Srour Holdings Pty Ltd as trustee for the Srour Holdings Family Trust v Inner West Council

Texts Cited: Standards Australia, AS 2021:2015 Acoustics - Aircraft Noise Intrusion - Building Siting and Construction, 2015

Category: Principal judgment

Parties: Srour Holdings Pty Ltd as trustee for the Srour Holdings Family Trust (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
R White (Respondent)
Solicitors:
McCullough Robertson (Applicant)
Inner West Council (Respondent)

File Number(s): 2024/224628

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 2024/0336 for demolition of existing structures, construction of two semi-detached dwellings and one attached dwelling, two with rear garages, and one-into-three lot Torrens title subdivision (the proposal), at 3 Johnston Street, Annandale (Lot 1 DP 956048) (the site), by Inner West Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 March 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

3. 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 preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are listed below:

| Title | Reference / Revision | Author | Date | | Architectural diagrams | | Cover Page | 2314 – 001 – Rev F | Texco Design | 18.03.2025 | | BASIX Specifications | 1731336M (Texco Design 2314 – 002 – Rev F) | AENEC | 08.04.2024 | | Survey Plan | 19204-4 (Texco Design 2314 – 003 – Rev F) | J.P. Bates & Inwood | 10.06.2021 | | Demolition Plan | 2314 – 004 – Rev F | Texco Design | 18.03.2025 | | Site Plan | 2314 – 005 – Rev F | Texco Design | 18.03.2025 | | Site Analysis | 2314 – 006 – Rev F | Texco Design | 18.03.2025 | | Streetscape Elevation | 2314 – 007 – Rev F | Texco Design | 18.03.2025 | | Subdivision Plan | 2314 – 008 – Rev F | Texco Design | 18.03.2025 | | GFA Calculation | 2314 – 009 – Rev F | Texco Design | 18.03.2025 | | Landscape/Site Coverage Calculation | 2314 – 010 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Existing Building) – 21st June | 2314 – 011 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Existing Building) – 21st June | 2314 – 012 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Existing Building) – 21st June | 2314 – 013 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Existing Building) – 21st June | 2314 – 014 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at 1m Elevated Level) – 21st June 9am | 2314 – 015 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at 1m Elevated Level) – 21st June 10am | 2314 – 016 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at 1m Elevated Level) – 21st June 11am | 2314 – 017 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at 1m Elevated Level) – 21st June 12pm | 2314 – 018 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at 1m Elevated Level) – 21st June 1pm | 2314 – 019 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at 1m Elevated Level) – 21st June 2pm | 2314 – 020 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at 1m Elevated Level) – 21st June 3pm | 2314 – 021 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st June 9am | 2314 – 022 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st June 10am | 2314 – 023 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st June 11am | 2314 – 024 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st June 12pm | 2314 – 025 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st June 1pm | 2314 – 026 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st June 2pm | 2314 – 027 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st June 3pm | 2314 – 028 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st March 9am | 2314 – 029 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st March 10am | 2314 – 030 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st March 11am | 2314 – 031 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st March 12pm | 2314 – 032 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st March 1pm | 2314 – 033 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st March 2pm | 2314 – 034 – Rev F | Texco Design | 18.03.2025 | | Sun Eye Diagram (Proposed Development at NGL) – 21st March 3pm | 2314 – 035 – Rev F | Texco Design | 18.03.2025 | | Elevational Shadow Diagram (Existing Building) – 21st June | 2314 – 036 – Rev F | Texco Design | 18.03.2025 | | Elevational Shadow Diagram (Proposed Development at 1m Elevated Level) – 21st June | 2314 – 037 – Rev F | Texco Design | 18.03.2025 | | Elevational Shadow Diagram (Proposed Development at Natural Ground Level) – 21st June | 2314 – 038 – Rev F | Texco Design | 18.03.2025 | | Elevational Shadow Diagram (Proposed Development at Natural Ground Level) – 21st March | 2314 – 039 – Rev F | Texco Design | 18.03.2025 | | Ground Floor Plan | 2314 – 101 – Rev F | Texco Design | 18.03.2025 | | First Floor Plan | 2314 – 102 – Rev F | Texco Design | 18.03.2025 | | Attic Floor Plan | 2314 – 103 – Rev F | Texco Design | 18.03.2025 | | Roof Plan | 2314 – 104 – Rev F | Texco Design | 18.03.2025 | | East & West Elevation | 2314 – 201 – Rev F | Texco Design | 18.03.2025 | | North & South Elevation | 2314 – 202 – Rev F | Texco Design | 18.03.2025 | | East & West Elevation (Garage) | 2314 – 203 – Rev F | Texco Design | 18.03.2025 | | Section A & B | 2314 – 301 – Rev F | Texco Design | 18.03.2025 | | Section C & D | 2314 – 302 – Rev F | Texco Design | 18.03.2025 | | Material Schedule | 2314 – 401 – Rev F | Texco Design | 18.03.2025 | | East & West Material Schedule | 2314 – 402 – Rev F | Texco Design | 18.03.2025 | | North & South Material Schedule | 2314 – 403 – Rev F | Texco Design | 18.03.2025 | | Door Schedule | 2314 – 501 – Rev F | Texco Design | 18.03.2025 | | Window Schedule | 2314 – 502 – Rev F | Texco Design | 18.03.2025 | | Swept path diagrams | | Ground Floor Swept Path Assessment | 23089-V1.10-SP (1 of 6) | Genesis Traffic | 18.03.2025 | | Ground Floor Swept Path Assessment | 23089-V1.10-SP (2 of 6) | Genesis Traffic | 18.03.2025 | | Ground Floor Swept Path Assessment | 23089-V1.10-SP (3 of 6) | Genesis Traffic | 18.03.2025 | | Ground Floor Swept Path Assessment | 23089-V1.10-SP (4 of 6) | Genesis Traffic | 18.03.2025 | | Ground Floor Swept Path Assessment | 23089-V1.10-SP (5 of 6) | Genesis Traffic | 18.03.2025 | | Ground Floor Swept Path Assessment | 23089-V1.10-SP (6 of 6) | Genesis Traffic | 18.03.2025 | | Stormwater plans and reports | | Specifications Sheet | 20240420-S34-SW-DWG-01 – S101 – Rev 01 | Deboke Engineering Consultants | 25.02.2025 | | Ground Floor Plan | 20240420-S34-SW-DWG-01 – S200 – Rev 01 | Deboke Engineering Consultants | 25.02.2025 | | First Floor Plan | 20240420-S34-SW-DWG-01 – S201 – Rev 01 | Deboke Engineering Consultants | 25.02.2025 | | Attic Floor Plan | 20240420-S34-SW-DWG-01 – S202 – Rev 01 | Deboke Engineering Consultants | 25.02.2025 | | Roof Plan | 20240420-S34-SW-DWG-01 – S203 – Rev 01 | Deboke Engineering Consultants | 25.02.2025 | | Details Sheet 1 of 2 | 20240420-S34-SW-DWG-01 – S300 – Rev 01 | Deboke Engineering Consultants | 25.02.2025 | | Details Sheet 2 of 2 | 20240420-S34-SW-DWG-01 – S301 – Rev 01 | Deboke Engineering Consultants | 25.02.2025 | | Erosion and Sediment Control Plan | 20240420-S34-SW-DWG-01 – S400 – Rev 01 | Deboke Engineering Consultants | 25.02.2025 | | Flood Impact Study (and all appendices) | 20240420-DA-FL-REP-01 – Rev 02 | Deboke Engineering Consultants | 25.02.2025 |

