APPWAM Pty Ltd v Inner West Council

Representation: Counsel:
B Salon (Solicitor)(Applicant)
S Turner (Solicitor)(Respondent)
Solicitors:
The Law Salon (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/430974

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Modification Application MOD/2025/0172 (Modification Application) seeking to modify Development Consent No DA/2021/0228 for demolition of existing building, construction of a boarding house with basement car parking, landscaping and associated works (the Consent) at 40 Milton Street, Ashfield legally described as Lot 6 DP 131508 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 23 and 26 February and 2 March 2026. I have presided over the conciliation conference.

3. 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 approving the modification to the Consent subject to conditions.

4. The amendments to the Modification Application agreed by the parties as a result of the contentions raised in the Statement of Facts and Contentions filed by the Respondent on 2 December 2025 and the discussions held at the conciliation conference include the provision of amended architectural drawings (which primarily revised various room sizes and configurations within the boarding house), a Traffic Impact Assessment, an amended Waste Management Plan and an Urban Design Response.

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 4.55 of the EPA Act to modify a consent.

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 the terms of s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied which I summarise below.

8. The Applicant is the registered proprietor of the Site which is zoned R3 – Medium Density Residential under the Inner West Local Environmental Plan 2022 (IWLEP).

9. The parties agree that all of the matters contained in s 4.55 of the EPA Act that are of relevance to the proposed Modification Application have been taken into consideration, and the Modification Application (as amended) is acceptable, subject to the proposed amended conditions of the Consent.

10. The relevant development history is as follows:

11. Development Application (DA/2021/0228) was lodged with Inner West Council on 31 March 2021. This application was approved by the Local Planning Panel on 23 November 2021.

12. Modification Application pursuant to s 4.55(2), EPA Act (MOD/2023/0067) was lodged with the Inner West Council on 14 March 2023. This application was approved by the Local Planning Panel on 19 March 2024.

13. Modification Application pursuant to s 4.55(2), EPA Act (MOD/2025/0172) was lodged with the Inner West Council on 30 May 2025.

14. The parties agree that the development the subject of the Consent, as proposed to be modified, is substantially the same development for which the Consent was originally granted as required by s 4.55(2)(a) of the EPA Act for reasons including that the use remains as originally approved, being for a boarding house with basement parking and that the proposed Modification Application largely retains the approved building envelope, with the selected changes in setbacks and changes to the building envelope to reflect the proposed internal reconfiguration.

15. I have also considered the Statement of Environmental Effects prepared by Planning Ingenuity dated 20 May 2025 (SEE) filed with the Class 1 Application, at Tab 2, pp 5 and 23 to 26.

16. The amendments to the proposed Modification Application do not materially alter the proposed modifications to the Consent from those detailed on pp 5 and 12 of the SEE. Those proposed modifications are detailed here together with the additional modifications (in italics) that arise from the proposed amendments to the Modification Application:

Basement Level 1

1. Reduction of carpark spaces from 34 to 19.
2. Reduction of motorcycle parking spaces from 14 to 8.
3. Provision of 31 bicycle spaces.
4. Garbage room increased in size to accommodate bins.
5. Deep soil increased in north-eastern corner of basement.

Basement 2

1. Remove Basement Level 2.

Ground Floor

1. Common area increased from 60m2 to 68m2.
2. Relocation of laundry.
3. Unit layout update.
4. Direct access removed from north facing units.
5. Entry access lift replaced by a pedestrian access ramp.
6. Increase the unit number on ground floor from 12 to 13.
7. Introduction of a secondary access to the outdoor common area.
8. Relocation of service shafts.
9. Provision of 9 bicycle parking spaces.

Levels 1, 2 and 3

1. Corridor relocated to align with ground floor corridor and entry.
2. Relocation of service shafts.
3. Reduced setback.
4. Unit layout updated.
5. Increased setback.

Level 4

1. Reduced setback.
2. Increased setback.
3. Corridor relocated to align with ground floor corridor and entry.
4. Relocation of service shafts.
5. Unit layout updated.

Attic Level

1. Unit layout updated.

2. Lift overrun RL increased.

3. Decreased setback.

4. The parties provided the following quantitative comparison to assist in the evaluation by the Court of whether the modification is substantially the same as the Consent originally granted as required by s 4.55(2) of the EPA Act:

| Table 1 Project Data | | | Site Area Less land Resumption: Total Laneway Dedication Area: Total Site Area with all Deductions: | 1,602.5m2 296.5m2 145.0m2 1,161.0m2 | | | | | | Control | Original Approval | Approved Modification MOD/2024/0083 | Proposed Modification | | Number of Boarding / Lodgers Rooms Managers/Caretakers Room Accessible Dwellings Manager’s Room Number of Lodgers Manager residing in the premises | - - - - - - | 62 1 7 1 1 116 1 | 65 1 7 1 1 121 1 | 67 1 7 1 1 134 1 | | FSR (Clause 4.4) Total FSR Based on Original Site Area: Total FSR Based on Reduced Site Area: | 1.2:1 or 1,594.8sqm (includes 0.7:1 under IWLEP and 0.5:1 bonus under the ARHSEPP) | 1.32:1 or 2,116sqm | 1.41:1 or 2,261.7sqm | 1.39:1 2,254.26sqm | | Height (Clause 4.3) | 12.5m | 17.4m | 18.18m | 17.79m | | Parking Affordable Rental Housing SEPP 2009 | 0.2 spaces per boarding room in accessible area 0.5 spaces per boarding room 1 space per site manager | 32 car parking spaces, including: 6 car parking spaces, for persons with a disability 13 Motorcycle Spaces 20 Bicycle Spaces | 33 car parking spaces 7 car parking spaces, for persons with a disability 14 Motorcycle Spaces 40 Bicycle Spaces | 19 car parking spaces 4 parking spaces for persons with a disability 8 Motorcycle Spaces 40 Bicycle Spaces |

