Salvatore Papa Pty Ltd v Inner West Council

Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, July 2015.

Category: Principal judgment

Parties: Salvatore Papa Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
S Patterson (Solicitor) (Applicant)
M To (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/181517

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: Development is proposed on a site fronting Ramsay Street within the Haberfield town centre. The proposal seeks to demolish an existing two storey building and detached garage in order to construct a three storey shop top housing development with 6 residential units above a ground floor commercial space.

2. To this end, the Applicant in these proceedings, Salvatore Papa Pty Ltd (Papa), as owner of the site, lodged development application DA/2024/0034 with Inner West Council on 24 January 2024 in respect of the site at 80-82 Ramsay Street.

3. The Council notified the development application between 14 February 2026 and 6 March 2024 and later refused the development application on 10 December 2024.

4. On 12 May 2025, Papa appealed the refusal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW), (EPA Act).

5. The matter was initially listed before me for hearing on 9-10 February 2026. However, on the eve of the hearing, parties advised the Court that all matters in contention were resolved. Parties sought the matter to be reallocated in accordance with s 34 of the Land and Environment Court Act 1979 (NSW), (LEC Act), and filed an agreement with the Court on 6 February 2026 accordance with s 34(10) of the LEC Act.

6. As such, the parties reached in-principle agreement prior to the conciliation conference arranged by the Court on 9 February 2026, under s 34(1) of the LEC Act between the parties, at which I presided.

7. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

8. In general terms, the agreement approves the development subject to amended plans that were prepared on behalf of the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

9. 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. 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.

10. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments:

11. Inner West Local Environmental Plan 2022

12. State Environmental Planning Policy (Housing) 2021

13. State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. State Environmental Planning Policy (Resilience and Hazards) 2021

15. State Environmental Planning Policy (Sustainable Buildings) 2022

16. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

17. The site is located within an area designated E1 Local Centre by the Inner West Local Environmental Plan 2022 (IWLEP) in which dwelling house development is permitted with consent, where consistent with the following objectives for development in the E1 zone:

• To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

• To encourage investment in local commercial development that generates employment opportunities and economic growth.

• To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

• To provide employment opportunities and services in locations accessible by active transport.

• To provide retail facilities and business services for the local community commensurate with the centre’s role in the local centres hierarchy.

• To ensure Inner West local centres are the primary location for commercial and retail activities.

• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

• To enhance the unique sense of place offered by Inner West local centres by ensuring buildings display architectural and urban design quality and contributes to the desired character and cultural heritage of the locality.

13. The site is located within the Haberfield Heritage Conservation Area (Haberfield HCA), identified in Sch 5 of the IWLEP. It is not listed as an item of heritage significance. A Statement of Heritage Impact prepared by Graham Hall and Partners dated November 2024 details the historical development of Haberfield and the chronology of development in the street from 1909-1913 and classifies the existing building as intrusive in the Haberfield HCA. I have considered the effect of the proposed development on the Haberfield HCA in accordance with cl 5.10 of the IWLEP, and I conclude the proposal does not adversely impact the Haberfield HCA.

14. The site is designated on the relevant Acid Sulfate Soils Map at cl 6.1(2) as Class 5. However, as it is not within 500m of another class of acid sulfate soils, I accept that an acid sulfate soils management plan is not required.

15. On the basis of the Preliminary Site Investigation Report prepared by KFM Geotech Pty Ltd dated 11 December 2025, and agreed conditions of consent that provide for validation of the off site disposal of excavated soil in accordance with relevant guidelines, I accept that the earthworks proposed are minor and those matters required to be considered at cl 6.2(3) in respect of earthworks are satisfactorily addressed.

16. The Stormwater Plans prepared by Quantum Engineers depict a stormwater management system comprising a rainwater tank with 11,000L capacity for re-use in toilets, laundry and irrigation and stormwater quality filtration devices. MUSIC modelling provided on the Stormwater Plans also verify the reduction in pollutants such that the Court can be satisfied that the proposed development is designed to maximise the use of water permeable surfaces on the land, and includes the on-site stormwater retention for use as an alternative supply to mains water, and avoids a significant adverse impact of stormwater runoff on adjoining properties and receiving waters in accordance with cl 6.3(3) of the IWLEP.

17. As the proposal includes residential accommodation in an E1 zone, is a mixed use development with an active street frontage, and where the parties agree the proposal is compatible with desired character of the area, I am satisfied the proposed development is consistent with s 6.13 of the IWLEP.

The design of residential apartment development

18. The development proposes the dedication of two units for the purpose of affordable housing and the parties advise that the area of those two units comprises not less than 15% of the gross floor area of the development. As such, s 16 of State Environmental Planning Policy (Housing) 2021 (the Housing SEPP) deems additional floor space area so that a permissible floor space ratio (FSR) standard of 1.3:1 applies to the site, with which the development complies, notwithstanding the FSR at cl 4.4 of the IWLEP.

