Petersham High Pty Ltd v Inner West Council

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, s 23, Sch 7
Inner West Local Environmental Plan 2022, Pts 4, 6, cl 6.3
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022

Cases Cited: Petersham High Pty Ltd v Inner West Council [2024] NSWLEC 1749

Texts Cited: Marrickville Development Control Plan 2011

Category: Principal judgment

Parties: Petersham High Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
V Conomos (Solicitor) (Applicant)
N Sheerazi (Agent) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/135650

Publication restriction: No

JUDGMENT

1. COMMISSIONER: These proceedings arise following an application to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent DA/2023/0811 (the consent) in Petersham High Pty Ltd v Inner West Council [2024] NSWLEC 1749 (Petersham High v Inner West). That decision granted approval for partial demolition of the existing structures and alterations and additions to the former Salvation Army Citadel and adjoining two-storey building and adaptive reuse as a co-living housing development incorporating 18 rooms, communal areas and parking for 4 cars, 3 motorcycles and 6 bicycles at premises known as 8-10 Charles Street, Petersham.

2. Application MOD/2025/0107 (the Modification Application) proposes to amend the approved development application by the modification of conditions related to on-site stormwater detention (OSD) requirements. The Modification Application removes the requirement for OSD through a concordant reduction in the impervious area proposed by the development.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 July 2025. I presided over the conciliation conference. At the conciliation conference agreement was reached between the parties to approve the modification application. The terms of the parties’ agreement are outlined in in their executed written agreement.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters:

Substantially the same: s 4.55(2)(a) of the EPA Act

5. The Modification Application was made pursuant to s 4.55(8) of the EPA Act. The jurisdictional requirements for the Modification Application are contained in s 4.55(2) of the EPA Act.

6. The parties submit, and I accept, that the development to which the consent as proposed to be 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). In forming that view, I have had regard to the narrow scope of the amendment (only to the provision of onsite detention on the site) and that the remainder (the majority) of the development remains unchanged. Further, the modification application does not propose any change to the use, overall appearance, scale or form of the proposed development. There be no perceived changes to the development when viewed from the public domain.

7. I am satisfied that on the basis of the amendments made by the applicant, that the 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).

Consultation: s 4.55(2)(b) of the EPA Act

8. The second jurisdictional requirement under s 4.55(2)(b) of the EPA Act relates to consultation with relevant approval bodies.

9. The Modification Application is not integrated or designated development and there are no applicable requirements to consult external authorities.

10. The requirements of s 4.55(2)(b) of the EPA Act are met.

Notification and consideration of submissions: ss 4.55(2)(c) and (d) of the EPA Act

11. Applying the provisions of the Inner West Community Participation plan, the parties agree, and I accept, that the modifications sought does not have implications for neighbouring amenity, streetscape, or local character, nor does it adversely affect adjoining properties. Therefore, the modification application did not require notification.

12. The requirements of ss 4.55(2) (c) and (d) of the EPA Act are met.

Relevant matters in s 4.15(1) of the EPA Act: s 4.55(3) of the EPA Act.

13. The Development Application was submitted with the consent, in writing, of the owners of the subject land as required by s 23(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

14. Pursuant to State Environmental Planning Policy (Sustainable Buildings) 2022 and Sch 7 of the EPA Regulation, the Proposal is not a BASIX affected development.

15. The Site falls in the Sydney Harbour Catchment. Therefore, Pt 6.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. The proposal is supported by Stormwater Plans prepared by Engineering Studio that demonstrate the increased impervious area in the development. The parties agree, and I accept, that:

16. the stormwater plans ensure that the effect on the quality of water entering a natural waterbody will be neutral or beneficial, and in all likelihood beneficial noting the existing lack of filtration and other current day mechanisms on the Site, and the impact on water flow in a natural waterbody will be minimised: s 6.6(2) of SEPP BC.

17. The development keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and minimises any adverse impact on wetlands: s 6.7(2) of SEPP BC.

18. The development is unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems: s 6.8 of SEPP BC.

19. The development does not affect public access to and from natural waterbodies: s 6.9 of SEPP BC.

20. The development is not likely to have an adverse environmental impact on any adjacent local government area: s 6.10 of SEPP BC.

The requirements of SEPP BC are satisfied.

16. The parties agree, and I accept, the Modification Application does not affect the finding of Court in Petersham High v Inner West that:

17. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 are met.

18. The development standards in Pt 4 and local provisions in Pt 6 of the Inner West Local Environmental Plan 2022 (LEP 2022) are satisfied.

19. In relation to cl 6.3 ‘Stormwater’ in LEP 2022 I am satisfied, based on the Statement of Environmental Effects and stormwater plans accompanying the Modification Application, that the development maximises the water permeable surfaces, within an otherwise highly constrained site, and where the location of a rainwater tank or tanks is agreed, and required by condition of consent so as to avoid a significant adverse impact from stormwater runoff to adjoining properties and other areas. Clause 6.3 of LEP 2022 is satisfied.

20. The parties agree, and I accept, that the Modification Application is acceptable in relation to the applicable objectives and controls of the Marrickville Development Control Plan 2011 and that the consent can be modified as sought, subject to conditions.

Consideration of reasons given for the grant of consent: s 4.55(3) of the EPA Act.

17. The reasons for granting consent are detailed in the judgment of Petersham High v Inner West*.* The parties agree, and I accept, that the Modification Application does not seek to vary any of the reasons for the grant of the original development consent.

18. In determining the modification application, I have taken into consideration the reasons given by the consent authority for the grant of consent.

19. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

20. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders.

21. The Court orders that:

22. The appeal is upheld.

23. Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification Application No MOD/2025/0107 for the modification of development application DA/2023/0811 at 8-10 Charles Street, Petersham is approved. The development consent is modified in the terms in Annexure A.

24. Development consent No DA/2023/0811, for partial demolition of the existing structures and alterations and additions to the former Salvation Army Citadel and adjoining two-storey building and adaptive reuse as a co-living housing development incorporating 18 rooms, communal areas and parking for 4 cars, 3 motorcycles and 6 bicycles at 8-10 Charles Street, Petersham, is subject to the consolidated, modified conditions of consent at Annexure B.

D Dickson

Commissioner of the Court

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Annexure A (192 KB, pdf)

Annexure B (384 KB, pdf)