R & D Beattie Properties Pty Ltd v Inner West Council

Category: Principal judgment

Parties: R & D Beattie Properties Pty Ltd ACN 666 294 524 (Applicant)
Inner West Council ABN 19 488 017 987 (Respondent)

Representation: Counsel:
J Reid (Applicant)
M Harker (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s): 2024/375193

Publication restriction: Nil

Judgment

1. COMMISSIONER: Pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) on 10 October 2024 the Applicant commenced proceedings seeking approval for Modification Application MOD/2024/0263 (MA) previously refused by Inner West Council’s (Council) Inner West Planning Panel (IWPP). The MA was lodged with Council relying upon s 4.56(1) of the EPA Act.

2. The MA seeks to modify development consent D/2018/243 (Original DA) which the Court granted pursuant to s 34(3) of the Land and Environment Court Act 1979 (NSW) (LEC Act) and s 4.16(1)(a) of the EPA Act.

3. The Original DA included site consolidation, alterations and additions to the existing warehouse buildings at the site, and change of use to a multi-dwelling housing development containing three dwellings and two car spaces at 77 Beattie Street, Balmain being the whole of the land in Lots 24 and 25 in Deposited Plan 2821 (Site).

4. I note that this is an appeal against Council’s refusal of the MA, and not a direct application to the Court to modify the Original DA in accordance with s 4.55(8) of the EPA Act.

Recent History of the Site

5. The IWPP is a panel constituted pursuant to Pt 2, Div 2.5 of the EPA Act, and it was authorised to exercise the consent authority’s functions of Council to determine the MA pursuant to s 4.5(d) of the EPA Act. The Council is the Respondent in these proceedings, and is subject to the control and direction of the IWPP pursuant to s 8.15(4) of the EPA Act.

6. The current MA involves raising the floor-to-ceiling levels and overall height of Terraces 2 and 3 by 200mm, and changes to Terrace 2 with an increase to the first floor by extending the western boundary wall to the western side boundary and a new second floor. The details of the MA are shown on the amended architectural plans prepared by Derek Raithby Architects in Ex B, and further amended architectural plans prepared by Derek Raithby Architects in Ex H.

7. The Site is located on the northern side of Beattie Street, approximately 37m to the east of the intersection at Montague Street, Balmain.

8. The Site is regular in shape with a total area of 280.6m2, and a frontage of 9.145m to Beattie Street and rear lane frontage of 9.145m to Little Llewellyn Street. The Site has a fall from Little Lewellyn Street to Beattie Street of approximately 5.44m (Ex A Tab 6 Plan A02 Site Management Plan dated July 2024).

9. The MA seeks to rectify a discrepancy with the surveyed AHD benchmark levels by adjusting all of the adopted kerb, ground and building levels within the Site and adjoining properties upwards by 1.15m.

10. The Site and adjoining properties are zoned R1 General Residential under the Inner West Local Environmental Plan 2022 (IWLEP 2022). The objectives of the R1 General Residential Zone are:

1 Objectives of zone

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide residential development that maintains the character of built and natural features in the surrounding area.

11. Multi-dwelling housing is permissible within the R1 General Residential Zone with consent.

12. The Site is located within The Valley Heritage Conservation Area (HCA) and within the vicinity of the following local heritage items listed under IWLEP 2022:

13. Balmain Co-op Society Limited, including interiors, at 28-30A Montague Street, Balmain (Listing No 1590) (28-30A Montague Street).

14. Commercial Building at 88 Beattie Street, Balmain (Listing No. 1446).

15. Dick’s Hotel, including interiors, at 89 Beattie Street, Balmain (Listing No I1786).

16. Photograph from Ex 2, Town Planners Joint Report, p 14:

Figure 1: photograph showing the relationship of the two storey 79 Beattie Street facade (obscured by tree) to 77 Beattie Street prior to the Original DA – viewed from across the other side of Beattie Street. The Derrin Building is to the east (right) of the Site in the photograph above.

14. Pursuant to s 4.2 of the EPA Act, the MA was lodged with Council on 14 August 2024.

15. The MA was notified and exhibited in accordance with the Inner West Community Engagement Strategy 2025-2029 from 29 August to 27 September 2025. Council received one submission, and at the commencement of the hearing onsite I heard two oral objections. As the presiding officer, I inspected the properties of both objectors to understand their concerns. The Council considered the objectors’ submissions. I shall return to the two properties when considering the amenity impacts of solar on 79 Beattie Street, and the view loss from the upper floor of 28-30A Montague Street.

16. On 8 October 2024, the MA was refused by the IWPP, and it set out its reasons in accordance with s 4.56(2) of the EPA Act.

17. The Applicant filed its appeal on 10 October 2025 against the refusal of approval to the MA pursuant to s 8.9 of the EPA Act, and in accordance with the time provisions in s 8.10(1)(a) of the EPA Act. Pursuant to s 4.56(1)(a) of the EPA Act, the MA seeks approval to modify the DA issued by the Court (following a s 34(3) Agreement under LEC Act on 6 August 2019).

18. The DA has been modified on two occasions:

19. MOD/2020/0133 approved by the Council on 29 May 2025 (First MA). The First MA related to stormwater design which proved to be impossible under the DA. The First MA resulted in changes to the DA conditions relating to stormwater design, and ‘tidying up’ other conditions, as follows:

(a) Deleted conditions 1, 8, 11, 17, 25, 57 and 68; (b) Amended conditions 2, 6, 24, 33, 71; and (c) Inserted new conditions 71A and 71B.

2. MOD/2020/0187 approved by Council on 16 June 2020 (Second MA). The Second MA was confined to correcting the value of the security deposit in Condition 31 of the Consent Conditions to the DA.

3. In the current proceedings on 11 July 2025, the Court granted leave for the Applicant to rely upon amended plans and documents for the MA.

4. On 10 October 2025, the Applicant moved a further motion for leave to rely upon amended plans and documents (Ex B) prepared by SJB Planning dated 10 September 2025. The Council did not oppose the motion. In substance, the modification relates to the western wall on level 1 being extended to the boundary with the adjoining property, and Terrace 2 having an additional level on level 3 to bring it adjacent to the Terrace 3 level 3 to include an additional bedroom and bathroom facing onto Beattie Street. The bathroom windows for both Terraces 2 and 3 on level 3 are to be converted to a mansard roof, and other minor alterations, including using a different type of brick on the outside of various parts of the building to match the existing brick as built. I determined that the MA would still be substantially the same modification after granting the motion. I made the following Order in relation to the amended plans and documents in Ex B:

“I grant leave for the applicant to rely upon the amended plans and documents.”

