New Horizon Renovations Pty Ltd v Inner West Council

Category: Principal judgment

Parties: New Horizon Renovation Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
P Tomasetti (Applicant)
J Y Li (Applicant)
S Turner (Solicitor) (Respondent)
Solicitors:
DCB Law (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/250739

Publication restriction: No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Inner West Council, of Development Application DA/2024/0463 which seeks consent for the demolition of existing structures and construction of a part two, part three storey detached dwelling house, including the construction of an in-ground swimming pool at 32 Railway Parade, Annandale, Lot 1 DP 168257.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 22–23 October 2025.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments include:

6. Retention of the front façade and a portion of the existing dwelling

7. Retention of the existing garage and driveway

8. Reduction in height of the finished levels of the swimming pool

9. Amendment to the configuration of the additional first floor.

10. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified from 13–27 June 2024. Three submissions were received, and two residents from the same property made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions, particularly in relation to mitigating overlooking and privacy impacts and substantially lowering the finished level of the swimming pool. The parties agree that the amended application does not necessitate renotification as the environmental impacts are reduced.

9. The site is located within the Sydney Harbour Water Catchment and, accordingly, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies. From the parties’ submission and the concept stormwater design by Pantanial Consulting dated 23 September 2025 (stormwater plans), I accept that the requirements of Ch 6 of the Biodiversity and Conservation SEPP relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met by the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10), and is not located within 100m of a natural waterbody in a regulated catchment (s 6.11).

10. Pursuant to s 27 of the EPA Regulation a BASIX certificate, that relates to the development as amended, accompanies the application.

11. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submissions and the information contained in the Statement of Environmental Effects prepared by Cracknell & Lonergan Architects Pty Ltd dated 20 May 2024 I accept that the land has historically been used for residential purposes, is not likely to be contaminated and is suitable for the proposed development.

12. The subject site is zoned R1 General Residential under the Inner West Local Environmental Plan 2022 (IWLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

13. Pursuant to IWLEP cl 4.3C sets a minimum landscaped area for the site of 15% of the total site area, and a maximum site coverage of 60% of the total site area. The proposed development complies with both of these development standards as demonstrated on the amended architectural drawings.

14. IWLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.8:1. The proposed development complies with this development standard with a maximum FSR of 0.78:1.

15. The site is not identified as a heritage item but is located within the Annandale Heritage Conservation Area (HCA). The parties submit, and I accept that due to the retention of the front, street-facing portion of the existing dwelling and the amendments to the rear additions, the impact of the amended application on the heritage significance of the HCA is acceptable pursuant to IWLEP cl 5.10.

16. The site is also identified as a flood control lot. From the Flood Risk Management Report and Flood Risk Plans by Wehbe Consulting, all dated 8 October 2025, and the parties’ submissions, I accept that the proposed development meets the flood-related requirements of IWLEP cl 5.21.

17. Pursuant to IWLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, but is not within 500m of any land Classed as 1, 2, 3 or 4 land, nor does it comprise works below 5m Australian Height Datum. Accordingly, an acid sulfate soils management plan is not required and the requirements of IWLEP cl 6.1 have been met.

18. The proposed development includes earthworks. From the parties’ submissions and the information contained in the Geotechnical Investigation and Geotechnical Report by Green Geotechnics dated 23 September 2025, I accept that the proposed earthworks are acceptable when considered against the matters listed in IWLEP cl 6.2(3).

19. Based on the information contained in the amended application, particularly the stormwater plans, I accept that the stormwater management of the proposed development meets the requirements of IWLEP cl 6.3.

Conclusion

20. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions and that therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

21. The Court notes:

22. Inner West Council has agreed to the applicant amending the Application Class 1, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to rely on the following additional and amended materials:

| 1. Architectural plans, Numbered S.34AA, Issue B, prepared by Cracknell & Lonergan Architect Pty Ltd, dated 23 October 2025 | | 2. BASIX Certificate A1818485 issued 23 October 2025 | | 3. Geotechnical Report, CG12232-001, prepared by Green Geotechnics, dated 23 September 2025 | | 4. Flood Risk Management Report, prepared by Wehbe Consulting, dated 8 October 2025 | | 5. Flood plans, Issue B, SW118, prepared by Wehbe Consulting, dated 8 October 2025 | | 6. Concept stormwater drainage plans, 21240 C01-C08 Revision 1, prepared by Pantanial Consulting, dated 23 September 2025 |

22. The Court orders:

23. The appeal is upheld.

24. Development application DA/2024/0463, as amended, for retention of the front portion of the dwelling and existing driveway crossing location, alterations and additions to the existing dwelling, including the construction of an in-ground swimming pool, on land identified as Lot 1 DP 168257 known as 32 Railway Parade, Annandale is determined by the grant of development consent, subject to the conditions of consent at Annexure A

E Washington

Commissioner of the Court

Annexure A (458 KB, pdf)

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Amendments

07 November 2025

Correction to appearances.