Pre-conditions to the grant of consent

5. I accept the Council’s assessment that the site is suitable for the development, having been historically used for a residential purpose, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed.

6. Under s 2.6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), vegetation must not be cleared without a permit granted by the Council. Section 2.10 provides that Council may issue a permit for clearing of vegetation if the Council is satisfied that the removal will not adversely affect the heritage significance of the heritage conservation area. There are two trees within the site that require a permit for removal. They are considered to be of low and medium retention value and are not visible from the street and for this reason the removal of the trees is acceptable.

7. Chapter 6 (Water catchments) of the Biodiversity SEPP applies to the site as it falls within the Sydney Harbour Catchment. The stormwater plans demonstrate that the proposal has been designed in accordance with typical stormwater, capture, filtration and release measures. The proposed conditions of consent are consistent with the requirements of Ch 6 Div 2 of the Biodiversity SEPP.

8. The Site fronts a classified road (Johnston Street). The application is therefore subject to the provisions of s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). Pursuant to s 2.119(2) and as set out in the joint expert report of the traffic experts filed with the Court on 27 February 2025, I am satisfied that there is safe and practicable access to the site via the rear laneway adjoining the site to the east, and the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the proposal. The proposal is appropriately located and designed to ameliorate potential traffic noise or vehicles emissions.