21. A summary of the proposed alterations and amendments are:

22. Increase of the floor-to-ceiling height of the ground floor of Terraces 2 and 3 by 200mm to accommodate appropriate clearance for stormwater drainage piping;

23. Erection of 1.8m high masonry cement rendered fence along the western boundary of the Site adjacent to the private open space of Terrace 2;

24. Relocation of the external western wall of Terrace 2 at the first floor to the western side boundary;

25. Works to block off ground floor access from Terraces 2 and 3 to subfloor;

26. Erection of a double brick wall on eastern side of Terrace 2 to achieve the required Fire Rating Level;

27. Addition of a second floor within Terrace 2 which includes stair access from the first floor, a bedroom and ensuite;

28. Works to match the roof of Terrace 2 which includes stair access from the first floor, a bedroom and ensuite;

29. Works to match the roof of Terrace 2 with the height, dimensions and materiality of the adjacent Terrace 3;

30. Works to the dincel concrete wall on the western side boundary adjoining 79 Beattie Street to provide a relief drain below the level of the ground floor slab of 79 Beattie Street; and

31. Amendments to the draft Conditions of Consent as set out below:

(a) Amendment to condition 2 to refer to amended architectural plans as set out above; (b) Insertion of new condition 27A to require the installation of the relief drain to address water ingress at 79 Beattie Street; (c) Insertion of new condition 27B requiring design changes reflecting the agreement of the heritage experts; (d) Insertion of a new condition 27C requiring the engagement of a qualified Heritage Architect to supervise the design and implementation of the works; and (e) To remove the requirement for the provision of a schedule of conservation and repair works prior to the issue of a construction certificate as a schedule of conservation works prepared by Weir Phillips Heritage dated 3 April 2025 will be reflected in any modified conditions of consent.

22. On 6 November 2025, the Applicant moved a motion to amend the plans in Ex B by substituting the particular amended plans in the Applicant’s Supplementary Bundle of Documents (Ex H). The Council did not object to the plan amendments. I granted leave for the Applicant to rely upon the amended plans as set out below:

| Number | Title | Issue | Amendment | | A00 | Cover Sheet | 15 | Coversheet updated for amended plans | | A05 | Terrace 2/3 Ground Floor Plan | 13 | Party wall between Terrace 2 & 3 amended to reflect 220mm face brick wall with 20mm air gap, 25 mm sheet shaft liner, 90mm timber stud frame with insulation and 10mm plasterboard lining. Detail added to illustrate ‘As built’ and ‘Proposed’ construction. | | A06 | Terrace 2/3 First Floor Plan | 13 | Party wall between Terrace 2 & 3 amended to reflect 220mm face brick wall with 20mm air gap, 25mm sheet shaft liner, 90MM timber stud frame with insulation and 10mm plasterboard lining. Detail added to illustrate ‘As-Built’ and ‘Proposed’ construction. | | A07 | Terrace 2/3 Second Floor Plan | 14 | Party wall between Terrace 2 & 3 amended to reflect 220mm face brick wall with 20mm air gap, 25mm sheet shaft liner, 90MM timber stud frame with insulation and 10mm plasterboard lining. Detail added to illustrate ‘As-built’ and ‘Proposed’ constructions. | | A13 | Sections A-A & B-B | 15 | Section updated to show Party wall between Terrace 2 & 3 with 220mm face brick wall with 20mm air gap, 25mm sheet shaft liner, 90MM timber stud frame with insulation and 10mm plasterboard lining. Detail added to illustrate ‘As-built’ and ‘Proposed’. |

23. The full set of the Applicant’s plans before the Court are set out below:

| As amended under MOD/2024/0263 to include only the works marked in blue and green on the following architectural plans: | | A00 - Cover Sheet | Derek Raithby Architecture | 10/2025 Rev 15 | | A01 - Site Plan | Derek Raithby Architecture | 10/2025 Rev 12 | | A02 - Site Management Plan | Derek Raithby Architecture | 01/2025 Rev 9 | | A03 - Terrace 1 Ground Floor Plan | Derek Raithby Architecture | 10/2025 Rev 17 | | A04 - Terrace 1 First Floor Plan | Derek Raithby Architecture | 10/2025 Rev 13 | | A05 - Terrace 2/3 Ground Floor Plan | Derek Raithby Architecture | 10/2025 Rev 13 | | A06 - Terrace 2/3 First Floor Plan | Derek Raithby Architecture | 10/2025 Rev 13 | | A07 - Terrace 2/3 Second Floor Plan | Derek Raithby Architecture | 10/2025 Rev 14 | | A08 - Roof Plan | Derek Raithby Architecture | 10/2025 Rev 14 | | A09 - East Elevation | Derek Raithby Architecture | 10/2025 Rev 15 | | A10 - West Elevation | Derek Raithby Architecture | 10/2025 Rev 15 | | A11 - South Elevation | Derek Raithby Architecture | 10/2025 Rev 15 | | A12 - North Elevation | Derek Raithby Architecture | 10/2025 Rev 12 | | A13 - Section A-A & B-B | Derek Raithby Architecture | 10/2025 Rev 15 | | A14 - Section C-C | Derek Raithby Architecture | 10/2025 Rev 15 | | A15 - External Finishes | Derek Raithby Architecture | 10/2025 Rev 10 | | A16 - Window/Door Schedule 1 of 2 | Derek Raithby Architecture | 10/2025 Rev 11 | | A17 - Window/Door Schedule 2 of 2 | Derek Raithby Architecture | 10/2025 Rev 11 | | Document Title | Prepared By | Dated | | Materials and Finishes DA-900-D | BKA architecture | 22/05/2019 | | BASIX Certificate | Taylor Smith Consulting | 12/06/2019 | | Remediation Action Plan REP-18 6078-A | Envirotech | 5 May 2018 | | Revised Schedule of Conservation Works | Weir Phillips Heritage | 3 April 2025 | | BASIX Certificate No. 1815669M | Clockwork Consulting | 2 October 2025 |

24. The MA falls within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the LEC Act.

Legislation

Environmental Planning and Assessment Act 1979 (NSW)

25. Section 4.56 of the EPA Act states:

4.56 Modification by consent authorities of consents granted by the Court

(cf previous s 96AA)

(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if—

(a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, and

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

(1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

(1B) To avoid doubt, a consent authority is not prevented from modifying a consent under this section merely because the modification only modifies a condition of consent and would not result in a change to the development the subject of the consent.

