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[2026] NSWLEC 1108
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-18
Harding AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Foxtrot Tango Pty Limited V Inner West Council [2026] NSWLEC 1108
Hearing dates: Conciliation conference on 25 November 2025
Date of orders: 18 February 2026
Decision date: 18 February 2026
Jurisdiction: Class 1
Before: Harding AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Modification Application No. MOD/2025/0164, for the modification of Development Consent No. DA201900431, at 182 Australia Street, Newtown NSW 2042, is approved.
(3) The Development Consent No. DA201900431 relating to the land at 182 Australia Street, Newtown is modified by MOD/2025/0164, in the terms set out in Annexure A.
(4) The Development Consent for alterations and additions to the existing building and change of use to a food and drinks premises with office at 182 Australia Street, Newtown NSW 2042, as modified by the Court, is set out in Annexure B.
Catchwords: DEVELOPMENT APPLICATION – modification application – amended plans – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.56, 8.9
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021, s113
Inner West Local Environmental Plan 2022, cll 5.10, 6.11
Marrickville Local Environmental Plan 2011, s 6.10
Cases Cited: Shellshear v Inner West Council [2021] NSWLEC 1378
Category: Principal judgment
Parties: Foxtrot Tango Pty Limited (Applicant)
Inner West Council (Respondent)
Representation: Counsel:
J Reid (Applicant)
N Sheerazi (Solicitor)(Respondent)
Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)
File Number(s): 2025/390630
Publication restriction: No
COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Foxtrot Tango Pty Limited (the Applicant) against the deemed refusal of an application to modify the development consent granted by the Respondent on 29 June 2021. Development Consent was granted to development application No. DA201900431 and then modified on 18 October 2022 by modification application No. MOD/2025/0164.
The modification application was lodged with Inner West Council (the Respondent), on 26 May 2025. The application was for works to be undertaken at 182 Australia Street, Newtown. The Site is legally described as Lot 10 in DP 1120684.
The Modification Application, as amended, seeks to:
Modify conditions, as per Annexure A, including a new 12-month trial period for trading hours of 7:00am to 10:30pm, Thursdays to Saturdays;
Extend an existing vent by 1500mm;
Install noise attenuation measures on WC exhaust and AC units; and
Rely on a revised plan of management.
The Court arranged a conciliation conference between the parties pursuant to s 34 of the of the Land and Environment Court Act 1979 (NSW) (the LEC Act). The conciliation conference commenced on 25 November 2025.
At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the development application subject to agreed outcomes and conditions.
The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.
As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:
I agree with the parties that the development to which the consent relates, as modified, is the same or substantially the same development as the development for which consent was originally granted. The amendments to the application as a result of the conciliation process are not substantive and include:
(a) Amendments to the plans to ensure no gaps or openings in the panel when the kitchen exhaust fan and duct is extended; (b) Updated signage on door; (c) Amended operation hours for the trial period; (d) Amended plan of management; and (e) Amended conditions of consent.
Pursuant to the R2 Land Use Table of the Inner West Local Environmental Plan 2022 (IWLEP), commercial premises are prohibited development. The existing consent, which was granted by the Court in Shellshear v Inner West Council [2021] NSWLEC 1378, approved development for commercial premises as a historic non-residential building under cl 6.10 of Marrickville Local Environmental Plan 2011 (now cl 6.11 of the IWLEP). The parties agree that the Modification Application, as amended, does not alter the approved use of the building under the consent granted by the Court.
Clause 5.10 of the IWLEP is relevant as the Site is located within the North Kingston Estate Heritage Conservation Area. Clause 5.10(4) of the IWLEP requires consideration of the effect of the proposed development on the heritage significance of the heritage conservation area.
The s 4.56 Modification Report prepared by Civic Assessments notes that the building has been adaptively reused as a food and drink premises and office space, retaining significant features of the historic industrial building. The development was previously found acceptable in terms of heritage impact, the Modification Application proposes minimal physical changes, and the trading hours sought support the ongoing viable use and maintenance of the heritage building. The parties agree that the effect of the Modification Application on the heritage significance of the North Kingston Estate Heritage Conservation Area is acceptable. I agree that the required assessments have been undertaken.
The proposal was notified in accordance with the Respondent’s community participation plan between 17 June 2025 and 8 July 2025. Twenty seven (27) submissions were received and considered by the parties. The submissions covered an extensive history of poor operational aspects that had negative impacts on the neighbourhood. Many of these centred around the operation of the mechanical plant and general noise emissions for the patrons of the development. Several residents addressed the Court on the day of the conciliation. The issues raised reflected the written submissions but included the benefit of a site visit.
The Modification Application, as amended and agreed, was also informally notified to the 27 submitters by the Respondent between 15 January 2026 and 22 January 2026 for a period of seven days. A further 12 submissions were received in response to the informal renotification.
The further submissions have been considered by the parties. The parties agree that the amendments, conditions and revised plan of management will mitigate the issues raised by residents. In particular, the parties agree that:
The carrying out of the proposed acoustic works will improve the acoustic treatment and mitigate the acoustic impacts on the surrounding residential context.
The new 12-month trial period of 7am to 10:30pm for Thursdays to Saturdays, which gives an additional 30 minutes to the previous (expired) trial period, will commence after the Final Occupation Certificate is issued upon completion of the proposed acoustic works, and on this basis, the 12-month trial is justified.
The amended Plan of Management has been made consistent with the agreed amended proposal and agreed conditions of consent.
The waste arrangement is to be managed in accordance with the existing certified waste management plan.
The proposed development, as amended, is substantially the same as the approved development.
The parties agree that the matters in s 4.15(1) of the EPA Act, as are of relevance, have been properly considered. They also agree, and have demonstrated to the Court, that consideration has been given to the reason for the grant of the original development consent that is sought to be modified. I am satisfied that the required assessments and considerations have been undertaken and that the requirements of s 4.56 have been met.
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’ agreement.
I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act other than as described above.
The Court notes that:
The Inner West Council, as the relevant consent authority, has approved, under s 113 of the Environmental Planning and Assessment Regulation 2021 the Applicant amending Modification Application No. MOD/2025/0164 to include the following documents:
| TAB | DOCUMENT | DATE | | 1 | Amended Architectural drawings prepared by Walsh + Major, as follows: | Individually dated: | | Plan No. | Title | Issue | Date | | A102 | Site / Roof Plan | 1 | 17 December 2025 | | A301 | South Elevation | 2 | 17 December 2025 | | A302 | West Elevation (Australia St) | 2 | 17 December 2025 | | 6 | Amended Plan of Management (Version H) prepared by Philip Bull of Civic Assessments | 23 January 2026 | | 7 | Amended Noise Impact Assessment (Rev 2) prepared by Rodney Stevens Acoustics | 5 December 2025 | | 8 | Amended Section 4.55(2)/4.56 Modification Report prepared by Civic Assessments Urban Planners | 8 December 2025 |
The Court orders that:
The appeal is upheld.
Modification Application No. MOD/2025/0164, for the modification of Development Consent No. DA201900431, at 182 Australia Street, Newtown NSW 2042, is approved.
The Development Consent No. DA201900431 relating to the land at 182 Australia Street, Newtown is modified by MOD/2025/0164, in the terms set out in Annexure A.
The Development Consent for alterations and additions to the existing building and change of use to a food and drinks premises with office at 182 Australia Street, Newtown NSW 2042, as modified by the Court, is set out in Annexure B.
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