Bell v Inner West Council

Texts Cited: Inner West Council’s Birchgrove and Ballast Point Rod Heritage Conservation Area
Inner West Council’s Community Engagement Framework

Category: Principal judgment

Parties: Linda Sheree Bell (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
S Griffiths (Solicitor) (Applicant)
T March (Respondent)
Solicitors:
Bartier Perry (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/229306

Publication restriction: Nil

Judgment

1. COMMISSIONER: Pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), the Applicant appeals the decision of Inner West Council (Council) to refuse Modification Application MOD/2025/0044 (MA) to modify certain conditions of consent in the development consent of DA/2023/0373 (DA) which granted consent for a subdivision of one lot into two lots and the erection of a new dwelling house on Lot 1 in Deposited Plan 198843 known as 123 Louisa Road, Birchgrove, NSW (Site).

2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is s 4.55(2) of the EPA Act.

Background

4. On 9 November 2023, the Council granted the DA, subject to conditions.

5. The Applicant was dissatisfied with a number of the conditions in the DA.

6. On 21 February 2025, the Applicant lodged the MA with the Council pursuant to s 4.55(2) of the EPA Act. The Council is the authorised authority to receive the MA pursuant to s 4.5(d) of the EPA Act.

7. On 21 May 2025, the Council determined the MA by way of refusal.

8. On 16 June 2025, the Applicant filed her appeal in this Court, in accordance with the time provisions in s 8.10(1)(a) of the EPA Act.

9. In her MA, the Applicant sought:

10. Deletion of conditions 2 (seeking the lowering of internal ceiling heights and the roof), 36(a), 48 and 49 (which require removal of the existing western-most vehicular crossing and associated on-site parking space at the Site) of the DA.

11. Modify condition 20(a) to delete reference to the requirement to remove the existing western vehicular crossing and associated on-site parking space at the Site.

12. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 3 and 4 November 2025. I presided over the conciliation conference.

13. 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 upholding the appeal and granting approval to the MA subject to conditions as set out below:

14. In response to condition two of the DA: replacing the gable-end roof form of the new dwelling adjoining Louisa Road with a hipped roof form lowering the roof ridge, so that the overall height is reduced by 500mm from RL 19.33 to RL 18.83.

15. In response to conditions 20(a), 36(a), 48 and 49 of the DA:

(a) Modification of the access ‘wings’ to the existing western-most vehicular crossing within Council’s road reserve, thereby maximising the available adjacent kerb space for car parking whilst allowing the vehicular crossing; (b) A new condition of consent for the provision of a new heritage-appropriate picket fence and sliding gate (to the existing western-most driveway) of 1.2m in height to be provided to the frontage of the existing dwelling.

3. The Applicant provided amended drawings to reflect the above-mentioned amendments, and the parties agree that all contentions raised in the Applicant’s Statement of Facts and Contentions filed on 24 July 2025, and the ‘cross contentions’ raised in the Respondent’s Statement of Facts and Contentions in Reply filed on 13 August 2025, have been addressed in full by way of the amendments.
4. Pursuant to ss 37(1) and 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPAR) the Council consented to the amended plans (Amended MA) as follows:

| Architectural plans (Revision C) prepared by Joseph Grech Architects, dated 3 November 2025: a) Drawing No. DA 05C – Level One Plan + Roof Plan; b) Drawing No. DA 06C – North and East Elevations; c) Drawing No. DA 07C – South and West Elevations; d) Drawing No. DA 08C – Section A&B; e) Drawing No. DA 09C – Finishes + Section C; f) Drawing No. DA 13C – Stormwater Concept Plan; g) Drawing No. DA 19C – Profile Drawing. | | Driveway detail drawing reference PT22089DA05 prepared by Positive Traffic, no date. | | Swept path drawing prepared by Positive Traffic, no date. |

12. 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. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to uphold the appeal and approve the MA subject to conditions. 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 and explained how they have been satisfied, as set out below.

13. The Applicant gave written consent to the lodgement of the Class 1 Application (Tab 1 of Class 1 Application) and, as the registered proprietor of the Site, has standing to commence these proceedings.

14. The Class 1 Application (Application) was filed pursuant to s 4.55(2) of the EPA Act.

15. For the purposes of s 4.55(2)(a) of the EPA Act, the parties agree that the development to which the consent as modified relates (MA) is substantially the same development as the DA for which consent was originally granted, as the quantitative and the qualitative elements and impacts are ‘essentially or materially’ the same.

16. Section 4.55(2)(b) of the EPA Act does not apply to the Class 1 Application.

17. In accordance with s 4.55(2)(c) of the EPA Act, the Council carried out notification of the MA in accordance with the Council’s Community Engagement Framework between 6 March 2025 and 20 March 2025.