15. The parties also agree that the proposed Modification Application will retain the essence of the approved development, being a boarding house development now with a total number of 67 double rooms and a maximum number of 134 occupants. In addition, the proposed Modification Application will have no adverse impact to the intensity of land use, aesthetic quality and environmental impacts when compared to the Consent because the proposed changes are generally located within the approved building envelope.

16. Therefore, the parties agree and I am satisfied that, development to which the Consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, pursuant to s 4.55(2)(a) of the EPA Act, for the following reasons:

17. The proposal maintains the fundamental built form of the original development for which consent was granted. The changes to that form proposed by the Modification Application are discrete and not transformative.

18. The deletion of basement level 2 car parking is a change which must be considered along with the modifications to the development listed above. The development remains as a boarding house. The parties are satisfied that when the modifications are considered wholistically, the deletion of basement parking is not a change which results in the development as modified not being substantially the same development as that which was approved.

19. The Modification Application maintains the approved boarding house uses. The nature and intensity of the use remains the same.

20. The selected changes in setbacks and changes to the building envelope in the main reflects the proposed internal reconfiguration.

21. The relationship between the proposed development, the public domain and the adjoining properties remains the same.

22. A comparison of the development that would result from the approval of the Modification Application to the original consent supports a conclusion that the development is quantitatively and qualitatively substantially the same development.

23. The parties agree that the development is not Integrated Development and as such s 4.55(2)(b) of the EPA Act is not applicable to the Modification Application.

24. From 10 June 2025 to 01 July 2025, the Application was publicly notified. One submission was received and a copy provided to the Court. That submission has been considered by the parties in the merit assessment of the Modification Application in accordance with ss 4.55(2)(c) and (d) of the EPA Act*.*

25. The matters in s 4.15(1) of the EPA Act that are of relevance to the Modification Application have been taken into account by the parties as have the reasons given for the original grant of Consent as required by s 4.55(3) of the EPA Act.

26. 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.

27. 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:

22. The Court notes that:

23. The Inner West Council as the relevant consent authority, has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) the Applicant amending Modification Application MOD/2025/0172 in accordance with the following documents (Amended Application):

| Item | Date | | Architectural Drawings (Proj 24024), prepared by Mostaghim: • D100 – Cover Sheet, Drawing List and Project Summary, Rev D; • D106 – Site Plan, Rev D; • D107 – Basement-2, Rev D; • D108 – Basement-1, Rev F; • D109 – Ground Floor Plan, Rev E; • D110 – Level 01,02 & 03, Rev F; • D111 – Level 04, Rev E; • D112 – Attic Plan, Rev D; • D113 – Roof Plan, Rev D; • D114 – Elevations, Rev E; • D115 – Elevations, Rev E; • D116 – Section 01, Rev D; • D117 – Section 02, Rev D; • D118 – Calculation Plan, Rev D; • D119 – Driveway Detail, Rev D; • D120 – Winter Shadow Diagram – 9.00 AM, Rev D; • D121 – Winter Shadow Diagram – 10.00 AM, Rev D; • D122 – Winter Shadow Diagram – 11.00 AM, Rev D; • D123 – Winter Shadow Diagram – 12.00 PM, Rev D; • D124 – Winter Shadow Diagram – 1.00 PM, Rev D; • D125 – Winter Shadow Diagram – 2.00 PM, Rev D; • D126 – Winter Shadow Diagram – 3.00 PM, Rev D; • D127 – Winter Shadow Elevations, Rev D; • D128 – Winter Shadow Elevations, Rev D; • D129 – Winter Shadow Elevations, Rev D; • D130 – Fence Detail, Rev E; • D131 – Materials and Finishes, Rev D; • D132 – 3D Montage, Rev D; and • D133 – Type C Room Layout and Sections, Rev C. | 20 Feb 2026 | | Schedule of Amendments (Proj 24024), prepared by Mostaghim | 20 Feb 2026 | | Traffic Impact Assessment (Ref 24.027r01v03), prepared by PDC, rev 3 | 18 Dec 2025 | | Waste Management Plan & Operations Guide, ver 2.0, prepared by Low Impact Consulting | 15 Dec 2025 | | Urban Design Response to Issues – MOD/2025/0172, prepared by Mostaghim | | | Operational Plan of Management, prepared by Planning Ingenuity | 20 May 2025 |

2. The Applicant is not required to lodge the Amended Application on the NSW Planning Portal pursuant to s 113(6) of the EPA Regulation.

Orders:

23. The Court orders:

24. The appeal is upheld.

25. Development Consent DA/2021/0288 is modified in the terms in Annexure A.

26. Development Consent DA/2021/0288 as modified by the Court is at Annexure B.

E Espinosa

Commissioner of the Court

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Annexure A (237 KB, pdf)

Annexure B (348 KB, pdf)