……

Inner West Local Environmental Plan 2022

26. Clauses 4.4 and 5.10 of the IWLEP 2022 state:

4.4 Floor space ratio

(1) The objectives of this clause are as follows—

(a) ……

(b) to ensure development density reflects its locality,

(c) to provide an appropriate transition between development of different densities,

(d) to minimise adverse impacts on local amenity,

(e) ……

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

(2A) The maximum floor space ratio for development for a purpose other than residential accommodation on land in Zone R1 General Residential identified as “Area 1” on the Key Sites Map is 1:1.

(2B) The maximum floor space ratio for development for the purposes of residential accommodation is as follows—

……

(b) on land identified as “Area 3” or “Area 4” on the Floor Space Ratio Map is—

| Site area | Maximum floor space ratio | | < 150m2 | 1.0:1 | | ≥ 150 < 300m2 | 0.9:1 | | ≥ 300m2< 450m2 | 0.8:1 | | ≥ 450m2 | 0.7:1 |

……

5.10 Heritage conservation

Note—

Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5.

(1) Objectives The objectives of this clause are as follows—

(a) to conserve the environmental heritage of Inner West,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2) Requirement for consent Development consent is required for any of the following—

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—

(i) a heritage item,

(ii) an Aboriginal object,

(iii) a building, work, relic or tree within a heritage conservation area,

……

(e) erecting a building on land—

(i) on which a heritage item is located or that is within a heritage conservation area, or

……

(f) subdividing land—

(i) on which a heritage item is located or that is within a heritage conservation area, or

……

(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment The consent authority may, before granting consent to any development—

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

27. The Valley “Balmain” Distinctive Neighbourhood (otherwise known as The Valley Heritage Conservation Area) of which the Site forms part, is found in the Leichhardt Development Control Plan 2013, and is set out in Ex 3 Joint Expert Report Heritage (JER Heritage), Tab 3, pp 14-16 (HCA).

Issues

28. The issues to be determined are:

29. Should the MA be dismissed if BIC/2025/0136 has not been granted prior to determination of the MA?

30. Is the development proposed in the MA substantially the same as the development in the Original DA?

Town Planning

29. Scott Barwick is the town planner for the Applicant, and Eltin Miletic is the town planner for the Council. The town planners joint conferenced and prepared a Town Planning Joint Expert Report filed 26 September 2025 (Ex 2).

30. The three tasks or steps that need to be undertaken in assessing whether the MA is substantially the same as the development to which consent was originally granted were identified by Preston CJ in Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 (“Realize”) at [7] (noting that the terms of s 4.55(2) of the EPA Act are the same as s 4.56(1)(a)):

7 … “(a) Finding the primary facts: This involves drawing inferences of fact from the evidence of the respects in which the originally approved development would be modified. These respects include the components or features of the development that would be modified, such as height, bulk, scale, floor space, open space and use, and the impacts of the modification of those components or features of the development.

“(b*)* Interpreting the law: This involves interpreting the words and phrases of the precondition in s 4.55(2) as to their meaning.

“(c) Categorising the facts found: This involves determining whether the facts found regarding the respects in which the development would be modified fall within or without the words and phrases of the precondition in s 4.55(a)….. The decision-maker’s task is to determine whether the facts found fall within or without the statutory description, “according to the relative significance attached to them’ by the decision-maker: The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) at 138.”

31. And at [26] the Chief Judge emphasises that “the comparison required by s 4.55(2)(a) remains a holistic one of the two developments being compared – the modified development and the originally approved development.”

32. Pursuant to s 4.56(1)(a) of the EPA Act, the Court must be satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which the consent was originally granted, and before that consent as originally granted was modified. The Council contends that the MA is not substantially the same as the Original DA, and the Applicant contends that the MA is substantially the same as the Original DA.

33. The assessment of the DA by the town planning and heritage experts must be viewed through the lens of comparing the MA to the Original DA.

Finding the primary facts

Contention (1): Not substantially the same development.

34. The town planners agreed that the elements of the original building that were required to be retained were the front façade, the central columns and beams in Terrace 1, and the skillion roof to Terrace 1 except for the inserts for new skylights (Ex 2 par 5, p 5; Tcpt, 10 October 2025, p 15(17-22)).

35. The town planners agreed that the Remedial Action Plan approved in the DA required between 200-500mm of fill across the Site to be removed which required the removal and replacement of the slab under Terraces 2 and 3 which was documented in the construction certificate in the approved structural engineering construction methodology on Drawing S5.01 Rev1.

36. The Original DA comprised conversion of an existing industrial site into three dwellings comprising Terrace 1 as a two-bedroom dwelling, Terrace 2 as a two-bedroom dwelling and Terrace 3 as a three-bedroom dwelling with two onsite car parking spaces.

37. The plans in Ex B identify the works the subject of the MA marked in green and blue. The changes are broadly summarised as the modification of a multi-dwelling development comprising three dwellings by the addition of a second floor to Terrace 2 to accommodate a bedroom and ensuite, extending the first floor of Terrace 2 by 930mm to the boundary, rectification works to the roof of Terrace 3 to restore it to the approved Mansard profile and changes to materials and finishes to improve the presentation within the HCA.

Quantitative assessment

38. The MA proposes a widening of the first floor of Terrace 2 by 930mm to the western boundary (Drawing A06) and the addition of a bedroom and ensuite on the second floor of Terrace 2 to align in height with Terrace 3 (Drawing A07).

39. At par 8 of Ex 2, Mr Barwick and Mr Miletic agree that the qualitative and quantitative changes are the additional bulk and scale and resultant impacts that arise from the change to Terrace 2.

40. Mr Barwick gave evidence that:

41. In relation to the gross floor area Mr Barwick confirmed that the MA proposes an increase of 39.36m2 of gross floor area (GFA) from the total GFA of 330.75m2 in the Original DA (Ex D, Tab 7(a), Sheet DA-001).

