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[2025] NSWLEC 1448
General information, not legal advice.
Land and Environment Court (NSW)
2025-06-20
Washington C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Stramandinoli v Inner West Council [2025] NSWLEC 1448
Hearing dates: Conciliation conference on 21 May 2025
Date of orders: 20 June 2025
Decision date: 20 June 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The applicants are to pay the respondent’s costs thrown away by reason of the amendment of Development Application No. 2023/0990 pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $4,000 within 28 days of the date of these orders.
(2) The appeal is upheld.
(3) Development Application No. 2023/0990, as amended, for the demolition of all existing structures, boundary realignment of the existing four (4) lots, and construction of four (4) semi-detached dwellings at Lot 10 in DP2040, Lot 1 in DP 1069294, Lot 12 in DP2040 and Lot 1 in DP723701, also known as 1 and 3 Enfield Street, Marrickville, is determined by the grant of consent subject to the conditions of consent in Annexure ‘A’.
Catchwords: DEVELOPMENT APPLICATION — construction of semi-detached dwellings — conciliation conference — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, Land and Environment Court Act 1979, ss 34 Environmental Planning and Assessment Regulation 2021, s 38 Inner West Local Environmental Plan 2022, cll 4.3, 4.4, 4.5, 6.1, 6.2, 6.3, State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Category: Principal judgment
Parties: Savino Stramandinoli (First Applicant)
Nicola Stramandinoli (Second Applicant)
Daniele Stramandinoli (Third Applicant)
Inner West Council (Respondent)
Representation: Counsel:
S Patterson (Solicitor) (Applicants)
J Marsland (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Apex Law (Respondent)
File Number(s): 2024/447695
Publication restriction: No
COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Inner West Council, of development Application 2023/0990 which seeks consent for the demolition of existing structures, boundary realignment of four existing lots and the construction of four semi-detached dwellings.
The site, at 1-3 Enfield Street, Marrickville, is legally known as Lot 1 DP 723701, Lot 1 DP 1069294, Lot 10 DP 2040 and Lot 12 DP 2040.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 May 2025. At this conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings which involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
Following an earlier amendment to the application, as part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicants amending the development application to adequately respond to their contentions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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, which the parties identified and explained in a jurisdictional note, and from this I note the following points.
The development application was made with the written consent of the owners of the land.
The application was adequately notified in from 13 December 2023 to 18 January 2024, during which time four submissions were received. The amended application was further notified from 25 June to 9 July 2024, during which time five submissions were received. Based on the further amended application that is now the application before the Court, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that the site has historically been used for residential purposes, there is no known contamination on the site nor any history of contaminating activities and subsequently, that the site is suitable for the intended use.
BASIX certificates have been issued that relate to the proposed development.
The subject site is zoned R2 Low Density Residential under the Inner West Local Environmental Plan 2022 (IWLEP), within which development for the purposes of ‘semi-detached dwellings’ is permissible with consent. The proposed development is consistent with the objectives of this zone.
Pursuant to IWLEP cl 4.3, a maximum building height of 9.5m applies to the subject site. The proposed development complies with this development standard, as demonstrated on the amended architectural drawings by Pagano Architects.
IWLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.6:1, however pursuant to cl 4.4(2C), as each allotment has a site area of between 250m2 and 300m2, the site is subject to an FSR of 0.8:1. The proposal complies with this development standard with FSRs, calculated in accordance with cl 4.5, as follows:
Lot 1: 0.75:1
Lot 2: 0.76:1
Lot 3: 0.77:1
Lot 4: 0.78:1
Pursuant to IWLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, but is not within 60m of Class 1, 2 and 4 areas in Carina Bay. No works are proposed below 5m Australian Height Datum (AHD) the proposal is therefore not likely to lower the water table below 1 metre AHD. An Acid Sulfate Soils management plan is therefore not required for this development.
IWLEP cl 6.2(3) lists a number of matters relating to earthworks. From the parties’ submission and the Erosion and Sediment Control Plan by NITMA Consulting Pty Ltd dated 18 April 2023, I accept that the matters listed in cl 6.2(3) have been considered and the proposed earthworks are acceptable.
From the parties’ submission, the Erosion and Sediment Control Plan, the amended architectural drawings by Pagano Architects (various dates), and the amended landscape plans by RFA dated 16 May 2025, I also accept that the proposed stormwater management meets the requirements of IWLEP cl 6.3.
