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[2025] NSWLEC 1831
General information, not legal advice.
Land and Environment Court (NSW)
2025-11-27
Kullen AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Lowery v Inner West Council [2025] NSWLEC 1831
Hearing dates: Conciliation Conferences on 10 and 11 November 2025
Date of orders: 27 November 2025
Decision date: 27 November 2025
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application DA/2024/1111 for site remediation, removal of two site trees, Torrens title subdivision into two lots (Lot 1 and Lot 2), the construction of a new dwelling house and carport on Lot 1, the construction of a carport on Lot 2, and associated works on land identified as Lot 50 in Deposited Plan 1267443 and known as 7 Sunnyside Avenue, Lilyfield, NSW, 2040, subject to the conditions of consent at Annexure A.
Catchwords: DEVELOPMENT APPEAL — conciliation conference — cl 4.6 variation of minimum subdivision lot size development standard — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.7, 8.11, Sch 1, Div 2, cl 7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38, Sch 7
Inner West Local Environmental Plan 2022, cll 2.2, 2.6, 2.7, 4.1, 4.3, 4.3C, 4.4, 4.5, 4.6, 5.10, 6.1, 6.2, 6.3
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 6.6, 6.7, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48
Texts Cited: Inner West Community Engagement Strategy 2022-2024
Leichhardt Development Control Plan 2013
Category: Principal judgment
Parties: Joseph Brian Lowery (Applicant)
Inner West Council (Respondent)
Representation: Counsel:
S Griffiths (Applicant)
J Marsland (Solicitor) (Respondent)
Solicitor:
Bartier Perry Lawyers (Applicant)
Apex Planning and Environmental Law (Respondent)
File Number(s): 2025/266966
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal by the Inner West Council of development application DA/2024/1111 (the DA). The DA sought consent for the construction of a new dwelling and Torrens title subdivision of one (1) lot into two (2) lots at 7 Sunnyside Avenue, Lilyfield, NSW, 2040 (the site).
The site is legally identified as Lot 50 in Deposited Plan 1267443.
The DA was lodged with the Respondent on 2 January 2025. On 11 July 2025, the Applicant filed Class 1 proceedings with the Court. The Class 1 Application seeks consent for site remediation, tree removal, Torrens title subdivision into two lots, construction of a new dwelling house and associated works.
The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 21 August 2025. The Applicant filed its Statement of Facts and Contentions in Reply on 3 October 2025.
The Applicant was granted leave to amend the DA on 19 September 2025. The amended DA includes an expanded description of the proposed development to include the following: site remediation, tree removal, Torrens title subdivision into two lots, construction of a new dwelling house and two carports to the rear and associated works on the site.
Fifteen submissions were received in response to the notification of the original DA between 9 January to 24 January 2025 in accordance with the Inner West Community Engagement Framework 2022-2024.Three submissions were received in response to the re-notification of the amended DA in October 2025.
The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 10 and 11 November 2025. I presided over the conciliation conference. Two submitters attended the on-site view and made submissions to the Court.
Prior to the conciliation conference, the parties’ town planning, heritage, structural engineering, stormwater and arboricultural experts participated in joint conferencing and joint reports were prepared in their respective fields and filed with the Court.
The parties advise that further amended plans (the further amended DA) were prepared in response to the joint reports and further discussions following the filing of the joint reports.
At the conciliation conference, the parties advised that they were working towards reaching a s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. The parties reached a s 34 agreement on 12 November 2025. This decision involved the Court upholding the appeal and granting development consent to the further amended DA, subject to conditions, as agreed by the parties.
The parties advise that they agree that all contentions raised in the SOFAC are resolved by the further amended DA and conditions of consent.
The signed s 34 agreement, Annexure A (Conditions of Consent) and the amended plans and documents were filed with the Court on 13 November 2025. The details of the updated BASIX certificate for the proposed development were provided to the Court on 20 November 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.