42. Including the courtyard for Terrace 1 at the Beattie Street level, the GFA would result in a GFA of 370m2, which equates to a floor space ratio (FSR) of 1.32:1 and is a 46.7% variation on the FSR control, compared to the 30.9% variation on the FSR control approved in the Original DA (Tcpt, 10 October 2025, p 22(42-48)).

43. Mr Miletic gave evidence that:

44. He did not disagree with the calculation but he did disagree with its impact on the Original DA.

45. He assessed the MA as an adaptive reuse as he believed that the Original DA was assessed as an adaptive reuse pursuant to cl 6.11 Adaptive reuse of existing buildings in Zone R1 under the former Leichhardt Local Environmental Plan 2013 (LLEP 2013). However, during cross examination he accepted that the former development consent for the Site was for a single dwelling house, and that the DA was for residential use, and therefore cl 6.11 of the LLEP 2013 did not apply. Nor does it apply to the MA, and the MA should properly be described as alterations and additions (Tcpt, 10 October 2025 pp 18-19(1-17)). In re-examination, Mr Miletic resiled from these statements when he realised that the former development consent for a single dwelling had not become an operative consent. He then stated that the DA would have been the adaptive reuse of a warehouse building to residential accommodation.

46. However, Mr Miletic agreed that cl 6.12 of the IWLEP 2022 is not relevant to the assessment of the MA, because it does not apply to multi-dwelling housing and was in very different terms to cl 6.11 of the LLEP 2013 (Tcpt, 10 October 2025, p 19(19-34)). Further, that when the Court is assessing an application under s 4.56 of the EPA Act, the assessment required of the statutory instruments is only those instruments or clauses that are relevant to the MA (Tcpt 10 October 2025 p 19(19-24)).

47. The application of cl 4.4 of IWLEP 2022 in relation to the assessment of the FSR and whether it is an acceptable increase above the control remained in dispute between the town planners. In particular, Mr Miletic relied upon a comparison with the former industrial development, and the Original DA judgment (Abraham v Inner West Council [2019] NSWLEC 1370) (“Abraham”) per Commissioner O’Neill at [26]:

26 “The applicant’s written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because the proposal is an adaptive reuse of an existing building and the existing building fully occupies the site. The bulk and mass of the development has been located centrally within the site so as to minimise its visual impact and provide a transition in scale between the higher building to the east and the lower development to the west. The proposed bulk and scale of the development is consistent with that which currently exists on the site and retains the existing presentation of the former warehouse to Beattie Street.”

42. I note that the judgment Abraham was given pursuant to an Agreement by the parties pursuant to s 34(3) of the LEC Act, and the proposal was not described as a ‘adaptive reuse’ but rather as:

“1 This is an appeal pursuant to the provision of s 8.7(1) …… for site consolidation, partial demolition of the existing building, retention of façade to Beattie Street and change of use to a multi dwelling housing development containing three dwellings and parking for three vehicle (the proposal) at 77 Beattie Street, Balmain (the site)…

…

29 …

(5) Development Application No. D/2018/243 for site consolidation, alterations and additions to the existing warehouse buildings at the site and change of use to a multi dwelling housing development containing three dwellings and 2 car spaces at 75-77 Beattie Street, Balmain, is approved, subject to the deferred commencement condition and the conditions of consent at Annexure A.”

43. Ms Reid took the town planners to Ex D Tab 26: Applicant’s Bundle of Documents – folio 198 which was another s 34 Agreement judgment made by the Court pursuant to an Agreement under s 34(3) of the LEC Act in relation to the Derrin building next door to the Site (on the eastern side). The town planners accepted that the approved FSR for that development of six townhouses was 1.624:1 at [13] of the judgment commencing on folio 198 of Ex D (Tcpt, 10 October 2025, p 23(9-28)).

44. Ms Reid then took the town planners to an earlier approval on the Derrin building next door for a childcare centre, and the town planners agreed that the childcare development had a FSR of 1.14:1 (Tcpt, 10 October 2025 p 23(38-50)).

45. The height of the proposal under the MA does not change, with the exception that an additional floor is added to Terrace 2 to the height of the existing Terrace 3, so as to add a third bedroom and ensuite bathroom, with mansard windows to both Terraces 2 and 3. The Heritage experts are in favour of the increase in height to Terrace 2 as it is more in conformity with the shape and presentation of the previous industrial use on the Site. Three of the experts were in favour of the increase in height to Terrace 2, and one was against the increase in height. However, taking into consideration the onsite view where I noted:

46. The finely grained development in Balmain;

47. With the Derrin building being substantially higher than Terrace 3; and

48. Again the commercial building at 28-30A Montague Street, behind Little Lewellyn Street, being higher still.

I support the view of the three experts (Mr Bartlett, Mr Phillips for the Applicant, and Ms Truman for Council) that the additional height to Terrace 2 is a positive attribute to the view of the Site from the streetscape and taking into account the retention of the front façade, and the design of the windows including the mansard windows complementing the retained façade. However, I acknowledge that the test in s 56(2)(a) is not if the modification is an improvement, but rather that the completed modification is substantially the same as that in the Original DA.

46. In relation to the increased bulk and scale of the development, the evidence of the expert, Mr Barwick, is:

“55. The scale of development in the immediate locality is greater than two storey buildings. The former Co-op building to the north (28-30A Montague Street) has a three storey scale to Little Llewellyn Street and the former Derrin Brothers building to the immediate east has a four storey presentation to Little Llewellyn Street, and sits well above the proposed development when viewed from Beattie Street.

56. The three storey element has a setback of some 9.85m from the Beattie Street frontage and 10.0 m from Little Llewellyn Street. In terms of positioning on the site the three storey element of the building sits behind the two storey element of the building at 79 Beattie Street…

…

57. The three storey element of the building is primarily visible directly opposite the site. Viewed from the east the building bulk is in scale context with the former Derrin Brothers building. From the west the nil setback two storey element of 79 Beattie Street screens the three storey element. From a visual impact on the streetscape the three storey element is recessed and becomes another element in the visual catchment that could not be said to overwhelm the visual catchment.” (Ex 2, pp 13-14, pars 55-57)

47. Council objected to the first floor of Terrace 2 being extended to the western boundary, together with the increased height of the Terrace 2 western wall. The wall height of the first floor to the western boundary increases by 810mm from RL 45.01 to RL 45.82 (Ex B, Drawing A10 to scale). The western elevation of the first floor was approved as ‘face brick’ in the Original DA. The MA proposes a decorative finish using contrasting brick colours in a pattern endorsed by the heritage experts, Ms Trueman and Mr Phillips. The overall height of Terrace 2 will increase to accommodate a bedroom/ensuite in a mansard roof form to match Terrace 3 at RL 47.81. Consequently, the wall height (with sloping roof form) to the western boundary for the second floor addition to Terrace 2 will increase by up to 2m. At its highest the western boundary wall height will be 8.95m.

