram Plans | | DA 820 | Shadow Diagram Elevation (9 Bradford St) | | DA 850 | Driveway Details | | DA 950 | Schedule Of Materials |

(b) BASIX Certificate number: 1791102S_03 dated 27 February 2026.

Orders:

27. The Court orders:

28. The appeal is upheld.

29. Development Application DA2025/0292 for the demolition of existing structures, excavation works and construction of a two-storey detached dwelling with basement at Lot 1 DP 1093531, known as 7 Bradford Street, Balmain is determined by the grant of development consent subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (259 KB, pdf)

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