Song v Inner West Council

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

Texts Cited: Leichhardt Development Control Plan 2013

Category: Principal judgment

Parties: Hong Kun Song (First Applicant)
Min Sun Kim (Second Applicant)
Inner West Council (Respondent)

Representation: Counsel:
S Berveling (Applicants)
R Dunstan (Solicitor) (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicants)
Inner West Council (Respondent)

File Number(s): 2025/394423

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the actual refusal of development application DA/2025/0283. As amended the development application seeks consent for the demolition of the existing structures, construction of a three-storey detached residential dwelling and associated works. The development is proposed at 93 Cecily Street, Lilyfield (Lot 22 in Deposited Plan 1256600).

2. A conciliation conference was held between the parties on 16, 17 February 2026 pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). I presided over the conciliation conference. At the conciliation conference the parties reached an agreement based on amended plans and documents. The parties' agreement is for the grant of consent to the application, as amended, subject to conditions. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMillan) at [51].

3. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions: see McMillan at [51]. I form this state of satisfaction on the basis that:

4. The Applicants are the owner of the land and Landowners consent was provided by at the time of lodgement of the development application: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

5. The development application was notified by the Respondent between 1 and 15 May 2025. Five submissions were received. Further, a number of residents addressed the Court at the commencement of the onsite component of the proceedings. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

6. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires the consent authority to consider the contamination of the land when determining the development application. The Statement of Environmental Effects (SEE) nominates that a review of historical documents indicates that the site has had long term residential usage. The parties agree, and I accept, that there is no evidence indicating the site may be contaminated. Further, the use of the site is proposed to remain as residential. On the basis of the preceding, and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.

7. State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) applies to the proposed development. The development application is accompanied by an updated BASIX certificate in compliance with the Sustainable Buildings SEPP.

8. Pursuant to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), the site is located within the Sydney Harbour Catchment as shown on the Sydney Harbour Catchment Map. Sections 6.6-6.10 of SEPP BC contain matters which the consent authority must consider before the grant of consent. In undertaking these considerations, I am assisted by the SEE, the architectural, stormwater and landscape plans which form part of the development application. I have considered the matters at ss 6.6-6.10 of SEPP BC and none warrant the refusal of the development.

9. Further, in determining the development application I am satisfied that the proposal appropriately considers the matters set out at ss 6.6-6.10 of SEPP BC, which deal with mandatory water quality, aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, and adverse environmental impacts on any adjacent or downstream local government areas. The parties agree, and I accept, that no clearing is proposed nor is consent sought under the Water Management Act 2000 (NSW) or the Fisheries Management Act 1994 (NSW). There are no known wetlands or significant aquatic ecology that will be affected by the proposed development. Further, as detailed in the stormwater design the proposed development will not result in an adverse release of pollutants or affect water quality in the locality nor alter the natural recession of water.

10. The Inner West Local Environmental Plan 2022 (LEP 2022) is the relevant environmental planning instrument that applies to the land. The land is zoned R1 General Residential. The proposal is characterised as a ‘dwelling house’ which is a use permitted with consent in the zone. In determining the development application, I have considered the objectives of the zone.

11. Pursuant to cl 4.3 ‘Landscaped areas for residential accommodation in Zone R1’ of LEP 2022 two development standards apply. Firstly, the development is required to provide a minimum landscaped area of 15% of the total site area. Secondly, the development is required to have a maximum site coverage of 60% of the total area of site. The amended development application complies with both of these standards.

12. The development application complies with the floor space ratio standard at cl 4.4(2B)(a) of LEP 2022.

13. The site is located within the Brennan’s Estate Heritage Conservation Area (HCA). A heritage impact assessment assessing the impact of the proposed development on the HCA accompanies the development application. The impact of the proposed development on the significance of the HCA was also the subject of expert evidence. I accept the agreed submission of the parties that the amended development application will not have a detrimental impact on the significance of the HCA.

14. Clause 6.1 ‘Acid sulfate soil’ in LEP 2022 applies to the site. The acid sulfate soil map nominates the site as being affected by Class 5 acid sulfate soils. The site is not located within 500m of adjacent Class 1, 2, 3, or 4 land. The proposal does not involve works below 5 m and is therefore unlikely to lower the water table below 1 m AHD on adjacent Class 1, 2, 3, or 4 land. Further, acid sulfate soils have been addressed in the Preliminary Geotechnical Report which forms part of the development application. The parties agree, and I accept, that the site is suitable for the proposed development.