48. The MA will add an additional car space, by way of the car stacker to Terrace 2. The total number of car spaces will increase from two to three in the MA.

Qualitative assessment

Solar access

49. The increased height and bulk to the western boundary of the Site, and the quantified solar impact inform the qualitative assessment of the differences between the Original DA and the MA. In particular Council objected to the loss of solar access to the small residential flat (Flat 1) at the rear of 79 Beattie Street. Mr Miletic stated in Ex 2 p 30 at [117]:

“In simple terms, the adjoining dwelling at 79 Beattie Street relies upon two windows for solar access and the originally approved development maintained two hours solar access to at least one window at midwinter between 11am to 1pm as per Control C14 of Pt C3.9 of LDCP 2013….”

50. However, Flat 1 at 79 Beattie Street has open space at the rear of the unit, and that open space area is not impacted by the increase in the wall height. The rear open space attached to Flat 1 maintains its solar access. In relation to the loss of sunlight to Flat 1, a representative of the owner of 79 Beattie Street had previously made written objections to the MA and made oral objections on the first day of the hearing. He did not raise any objection of the façade at the Beattie Street boundary, and the court did not inspect the leased offices at the front boundary of 79 Beattie Street. However, he maintained his objection to the loss of sunlight to the windows in Flat 1 (as marked on the plan in Council’s file at Ex 1 Tab C, coloured in pink). The Court was not given access to Flat 1 as the owner’s representative had not made arrangements with the tenant. The Court inspected Flat 1 from outside a high timber fence and the internal layout could only be discerned from the plan in Ex 2 Tab C which is a plan from the 1970’s in Council’s file: nearest Little Llewellyn Street there is a utility room (window A), and the adjoining room is a bedsitting room (window B). It is the utility room (window A) which loses most of its sunlight during the winter solstice as a result of the MA. Scott Barwick stated in the Town Planners’ Joint Expert Report (Ex 2 pp 24-25) referring to the shadow diagrams, that both windows would have a loss of solar access at 11am but both have solar access from Noon to 2pm. Technically this a breach of the control as the 2 hours are from Noon to 2pm and not as per the control of 11am to 1pm.

Figure 3: Extract from Council’s plan of 79 Beattie St showing Flat 1 (Ex 2 Tab C)

Figure 4: Plan extract in Ex 2 p 15 showing solar access to Windows A and B in Flat 1, 79 Beattie Street

View loss

51. The owner of 28-30A Montague Street gave a written submission, and attended on site at the commencement of the hearing to give oral submissions. 28-30A Montague Street is opposite the Site on the other side of Little Llewellyn Street. The Court attended an inspection of the view loss from 28-30A Montague Street, and in particular a room adjacent to Little Llewellyn Street on the upper floor. The premises are presently leased to a fashion designer, and the room in question is a room for the customers and/or models to change their clothes. The particular window can be seen below:

Figure 5: 28-30A Montague Street – view from Little Llewellyn Street showing windows on upper level impacted by view loss (Ex 4 p 009)

52. The current view from the third storey window at 28- 30A Montague Street can be seen below:

Figure 6: View from Upper Level of 28-30A Montague Street, Ex 2 p 28

53. A further view is provided by the town planners in Ex 2, p 29:

Figure 7: View from the Upper Level of 28-30A Montague Street Balmain with a Mark-up comparing Original DA (yellow lines) and MA (red line). There was discussion regarding the accuracy of the yellow lines during the hearing, but the parties agreed that the placement of the red line is correct.

54. Mr Barwick stated in Ex 2, p 29, pars 111 and 112:

“In terms of the value of the view as required to be considered by C3.10 of LDCP, the views are not from a primary living area or entertainment area of a dwelling. The proposal does not impact upon public views.

The outlook impacted as depicted in figures 5 and 6 are from a standing position less than 1.0m from the glass line. The view standing back from the window or to the side of the window is diminished.”

55. Mr Miletic stated, referring to both solar and loss of views impacts (Ex 2, p 30, par 116):

“In this regard, the assessment of amenity impacts to solar access, outlook and views should take into account the pre-existing 1.5 storey high building envelope of the former warehouse building given the originally approved development sought to rely upon Council’s adaptive reuse provisions and represents a finely balanced outcome through a transition in scale from east to west to allow a large development whilst minimising amenity impacts to adjoining properties.”

Heritage

56. Contentions 3 and 4: Heritage, desired future character and site layout and building design, amenity impacts.

57. James Phillips was the heritage expert for the Applicant, and Lisa Trueman for the Council.

58. Mr Phillips and Ms Trueman prepared a JER Heritage which was filed on 29 September 2025 (Ex 3).

59. In Ex 3 p 3, the heritage experts agreed:

60. Modification to the front elevation of Terrace 1 to Beattie Street, in particular, the removal of the steel plates around the original loading dock doors, and the careful retention of the existing painted sign, as per the Original DA.

61. Reconstruct the exterior to the existing upper level of Terrace 3 with a mansard roof level below. Mansard roof and windows to Terrace 2 should also match.

62. Clad the walls of level 1 (First Floor) of Terrace 1 and Terrace 2 with brown coloured face brick, as per the Original DA.

63. The proposed pergolas to the north elevation are to be of timber construction (not metal as currently built) as per the Original DA.

64. Window 7 (W7) in the north elevation to be constructed in accordance with the Original DA plans.

65. The heritage experts further agreed that amendments should be made to the western wall of Terrace 2, to provide a better response to its context within the HCA:

66. The western wall of Terrace 2 should have a render finish to level 2 (Second Floor) as approved for Terrace 1 and face brickwork In Austral Gertrudis Brown on Ground Level and level 1 to the parapet line.

67. A pattern, using two contrasting colours of brick, should be introduced into the face brick wall. The pattern should emphasise the top and bottom of this section with bands of contrasting brickwork for three courses and with a series of evenly spaced vertical bands at least one and a half bricks wide running from the bottom horizontal band to the top horizontal band.