19. The parties agree that where the proposal fails to comply with the non-discretionary standards at s 19 of the Housing SEPP, it is for reasons considered acceptable, including but not limited to the highly dense E1 zone, and where the rear lane serves to provide building separation.

20. The parties agree that the proposed development is compatible with the desirable elements of the character of the local area, pursuant to s 20 of the Housing SEPP and that provision is made in the agreed conditions of consent for the affordable housing component to be for a period of at least 15 years, in a manner consistent with ss 16, 17 and 18 of the Housing SEPP and to be managed by a registered community housing provider, in accordance with s 21 of the Housing SEPP.

21. The Court is also required to consider the quality of the design of the development, evaluated in accordance with the design principles at Sch 9 of the Housing SEPP. I am assisted in so doing by a statement (undated) that, once corrected, was prepared in accordance with s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) that attests Mr Stefan Lombardo (Arch Reg No. 8715) directed the design of the proposal, and sets out the means by which the design principles have been applied in the proposed development, and how the objectives in Parts 3 and 4 of the Apartment Design Guide (ADG) are addressed.

22. The corrected statement prepared by Mr Lombardo explains how the development addresses the objectives in Parts 3 and 4 of the ADG and so is consistent with the requirements at s 29 of the EPA Regulation. Once corrected, the statement assists the Court to take into consideration those matters at ss 147, 148 and 149 of the Housing SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

23. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. The parties agree the site is not a strategic foreshore site, a heritage item on the Sydney Harbour heritage map or land within a wetlands protection area.

24. Section 6.6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

25. For reasons identical to those at [15], I am satisfied that s 6.6 of the Biodiversity SEPP is achieved by providing water quality filtration to water in the post-development scenario in a manner that achieves a neutral or beneficial effect on the water quality, and that the rainwater tank and proposed reuse of collected water minimises water flow into the harbour.

26. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied that the retention of water and post development flows will keep any direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and will not have an adverse impact on aquatic reserves, or in terms of erosion. I also note that the site is not identified as flood liable land to which s 6.8 of the SEPP is directed and so does not apply. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

27. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). On the basis of the Preliminary Site Investigation Report prepared by KFM Geotech Pty Ltd dated 11 December 2025, and the historical chronology set out for the site in the Statement of Heritage Impact cited at [13] and the, I am satisfied the site is suitable for the purpose for which development is proposed to be carried out.

State Environmental Planning Policy (Sustainable Buildings) 2022

28. The application is accompanied by a BASIX certificate (Cert No. 1831577M dated 4 February 2026) prepared by ESD Synergy in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP). An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

29. 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.

30. 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.

31. The Court notes that pursuant to s 38 of the EPA Regulation, the Respondent has approved the Applicant amending Development Application DA/2024/0034, in accordance with the documents listed below:

| Plan, Revision and Issue No. | Document / Plan Name | Date | Prepared by | | DA04, Rev H | Ground Floor Plan | 3/12/2025 | O2 Architecture | | DA05, Rev H | Level 1 Plan | 3/12/2025 | O2 Architecture | | DA06, Rev G | Level 2 Plan | 11/12/2025 | O2 Architecture | | DA07, Rev E | Roof Plan | 12/09/2025 | O2 Architecture | | DA08, Rev D | Sections | 10/07/2025 | O2 Architecture | | DA09, Rev F | Elevations - Sheet 1 | 12/09/2025 | O2 Architecture | | DA10, Rev F | Elevations - Sheet 2 | 12/09/2025 | O2 Architecture | | 1831577M | BASIX Certificate | 04/02/2026 | ESD Synergy Pty Ltd | | 5638 | Detail Survey | 20/09/2025 | DA Surveys | | N/A | Response to Council Comments Relating to Parking and Loading Arrangements | 12/12/2025 | Stanbury Traffic Planning | | KFMGR-250656 | Environmental Preliminary Site Investigation with Soil Sampling (PSI) Report | 11/12/2025 | KFM Geotech Pty Ltd | | 25382 | Fire Safety Engineering Advice | 20/09/2025 | Mobius Fire Safety Engineering |

32. The amended plans and other documents cited above were filed with the Court on 9 February 2026.

Orders

33. The Court orders that:

34. The Applicant is to pay the Council’s costs thrown away by reason of the amendment of Development Application DA-24-00107 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 *(*NSW), in the agreed amount of $3,000.

35. The appeal is upheld.

36. Development consent is granted to Development Application DA/2024/0034 for the demolition of existing structures and construction of a 3-storey shop top housing development including ground level commercial tenancy, car parking and 6 apartments on the upper levels at 80-82 Ramsay Street, Haberfield, subject to the conditions in Annexure A.

T Horton

Commissioner of the Court

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Annexure A (344 KB, pdf)