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[2025] NSWLEC 1674
General information, not legal advice.
Land and Environment Court (NSW)
2025-09-18
Porter C
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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: Seashell Group Pty Ltd trading as Seashell v Inner West Council [2025] NSWLEC 1674
Hearing dates: Conciliation conference on 11 September 2025
Date of orders: 18 September 2025
Decision date: 18 September 2025
Jurisdiction: Class 1
Before: Porter C
Decision: The Court orders that:
(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant shall pay the Respondent’s costs thrown away in the agreed sum of $8,000 within 28 days of this order.
(2) The appeal is upheld.
(3) Development application DA/2024/0874, as amended, for the demolition of existing structures and construction of a seven storey shop top housing development with basement car parking, a health services facility on the ground level, rooftop communal open space and 22 apartments, including 5 affordable housing apartments, at 37-39 Fisher Street, Petersham is determined by the grant of consent subject to the conditions contained at Annexure A.
Catchwords: DEVELOPMENT APPEAL – shop top development –conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 29, 38
Inner West Local Environmental Plan 2022, cll 2.3, 2.7, 4.3, 4.4, 4.6, 5.10
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6
State Environmental Planning Policy (Housing) 2021, Chs 2,4, Schs 7A, 9, ss 8, 15C, 16, 18, 19, 21, 144, 147
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2021, s 2.1
Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015)
Category: Principal judgment
Parties: Seashell Group Pty Ltd trading as Seashell (Applicant)
Inner West Council (Respondent)
Representation: Counsel:
V Conomos (Solicitor) (Applicant)
N Sheerazi (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)
File Number(s): 2024/466821
Publication restriction: Nil
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the deemed refusal of DA/2024/0847. The amended DA seeks consent for demolition of existing structures and construction of a seven storey shop top housing development with basement car parking, a health services facility on the ground level, rooftop communal open space and 22 apartments, including 5 affordable housing apartments at 37-39 Fisher Street, Petersham NSW 2049 (Lots B and C in DP 12119) (site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 11 September 2025. I presided over the conciliation conference.
The Respondent, Inner West Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) to the Applicant amending DA/2024/0847 in accordance with the documents listed below:
Architectural plans
| Plan | Drawn by | Dated | | DA-0.44 Rev E, Development Summary. | Contreras Earl Architecture | 22 August 2025 | | DA-0.45 Rev D, Development Summary 2. | Contreras Earl Architecture | 1 July 2025 | | DA-0.31 Rev D, Shadow Diagram 21st June Proposed. | Contreras Earl Architecture | 26 June 2025 | | DA-0.32 Rev D, Shadow Diagram 21st June Proposed 2. | Contreras Earl Architecture | 26 June 2025 | | DA-0.33 Rev D, Shadow Diagram 21st June Proposed 3. | Contreras Earl Architecture | 26 June 2025 | | DA-0.36 Rev D, Sun Eye View Diagram 21st June. | Contreras Earl Architecture | 1 July 2025 | | DA-0.37 Rev D, Sun Eye View Diagram 21st June 2. | Contreras Earl Architecture | 1 July 2025 | | DA-0.50 Rev E, GFA Plan. | Contreras Earl Architecture | 17 July 2025 | | DA-0.51 Rev D, Solar Access Diagrams. | Contreras Earl Architecture | 1 July 2025 | | DA-0.54 Rev D, Cross Ventilation Diagrams. | Contreras Earl Architecture | 1 July 2025 | | DA-0.47 Rev C, Planting Area Diagram. | Contreras Earl Architecture | 17 July 2025 | | DA-2.00 Rev D, Basement 03. | Contreras Earl Architecture | 21 August 2025 | | DA-2.01 Rev D, Basement 02. | Contreras Earl Architecture | 21 August 2025 | | DA-2.02 Rev D, Basement 01. | Contreras Earl Architecture | 21 August 2025 | | DA-2.03 Rev E, Ground Floor Plan. | Contreras Earl Architecture | 17 July 2025 | | DA-2.04 Rev D, Level 1-3. | Contreras Earl Architecture | 1 July 2025 | | DA-2.07 Rev D, Level 4. | Contreras Earl Architecture | 1 July 2025 | | DA-2.08 Rev D, Level 5. | Contreras Earl Architecture | 1 July 2025 | | DA-2.09 Rev D, Level 6. | Contreras Earl Architecture | 1 July 2025 | | DA-2.10 Rev D, Roof Terrace. | Contreras Earl Architecture | 26 June 2025 | | DA-2.11 Rev D, Roof Plan. | Contreras Earl Architecture | 26 June 2025 | | DA-3.01 Rev D, North Elevation. | Contreras Earl Architecture | 1 July 2025 | | DA-3.02 Rev D, East Elevation. | Contreras Earl Architecture | 1 July 2025 | | DA-3.03 Rev D, South Elevation. | Contreras Earl Architecture | 1 July 2025 | | DA-3.04 Rev D, West Elevation. | Contreras Earl Architecture | 1 July 2025 | | DA-4.02 Rev D, Sections 02. | Contreras Earl Architecture | 1 July 2025 | | DA-4.03 Rev D, Sections 03. | Contreras Earl Architecture | 1 July 2025 | | DA-5.00 Rev D, Context Elevation. | Contreras Earl Architecture | 1 July 2025 | | DA-5.01 Rev B, Material Palette. | Contreras Earl Architecture | 1 July 2025 | | DA-5.03 Rev C, Façade South – Section 01. | Contreras Earl Architecture | 4 July 2025 | | DA-5.04 Rev A, Façade North – Section 02. | Contreras Earl Architecture | 4 July 2025 | | DA-5.05 Rev A, Façade East – Section 03. | Contreras Earl Architecture | 4 July 2025 | | DA-6.01 Rev A, Basement 01 ROW | Contreras Earl Architecture | 14 August 2025 |
| BASIX Certificate No. | Dated | | 1762332M_03 | 2 July 2025 |
| Plan | Drawn by | Dated | | LA000 Rev P4, Cover Page. | Taylor Brammer Landscape Architects | 1 July 2025 | | LA001 Rev P6, Tree Removal and Retention Plan. | Taylor Brammer Landscape Architects | 17 July 2025 | | LA100 Rev P6, Ground Floor Landscape Plan. | Taylor Brammer Landscape Architects | 17 July 2025 | | LA101 Rev P5, Level 1-3 Landscape Plan. | Taylor Brammer Landscape Architects | 17 July 2025 | | LA102 Rev P3, Level 4 Landscape Plan. | Taylor Brammer Landscape Architects | 17 July 2025 | | LA103 Rev P3, Level 5 Landscape Plan. | Taylor Brammer Landscape Architects | 17 July 2025 | | LA104 Rev P5, Level 6 Landscape Plan. | Taylor Brammer Landscape Architects | 17 July 2025 | | LA105 Rev P6, Roof Garden Landscape Plan. | Taylor Brammer Landscape Architects | 17 July 2025 | | LA106 Rev P7, Roof Top Landscape Plan. | Taylor Brammer Landscape Architects | 17 July 2025 | | LA120 Rev P5, Ground Floor Soil Depth Plan. | Taylor Brammer Landscape Architects | 17 July 2025 | | LA121 Rev P2, Level 1-3 Soil Depth Plan. | Taylor Brammer Landscape Architects | 1 July 2025 | | LA122 Rev P2, Level 4 Soil Depth Plan. | Taylor Brammer Landscape Architects | 1 July 2025 | | LA123 Rev P2, Level 5 Soil Depth Plan. | Taylor Brammer Landscape Architects | 1 July 2025 | | LA124 Rev P3, Level 6 Soil Depth Plan. | Taylor Brammer Landscape Architects | 1 July 2025 | | LA125 Rev P3, Roof Garden Soil Depth Plan. | Taylor Brammer Landscape Architects | 1 July 2025 | | LA126 Rev P5, Roof Top Soil Depth Plan. | Taylor Brammer Landscape Architects | 10 July 2025 | | LA200 Rev P5, Planting Schedule. | Taylor Brammer Landscape Architects | 10 July 2025 | | LA300 Rev P1, Landscape Details 01. | Taylor Brammer Landscape Architects | 2 June 2025 | | LA301 Rev P1, Landscape Details 02. | Taylor Brammer Landscape Architects | 2 June 2025 | | LA400 Rev P3, Landscape Sections. | Taylor Brammer Landscape Architects | 10 July 2025 | | LA500 Rev P1, Planting, Irrigation and Maintenance Specification. | Taylor Brammer Landscape Architects | 2 June 2025 | | LA501 Rev P1, Landscape Maintenance Communal Open Space. | Taylor Brammer Landscape Architects | 1 July 2025 |
