Turner v Inner West Council

Category: Principal judgment

Parties: Warren Turner (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
S Patterson (Solicitor) (Applicant)
E Dunlop (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Inner West Council (Respondent)

File Number(s): 2025/406342

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This matter relates to an appeal against the refusal by Inner West Council of modification application MOD/2025/0031 seeking to modify consent granted to development application DA/2023/0506 (the Original Consent) for alterations and additions to residential development, including a new two-storey addition and studio over garage at the rear of 226 Young Street, Annandale.

2. The modification now sought involves alterations to the design and location of the garage and studio, including the addition of a Juliet balcony to the rear and zero setback to the southern side boundary.

3. The modification application was lodged with the Council on 6 February 2025, in accordance with s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), and the Council notified the same from 13 February 2025 to 27 February 2025.

4. On 14 August 2025, the Council refused the modification application and the applicant in these proceedings, Mr Turner, appealed.

5. The Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) on 26 and 27 March 2026, at which I presided.

6. Prior to the conciliation conference, the parties advised that on the basis of certain amendments agreed by planning and heritage experts engaged by the parties, the contentions originally pressed in this matter were resolved.

7. On the basis of amended plans, and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that were acceptable to the parties. To this end, the Council approve the amending of the application by the Applicant, in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 27 March 2026.

9. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [25].

11. I formed an opinion of satisfaction that each of the jurisdictional requirements identified by the parties have been met, for the reasons that follow.

12. Firstly, as the presiding Commissioner, I am satisfied that the decision 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). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I reach these conclusions for the reasons that follow.

Environmental Planning and Assessment Act 1979

13. Section 4.55(2)(a) of the EPA Act enables the Court, as the consent authority, to modify a development consent upon application by the Applicant (or any person entitled to act on the consent) provided the Court is satisfied that the subject development consent, as modified, is “substantially the same” as the originally approved development.

14. I am satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified for the reasons that follow:

15. The Original Consent was for alterations and additions that included a new two-storey addition over the garage to the rear, subject to conditions that had to be satisfied prior to the grant of consent.

16. Those conditions are now satisfied by the amendments made to the architectural plans.

17. I note that no submissions arose from the notification of the Modification Application requiring consideration in accordance with s 4.55(2)(d) of the EPA Act.

Environmental Planning and Assessment Regulation 2021

16. The parties agree that the relevant provisions of the EPA Regulation have been considered and are satisfactorily addressed, including:

17. The Modification Application has been made by the owner of the site, who provide written consent with the application.

18. The modification applications are accompanied by two BASIX Certificates, Cert No A497010_06 dated 28 January 2025, for the dwelling house fronting Young Street, and Cert No 1393680S_06 dated 27 March 2026, for the secondary dwelling fronting Alfred Street. Both certificates are prepared by Brian Teplicanec in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP), and consistent with the provisions at s 100(3) of the EPA Regulation. I note here that embodied emissions are quantified in the BASIX Certificate for the secondary dwelling fronting Alfred Street such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Inner West Local Environmental Plan 2022

17. I have also taken into consideration such of the matters referred to in s 4.15(1) as are of relevance to the development the subject of the application.

18. The site is located within an area identified by the Inner West Local Environmental Plan 2022 (IWLEP) as R1 General Residential, in which the proposed development is permitted with consent, where consistent with the following objectives of development in the R1 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.

19. The modification application provides a landscaped area of 31.17% of the site area which exceeds the minimum required by cl 4.3C(3) of the IWLEP, and complies with the site coverage of 60% at subcl (b).

20. The parties agree the proposal exceeds the maximum floor space ratio permitted on the site by cl 4.4 of the IWLEP, as was the case with the development the subject of the Original Consent. However, the parties agree the exceedance is negligible and, for the reasons shown in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31], the provisions dealing with modification applications contained in the EPA Act are a complete source of power to modify a consent that breaches a development standard, and cl 4.6 of the IWLEP does not apply to modification applications.

21. The site is also located within the Annandale Heritage Conservation Area (Annandale HCA), according to the relevant map in Sch 5 of the IWLEP. Heritage experts engaged by the parties are agreed that amendments made to the modification application result in an acceptable elevation fronting Alfred Street so that the impact of the proposal on the Annandale HCA can be supported and the effect on the Annadale HCA is also acceptable, pursuant to the consideration required of the Court by cl 5.10 of the IWLEP.

Conclusion

22. 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.

23. 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.

24. The Court notes that:

25. Inner West Council as the relevant consent authority for the purposes of s 38 of the EPA Regulation, approves the amendment of modification application MOD/2025/0031 in accordance with the following plans and documentation:

| Plan, Revision and Issue No. | Plan Name | Date Issued | Prepared by | | MOD 4.55 - 06 Issue C4 | Proposed Upper & Lower Level Floor Plans | 25.03.2026 | Brookes Associates Architects | | MOD 4.55 - 07 Issue C4 | Proposed Roof & Site Plans | 25.03.2026 | Brookes Associates Architects | | MOD 4.55 - 08 Issue C4 | Proposed North & South Elevations | 25.03.2026 | Brookes Associates Architects | | MOD 4.55 - 09 Issue C4 | Proposed East & West Elevations | 25.03.2026 | Brookes Associates Architects | | MOD 4.55 - 10 Issue C4 | Long Sections A-A, B-B | 25.03.2026 | Brookes Associates Architects | | MOD 4.55 - 11 Issue C4 | Sections C-C, D-D Window & Door Schedule | 25.03.2026 | Brookes Associates Architects | | BASIX Certificate No: 1393680S_06 | | 27.03.2026 | | | NatHERS Certificate No. 0012872131 | | 27.03.2026 | |

Orders

25. The Court orders that:

26. The appeal is upheld.

27. Development Consent No DA/2023/0506 is modified in the terms in Annexure A.

28. Development Consent No DA/2023/0506 as modified by the Court is set out in Annexure B.

T Horton

Commissioner of the Court

Annexure A (175 KB, pdf)

Annexure B (338 KB, pdf)

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