9. Section 2.120 of the Transport and Infrastructure SEPP provides that if the development is adjacent to a road with an annual daily traffic volume of more than 20,000 (based on the traffic volume data published on the website of TfNSW), and the consent authority considers the proposed development is likely to be adversely affected by road noise, then it must not grant consent unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

10. in any bedroom in the residential accommodation - 35 dB(A) at any time between 10 pm and 7 am,

11. anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway) - 40 dB(A) at any time.

12. There is no volume data published on the website of TfNSW for Johnston Street. The Acoustic Report notes the background noise levels at the Site as:

13. 36 dB(A) between 10.00pm and 7.00am; and

14. a highest dB(A) of 45 dB at all other times.

15. In order to comply with the Indoor Aircraft Noise levels, recommended in the Acoustic Report, noise reductions are required as follows:

16. 29dB for sleeping areas;

17. 24dB for other habitable areas; and

18. 19dB for ensuite, bathroom and laundry.

19. The Acoustic Consulting Engineers report dated 13 November 2023 notes that the above noise reductions can be achieved by employing appropriate building construction / systems. Conditions 26 and 60 of the conditions of consent at Annexure A specifically address the requirements of s 2.120(3).

20. The site is zoned R1 General Residential pursuant to the Inner West Local Environmental Plan 2021 (LEP 2021). The proposal meets the objectives of the R1 zone, as follows:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• 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.

13. The proposal complies with:

14. the minimum subdivision lot size development standard under cl 4.1 of LEP 2021 being 200m2;

15. the landscape areas development standard for residential accommodation in the zone R1 which pursuant to cl 4.3C(3)(a) requires a minimum 15% landscaped area;

16. the maximum site coverage development standard which pursuant to cl 4.3C(3)(b) requires the site coverage to not exceed 60% of the site area.

17. The site is within the Annandale Heritage Conservation Area (Annandale HCA). Pursuant to cl 5.10(4), the consent authority must consider the effect of the proposal on the heritage significance of the Annandale HCA. Development consent is required for demolition and the erection of a building on land that is within a heritage conservation area. On the basis of the Heritage Impact Statement prepared by Weir Phillips and dated April 2024, the Heritage Response prepared by Edwards Heritage Consultants dated 16 December 2024, the published Statement of Significance for the Annandale HCA and inventory sheet for the C1 Annandale HCA (prepared by GML Pty Ltd), I am satisfied that the proposed development, as amended, will have an acceptable impact on the heritage significance of the HCA. The design of the proposed dwellings is sympathetic in scale and form and facilitates a development which is consistent with the identified heritage significance of the Annandale HCA.

18. I am satisfied that the matters relating to stormwater management under cl 6.3 of LEP 2021 have been adequately addressed by the Stormwater Design dated 25 February 2025.

19. Clause 6.8(3) of LEP 2021 requires the consent authority to:

(a) consider whether the development will result in an increase in the number of dwellings or people affected by aircraft noise;

(b) consider the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021:2015, Acoustics-Aircraft noise intrusion-Building siting and construction (AS 2021:2015); and

(c) be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015.

17. This is if the subject development, pursuant to cl 6.8(2)(a), is on land:

(i) near Kingsford Smith Airport, and

(ii) in an Australian Noise Exposure Forecast (ANEF) contour of 20 or greater;

18. It must also be considered by the consent authority to be likely to be adversely affected by aircraft noise (cl 6.8(2)(b)), and involve the erection of a new building (cl 6.8(2)(c)(i)).

19. The site is within the ANEF contour of 25 and involves the erection of a new building. The acoustic report prepared by Acoustic Consulting Engineers dated 13 November 2023 confirms that the proposed development can meet the requirements of AS 2021:2015 with appropriate construction elements and systems. Conditions 26 and 60 of the conditions of consent at Annexure A provide appropriate conditions to ensure compliance with the relevant provisions of AS 2021:2015.

Conclusion

20. I have considered the submissions made by the Council in the Jurisdictional Statement lodged with the Court on 18 March 2025 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

21. The orders of the Court are:

22. The applicant is to pay the respondent’s costs thrown away as a result of amendments of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $13,000 within 28 days of this order.

23. The appeal is upheld.

24. Development Application No 2024/0336 for demolition of existing structures, construction of two semi-detached dwellings and one attached dwelling, two with rear garages, and one-into-three lot Torrens title subdivision, at 3 Johnston Street, Annandale, is determined by the grant of consent, subject to the conditions at Annexure A.

Susan O’Neill

Commissioner of the Court

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Annexure A