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[2025] NSWLEC 1609
General information, not legal advice.
Land and Environment Court (NSW)
2025-08-26
Nichols 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: Mytech Trinh v Inner West Council [2025] NSWLEC 1609
Hearing dates: Conciliation conference on 6 May 2025
Date of orders: 26 August 2025
Decision date: 26 August 2025
Jurisdiction: Class 1
Before: Nichols AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development application DA/2024/0382, as amended includes the battleaxe subdivision of existing lot into 4 Torrens title allotments with access handles for the rear lots, and construction of 2x two-storey semi-detached dwellings with swimming pools at 10 England Avenue, Marrickville.
(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the Development Application, as agreed or assessed.
Catchwords: APPEAL — development application — residential — subdivision — conciliation conference —agreement between the parties — orders made
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Local Land Services Act 2013 (NSW), Pt 5B, s 60O
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38
Inner West Local Environmental Plan 2022, cll 2.1, 2.2, 2.3, 2.6, 2.7, 4.1, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4, 6.5, 6.8, 6.9, 6.14, 6.15
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, ss 2.6, 2.7
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022
Category: Principal judgment
Parties: Mytech Trinh (Applicant)
Inner West Council (Respondent)
Representation: Counsel:
M Sonter (Solicitor) (Applicant)
M Pearce (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)
File Number(s): 2024/420127
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal of development application DA/2024/0382 by Inner West Council lodged on 24 May 2024. This appeal concerns a development application for the battleaxe subdivision of existing lot into 4 Torrens title allotments with access handles for the rear lots, and construction of 2x two-storey semi-detached dwellings with swimming pools at 10 England Avenue, Marrickville.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
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 was held on 6 May 2025. I presided over the conciliation conference. In the course of the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
The terms of the agreement between the parties involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
As part of this agreement the Council agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg), to the applicant amending the development application. These amendments included retention of Trees 28 and 29, proposed driveway crossing between Tree 28 and Tree 29 to Lot B, garage access for Lot A is provided via the existing driveway vehicular access, revised Ground Floor Plan of Lot A & B, including repositioning of the garages, Bed 5 and Bathroom in accordance with the proposed driveway crossings, pitch roof proposed to Lot C & D; and revised First floor plan of Lot C & D, including increased side and rear setback from adjoining boundaries.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites they saw as of relevance in these proceedings and explained how they have been satisfied. Mindful of this advice I make the following findings in relation to jurisdiction.
Owner’s consent was given by all four owners of the Site being Hugo Trinh, My Leng Trinh, My Song Trinh and My Yee Trinh to the Applicant for the lodgement of the Development Application. I am satisfied that owner’s consent was given for the lodgement of the Development Application.
The Development Application was publicly notified in accordance with the Council’s Community Participation Plan between 23 May 2024 and 6 June 2024. The Council received 87 submissions in response to the public notification of the Development Application and raised concerns including solar access and overshadowing, visual privacy, streetscape character, private open space, and boundary setbacks among others. Submissions of objectors have been taken into account by the parties in the design of the Amended Application. I am satisfied the application received sufficient public notification.
Pursuant to s 4.6 of Resilience and Hazards SEPP, consent must not be granted to a development unless contamination of the site has considered, and that if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.
The Site has been historically utilised for residential use. There are no known previous uses that would lead to the site being contaminated or unsuitable for ongoing use for residential purposes (Statement of Environmental Effects prepared by Planzone dated 31 January 2024). The proposed development does not propose a change of use. I accept the advice of the parties that the proposed development satisfies s 4.6 of the Resilience and Hazards SEPP.
Chapter 2 of the Biodiversity SEPP details provisions regarding the preservation and management of vegetation in non-rural areas. Pursuant to s 2.6(1), vegetation cannot be cleared on land to which this Chapter applies without the authority conferred by a permit granted by the Council. However, in accordance with section 2.7(1), a permit or approval to clear vegetation is not required if it is clearing of a kind that is authorised under section 60O or Part 5B of the Local Land Services Act 2013 (NSW) (LLS Act). Section 60O(a)(i) of the LLS Act authorises clearing of vegetation where the clearing is authorised by development consent under Part 4 of the EPA Act.
The Applicant seeks consent for the removal of 21 trees on the Site, being the kind authorised under s60O of the LLS Act. Accordingly, a permit or approval to clear vegetation is not required under s 2.6.
I am satisfied that the trees have been appropriately assessed in accordance with the aims of Ch 2. The Amended Arboricultural Impact Assessment & Tree Protection Plan prepared by The Ents Tree Consultancy dated 10 June 2025 confirms that the street trees (Trees 28 and 29) can be retained with the 2 driveways (one to lot A and lot B). The 21 trees recommended for removal are identified as having a low to medium retention value or priority for removal. I accept the advice of the parties that a permit or approval to clear vegetation is not required under section 2.7 of the Biodiversity SEPP.
Cll 2.1 and 2.2 refers to the zoning of land to which the LEP Plan applies. The Site is identified on the Land Zoning Map as being zoned R2 Low Density Residential. ‘Dwelling houses’ are permissible with consent in the R2 Low Density Semi-detached dwellings (Statement of Environmental Effects prepared by Planzone dated 31 January 2024).