In particular the further amended DA provides amended architectural, engineering and landscape plans which address the following matters:
Deletion of spoon drain and wall on western side;
Soil depth increased in front setback and clean fill to be provided under the study/bed 4 and living room of the proposed dwelling to improve growing and root zone for proposed tree and for T3 and T5;
Increased western side setback of rear section to provide a clear 900mm separation (from 42 Alberto Street) at all of the lower ground, ground and first floor levels;
Deletion of the rear external stairs;
Reductions to area of the lower ground floor level;
On-site detention tank replaced with on-site retention (in the form of a rainwater tank) in the under-croft adjoining carport (with the former location of the on-site detention tank becoming a void);
Increased garden and landscaped area adjoining the carport to the east, with an additional tree to be planted (making 3 replacement trees in total);
Reduction to the width of the outdoor terrace from east to provide a reduced area of 17.8sqm;
Privacy screen on eastern sides of terrace;
External wall height and roof ridge of the two-storey part of the dwelling lowered by 100mm;
Floor space ratio to be reduced to a compliant 0.77:1; and
Site coverage reduced to a compliant 60%.
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.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.
The original DA was publicly notified from 9 January 2025 to 24 January 2025 in accordance with the Inner West Community Engagement Strategy 2022-2024. Fifteen submissions were received during this notification period.
The amended DA was re-notified from 2 October to 30 October 2025. Three submissions were received in response to the renotification.
The parties advise that these submissions have been taken into consideration by the Respondent in accordance with s 4.15(1)(d) of the EPA Act.
It is noted that the amendments to the proposed development in the further amended DA significantly improve the boundary conditions with the neighbouring properties (which are the residences of the two objectors to the original DA and amended DA).
The Inner West Local Environmental Plan 2022 (the LEP) applies to the site and to the proposed development. The site is zoned R1 General Residential (R1 zone) pursuant to cl 2.2 of the LEP; and
The proposed development for the purposes of a dwelling house is permissible with consent within the R1 zone;
I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.
Clause 2.6 of the LEP provides that subdivision is permissible with consent.
Clause 2.7 of the LEP provides that demolition is permissible with consent.
The site is subject to a minimum subdivision lot size development standard under cl 4.1 of the LEP. The parties advise that:
The site has an area of 353.1m2 and is proposed to be subdivided into two allotments;
Following subdivision, Lot 1 will have an area of 200.2m2, which is compliant with the minimum lot size development standard for the site. However, Lot 2 (containing the existing dwelling) will have an area of 152.9m2 which is non-compliant by 47.1m2 or 23.55%.
Pursuant to cl 4.6 of the LEP, a variation request prepared by PCN Urban dated 11 November 2025 has been submitted to justify the contravention to the minimum lot size development standard. The parties advise that the cl 4.6 Request is considered appropriate by the parties and broadly justifies the non-compliance on the basis of consistency with the prevailing subdivision pattern.
I am satisfied that the Applicant’s amended cl 4.6 written request is well founded and that the variation to the minimum lot size development standard is acceptable.
I consider that compliance with the minimum lot size development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the minimum lot size development standard at cl 4.1(1)(a)-(e) of the LEP notwithstanding the non-compliant lot size of proposed Lot 2, for the reasons provided within the Applicant’s written request, which I adopt.
I am also satisfied that there are sufficient environmental planning grounds to justify contravening the minimum lot size development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons as stated in the written variation request - to add to housing stock in the area:
The variation would permit the retention of the existing dwelling and the construction of an additional dwelling to add to the housing stock in the area;
The variation would result in a lot size and proportions for the existing dwelling consistent with that of the adjacent semi-detached dwelling in the pair (at No. 6 Sunnyside Avenue Lilyfield) and in the Brennan’s Estate Heritage Conservation Area generally; and
The variation would deliver a streetscape rhythm and subdivision pattern consistent with that already existing on the south eastern side of Sunnyside Avenue, with minimal separation between dwellings and consistent with the Brennan’s Estate Heritage Conservation Area current and future pattern of development.