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
The Respondent, Inner West Council, as the relevant consent authority, has agreed under s.38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. 2023/0990 in accordance with the plans and documents listed below:
(a) Architectural Plans prepared by Pagano Architects:
(i) 00 Cover Page F 28/05/2025 (ii) 01 Existing Survey E 13/05/2025 (iii) 02 Boundary Realignment Plan E 13/05/2025 (iv) 03 Site Analysis Plan E 13/05/2025 (v) 04 Site Plan F 13/05/2025 (vi) 05 Ground Floor plan E 13/05/2025 (vii) 06 First floor plan F 13/05/2025 (viii) 07 Roof Plan E 13/05/2025 (ix) 08 Elevations North & South E 13/05/2025 (x) 09 Elevations East & West E 13/05/2025 (xi) 10 Elevations 1A & 3 E 13/05/2025 (xii) 11 Sections E 27/02/2025 (xiii) 12 Front Fence concept & external finishes A 13/05/2025 (xiv) 13 Driveway & Planter Box Concept A 13/05/2025 (xv) 14 Demolition Plan E 13/05/2025 (xvi) 15 Private Open Space Calculations E 13/05/2025 (xvii) 16 Floor Space Ratio Plan E 13/05/2025 (xviii) 17 Neighbourhood Parking Plan E 27/02/2025 (xix) 18 Shadow Diagram 9am E 13/05/2025 (xx) 19 Shadow Diagram 10am E 13/05/2025 (xxi) 20 Shadow Diagram 11am E 13/05/2025 (xxii) 21 Shadow Diagram 12pm E 13/05/2025 (xxiii) 22 Shadow Diagram 1pm E 13/05/2025 (xxiv) 23 Shadow Diagram 2pm E 13/05/2025 (xxv) 24 Shadow Diagram 3pm E 13/05/2025 (xxvi) 25 Neighbour Sun Eye Diagrams B 13/05/2025 (xxvii) 26 Neighbour Sun Eye Diagrams B 13/05/2025 (xxviii) 27 Street Setback Diagram B 27/02/2025 (xxix) 28 External Finishes Schedule E 13/05/2025 (xxx) 29 Window Schedule & Basix No. 1 F 28/05/2025 (xxxi) 30 Basix No. 1 F 28/05/2025 (xxxii) 31 Basix No. 1A E 28/05/2025 (xxxiii) 32 Basix No. 1A & 3 E 28/05/2025 (xxxiv) 33 Basix No. 3 E 28/05/2025 (xxxv) 34 Basix No. 3A D 28/05/2025 (xxxvi) 35 Basix No. 3A D 28/05/2025 (xxxvii) 36 Perspectives & Streetscape Elevation E 13/05/2025 (xxxviii) 37 Public Domain Diagram & Street Elevational Overlay A 13/05/2025 (xxxix) 38 Neighbour Shadow Impact Diagram – Existing Dwelling B 28/05/2025 (xl) 39 Neighbour Shadow Impact Diagram – Existing Dwelling B 28/05/2025 (xli) 40 Neighbour Shadow Impact Proposed Development B 28/05/2025 (xlii) 41 Neighbour Shadow Impact Proposed Development B 28/05/2025
(b) Landscape Plan L-01 (Issue A) prepared by RFA dated 16 May 2025. (c) BASIX Certificates:
(i) Unit 1, 1-3 Enfield – Certificate No. 1396855S_03 dated 28 May 2025. (ii) Unit 1A, 1-3 Enfield – Certificate No. 1396860S_03 dated 28 May 2025. (iii) Unit 3, 1-3 Enfield – Certificate No. 1396971S_03 dated 28 May 2025. (iv) Unit 3A, 1-3 Enfield – Certificate No. 1396974S_03 dated 28 May 2025.
(d) Survey Plan prepared by Burton & Field (Issue A) dated 25 February 2025. (e) Addendum letter prepared by NSW Tree Services dated 6 March 2025.
The Court orders:
The applicants are to pay the respondent’s costs thrown away by reason of the amendment of Development Application No. 2023/0990 pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $4,000 within 28 days of the date of these orders.
The appeal is upheld.
Development Application No. 2023/0990, as amended, for the demolition of all existing structures, boundary realignment of the existing four (4) lots, and construction of four (4) semi-detached dwellings at Lot 10 in DP2040, Lot 1 in DP 1069294, Lot 12 in DP2040 and Lot 1 in DP723701, also known as 1 and 3 Enfield Street, Marrickville, is determined by the grant of consent subject to the conditions of consent in Annexure ‘A’.
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Annexure A (337 KB, pdf)
Stramandinoli
Inner West Council [2025] NSWLEC 1448