Cl 2.3(2) requires the consent authority to have regard to the zone objectives which are:
To provide for the housing needs of the community within a low density residential environment.
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.
The proposed development achieves the objectives for R2 Low Density Residential zone by providing for the housing needs of the community within a low-density residential environment and by maintaining the character of built and natural features in the surrounding area (Statement of Environmental Effects prepared by Planzone dated 31 January 2024).
Clause 2.6 requires that development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land. The proposed development seeks consent for the battleaxe subdivision of existing lot into 4 x Torrens title allotments. The Site is not located on the LEP Lot Size Map. I am satisfied with the parties advice that cl 2.6 of the LEP does not apply to the proposed development.
Clause 2.7 requires demolition of a building or work may be carried out only with development consent. The Amended Application does not seek consent for the demolition of the existing structures (Statement of Environmental Effects prepared by Planzone dated 31 January 2024). I am satisfied with the advice from the parties that cl 2.7 of the LEP does not apply.
Clause 4.1 applies to any land shown on the ‘Lot Size Map’ that requires development consent. The Site is not identified on the LEP Lot Size Map. I am satisfied with the advice from the parties that cl 4.1 of the LEP does not apply.
Clause 4.3(2) requires the height of building on any land to which this plan applies to not exceed the maximum building height of 9.5m on the LEP Height of Buildings Map. I am satisfied with the parties advice (Amended Architectural Plans prepared by Habitat Housing dated 11 July 2025) that the proposed development in all of the proposed Lots complies with cl 4.3 of the LEP.
Clause 4.4(2) requires the floor space ratio to not exceed the FSR of 0.6:1. I am satisfied with the parties advice (Amended Architectural Plans prepared by Habitat Housing dated 11 July 2025) that the proposed development in all of the proposed Lots complies with cl 4.4 of the LEP.
Clause 5.10 requires the consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area. I am satisfied with the advice of the parties that cl 5.10 of the LEP does not apply (Statement of Environmental Effects prepared by Planzone dated 31 January 2024).
Clause 5.21 requires that development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied of the matters listed in clause 5.21(2) and 5.21(3). I am satisfied with the advice of the parties that cl 5.21 of the LEP does not apply (Statement of Environmental Effects prepared by Planzone dated 31 January 2024).
Clause 6.1 requires that development consent is required for the carrying out of works described in the Table at cl 6.1(2) on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. The Site is identified as containing Class 5 acid sulfate soils. However, I am satisfied with the advice of the parties that cl 6.1 of the LEP does not apply (Statement of Environmental Effects prepared by Planzone dated 31 January 2024) because the proposed development is not located within 500m of class 1, 2, 3 or 4 land and is not likely to lower the water table below 1m Australian Height Datum.
Clause 6.2 requires that development consent is required for earthworks unless the work is ancillary to other development for which development consent has been granted. I accept the advice of the parties that cl 6.2 has been satisfied (Statement of Environmental Effects prepared by Planzone dated 31 January 2024) and the proposed development proposes minor earthworks which are unlikely to have a detrimental impact on environmental functions and processes, existing drainage patterns, or soil stability.
Clause 6.3 requires that consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied of the matters listed in cl 6.3(3)(a) - (c). I accept the advice of the parties that cl 6.3 has been satisfied (Statement of Environmental Effects prepared by Planzone dated 31 January 2024, amended Architectural Plans prepared by Habitat Housing dated 11 July 2025, amended Stormwater Plans prepared by Amity Engineers dated 27 June 2025).
Clause 6.4 requires the consent authority to consider the matters listed in cl 6.4(3) and must be satisfied of the matters listed in cl 6.4(4) of the LEP. I accept the advice of the parties that cl 6.4 does not apply to the proposed development.
Clause 6.5 requires the consent authority to be satisfied of the matters listed in cl 6.5(4)(a) to (h). I accept the advice of the parties that cl 6.5 does not apply to the proposed development.
Clause 6.8 requires that the consideration of matters listed at cl 6.8(3)(a) to (c). This clause applies as the Site is located in an ANEF contour of 25-30. I accept the advice of the parties that cl 6.8 has been satisfied (Aircraft Noise Assessment prepared by National Noise & Vibration dated 25 October 2023).
Clause 6.9 requires consideration of design excellence having regard to the matters listed in cl 6.9(4)(a) to (f). I accept the advice of the parties that cl 6.9 does not apply as the amended Application does not propose a building that is 14m in height or greater.
Clauses 6.14(3)(a) and (b) and 6.15(4) requires satisfaction of various listed matters. I accept the advice of the parties that cl 6.14 and 6.15 do not apply as the Site is not identified on the ‘Key Sites Map’.
Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders I make below have this effect.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The Court notes that Inner West Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending Development Application DA/2024/0382 to rely upon the plans and documents in Condition 1 of Annexure A.
The Court orders that:
The appeal is upheld.
Development application DA/2024/0382, as amended includes the battleaxe subdivision of existing lot into 4 Torrens title allotments with access handles for the rear lots, and construction of 2x two-storey semi-detached dwellings with swimming pools at 10 England Avenue, Marrickville.
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the Development Application, as agreed or assessed.
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Annexure A.424 KB.pdf
Mytech Trinh
Inner West Council [2025] NSWLEC 1609