Australia, July 30 -- New South Wales Land and Environment Court issued text of the following judgement on June 30:

1. XYZ Services Pty Ltd (XYZ) sought development consent for the demolition of an existing dwelling house and separate garage on the existing lot (the site), the Torrens Title subdivision of that lot into two lots, and the erection of two new detached dwelling houses (one on each resulting lot), each with a swimming pool, deck, foreshore access and associated landscaping, at 1 Longview Street, Balmain. The site is zoned R1 General Residential under Inner West Local Environmental Plan 2022 (LEP). The proposed development of dwelling houses is permissible with consent in that zone. The site is also within an area identified as "Foreshore Area" on the Foreshore Building Line Map under cl 6.5(2) of the LEP. Clause 6.5 restricts the development that can be carried on in the Foreshore Area. Clause 6.5(3) provides:

"(3) Development consent must not be granted for development on land to which this clause applies except for the following purposes-

(a) the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area,

(b) boat sheds, cycleways, fences, jetties, retaining walls, slipways, swimming pools, walking trails, waterway access stairs, wharves, picnic facilities or other recreation facilities (outdoors)."

2. The landward boundary of the Foreshore Area, which runs north-south, bisects the site, which runs east-west. The existing dwelling house encroaches westwards into the Foreshore Area. The proposed new dwelling houses would also encroach westwards into the Foreshore Area. Whilst some of the encroaching buildings, structures and works might meet the description of one or more of the developments specified in cl 6.5(3)(b) of the LEP, the dwelling houses themselves do not meet any of those descriptions. Development consent could therefore not be granted to the new dwelling houses under cl 6.5(3) of the LEP.

3. The solution, XYZ proposed, was to make a written request under cl 4.6 of the LEP seeking to justify the contravention of cl 6.5(3) of the LEP. XYZ contended that cl 6.5(3) is a development standard, compliance with which is amenable to be dispensed with under cl 4.6. The upholding of a written request would allow the grant of development consent for the new dwelling houses even though they would contravene cl 6.5(3) (see cl 4.6(2)). XYZ accordingly submitted a written request seeking to justify the contravention of the development standard by the new dwelling houses encroaching into the Foreshore Area.

4. The consent authority, Inner West Council (Council), did not grant development consent to XYZ's development application. XYZ appealed to the Court against the Council's deemed refusal. On appeal, the Council raised four contentions, the Commissioner's dealing with which founds the Council's appeal under s 56A(1) of the Land and Environment Court Act 1979 (NSW) (Court Act).

5. First, the Council contended that development consent could not be granted as the proposed development of dwelling houses contravened cl 6.5(3) of the LEP. The Council contended that cl 6.5(3) was not a development standard, but instead prohibited the proposed development in two ways: first, the new dwelling houses were not one of the types of developments specified in cl 6.5(3)(b) and, second, the proposed development did not involve extension, alteration or rebuilding of an existing building wholly or partly in the Foreshore Area. As cl 6.5(3) is not a development standard, cl 4.6(2) of the LEP did not empower the grant of development consent for the proposed development that contravenes cl 6.5(3).

6. Second, the Council contended in the alternative that if cl 6.5(3) is a development standard, the Court could not be satisfied that XYZ's written request under cl 4.6, made on 26 September 2024, and prepared by SJB Planning, adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b) because the request failed to address the impact of the proposed development on the heritage significance of the area.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197af9da18497b99373db8c8)

Disclaimer: Curated by HT Syndication.