Willding v Inner West Council

Category: Principal judgment

Parties: Hayden Willding (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
V Conomos (Solicitor)(Applicant)
N Sheerazi (Solicitor)(Respondent)
Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/85172

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA/2024/0807 (Development Application) seeking consent for the demolition of existing structures and construction of a three-storey detached dwelling with one car port and associated works (Proposed Development) at 48 Rosser Street, Rozelle NSW 2039 legally described as Lot 10 in Deposited Plan 89 (the Site).

2. The parties advise that the experts of both parties have been engaging in without prejudice discussions since the Respondent filed its Statement of Facts and Contentions (SOFAC) on 7 April 2025. The parties have reached agreement on an amended application and agree that the outstanding contested issues are resolved.

3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 30 July 2025. I have presided over the conciliation conference.

4. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be various provisions in the Inner West Local Environmental Plan 2022 (IWLEP), the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), and Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note provided to the Court.

8. The Development Application was notified in accordance with the Inner West Council Community Engagement Framework (Engagement Framework) from 08 October 2024 to 22 October 2024. Four submissions were received at that time and although the agreed amended plans did not require renotification under the Engagement Framework, the Council did notify the four submission writers of the agreement reached and the agreed amended architectural plans. A copy of all submissions has been filed by the Respondent on 23 July 2025. An objector neighbour presented concerns on site on 30 July 2025 regarding solar access and overshadowing of their solar panels and skylight. The parties explained that the Site is on the North of the neighbour’s property and that the amendments to the Proposed Development include increased side setback and changes to the angle of the roof.

9. The Development Application was lodged with the consent of the owner of the Site.

10. The Site is zoned R1 General Residential under the Inner West Local Environmental Plan 2022 (IWLEP). Development for the purposes of “Dwelling houses” is permitted with consent. Consent for demolition of the existing residence is sought in accordance with cl 2.7 of the IWLEP and the earthworks are considered to be ancillary to the Proposed Development: cl 6.2(2)(b), IWLEP.

11. The Site has no mapped maximum building height: cl 4.3, IWLEP.

12. The Site has an area of 360.4m2. The amended Site Calculation Plan Areas 01 Revision D demonstrates that the Proposed Development provides 20% or 72.8m2 of landscaped area, and that the proposed site coverage is 45% or 162.1m2. Therefore, the Proposed Development complies with cl 4.3C of the IWLEP because at least 20% of the site area must comprise of landscaped area, and the site coverage must not exceed 60% of the site area.

13. The amended Gross Floor Area Calculation Plan Areas 02 Revision D demonstrates that the Proposed Development proposes a floor space ratio (FSR) of 0.7:1 or 252.25m2 which complies with the maximum FSR development standard of 0.7:1 pursuant to the FSR Map and cl 4.4 of the IWLEP.

14. The Site is located within The Valley Heritage Conservation Area (HCA), labelled “C27” under Schedule 5, Part 2 of the IWLEP therefore consent is required pursuant to cl 5.10 of the IWLEP. The Site is also located opposite the heritage listed School, including interiors, at 44-56 Smith Street, Rozelle (I1487). Pursuant to cl 5.10 of the IWLEP, the parties have considered and agree that the Proposed Development will not adversely affect the heritage significance of the HCA.

15. The site is classified as Class 5 under the Acid Sulfate Soils Map under the IWLEP. The proposal does not seek consent for works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum and by which the water table is likely to be lowered below 1m Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. The Applicant relies on the letter from Kerry Nash, town planner, dated 24 July 2025 which also confirms that the provisions of cl 6.1 of the IWLEP are satisfied insofar as acid sulfate soils are concerned.

16. Clause 6.3 of the IWLEP 2022 relates to stormwater management, and applies to all land in the R1 zone, which includes the Site. The parties agree that the matters set out in cl. 6.3(3) have been satisfied on the basis of the amended Stormwater Plans prepared by ABVD Design Consulting Structural and Civil Engineers, Revision D dated 18 July 2025. Conditions 22, 23(c), and 24 are also imposed as pre-Construction Certificate conditions relating to stormwater management. Accordingly, the Court is satisfied that:

17. the Proposed 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 (cl 6.3(3)(a)); and

18. Stormwater Drawing No(s) SW03 and SW05 Revision D dated 18 July 2025 propose an underground OSR/OSD tank, which acts as an alternative supply to mains water, groundwater or river water (cl 6.3(3)(b)); and

19. The Proposed Development avoids a significant adverse impact of stormwater runoff on adjoining properties, native bushland and receiving waters, or if an impact cannot be reasonably avoided, minimises and mitigates the impact (cl 6.3(3)(c)).

20. There is an electricity distribution pole (Power Pole) on Rosser Street to the north-east of the Site. Section 2.48 of the Transport and Infrastructure SEPP applies to a development application for development comprising of “the penetration of ground within 2m of an underground electricity power line or an electricity distribution pole or within 10m of any part of an electricity tower”: s 2.48(1)(a). Accordingly, written notice to the electricity supply authority was given pursuant to s 2.48(2)(a) of the Transport and Infrastructure SEPP. On 25 June 2025, Council emailed Ausgrid seeking comment on the plans filed with the Class 1 Application, in relation to the proposed carport and driveway, which conflicted with the Power Pole. On 25 June 2025, Ausgrid provided their comments by email, as follows:

“Please note that proposed driveways must maintain a minimum clearance of 1.5 metres from the nearest face of any power pole to any part of the driveway, including the layback. This clearance is necessary to allow sufficient space for potential future pole replacements.

If it is not possible to maintain this minimum clearance, the applicant may request the relocation of the existing power pole. However, please be aware that relocating Ausgrid assets can be a complex and costly process, and should be carefully considered.”

