What has happened?
In Inner West Council v XYZ Services Pty Limited [2025] NSWLEC 68, Chief Judge Preston dismissed a council appeal against a consent for two new waterfront houses in Balmain. The houses extended beyond the foreshore building line. The decision confirms that the foreshore building line restriction in the Inner West LEP is a development standard that can be varied under cl 4.6.
Context
Clause 6.5(3) of the Inner West Local Environmental Plan 2022 provides that consent must not be granted for development in the foreshore area except for specified purposes. These include extending, altering or rebuilding an existing building, and structures such as pools, boat sheds and stairs. The proposal involved demolishing an existing house, subdividing the lot into two and building two new houses, each extending into the foreshore area.
The developer lodged a cl 4.6 request to justify the contravention. The Commissioner accepted it and granted consent. The Council appealed on six grounds. Among other things, it argued that:
cl 6.5(3) was a prohibition rather than a development standard;
the consent of the owner of a narrow "sliver" of adjoining land was needed; and
a 1966 restrictive covenant in favour of the Council made the consent futile.
The decision
The Chief Judge rejected all six grounds:
The Commissioner did not err in treating cl 6.5(3) as a development standard, so cl 4.6 was available.
The Commissioner had adequately addressed the cl 4.6 matters.
Owner's consent for the sliver of adjoining land was not required, because no development was proposed on it.
The Commissioner had considered the covenant. Whether the Council would enforce or suspend it was a matter for another day, and the grant of a planning consent does not determine property rights.
The Council was ordered to pay the developer's costs of the appeal.
How will this affect you?
Foreshore building line controls framed like cl 6.5(3) may be capable of variation under cl 4.6. This opens a pathway for waterfront redevelopment, subject to merit assessment.
Restrictive covenants do not prevent the grant of consent, but they may still affect whether the development can proceed.
The wording of each LEP matters. Check how the foreshore clause in your area is framed.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.