68. During the onsite view, and later in Court, the heritage experts further worked together to resolve outstanding issues. The heritage experts made the above recommendations, and made further recommendations at the hearing being changes to materials and finishes, conservation works to be retained including the façade to Beattie Street, and rectification works to the mansard roof form of Terrace 3.

69. The amendments recommended by the heritage experts have been embraced by the Applicant and form part of the amended MA before the Court.

70. I accept the evidence of the heritage experts.

Interpreting the Law (interpreting the precondition in s 4.56(1)(a) of the EPA Act)

62. The test in s 4.56(1)(a) requires a simple comparison of the two developments, the development as modified and the development as originally approved: Arrage v Inner West Council [2019] NSWLEC 85 at [24]; Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 at [112]; Realize at [26].

63. This comparison can involve “an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts…”: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [56].

64. Preston CJ stated in Realize at [26] and [27]:

“26 … But the comparison required by s 4.55(2)(a) remains a holistic one of the two developments being compared – the modified development and the originally approved development. The opinion of satisfaction that s 4.55(2)(a) required is that the two developments being compared are substantially the same development, not that either the quantitative or qualitative features or the qualitative features of the two developments are substantially the same.

27 That is not to say that the decision-maker cannot, in comparing the two developments, assess the differences in the quantitative and qualitative features of the two developments. Such an assessment might be of assistance in undertaking the comparison between the two developments. But this assessment cannot displace the test in s 4.55(2)(a): Feldkirchen … at [112].”

65. Further, Preston CJ stated in Realize at [41]:

“As I noted in Arrage v Inner West council at [26] and [27], the use of language in the judicial decisions of “essential element”, or like language, derives from judicial interpretation of the statutory test that the modified development be “substantially the same” development as the originally approved development. In Vacik Pty Ltd v Penrith City Council (1992) NSWLEC 8, Stein J interpreted the word “substantially” in the former s 102(1)(a) of the EPA Act to mean “essentially or materially or having the same essence.” This interpretation of the statutory test now in s 4.55(2)(a), can support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an enquiry.”

66. In pars 67 and 69 of Ex 2 p 16, Mr Miletic asserted that:

“67. The proposed increase in wall height and FSR of Terrace 2 adjacent to the western boundary and additional protrusion beyond the original warehouse building envelope significantly alters the original assessment of the proposal and would not have been approved. The proposed changes result in unacceptable amenity impacts to the adjoining property at 79 Beattie Street due to additional overshadowing to an adjoining living area window that currently receives less than the required solar access and loss of outlook from the private open space due to excessive bulk and scale.

…

69. As a result, the proposal would fail to achieve the objectives of the standards ‘to ensure development density reflects its locality’ and ’minimise adverse impacts on the locality’. Further, the proposal fails to demonstrate sufficient environmental planning grounds to justify the contravention of the standard.”

67. Further in cross examination Mr Miletic informed the Court that the comparison is to be made between the MA and the original heritage factory, whereas the test is a comparison of the MA to the Original DA (Ex 2 p 16, par 67).

Categorising the facts found: determining whether the facts found regarding the respects in which the development would be modified fall within or without the words and phrases of the precondition in s 4.56(1)(a)

68. The Original DA comprised the conversion of an existing industrial site into three dwellings:

69. Terrace 1 on the ground floor, facing onto Beattie Street, with two bedrooms;

70. Terrace 2 on the first floor, facing onto Little Llewellyn Street, with two bedrooms;

71. Terrace 3 on the first and second floors, facing onto Little Llewellyn Street, with three bedrooms.

72. Quantitatively the differences between the Original DA and the MA are:

73. Terrace 2 is increased in size from the first floor, to include a third bedroom and ensuite on the second floor, and to extend its western boundary wall by 930mm. These modifications result in an increase in the GFA by 39.36m2 to 370m2, and the FSR increasing from 1.18:1 to 1.32:1. The development in the MA equates to a 46.7% variation compared to the 30.9% variation originally approved (Tcpt, 10 October 2025, p 22(21-48)). This FSR is compared to the Derrin Building to the east of the Site which has an approved FSR of 1.372:1 for six townhouses, and previously had approval for a childcare centre (which was not built) with an FSR of 1.14:1 (Tcpt, 10 October 2025 p 23(11-50)).

74. The height of the development in the MA is the same as in the Original DA.

75. The western boundary wall is moved 930mm to the western boundary, and increased in height so that at its highest point it will be 8.95m.

76. The car spaces will increase from two to three.

77. Qualitatively the differences between the Original DA and the MA are:

78. Solar access to Windows A and B in Flat 1, 79 Beattie Street: For the reasons set out in [49]-[50] above, I do not consider that the solar impact is such as to warrant a refusal of the MA.

79. Mr Miletic also pressed the point of the street view from the corner of Beattie and Montague Street towards the building that the increased bulk would result in a loss to the view ‘stepping down’ from the Derrin building, to Terrace 3, then Terrace 2, 79 Beattie Street and the single level dwelling facing onto Montague Street. Mr Miletic relied upon the judgment of Commissioner O’Neill in Abraham at [26]. However, the Court has no knowledge what was in the mind of the Council in making the s 34(3) Agreement for the Original DA, beyond the jurisdictional statements in the judgment. On the site view at the commencement of the hearing I stood on the corner of the intersection diagonally opposite the views in question, and in relation to the issue of ‘stepping down of the built form’ I consider that the view reveals 28-30A Montague Street building facing onto Little Llewellyn Street as the highest element, then stepping down to the Derrin Building, stepping down to the level of the MA on 77 Beattie Street, stepping down to 79 Beattie Street and finally to the single storey dwelling on Montague Street. I do not agree with the position taken by Mr Miletic on this issue, and consider in relation to the finely grained mixed development in Balmain, the stepping down of the view looking north-east from the corner of Beattie Street and Montague Street will be maintained (Ex H, Tab 2, Plan A 11, South Elevation – see outline of 28A-30 Montague St – stepping down to the Derrin Building, stepping down to 77 Beattie Street, stepping down to 79 Beattie Street, and finally the single storey dwelling facing Montague St, Plan 14, Sections C-C).