| Plan | Drawn by | Dated | | 000 Rev A, Cover Sheet Plan. | Telford Civil. | 12 May 2025 | | 101 Rev C, Stormwater Concept Plan Basement Level 3 Sheet 1 of 2. | Telford Civil. | 27 August 2025 | | 102 Rev C, Stormwater Concept Plan Basement Level 3 Sheet 2 of 2. | Telford Civil. | 27 August 2025 | | 103 Rev C, Stormwater Concept Plan Basement Level 2. | Telford Civil. | 27 August 2025 | | 104 Rev C, Stormwater Concept Plan Basement Level 1. | Telford Civil. | 27 August 2025 | | 105 Rev C, Stormwater Concept Plan Ground Level. | Telford Civil. | 27 August 2025 | | 106 Rev C, On-Site Detention Details and Calculations. | Telford Civil. | 27 August 2025 | | 107 Rev C, Catchment Plan and MUSIC Results. | Telford Civil. | 27 August 2025 | | 108 Rev A, Sediment and Erosion Control Plan & Details Sheet 1 of 2. | Telford Civil. | 12 May 2025 | | 109 Rev A, Sediment and Erosion Control Plan & Details Sheet 2 of 2. | Telford Civil. | 12 May 2025 | | 110 Rev A, Miscellaneous Details Sheet. | Telford Civil. | 12 May 2025 |
| Document | Prepared by | Dated | | Design Verification Statement. | Contreras Earl Architecture | 29 May 2025 | | Design Quality Response. | Contreras Earl Architecture | 22 August 2025 | | Clause 4.6 Variation Request to Floor Space Ratio Development Standard. | ABC Planning Pty Ltd | September 2025 | | Clause 4.6 Variation Request to Building Height Development Standard. | ABC Planning Pty Ltd | September 2025 | | Clause 4.6 Variation Request to Landscaped Areas Development Standard | ABC Planning Pty Ltd | September 2025 | | Design Excellence Statement. | Urbanac | 24 August 2025 | | Remedial Action Plan Rev 2. | NEO Consulting | 12 June 2025 | | Traffic Letter | VARGA Traffic Planning Pty Ltd | 8 May 2025 | | Operational Waste Management Plan Rev D | Elephants Foot Consulting Pty Ltd | 30 May 2025 | | Acoustic Response Letter TP070-01F03 | Renzo Tonin & Associates | 29 May 2025 | | Affordable Housing Letter and Provider Details | Bridge Housing T A Home Ground Real Estate | 29 May 2025 | | Statement Letter | Telford Civil | 19 August 2025 |
As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.
In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60]-[65].
I have carried out the required jurisdictional check: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]. For the reasons set out below, 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.
Owner’s consent accompanied the DA as required by s 23 of the EPA Reg.
I accept that the tree works for removal and for new trees on Council’s land has owner’s consent, as Council has agreed to the proposed orders to uphold the appeal and grant development consent for the works.
The Respondent notified the DA between 29 October 2024 to 19 November 2024. Six submissions were received. The architectural plans that are subject to the s 34 agreement were provided to those who made submissions. In response to further correspondence from the Respondent regarding basement access, two submissions were received.
As the parties have reached agreement, the Court is not able to consider the merits of the DA. The parties have advised the Court that they considered the concerns raised in the written and oral objections and where possible, these have been addressed through amendments, further information or conditions of consent.
Conditions in relation to access are found at conditions 46, 64(a), 65 and 84 at Annexure A.
Chapter 2 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies as the proposal includes residential development that is permissible with consent in the zone, including at least 10% affordable housing and will be carried out in an accessible area (Housing SEPP, s 15C).
The proposal is eligible for increased height and floor space ratio (FSR) pursuant to ss 16 and 18 of the Housing SEPP. The parties are satisfied and I accept that the non-discretionary development standards of s 19 of the Housing SEPP are all met, with the exception of subsection 19(2)(b) minimum landscaping. Subsections 19(2)(c) and (d) are excluded for this type of development as per subsection 19(3). For the abundance of caution, a written request pursuant to cl 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP) has been prepared by ABC Planning Pty Ltd dated September 2025 (landscaping written request). I accept the parties’ agreement that the landscaping written request is well founded and addresses the legally mandatory provisions of cl 4.6 of the IWLEP.