18. As a result of Ausgrid’s response, the Applicant’s amended plans delete the carport and driveway.

19. The Site is located within the Sydney Harbour Catchment requiring the satisfaction of the jurisdictional prerequisites provided in pt 6.2 of the Biodiversity and Conservation SEPP. The proposal is supported by amended Stormwater Plans prepared by ABVD Design Consulting Structural and Civil Engineers, Revision D dated 18 July 2025. The parties explain as follows:

20. The Stormwater Plans ensure that the effect on the quality of water entering a natural waterbody will be neutral or beneficial, and in all likelihood beneficial noting the existing lack of filtration and other current day mechanisms on the Site, and the impact on water flow in a natural waterbody will be minimised: s 6.6(2), Biodiversity and Conservation SEPP.

21. The Proposed Development keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and minimises any adverse impact on wetlands: s 6.7(2), Biodiversity and Conservation SEPP.

22. The Proposed Development is unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems: s 6.8, Biodiversity and Conservation SEPP.

23. The Proposed Development does not affect public access to and from natural waterbodies: s 6.9, Biodiversity and Conservation SEPP.

24. The Proposed Development is not likely to have an adverse environmental impact on any adjacent local government area: s 6.10, Biodiversity and Conservation SEPP.

25. The parties agree, in relation to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 regarding remediation of land, that the Site is suitable for the Proposed Development, posing no risk of contamination because the historic use of the Site has been as a residential dwelling, as demonstrated in the Statement of Heritage Impact prepared by Weir Phillips dated August 2024 and filed with the Class 1 Application.

26. The Proposed Development satisfies the requirements of the BASIX Certificate and the applicable standards in Schedule 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 in terms of water conservation, energy efficiency and thermal comfort. The amended plans are accompanied by an updated BASIX Certificate.

27. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as I have set out in this judgment.

28. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notations:

24. The Respondent Inner West Council, as the relevant consent authority, approves under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending development application DA/2024/0807 in accordance with the following documents (the amended development application), which were filed with the Court on 30 July 2025:

i. Architectural plans:

| Plan | Drawn by | Dated | | Drawing 01, Site/Roof Plan, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Drawing 03, Lower Ground Floor Plan, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Drawing 04, Ground Floor Plan, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Drawing 05, First Floor Plan, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Drawing 06, Elevation East, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Drawing 07, Elevation West, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Drawing 08, Elevation North, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Drawing 09, Elevation South, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Drawing 10, Section A, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Drawing 11, Section B, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Drawing EX01, Ex. Ground Floor Plan, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Drawing EX02, Ex. Lower Ground Floor Plan, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | Green Roof Report, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | External Finishes Schedule, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | SH01, Shadow Diagrams 9am, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | SH02, Shadow Diagrams 10am, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | SH03, Shadow Diagrams 11am, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | SH04, Shadow Diagrams 12pm, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | SH05, Shadow Diagrams 1pm, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | SH06, Shadow Diagrams 2pm, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | SH07, Shadow Diagrams 3pm, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS01, Views from the Sun – 9AM, 21 March & 21 June, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS02, Views from the Sun – 10AM, 21 March & 21 June, Revision D | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS03, Views from the Sun – 11AM, 21 March & 21 June, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS04, Views from the Sun, 12PM, 21 March & 21 June, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS05, Views from the Sun, 1PM, 21 March & 21 June, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS06, Views from the Sun, 21 March & 21 June, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS07, Views from the Sun – 3PM, 21 March & 21 June, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS08, Views from the Sun – 9AM, 21 December, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS09, Views from the Sun – 10AM, 21 December, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS10, Views from the Sun - 11AM, 21 December, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS11, Views from the Sun – 12PM, 21 December, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS12, Views from the Sun – 1PM, 21 December, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS13, Views from the Sun – 2PM, 21 December, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 | | VFS14, Views from the Sun – 3PM, 21 December, Revision D. | Christopher Jordan Architecture & Design | 01/07/2025 |

ii. BASIX Certificate

| | Dated | | BASIX Certificate No.1764692S_02 | 01/07/2025 | | NaTHERS Certificate No. CQWIQTOJIG-01 | 30/06/2025 |

iii. Additional documents

| Helou Report, Revision A. | Weir Phillips Heritage | 13/06/2025 | | Geotechnical Investigation Report, ESWN-PR-2024-2226 | ESWNMAN | 13/05/2024 | | Letter in relation to Contamination and Acid Sulfate Soils | KN Planning Pty Limited | 24/07/2025 |

iv. Stormwater Plans

| SW01, Stormwater Plan (Sheet 1 of 4), Revision D. | ABVD Design | 18/07/2025 | | SW02, Stormwater Plan (Sheet 2 of 4), Revision D. | ABVD Design | 18/07/2025 | | SW03, Stormwater Plan (Sheet 3 of 4), Revision D. | ABVD Design | 18/07/2025 | | SW04, Stormwater Plan (Sheet 4 of 4), Revision D. | ABVD Design | 18/07/2025 | | SW05, Stormwater Details, Revision D. | ABVD Design | 18/07/2025 | | SW06, Supporting Calculations, Revision D. | ABVD Design | 18/07/2025 | | SE01, Erosion and Sediment Control Plan, Revision D. | ABVD Design | 18/07/2025 | | SE02, Sediment and Erosion Control Details, Revision D. | ABVD Design | 18/07/2025 |

Orders:

25. The Court orders:

26. The appeal is upheld.

27. Development application DA/2024/0807, as amended, for the demolition of existing structures and construction of a three-storey detached dwelling and associated works for premises known as 48 Rosser Street, Rozelle, is determined by the grant of consent subject to the conditions contained at Annexure ‘A’.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (317 KB, pdf)

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Amendments

18 August 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”) correction is made to paragraph [8], where “South” is corrected to “North”.