Stone St NSW Pty Ltd v Inner West Council

Catchwords: DEVELOPMENT APPLICATION – demolition, land subdivision and construction of a pair of semidetached dwellings and a residential dwelling – amended plans and documents – conciliation conference – agreement between the parties – orders made.

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 4.15, 8.7
Land and Environment Court Act 1979 (NSW) s 34
Fisheries Management Act 1994 (NSW)
Water Management Act 2000 (NSW)
Environmental Planning and Assessment Regulation 2021 (NSW)
Inner West Local Environmental Plan 2022 cll 2.6, 4.3, 4.4, 6.1, 6.2, 6.3, 6.8
State Environmental Planning Policy (Biodiversity and Conservation) 2021 ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

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

Texts Cited: Inner West Council, Comprehensive Inner West DCP 2016

Category: Principal judgment

Parties: Stone St NSW Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
G McKee (Solicitor) (Applicant)
R Dunstan (Solicitor) (Respondent)
Solicitors:
McKee Legal Solutions (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/144607

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 deemed refusal of development application DA/2025/0053. As amended the development application seeks consent for the demolition of an existing dwelling, the subdivision of land and construction of a pair of semi-detached dwellings and a residential dwelling. The development is proposed at 2A Roberts Street, St Peters (Lot 1 in DP 1263467).

2. A conciliation conference was held between the parties on 26 August 2025 pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). No agreement was reached at the conciliation, and it was ultimately terminated on 4 November 2025, and the proceedings were listed for hearing. Notwithstanding the termination of the conciliation the parties continued negotiations and ultimately reached agreement on the terms of the resolution of the proceedings. That agreement is for the grant of the application, as amended, subject to conditions. The parties requested a further conciliation conference which was listed before me on 21 November 2025.

3. 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 (McMilan) at [51].

4. 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). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution. (see McMillan at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

5. 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).

6. The development application was notified by Council in accordance with the Inner West Council Community Engagement Framework from 13 – 27 February 2025. The amended development application was notified 17 to 31 October 2025. 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.

7. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires a consent authority to consider the contamination of land when determining a development application. The historical use of the site was as part of the grounds of a residential dwelling. This history is detailed in the Statement of Environmental Effects (SEE). 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.

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 Stormwater Management Plans, the Landscape Plans which form part of the development application and the annexed conditions which confirm that the concept stormwater drainage design meets the requirements of SEPP BC.

9. Further, in determining the development application I am satisfied that the proposal appropriately considers the matters set out at ss 6.6, 6.7, 6.8, 6.9 and 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, the proposed development will not result in the 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 R2 Low Density Residential. The proposal is characterised as a ‘dwelling house’ and ‘semi-detached dwellings’ which are permitted with consent in the zone. In determining the development application, I have considered the objectives of the zone.

11. Subdivision is permitted with consent pursuant to cl 2.6 of LEP 2022. The site is not subject to a minimum lot size pursuant to the Lot Size Map.

12. Pursuant to cl 4.3 ‘Height of Buildings’ the maximum height of buildings standard that applies to the site is 9.5 m. The amended development application is compliant with the height development standard.

13. Pursuant to cl 4.4 ‘Floor Space Ratio (FSR)’ the FSR standard that applies to the site is 1:1. The amended development application is compliant with the FSR standard.

14. Clause 6.1 ‘Acid sulfate soil’ of 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 5m and is therefore unlikely to lower the water table below 1m AHD on adjacent Class 1, 2, 3, or 4 land. Further, acid sulfate soils have been addressed in the SEE 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’ applies to the development as it proposes minor excavation for the footings of the proposed dwellings. In determining the development application, I have considered the matters listed at cl 6.2(3) of LEP 2022. I accept the agreement of the parties that none of the listed matters warrant the refusal of the development application.

16. In relation to required considerations at cl 6.3(3) Stormwater in LEP 2021, 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 rain water 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.

13. 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.

14. Inner West Comprehensive Development Control Plan 2016 (DCP 2016) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2016. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

15. 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)).