Approval of the proposed development will be in the public interest for the reasons provided above (at [30(1)]-[30(3)]), and because the proposed development is consistent with the objectives for the minimum lot size development standard and for development within the R1 zoning of the subject site, for the reasons provided within the Applicant’s written request, which I also adopt.
The site is not subject to a height of buildings development standard pursuant to cl 4.3 of the LEP.
The site is subject to cl 4.3C of the LEP in relation to landscaped areas for residential development in Zone R1. The parties advise that:
the site is subject to a 15% landscaped area development standard in cl 4.3C (3)(a) and a 60% site coverage development standard in cl 4.3C (3)(b); and
The proposed development complies with these development standards with a landscaped area of 25.8% and site coverage of 60% for proposed lot 1 and a landscaped area of 17.2% and site coverage of 42.6% for proposed lot 2.
The site is subject to cl 4.4 of the LEP in relation to the maximum floor space ratio (FSR) of 0.5:1 as shown in the Floor Space Ratio Map in the LEP.
However, the parties advise that the site is located within “Area 6” as shown on the Floor Space Ratio – Additional Controls Map in the LEP. Clause 4.4(2B)(a) of the LEP provides for an FSR development standard of 0.8:1 for development for the purposes of residential accommodation on land located within “Area 6” with a site area of between 150m2 and 300m2. The proposed development, as further amended, complies with the FSR development standard with a FSR of 0.77:1 for proposed Lot 1 and 0.38:1 for proposed Lot 2.
The Applicant has confirmed that the FSR and site area for the proposed development in the further amended DA has been calculated in accordance with cl 4.5 of the LEP.
Clause 5.10 of the LEP relates to heritage conservation. The parties advise that the Respondent has considered the effect of the proposed development on the heritage significance of the Brennan’s Estate Heritage Conservation Area. The Applicant has provided Statements of Heritage Impact, and a Joint Heritage Report has been filed. Condition 30 has been imposed in the conditions of consent requiring design changes be made to the proposed fencing, materials and finishes in the proposed development.
Clause 6.1 of the LEP relates to Acid sulfate soils. The parties advise that the site is identified as being affected by class 5 acid sulfate soils, however, the site is not located within 500m of adjacent Class 1, 2, 3 or 4 land. The proposed development does not involve works below 5m and is therefore in the view of the parties, is unlikely to lower the water table below 1m AHD on adjacent Class 1, 2, 3 or 4 land.
Clause 6.2 of the LEP relates to Earthworks. The parties advise that the Applicant has provided a Geotechnical Investigation prepared by Ideal Geotech dated June 2025; and that the Expert Joint Structural Engineering Report and conditions of consent have addressed the proposed earthworks.
Clause 6.3 of the LEP relates to Stormwater management. The parties advise that the Applicant has provided Stormwater Drawings prepared by Smart Structures Australia which, with conditions of consent, satisfactorily address cl 6.3 of the LEP.
Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) is concerned with the protection of the biodiversity values, and the preservation of amenity, provided by trees and other vegetation in non-rural areas of NSW, and applies to the site. Two trees are proposed to be removed in the proposed development due to contaminated soil and remediation works.
The parties advise that the trees proposed for removal are assessed in the Arboricultural Impact Assessment prepared by The Ents Tree Consultancy dated 26 February 2025 as appropriate for removal. The Respondent submits it is satisfied that the two trees can be removed, due to replacement planting and conditions of consent.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.
The parties have advised that:
A Preliminary Site Investigation (Version 5.0) prepared by Ideal Geotech dated 15 January 2025 and a detailed site investigation (Version 1.0) prepared by Ideal Geotech dated 3 February 2025 found that the site is contaminated with lead and zinc;
A Remedial Action Plan prepared by Ideal Geotech (Revision 1) dated 14 April 2025 (RAP) has been filed with the Court; and
The parties agree that subject to works being performed under the RAP, and conditions of consent for a post works site audit (along with hazardous materials investigation and unexpected finds), the provisions of Ch 4 of the Resilience SEPP are satisfied and that the site will be made suitable for the proposed residential development.