Section 21 of the Housing SEPP, in relation to use of affordable housing for at least 15 years is met by condition 72 in Annexure A and supported by Bridge Housing, a registered community housing provider.
Chapter 4 of the Housing SEPP applies to the amended DA in accordance with Sch 7A, s 8(2A) and s 144. Section 147 of the Housing SEPP requires consideration of the design principles contained in Sch 9 and the Apartment Design Guide (ADG).
Relevantly, s 29 of the EPA Reg requires that residential apartment development must be accompanied by a statement prepared by a qualified designer in relation to the design principles within Sch 9 of the Housing SEPP and Parts 3 and 4 the ADG.
The parties advise that the advice of the Architectural Excellence and Design Review Panel has been considered. The parties agree and I accept that the amended DA meets the provisions of the Housing SEPP on the basis of the Design Verification Statement completed by the nominated qualified designer Monica Earl (registered architect number 10543) dated 29 May 2025, the Design Quality Response prepared by Contreras Earl Architecture dated 22 August 2025, and the Design Excellence Statement prepared by Alan Cadogan dated 24 August 2025.
The subject site is zoned E1 Local Centre and the proposal for shop top housing is permissible with consent. Pursuant to cl 2.3 of the Inner West Local Environmental Plan 2022 (IWLEP), I accept that regard has been had to the objectives of the zone. Clause 2.7 of the IWLEP permits demolition with consent, as sought by the proposal.
The proposed development is subject to different maximum building heights pursuant to cl 18 of the Housing SEPP and cl 4.3 of the IWLEP. The bonus provisions allow a height of 22.1m. The proposed development seeks a height variation up to 28m. The amended DA is accompanied by a Clause 4.6 Variation Request prepared by ABC Planning Pty Ltd dated September 2025 (height written request). I accept the parties’ agreement that the height written request is well founded and addresses the legally mandatory provisions of cl 4.6.
Similarly, cl 16 of the Housing SEPP and cl 4.4 of the IWLEP allow different maximum FSRs. The bonus provisions of the Housing SEPP allow an FSR of 2.86:1 in this instance. The amended DA proposes an FSR variation to total 3.08:1. The amended DA is accompanied by a Clause 4.6 Variation Request prepared by ABC Planning Pty Ltd dated September 2025 (FSR written request). I accept the parties’ agreement that the FSR written request is well founded and addresses the legally mandatory provisions of cl 4.6.
Clause 5.10 heritage conservation applies as the site adjoining heritage items. On the basis of Statement of Heritage Impact prepared by Weir Phillips Heritage and Planning dated 13 September 2024, I accept that the provisions in cl 5.10 of the IWLEP have been considered.
Clause 6.3 stormwater management applies. As demonstrated by the Stormwater and Civil Engineering plans prepared by Telford Civil with various dates, I accept that stormwater management will be adequately controlled and will not result in any adverse impacts to surrounding development or water areas.
Clause 6.8 aircraft noise applies. Acoustic attenuation measures from the DA Acoustic Assessment report prepared by Renzo Tonin & Associates have been considered and included in condition 31 of the consent to attenuate aircraft noise.
Clause 6.9 design excellence applies. I accept that the design excellence provisions have been satisfied on the basis of the amended architectural plans prepared by Contreras Earl Architecture with various dates, Landscaping plans prepared by Taylor Brammer Landscape Architects with various dates, and Design Excellence Statement prepared by Alan Cadogan dated 24 August 2025.
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.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.
The Court orders that:
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant shall pay the Respondent’s costs thrown away in the agreed sum of $8,000 within 28 days of this order.
The appeal is upheld.
Development application DA/2024/0874, as amended, for the demolition of existing structures and construction of a seven storey shop top housing development with basement car parking, a health services facility on the ground level, rooftop communal open space and 22 apartments, including 5 affordable housing apartments, at 37-39 Fisher Street, Petersham is determined by the grant of consent subject to the conditions contained at Annexure A.
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Annexure A (484 KB, pdf)
Seashell Group Pty Ltd trading as Seashell
Inner West Council [2025] NSWLEC 1674
(2018) 233 LGERA 170
(2023) 111 NSWLR 634