Stag Property Pty Ltd v Inner West Council

Texts Cited: Leichhardt Development Control Plan 2013

Category: Principal judgment

Parties: Stag Property Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
P Tomasetti SC (Applicant)
S Turner (Solicitor) (Respondent)
Solicitors:
Inner West Council (Respondent)

File Number(s): 2024/00466592

Publication restriction: No

JUDGMENT

1. COMMISSIONER: These proceedings relate to an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA 2024/0927. The development application seeks consent for the demolition of existing structures and construction of a three-storey detached dwelling with basement carparking and storage. The development is proposed at 16 Alfred Street, Rozelle (Lot 55 DP 1261815).

2. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979, which was held on 26 May 2025 and at which I presided. Prior to the conciliation, the parties had without prejudice discussions which resulted in amendments to the proposed development. At the conciliation conference, Council confirmed that the development application, as amended, resolved Council’s legislative and merit concerns with the development. As a result, the parties have reached agreement. That agreement is for the grant of the application, as amended, subject to conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

4. The development application was lodged with the consent of the owners of the land. The Applicant in these proceedings is now the registered proprietor of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

5. The development application was notified to adjoining property owners and occupiers from 5 to 19 November 2024. Two objections were received in relation to the development application. Following the receipt of the amended plans, they were provided to the parties who had submitted an objection. No further objections were received by the Council. 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. As required by s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021) the amended development application is accompanied by a valid BASIX certificate which outlines measures proposed in the development to meet relevant energy and water efficiency targets. The embodied energy report forms part of the online BASIX tool and is covered by the BASIX Certificate. The parties agree, and I accept, that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified: s 2.1(5) of State Environmental Planning Policy (Sustainable Buildings) 2022.

7. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed residential use. The development application does not propose a change of use. The parties agree and I accept, on the details in the Statement of Environmental Effects (SEE) accompanying the development application, that s 4.6 of SEPP RH is satisfied.

8. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) addresses vegetation in non-rural areas. The parties agree, and I accept, that the amended development application does not involve removal of any vegetation on the site. The parties agree, and I accept, that I can be satisfied that the amended landscape plans have given due consideration to the provision of vegetation.

9. Pursuant to s 6.1 of SEPP BC the site is located within the Sydney Harbour Catchment. However, the site is located outside the Foreshores and Waterways Area identified in the relevant map pursuant to s 6.28 of SEPP BC. Pursuant to Pt 6.2 of SEPP BC, in granting consent, there are a number of preconditions and matters that must be satisfied and considered prior to the grant of consent to the development application.

10. As required by s 6.6 of SEPP BC, I must consider the matters at subs (1) encompassing the impacts of the proposed development on water quality and quantity, including impacts from the development on groundwater and stormwater. The development application is accompanied by stormwater drainage plans and details. The parties agree, and I accept, that these plans demonstrate how the stormwater runoff will be managed to ensure the development will have a neutral or beneficial effect on the quality of water entering a waterway. Further, the stormwater details demonstrate the development will minimise the impact on:

(a) water flow in a natural waterbody, the adjoining properties and downstream land; (b) The amount of stormwater run-off from a site; (c) the level or quality of water in the watertable; (d) The cumulative impact of development within the regulated catchment; and (e) the quality and quantity of ground water.

8. The parties agree, and I accept, that subject to the installation and maintenance of sediment controls during construction works, the development will have a neutral effect on the quality of water entering a waterway.
9. Further, the (SEE) which accompanies the development application confirms that the site is located some 500m from Rozelle Bay and that given the scale of the development and this distance the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and that the impact on water flow in a natural waterbody will be minimised. Having considered the matters at s 6.6(2) of SEPP BC, I am satisfied that none preclude the grant of consent.
10. Pursuant to s 6.7 ‘Aquatic Ecology’ of SEPP BC, the consent authority is required to consider the matters at subs (1). On the basis of the SEE, the architectural and stormwater plans I accept the agreement of the parties that:

(a) To the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the development application. (b) The development does not involve the clearing of riparian vegetation. (c) The development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterbody. (d) The development will not have an adverse impact on wetlands. (e) The development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures. (f) The development does not adjoin a natural waterbody.

11. Accordingly, in relation to the s 6.7(2) of SEPP BC, on the basis of the SEE and the stormwater plans, I accept the agreement of the parties that I can be satisfied that:

(a) Any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development. (b) The development will not have a direct, indirect or cumulative adverse impact on aquatic reserves. (c) No approval or permit is required under the Water Management Act 2000 or Fisheries Management Act 1994. (d) The land does not abut a natural waterbody. (e) There will be no adverse impact on wetlands.

12. Pursuant to s 6.8 ‘Flooding’ of SEPP BC in deciding whether to grant development consent to development on land in a regulated catchment, I must consider the likely impact of the development on periodic flooding that benefits wetlands and other riverine ecosystems. On the basis of the SEE, the distance to Rozelle Bay, the Flood Risk Management Assessment and the plans which form part of the development application, I accept that the development will have no impact on these matters. Further, I am satisfied that the development will not:

(a) if there is a flood, result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody, or (b) have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

13. The site is more than 500 metres (m) from the foreshore of Rozelle Bay. Accordingly, I accept the agreement of the parties that the proposed development is not likely to have a detrimental impact on the recreational uses in the Sydney Harbour Catchment. Further, the scope of the development for which consent is sought is such that the matters listed at s 6.9(2) of SEPP BC do not arise.