18. In accordance with s 4.55(2)(d) of the EPA Act, the Council has considered the two submissions received in response to the notification of the MA and the further two written submissions together with the oral submission at the commencement of the s 34(1) Conciliation Conference under the LEC Act which began on Site. The parties consider the Amended MA is an appropriate response to the concerns raised by the objectors.

19. The Council is satisfied that, pursuant to its Community Engagement Framework, the Amended MA does not generate a need for further notification to be undertaken.

20. The parties agree that the Amended MA is consistent with the public interest.

21. Pursuant to s 4.55(3) of the EPA Act, the Council has considered the relevant matters under s 4.15(1) of the EPA Act (as set out below) and the reasons given for the grant of consent to the DA sought to be modified by the Amended MA.

22. The parties agree that the Amended MA remains consistent with the Consent Reasons in the DA.

State Environmental Planning Policies (SEPPs)

11. The parties agree that, given the nature and limited scope of the Amended MA – involving conditions of consent and specific design amendments in response to them – previous conclusions reached during the assessment of the DA in relation to the following SEPPS have not been altered and the development, as amended, remains appropriate:

(a) State Environmental Planning Policy (Biodiversity and Conservation) 2021; (b) State Environmental Planning Policy (Resilience and Hazards) 2021; and (c) State Environmental Planning Policy (Sustainable Buildings) 2021.

Inner West Local Environmental Plan 2022 (IWLEP 2022)

12. The parties agree that, given the nature and limited scope of the Amended MA – involving specific modifications to the DA at the Site only – previous conclusions reached during the assessment of the DA in relation to IWLEP 2022 generally remain relevant. In this regard:

(a) The Amended MA is consistent with the relevant aims of the IWLEP 2022 (per cl 1.2) and the objectives of the RI General Residential Zone (R1 Zone) (per cl 2.3(2) and the Land Use Table). (b) The Amended MA remains characterised as a dwelling house, which is permissible with consent in the R1 Zone. (c) The Amended MA does not alter the approved lot sizes for Proposed Lot 1 and Proposed Lot 2 (per cl 4.1 of IWLEP 2022). (d) A height of buildings development standard has not been adopted for the Site (per cl 4.3 of IWLEP 2022). (e) The Amended MA does not alter the gross floor area of the proposed development and so the floor space ratio is unchanged (per cl 4.4 of IWLEP 2022). (f) The Site is not a heritage item and does not adjoin any heritage items but is located within the Birchgrove and Ballast Point Road Heritage Conservation Area (HCA) (per cl 5.10 of IWLEP 2022). The experts of the parties agree that the Amended MA would not adversely affect the HCA. (g) The Amended MA does not alter the approved (and conditioned) stormwater collection and disposal (per cl 6.3 of IWLEP 2022).

13. There are no proposed instruments applicable to the Site or the Amended MA.

14. The parties have considered the likely impacts of the Amended MA, including the environmental impacts on both the natural and built environments, and social and economic impacts in the locality, and are satisfied that the Amended MA demonstrates that impacts have been minimised and will be acceptable.

15. The parties agree that the site is suitable to accommodate the Amended MA.

16. The parties have agreed on revised conditions of consent. The revised conditions of consent are at Annexure B and include amended conditions 1, 2, 20, 36, noting conditions 48 and 49 have been deleted.

17. The parties agree that the contentions raised in their respective Statements of Facts and Contentions have been addressed by the Amended MA, and that the appeal can be upheld.

18. The Court is not required to make any assessment of the merits of the Amended MA and I have not done so.

19. As set out above, 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.

20. 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. I shall uphold the appeal, and approve the MA subject to Annexures A and B.

21. The Court notes:

22. Inner West Council has approved the Applicant amending the Class 1 Modification Application pursuant to s 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021 (NSW), to rely upon the following additional and amended materials:

| Architectural plans (Revision C) prepared by Joseph Grech Architects, dated 3 November 2025: a) Drawing No. DA 05C – Level One Plan + Roof Plan; b) Drawing No. DA 06C – North and East Elevations; c) Drawing No. DA 07C – South and West Elevations; d) Drawing No. DA 08C – Section A&B; e) Drawing No. DA 09C – Finishes + Section C; f) Drawing No. DA 13C – Stormwater Concept Plan; g) Drawing No. DA 19C – Profile Drawing. | | Driveway detail drawing reference PT22089DA05 prepared by Positive Traffic, no date. | | Swept path drawing prepared by Positive Traffic, no date. |

17. The Court orders:

18. The appeal is upheld.

19. Development consent No. DA/2023/0373 is modified in the terms of Annexure A.

20. Development consent No. DA/2023/0373, as modified by the Court is Annexure B.

M Peatman

Acting Commissioner of the Court

Annexure A (182 KB, pdf)

Annexure B (328 KB, pdf)

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