80. In relation to Mr Miletic’s opinion that the increased height of the western wall will cause an unacceptable impact on Windows A and B and the private open space at the rear of Flat 1, I note:

(a) Terraces 2 and 3 are set back 9.85m from Beattie Street. (b) Terraces 2 and 3 are set back 10.0m from Little Llewellyn Street. (c) Flat 1 has a high timber fence relatively close to Windows A and B. (d) In relation to the private open space at the rear of Flat 1, there does not appear to be a loss of solar access, noting Terrace 2 is set back 10m from Little Llewellyn Street. (e) The heritage experts agreed amendments should be made to the western wall of Terrace 2 to provide a better response to its context within the HCA: see [58] above. (f) Although we were not permitted to inspect the view from Windows A and B, the view appears to be of the timber fence, and higher up of the boundary wall. I do not consider that the amenity impact on Windows A and B of Flat 1, or the claimed amenity impact on the private open space is such as to warrant a refusal of the MA.

4. View loss from the upper storey on 28-30A Montague Street: For the reasons set out in [51]-[55], particularly those of Mr Barwick, I do not consider that the impact of the view loss is such as to warrant a refusal of the MA.
5. Heritage: The heritage experts agreed to the development in the MA with amendments which were adopted by the Applicants – [57]-[60] above. I agree with the amendments proposed by the heritage experts.
6. I prefer the evidence of Mr Barwick to that of Mr Miletic. Mr Miletic misdirected himself in his analysis by comparing the MA to the original industrial building, whereas the correct comparison is a holistic one by comparing the Original DA (which I note is operational) against the MA.

Conclusion and Orders

71. Taking into account the tests, and sub-tests as set out above, in accordance with s 4.56(1)(a) of the EPA Act I find the MA is substantially the same as the Original DA. The facts in relation to the quantitative analysis and the qualitative analysis, together with the amendments recommended by the heritage experts and accepted by the parties, fall within the within the words and phrases of the precondition in s 4.56(1)(a).

72. In accordance with s 4.56(1)(b), (c) and (d) of the EPA Act the MA has been notified, and Council and I have considered the submissions made by the objectors on behalf of 79 Beattie Street and 28-30A Montague Street.

73. The MA complies with the objectives of the R1 General Resident Zone of IWLEP 2022 as it:

74. Provides for the housing needs of the community.

75. Provides for a variety of housing types and densities, being one two-bedroom apartment, and two three-bedroom apartments.

76. Provides residential development that maintains the character of built and natural features in the surrounding area.

77. The MA is in the public interest.

78. In answer to Issue No 2: Is the development proposed in the MA substantially the same as the development in the Original DA? The answer is ‘yes’.

The BIC Issue

76. BIC 2025/0136 relating to the Site, and works carried out otherwise than in accordance with the Original DA, was lodged with Council on 8 August 2025 (BIC). It remains to be issued by Council.

77. The plans the subject of the BIC denote works that have been carried out ‘not in accordance with’ the Original DA plans as ‘completed work’. Those works are marked in orange on the MA plans (Ex B and Ex H Tab 2, in particular Plan A04 Terrace 1 First Floor Plan, Plan A05 Terrace 2/3 Ground Floor Plan, Plan A06 Terrace 2/3 First Floor Plan). After the onsite view, I raised an issue for the parties to address in relation to the structural wall being the spine of the building between residences 2 and 3, as follows:

”…..there is a BIC before council at the present time for unauthorised works. Part of those unauthorised works are the structural wall which is the spine in the building between residence 1 and above, residence 2 and 3. That structural wall I have requested to be dealt with prior to approving or otherwise the modification application before the Court at the moment, the reason being for safety.” (Tcpt 10 October 25 p 3(27-32))

78. The Respondent submits that the Court is entitled to consider, as a matter of merit, whether the unauthorised works are structurally adequate, safe and fit for purpose. “Otherwise, the Court could be approving development that cannot physically be supported, or exacerbates an existing risk” (Respondent’s submissions).

79. The Applicant submits:

80. In the SOFAC filed on 15 November 2024, the Council required information to be submitted to be satisfied of the structural adequacy of the completed works (contention 7(e)). Contention 7(e) was resolved by submission of structural engineering details in the amended MA (to which leave was granted on 11 July 2025). Council subsequently deleted contention 7(e) when it filed its Amended SOFAC (Ex 5).

81. In response to the Court’s issue regarding the structural wall, the following documents had been lodged with Council on 22 October 2025 in support of the BIC (Ex J p 10, email from Tom Bush, Pikes & Verekers to Noreen Sheerazi of Council):

(a) Letter by Chris Michaels at City Plan Services Pty Ltd dated 16 October 2025 (16 October 2025 letter) (Ex H Tab 1). (b) Amended architectural plans prepared by Derek Raithby Architects depicting a proposed double brick masonry wall between Terraces 2 and 3 consistent with the recommendation in the 16 October 2025 letter (Ex H Tab 2). (c) Schedule of amendments to the architectural plans prepared by Derek Raithby Architects dated 22 October 2025 (Ex H Tab 3). (d) Letter from Sebastian Giglio, Acoustic Consultant, dated 23 October 2025 which confirms that the proposed wall will achieve the minimum sound insulation requirements specified in the 16 October 2025 letter (Ex H Tab 4). (e) A structural letter prepared by Boris Miladinovic of ABVD Design consulting structural and Civil engineers dated 22 October 2025 confirming that the existing structure has the capacity to support the proposed double brick masonry wall as required by the 16 October 2025 letter (Ex H Tab 5). (f) A letter from Chris Michaels at City Plan Services Pty Ltd dated 22 October 2025 confirming that the recommendations set out in their letter of 16 October 2025 are adequately reflected and addressed in the amended architectural plans, the acoustic report and the letter from the structural engineer (Ex H Tab 6). (g) Following his inspection of the Site, Mr Michaels raised a concern about the fire separation of the ‘as built’ party wall between Terraces 2 and 3 and consulted with the Applicant’s engineer, Mr Miladinovic, to achieve an acceptable outcome. In response, the Applicant proposes to erect a 220mm (double skin) brick wall to Terrace 2 extending vertically from the ground floor slab to the full height of the structure. The wall is shown on the further amended plans dated 22 October 2025 which were substituted for the tendered plans in Ex B. (h) Applicant’s Supplementary Bundle: Further Amended Plans – Ex H Coversheet and Tab 2 and 3. Mr Michael’s assessment concludes that the proposed separation wall, together with the existing separation wall constructed between Terraces 2 and 3 will satisfy the National Construction Code (NCC) (relevantly Pts 9.3 Fire protection of separating walls and floors and 10.7 Sound insulation of the Australian Building Codes Board Housing Provisions). Given the change in load, Mr Miladinovic has certified that the proposed construction is acceptable (Ex H Tab 5). (i) The prospective works will require an amended construction certificate to be issued which will necessarily include a fire safety certificate pursuant to s 10.13(1)(d) of the EPA Act, and s 78(1)(c) of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) (Regulation). Following completion of the works and prior to an occupation certificate being issued, a final fire safety certificate will need to be issued pursuant to s 83 of the Regulation. (j) Having regard to the advice of Mr Michaels, Mr Miladinovic and Mr Giglio, the court can be satisfied that the completed works, in conjunction with the proposed prospective works, will result in a building that is structurally adequate and will meet the fire protection requirements of the NCC.