14. Finally, the parties agree, and I accept that:

15. The Proposed Development is not likely to have an adverse environmental impact on any adjacent local government area (s. 6.10 of the BC SEPP); and

16. The Proposed Development is not located on land within 100m of a natural waterbody in a regulated catchment (s. 6.11 of the BC SEPP).

17. Pursuant to Inner West Local Environmental Plan 2022 (LEP 2022) the site is zoned R1 General Residential. Development for the purposes of dwelling house is permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the R1 zone.

18. Pursuant to cl 4.4(2) of LEP 2022 the maximum floor space ratio (FSR) applicable to the site 0.8:1. The amended development application is compliant with this development standard.

19. Pursuant to cl 4.3C ‘Landscape areas for residential accommodation in Zone R1’ the proposed development is required to provide 15% of the site area as landscaped area. The amended development is compliant with this development standard. Further, cl 4.3C(3)(b) requires the consent authority to be satisfied that site coverage does not exceed 60% of the site area. is compliant with this development standard.

20. Pursuant to cl 5.21 Flooding the site is nominated as a flood control lot. The amended development application is accompanied by a Flood Risk Management Report. With the assistance of this report, I can be satisfied that the site’s design maximises permeability, provides appropriate stormwater management and avoids any significant adverse impacts on neighbouring properties or receiving waters. Having considered the matters at sub cl (3) I find that the requirements of cl 5.21 are satisfied.

21. Pursuant to cl 6.1 Acid Sulfate Soils of LEP 2022 and the acid sulfate soils map the site is classified as Class 5 acid soils land. Despite the site being located within 500m of Class 2 land, I accept the submission of the parties that the amended development application does not involve works below 5m Australian Height Datum (AHD) or that will lower the water table below 1m AHD. Further, I accept that an acid sulfate soils management plan is not required.

22. The amended development application includes works that are defined as earthworks under LEP 2022. As required by cl 6.2(3) of LEP 2022 in determining the development application I have considered the matters in the clause. With the assistance of the architectural plans, geotechnical report and construction methodology, which form part of the amended development application, I accept the agreed submission that those matters are addressed.

23. The Leichhardt Development Control Plan 2013 (DCP 2013) applies to the site. The SEE filed with the development application details the compliance of the proposed development with 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.

24. 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)).

25. 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.

26. The Court notes that Inner West Council, as the relevant consent authority, has consented pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application DA DA2024/0927 the subject of these proceedings as shown in the following amended plans and reports:

| Plan, Revision and Issue No. | Plan Name | Date issued | Prepared By | | DA-00 Issue g | Site Analysis | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-01 Issue g | Site Plan | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-02 Issue g | Demolition Plan | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-03 Issue g | Waste & Construction Management Plan | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-05 Issue g | Basement Plan | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-06 Issue g | Ground Floor Plan | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-07 Issue g | First Floor Plan | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-08 Issue g | Attic Floor Plan | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-09 Issue g | Roof Plan | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-10 Issue g | North Elevation | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-11 Issue g | South Elevation | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-12 Issue g | East Elevation | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-13 Issue g | West Elevation | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-14 Issue g | Cross Sections | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-15 Issue g | Stair Section | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-16 Issue g | Driveway Section | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-17 Issue g | East Boundary Section | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-18 Issue g | Driveway Section Upper and Lower | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | DA-19 Issue g | Materials and Finishes | 05/05/25 | Fortey & Grant Architecture Pty Ltd | | Certificate No: 1763231S_02 | Basix Certificate | 06/09/24 | Max Brightwell | | DA 1-1 Rev I 24115 | Landscape concept plan | 20/05/25 | Vision Dynamics Pty Ltd | | Issue 1 | Arboricultural Impact Assessment | 28/10/2024 | Advanced treescape consulting | | STO-210924.5/8 Amendment G | Stormwater Roof Garage Drain Plans | 24/04/2025 | RAFT Designs | | STO-210924.5/8 Amendment G | Stormwater Plans | 24/04/2025 | RAFT Designs | | STO-210924.5/8 Amendment G | Stormwater Drainage Plans | 24/04/2025 | RAFT Designs | | STO-210924.5/8 Amendment G | Stormwater Plans Rainwater Tank | 24/04/2025 | RAFT Designs | | STO-210924.5/8 Amendment G | Stormwater Plans Rainwater Tank | 24/04/2025 | RAFT Designs | | STO-210924.5/8 Amendment G | Stormwater Plans Spoon Drain | 24/04/2025 | RAFT Designs | | STO-210924.5/8 Amendment G | Stormwater Plans Discharge Pit | 24/04/2025 | RAFT Designs | | STO-210924.5/8 Amendment G | Stormwater Plans misc. | 24/04/2025 | RAFT Designs | | D14-250225.1/2 Amendment C | Driveway Plan | 01/05/2025 | RAFT Designs | | D14-250225.2/2 Amendment C | Driveway Plan | 01/05/2025 | RAFT Designs | | Revision 3 | Flood Risk Management Assessment | 20/03/25 | Catchment Simulation Solutions |

7. The Court orders:

8. The appeal is upheld.

9. Development consent is granted to Development Application DA2024/0927 which seeks consent for the demolition of existing structures and construction of a three-storey detached dwelling with basement carparking and storage at 16 Alfred Street, Rozelle (Lot 55 DP 1261815) subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A.306 KB.pdf