Bilotta v Inner West Council [2022] NSWLEC 1058

Land and Environment Court New South Wales

Medium Neutral Citation: Bilotta v Inner West Council [2022] NSWLEC 1058 Hearing dates: 14-15 December 2021 Date of orders: 9 February 2022 Decision date: 09 February 2022 Jurisdiction: Class 1 Before: O'Neill C Decision: In the 2021/156562 appeal: The orders of the Court are: (1) The appeal is dismissed. (2) Modification Application No. MOD/2020/0231 to raise the height of the lift shaft, at 93 Louisa Road, Birchgrove, is refused. In the 2021/276619 appeal: The orders of the Court are: (1) The appeal is dismissed. (2) Modification Application No. MOD/2021/0320 for internal and external changes to the approved development, at 93 Louisa Road, Birchgrove, is refused. (3) The exhibits, other than Exhibits 1, 2, 20, 21, 25, A, B and E, are returned. Catchwords: MODIFICATION APPLICATIONS – approved new dwelling under construction – raise the height of the lift shaft, reduce the eastern side setback of the dwelling and other internal and external changes – building height, bulk and scale – impact on the heritage significance of heritage conservation area – whether the Court can exercise the alternative power under s 4.55(2) of the EPA Act for an application made under s 4.55(1A) where there is more than minimal environmental impact Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.55, 8.9, 109F Environmental Planning and Assessment Regulation 2000 Environmental Planning and Assessment (Savings, transitional and Other Provisions) Regulation 2017 cl 18A Land and Environment Court Act 1979 s 34AA Leichhardt Local Environmental Plan 2013 cll 2.3, 5.10 Cases Cited: Bilotta v Inner West Council [2021] NSWLEC 129 Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 Erina Investments Holdings Pty Ltd v Snowy Monaro Regional Council [2021] NSWLEC 1204 Texts Cited: Leichhardt Development Control Plan 2013 Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 Category: Principal judgment Parties: Frank Bilotta (Applicant) Inner West Council (First Respondent) Dr Joseph Macri (Second Respondent) Dr Henry Cheung (Third Respondent) Representation: Counsel: L. Nurpuri (Applicant) J Fan (Solicitor) (First Respondent) A Gadiel (Solicitor) (Second and Third Respondents)