16. 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

7. Inner West Council as the relevant consent authority has agreed, under section 38(1) of the EPA Regulation, to the applicant amending the development application number DA/2025/0053 in accordance with the plans and documents listed below:

| Reference/ DWG No | Title/Description | Rev | Prepared by | Date | | Architectural Plans | | 000 | Cover Sheet | P | AG Design Projects Pty Ltd | 08/10/2025 | | 001 | Windows Schedule | C | AG Design Projects Pty Ltd | 03/09/2025 | | 101 | Existing Site Plan | B | AG Design Projects Pty Ltd | 05/09/2025 | | 102 | Demolition Plan | A | AG Design Projects Pty Ltd | 04/11/2024 | | 103 | Proposed Site Plan | D | AG Design Projects Pty Ltd | 03/09/2025 | | 104 | Site Context Plan | B | AG Design Projects Pty Ltd | 06/08/2025 | | 201 | Ground Floor Plan | H | AG Design Projects Pty Ltd | 26/09/2025 | | 202 | First Floor Plan | G | AG Design Projects Pty Ltd | 26/09/2025 | | 203 | Attic Floor Plan | G | AG Design Projects Pty Ltd | 26/09/2025 | | 204 | Top Roof Plan | F | AG Design Projects Pty Ltd | 05/09/2025 | | 301 | Sections | D | AG Design Projects Pty Ltd | 03/09/2025 | | 302 | Sections | D | AG Design Projects Pty Ltd | 03/09/2025 | | 303 | Sections | A | AG Design Projects Pty Ltd | 05/09/2025 | | 401 | Elevations | D | AG Design Projects Pty Ltd | 03/09/2025 | | 402 | Elevations | D | AG Design Projects Pty Ltd | 03/09/2025 | | 403 | Streetscape Elevation | D | AG Design Projects Pty Ltd | 03/09/2025 | | 501 | Area Plan & Schedule | E | AG Design Projects Pty Ltd | 26/09/2025 | | 502 | Solar Diagrams – June 22nd | H | AG Design Projects Pty Ltd | 08/10/2025 | | 503 | Solar Diagrams – June 22nd | H | AG Design Projects Pty Ltd | 08/10/2025 | | 504 | Solar Diagrams – June 22nd | H | AG Design Projects Pty Ltd | 08/10/2025 | | 505 | Solar Diagrams – March 20 | C | AG Design Projects Pty Ltd | 08/10/2025 | | 506 | Solar Diagrams – March 20 | C | AG Design Projects Pty Ltd | 08/10/2025 | | 507 | Solar Diagrams – March 20 | C | AG Design Projects Pty Ltd | 08/10/2025 | | SUB101 | Draft Subdivision Plan | B | AG Design Projects Pty Ltd | 03/09/2025 | | Stormwater & Civil Design Plans | | SW000 | Cover Sheet | D | Vanguard Consulting Engineers | 19/09/2025 | | SW001 | General Notes | D | Vanguard Consulting Engineers | 19/09/2025 | | SW100 | Stormwater Plan Ground Floor | D | Vanguard Consulting Engineers | 19/09/2025 | | SW101 | Stormwater Plan First Floor | D | Vanguard Consulting Engineers | 19/09/2025 | | SW102 | Stormwater Plan Roof | D | Vanguard Consulting Engineers | 19/09/2025 | | SW100 | Stormwater Details Sheet 1 | D | Vanguard Consulting Engineers | 19/09/2025 | | SW111 | Stormwater Details Sheet 2 | D | Vanguard Consulting Engineers | 19/09/2025 | | SW112 | Drainage Catchment Plan | D | Vanguard Consulting Engineers | 19/09/2025 | | CW200 | Driveway Plan | D | Vanguard Consulting Engineers | 19/09/2025 | | CW210 | Driveway Long Sections | D | Vanguard Consulting Engineers | 19/09/2025 | | Landscape Plans | | 1 of 2 | Landscape Plan | C | Paul Scrivener Landscape | 18/09/2025 | | 2 of 2 | North-East & South-West Elevation | C | Paul Scrivener Landscape | 18/09/2025 |

| Document Name | | Date | Prepared By | | Arboricultural Impact Assessment | Issue 3.1 | Advanced Treescape Consulting | 13/10/2025 | | Traffic & Parking Report | | Hemanote Consultants Pty Ltd | 19/08/2025 |

Orders

8. The Court orders that:

9. The appeal is upheld.

10. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent consent authority that were thrown away as a result of amending the development application in the agreed amount of $9,000 to be paid within 14 days of these orders.

11. Development Application DA/2025/0053 for the demolition of an existing dwelling, the subdivision of land and construction of 2 semi detached dwellings and a dwelling at Lot 1 in DP 1263467 known as 2A Roberts Street, St Peters 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 (383 KB, pdf)