Mod Urban Pty Ltd v Inner West Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Marrickville Council, Marrickville Development Control Plan 2011

Category: Principal judgment

Parties: Mod Urban Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
K Glassborow (Solicitor) (Applicant)
J Marsland (Solicitor) (Respondent)
Solicitors:
G and B Lawyers (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s): 2024/288377

Publication restriction: No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, relate to an appeal pursuant to subs 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s deemed refusal of development application DA/2024/0422 (DA). The DA seeks consent for identified alterations and additions to an existing semi-detached dwelling, including the demolition of the existing garage, the construction of a new garage with storage above, landscaping and associated works at 42 Stafford Street Stanmore, legally described as Lot 1 in DP 1033759 (site).

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference between the parties under subs 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 8 May 2025. I presided over the conciliation conference.

3. Prior to the conciliation conference, the parties had come to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. According to the parties, all contentions have been resolved by way of amended plans and agreed conditions of consent. This decision of the parties would have the Court upholding the appeal and granting consent to the DA subject to these amended plans and conditions.

4. Under subs 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.

Jurisdiction

5. The parties’ decision involves the Court exercising the consent authority function, under s 4.16 of the EPA Act, to grant consent to the development application. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]). Ultimately, I find that there are none. However, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified certain jurisdictional prerequisites of relevance in these proceedings and how they have been or could be satisfied in a jurisdictional statement, provided to the Court on 1 May 2025 and updated on 8 May 2025. In regard to jurisdiction and having regard to this statement, I find as follows.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

6. Pursuant to subs 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I am advised by the parties that the Respondent has considered whether the site is contaminated and, on account of the site being historically used for residential purposes with no known history of potentially contaminating uses and events, is satisfied that no further investigation of the site is warranted. On this advice, I am satisfied that the requirements of RH SEPP are met.

State Environmental Planning Policy (Biodiversity & Conservation) 2021

7. Chapter 6 applies as the development is within Sydney Harbour Catchment. The parties advise, and reference background documentation, that there has been due consideration of the matters relating to water quality and quantity, aquatic ecology, flooding and recreation and public access (respectively subss 6.6(1), 6.7(1), 6.8(1) and 6.9(1)) and that the related applicable findings of satisfaction can be made with respect to subss 6.6(2), 6.7(2), 6.8(2) and 6.9(2). I accept the parties’ advice and make the applicable findings of satisfaction.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

8. Section 2.48 requires the consent authority to give written notice to the electricity supply authority and that comments be considered. The parties advise that this has occurred and that requirements of Ausgrid are adopted in agreed consent conditions.

Inner West Local Environmental Plan 2022 (IWEP)

9. The proposal is for permissible development in the applicable R2 Low Density Residential zone. Demolition is permissible under cl 2.7.

10. The parties advise that the site is located in the Kingston West Heritage Conservation Area (HCA) (item C90 in Part 2 of Schedule 5, and Heritage Map). The site is not listed as a heritage item. The required consideration of the effect of the proposal on the heritage significance of the HCA under subcl 5.10(4) has been given.

11. In regard to stormwater management, development consent must not be granted unless the consent authority is satisfied in relation to the matters listed at subcll 6.3(3)(a)-(c). The jurisdictional statement directly indicates that Council is satisfied in relation to each of these matters. The jurisdictional statement indicates that the proposal has been designed to maximise the use of water permeable surfaces on the land and avoid adverse impacts of stormwater runoff. Stormwater disposal is addressed at proposed Condition 2. The provision of deep soil landscaping, to improve soil permeability and reduce stormwater runoff, is at Condition 24(g). With this advice, I too am satisfied in regard to each of the listed matters subject to the agreed conditions of consent.

Other matters

12. Otherwise, I note the parties’ advice that the application has been properly made and the required consideration of relevant matters under subs 4.15(1) of the EPA Act has been undertaken in respect of environmental planning instruments and Marrickville Development Control Plan 2011.

13. The parties also advise the proposal was notified in accordance with requirements and no objecting submission were received.

Conclusion

14. Based on the above details, 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 subs 34(3) of the LEC Act. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

15. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the matter.

16. The LEC Act also required me to “set out in writing the terms of the decision” (subs 34(3)(b)). The final orders have this effect.

Notification

17. Inner West Council, as the relevant consent authority, has agreed under subs 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. 2024/0422, in accordance with the Amended Plans which were filed with the Court on 23 April 2025 and documents as listed below.

| Architectural Plans prepared by Planshop | | Plan Number | Plan Name | Revision | Date | | Sheet 02 | Site Plan | E | 25 March 2025 | | Sheet 05 | Ground Floor Demolition Plan | E | 25 March 2025 | | Sheet 06 | Roof Demolition Plan | E | 25 March 2025 | | Sheet 07 | Proposed Ground Floor Plan | E | 25 March 2025 | | Sheet 08 | Proposed New Upper Floor Level | E | 25 March 2025 | | Sheet 09 | Proposed Roof Plan | E | 25 March 2025 | | Sheet 10 | Elevations N | E | 25 March 2025 | | Sheet 11 | Elevations S | E | 25 March 2025 | | Sheet 12 | Elevations E&W | E | 25 March 2025 | | Sheet 13 | Sections | E | 25 March 2025 | | Sheet 14 | Finishes Schedule | E | 25 March 2025 | | Sheet 15 | Stormwater Drainage Concept Plan | E | 25 March 2025 | | Sheet 16 | Landscape Plan | E | 25 March 2025 | | Sheet 17 | Elevations All | E | 25 March 2025 | | Sheet 18 | Elevation across Rosevear Street and Lincoln Lane | E | 25 March 2025 | | Sheet 19 | Soil & Water Management Plan | E | 25 March 2025 | | Sheet 20 | General Notes | E | 25 March 2025 | | Sheet 21 | General Notes | E | 25 March 2025 | | Documents | | Ausgrid Response | Undated |

Orders

18. The Court orders:

19. In relation to the costs order made on 4 February 2025, the Applicant is to pay the Respondent's costs pursuant to subs 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $4,500.00 payable within 28 days of these orders.

20. The Applicant is granted leave to rely on the amended plans and documents referenced at [17].

21. The appeal is upheld.

22. Development Application No. DA/2024/0422 for alterations and additions to an existing semi-detached dwelling, including the demolition of the existing garage, the construction of a new garage with storage above, landscaping and associated works, is determined by grant of consent, subject to the conditions of consent at Annexure ‘A’.

Peter Walsh

Commissioner of the Court

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Annexure A (221 KB, pdf)