80. On 22 December 2025, the Court received an email advising that after a request from Council, on behalf of the Applicant, SJB Planning had provided “Works as Executed” plans to Council.

81. On 29 January 2026, the Court requested the parties confirm or otherwise advise as to whether those “As Built Plans” require any amendments to the plans in Ex H.

82. The Court received advice from the Applicant that further amendments are required to the plans in Ex H. The Court relisted the matter on 19 February 2026.

83. On 19 February 2026, the Applicant advised the Court that the answer to its question dated 29 January 2026 as to whether those “As Built Plans” require any amendments to the plans in Ex H is “No”.

84. I note that the “As Built Plans” have not been tendered.

85. I note that Mr Turner from Council advised from the Bar Table on 19 February 2026 that Council is still comparing the “As Built Plans” with the plans in evidence (Ex B and Ex H) submitted by the Applicant.

86. In relation to the issue of the BIC, Counsel for the Council submitted that:

“It is not merely the questions of structural stability or fire safety of the party wall. There are a myriad of other issues that are typically assessed by a building surveyor on an application for a BIC including compliance with the Australian Standards, waterproofing, acoustic separation, and (in this case) the fire safety of the wall separating Terrace 1 from Terraces 2 and 3.”

87. In answer to Issue No 1: “Should the MA be dismissed if BIC/2025/0136 has not been granted prior to determination of the MA?”, the answer is ‘No’.

88. However, I am not satisfied that the unauthorised works, the subject of the BIC, are structurally safe and fit for purpose, as parts of the works the subject of the BIC are of a structural nature, and the proposed works in the MA in part rely upon those structural elements. Until the BIC is issued (whether by Council or on appeal by the Court), there is always a possibility, be it a small possibility, that the Council will refuse the BIC and issue an Order to demolish the unlawful works.

89. Taking into account all the evidence before me, I shall not dismiss the appeal, but the MA will not become operative until the Deferred Condition of Consent as set out in [90].

90. I shall uphold the appeal and approve the MA in accordance with s 4.56(1)(a) of the EPA Act and s 39(1) of the LEC Act, after the parties amend Annexures A and B by inserting the following Deferred Condition of Consent pursuant to s 4.16(3) of the EPA Act:

“DEFERRED COMMENCEMENT

PART 1 – the following are the Deferred Commencement conditions(s) imposed pursuant to s 80(3) of the Environmental Planning & Assessment Act 1979.

1. Pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979, the Applicant must satisfy the following deferred commencement conditions of consent prior to this Modification Application becoming operative:

(a) Inner West Council issuing BIC 2025/0136 lodged with it on 8 August 2025.

2. This Modification Application will not become operative until such time that the Council notifies the Applicant in writing that the requirements of deferred commencement consent condition 1(a) above have been satisfied, and the Modification Application will become operative from the date of that written notification, subject to the following conditions of consent.”

91. The Court Orders:

92. The Applicant is granted leave to rely upon the following amended plans:

| Number | Title | Issue | Amendment | | A00 | Cover Sheet | 15 | Coversheet updated for amended plans | | A05 | Terrace 2/3 Ground Floor Plan | 13 | Party wall between Terrace 2 & 3 amended to reflect 220mm face brick wall with 20mm air gap, 25 mm sheet shaft liner, 90mm timber stud frame with insulation and 10mm plasterboard lining. Detail added to illustrate ‘As built’ and ‘Proposed’ construction. | | A06 | Terrace 2/3 First Floor Plan | 13 | Party wall between Terrace 2 & 3 amended to reflect 220mm face brick wall with 20mm air gap, 25mm sheet shaft liner, 90MM timber stud frame with insulation and 10mm plasterboard lining. Detail added to illustrate ‘As-Built’ and ‘Proposed’ construction. | | A07 | Terrace 2/3 Second Floor Plan | 14 | Party wall between Terrace 2 & 3 amended to reflect 220mm face brick wall with 20mm air gap, 25mm sheet shaft liner, 90MM timber stud frame with insulation and 10mm plasterboard lining. Detail added to illustrate ‘As-built’ and ‘Proposed’ constructions. | | A13 | Sections A-A & B-B | 15 | Section updated to show Party wall between Terrace 2 & 3 with 220mm face brick wall with 20mm air gap, 25mm sheet shaft liner, 90MM timber stud frame with insulation and 10mm plasterboard lining. Detail added to illustrate ‘As-built’ and ‘Proposed’. |

92. The Court directs:

93. The parties are to amend Annexures A and B by inserting:

“DEFERRED COMMENCEMENT

PART 1 – the following are the Deferred Commencement conditions(s) imposed pursuant to s 80(3) of the Environmental Planning & Assessment Act 1979.

1. Pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979, the Applicant must satisfy the following deferred commencement conditions of consent prior to this Modification Application becoming operative:

(a) Inner West Council issuing BIC 2025/0136 lodged with it on 8 August 2025.

2. This Modification Application will not become operative until such time that the Council notifies the Applicant in writing that the requirements of deferred commencement consent condition 1(a) above have been satisfied, and the Modification Application will become operative from the date of that written notification, subject to the following conditions of consent.”

2. The respondent is to file and serve the amended Annexures A and B, and provide a word version to Commissioner Support, by 17 March 2026.
3. Liberty to restore is granted on 2 days’ notice.
4. Exhibit 1 is returned, and the remaining exhibits are retained.

M Peatman

Acting Commissioner of the Court

**********