The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site can be made suitable for the proposed development.
The proposed development falls within the meaning of a BASIX affected building in accordance with Sch 7 of the EPA Regulation.
An updated BASIX Certificate (Number 1822322S prepared by Ray Stevens dated 18 November 2025) has been provided for the proposed development in the further amended DA demonstrating compliance with s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.
State Environmental Planning Policy (Transport and Infrastructure) 2021
The parties advise that the DA was referred externally to Ausgrid pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021. Ausgrid advised it had no objection to the proposed development, subject to the design submission complying with the relevant Ausgrid Network Standards and SafeWork NSW Codes of Practice, and maintenance of “as constructed” clearances to Ausgrid’s infrastructure. A copy of Ausgrid’s response was provided to the Applicant and has now been included in Condition 7 of the conditions of consent.
Having considered the advice of the parties provided above at [18]-[51], I am satisfied that:
the Applicant’s amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act;
the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and
approval of the proposed development is in the public interest.
Further, 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.
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.
The Court notes:
That Inner West Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to development application DA/2024/1111 made on 11 November 2025 to rely on the amended plans and documents specified below:
| 1. Architectural plans (Revision K) prepared by OIKOS Architects, dated 11 November 2025 (unless otherwise stated): (a) Drawing No. 2024/19/Amd. K/00.00 – Cover; (b) Drawing No. 2024/19/Amd. K/01.01 – Plan-Site; (c) Drawing No. 2024/19/Amd. K/01.02 – Plan-Lower Ground; (d) Drawing No. 2024/19/Amd. /01.03 – Plan-Ground Floor (Revision J, dated “Work in Progress”; (e) Drawing No. 2024/19/Amd. K/01.04 – Plan-First Floor; (f) Drawing No. 2024/19/Amd. K/01.05 – Plan-Roof; (g) Drawing No. 2024/19/Amd. K/02.01 – Section-No. 1 AA; (h) Drawing No. 2024/19/Amd. K/02.02 – Sections-No.1 BB & CC; (i) Drawing No. 2024/19/Amd. K/02.03 – Section-No. 1 DD; (j) Drawing No. 2024/19/Amd. K/02.04 – Section-No. 2 EE; (k) Drawing No. 2024/19/Amd. K/03.01 – Elevations-North West; (l) Drawing No. 2024/19/Amd. K/03.02 – Elevation-South East; (m) Drawing No. 2024/19/Amd. K/03.03 – Elevation-No. 1 North East; (n) Drawing No. 2024/19/Amd. K/03.04 – Elevation-No. 1 South West; (o) Drawing No. 2024/19/Amd. K/03.05 – Elevation-No. 2 North East; (p) Drawing No. 2024/19/Amd. K/03.06 – Elevation-No. 2 South West; (q) Drawing No. 2024/19/Amd. L/04.01 – Area Schedule New Residence/No. 1. | | 2. Landscape plan reference LP 02 prepared by Lorna Harrison Landscape Architects, dated 6 November 2025. | | 3. Clause 4.6 Request – Minimum Lot Size prepared by PCN Urban, dated 10 November 2025. |
The Court orders that:
The appeal is upheld.
Development consent is granted to Development Application DA/2024/1111 for site remediation, removal of two site trees, Torrens title subdivision into two lots (Lot 1 and Lot 2), the construction of a new dwelling house and carport on Lot 1, the construction of a carport on Lot 2, and associated works on land identified as Lot 50 in Deposited Plan 1267443 and known as 7 Sunnyside Avenue, Lilyfield, NSW, 2040, subject to the conditions of consent at Annexure A.
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Annexure A.380 KB.pdf
Pursuant to the slip rule at r36.17 of the Uniform Civil Procedure Rules 2005 the judgment has been amended accordingly.
Pursuant to the slip rule at r36.17 of the Uniform Civil Procedure Rules 2005 the judgment and Annexure have been amended accordingly. The Respondent Seeks to correct:
Lowery
Inner West Council [2025] NSWLEC 1831