15. Clause 6.2 'Earthworks' in LEP 2022 applies to the development application as it proposes excavation. The development application includes a Preliminary Geotechnical Report. Compliance with the recommendations of the Preliminary Geotechnical Report forms part of the annexed conditions. In determining the development application, I have considered the matters listed at cl 6.2(3) and I am satisfied that none would warrant the refusal of the development application.

16. In relation to required considerations at cl 6.3(3) Stormwater in LEP 2021, with the assistance of the Stormwater Plans, I accept the agreed position of the parties that:

(a) The development is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water; (b) Includes onsite stormwater retention in the form of below ground rainwater tanks for use as an alternative supply to mains water; and (c) Minimises and mitigates significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters.

14. Clause 6.8 ‘Development in areas subject to aircraft noise’ of LEP 2022 applies to the site, firstly as it is located within the 20-25 Australia Noise Exposure Forecast (ANEF) contours and secondly as it proposes the erection of a new building. The parties agree, and I accept that, compliance with the annexed conditions of consent will ensure the development will comply with AS 2021:2015 Acoustics – Aircraft Noise Intrusion – Building Siting and Construction. Having considered the matters in cl 6.8(3) of LEP 2022, I am satisfied that none warrant the refusal of the development application.

15. Leichhardt Development Control Plan 2013 (DCP 2013) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2013. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

16. 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)).

17. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

Notes

6. The Court notes that:

7. The Respondent has agreed to the Applicant amending the Application Class 1, pursuant to s 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 (NSW), to rely on the following additional and amended materials.

| 1. Architectural plans issue 08 prepared by RG AD, dated 17 February 2026: a) Drawing number DA 000 – Cover Page; b) Drawing number DA 002 – Site Survey; c) Drawing number DA 003 – Site Plan; d) Drawing number DA 004 – Calculations; e) Drawing number DA 005 – GFA Calculations; f) Drawing number DA 100 – Lower Ground Floor; g) Drawing number DA 101 – Upper Ground Floor; h) Drawing number DA 102 – First Floor; i) Drawing number DA 200 – Section S-01; j) Drawing number DA 201 – Section S-02; k) Drawing number DA 300 – North Elevation E-01; l) Drawing number DA 301 – East Elevation E-02; m) Drawing number DA 302 – South Elevation E-03; n) Drawing number DA 303 – West Elevation E-04; o) Drawing number DA 350 – Finishes and Windows Schedule; p) Drawing number DA 360 – Waste Management Plan; q) Drawing number DA 400 – Shadow Diagram: 21 Mar – 09.00AM; r) Drawing number DA 401 – Shadow Diagram: 21 Mar – 12.00PM; s) Drawing number DA 402 – Shadow Diagram: 21 Mar – 3.00PM; t) Drawing number DA 403 – Shadow Diagram: 21 Jun – 09.00AM; u) Drawing number DA 404 – Shadow Diagram: 21 Jun – 10.00AM; v) Drawing number DA 405 – Shadow Diagram: 21 Jun – 11.00AM; w) Drawing number DA 406 – Shadow Diagram: 21 Jun – 12.00PM; x) Drawing number DA 407 – Shadow Diagram: 21 Jun – 1.00PM; y) Drawing number DA 408 – Shadow Diagram: 21 Jun – 2.00PM; z) Drawing number DA 409 – Shadow Diagram: 21 Jun – 3.00PM; aa) Drawing number DA 410 – Shadow Diagram: 21 Sep – 09.00AM; ab) Drawing number DA 411 – Shadow Diagram: 21 Sep – 12.00PM; ac) Drawing number DA 412 – Shadow Diagram: 21 Sep – 3.00PM; ad) Drawing number DA 413 – Shadow Diagram: 21 Dec – 09.00AM; ae) Drawing number DA 414 – Shadow Diagram: 21 Dec – 12.00PM; af) Drawing number DA 415 – Shadow Diagram: 21 Dec – 3.00PM. | | 2. BASIX certificate number 1780872S_03 prepared by Certified Energy, dated 17 February 2026. | | 3. NatHERS certificate number 0012782389 prepared by Certified Energy, dated 17 February 2026. |

Orders

7. The Court orders that:

8. The appeal is upheld

9. Development application number DA/2025/0283, as amended, for the demolition of the existing structures and construction of a three-storey detached residential dwelling and associated works on land identified as Lot 22 in Deposited Plan 1256600 and known as 93 Cecily Street, Lilyfield is determined by the grant of consent, subject to the conditions in Annexure A

D Dickson

Commissioner of the Court

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Annexure A (252 KB, pdf)