Background
Packet Houses Pty Ltd applied for development approval (DA/2025/0049) to demolish existing structures and construct a multi-dwelling housing project comprising three two-storey dwellings with strata subdivision at 7 Dibble Avenue, Marrickville, NSW. The application was lodged on 6 February 2025 and refused by the Inner West Local Planning Panel on 14 October 2025.
The applicant appealed to the Land and Environment Court as a Class 1 application on 8 December 2025. Rather than proceeding to adjudication, the parties attended a conciliation conference on 24 April 2026, at which they reached agreement on the terms of an acceptable decision. The court, pursuant to section 34(3) of the Land and Environment Court Act 1979 (NSW), disposed of the matter in accordance with the parties’ agreed terms.
The Court’s Holding
The court upheld the appeal and granted development consent for the proposed multi-dwelling housing development subject to conditions set out in Annexure A. The applicant was required to pay the respondent’s costs thrown away in the agreed amount of $4,000 within 28 days.
The principal issue was the proposed development’s floor space ratio (FSR) of 0.92:1, which exceeded the applicable development standard of 0.6:1 for multi-dwelling housing. The court accepted the applicant’s written justification under clause 4.6 of the Inner West Local Environmental Plan 2022, finding that compliance with the FSR standard was unreasonable or unnecessary because the development’s objectives were achieved notwithstanding non-compliance. The court was satisfied that after strata subdivision, individual dwellings would comply with the applicable FSR standard of 1.1:1 for attached dwellings.
The court addressed all relevant statutory requirements, including heritage impact (the site is near the Dibble Avenue Waterhole heritage item but no adverse impacts would occur), flood planning compliance, acid sulfate soil management, biodiversity considerations, stormwater management, and compliance with the Leichhardt Development Control Plan. All 19 public submissions received during notification were considered through either amendment of the application or imposition of conditions.
Key Takeaways
- Development consent granted where FSR contravention was justified by demonstrating the development achieved the objectives of the FSR development standard notwithstanding non-compliance.
- Strata subdivision of the site into individual lots, each complying with applicable FSR limits, supported the variation of the development standard for the whole development.
- Comprehensive environmental and planning compliance analysis satisfied all statutory requirements, including heritage, flood, biodiversity, and stormwater management obligations.
- Conciliation conference leading to agreed terms resulted in efficient disposition without contested hearing on discretionary merits.
Why It Matters
This decision illustrates how courts apply clause 4.6 variation provisions under local environmental plans when development standards are exceeded. The judgment confirms that demonstrating achievement of a standard’s underlying objectives—even where the numerical standard itself is breached—can justify approval. The approach taken here, emphasizing future strata lot compliance even where the overall development exceeds limits, may influence similar multi-dwelling housing applications in New South Wales.
The case also reflects broader planning law principles: conciliation conferences can resolve complex development disputes efficiently, and comprehensive environmental documentation addressing statutory criteria (heritage, flood, biodiversity, contamination, noise) is critical to securing consent where development standards are not met. The court’s acceptance of the agreed position underscores the value of negotiated outcomes in contentious land-use disputes.