Seashell Group Pty Ltd trading as Seashell v Inner West Council - [2025] NSWLEC 1674

Land and Environment Court

New South Wales

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

JUDGMENT

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Seashell Group Pty Ltd trading as Seashell v Inner West Coun... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWLEC 1674
Decision Date: 18 September 2025

CaseChat Overview and Summary

Seashell Group Pty Ltd, trading as Seashell, appealed against a decision by Inner West Council to refuse their development application for a seven-storey shop top housing development at 37-39 Fisher Street, Petersham. The application sought the demolition of existing structures and construction of a new building with basement car parking, a health services facility, rooftop communal open space, and 22 apartments, including five affordable housing units. The dispute came before the NSW Land and Environment Court, which was tasked with determining the merits of the appeal and whether the planning consent should be granted.

The primary legal issues before the Court were whether the proposed development was in accordance with the relevant planning instruments, including the Petersham Neighbourhood Centre Area Plan, and whether the refusal was unreasonable. Seashell argued that the proposed development was consistent with the objectives of the planning instruments, provided appropriate community benefits, and was in the best interests of the area. The Council, on the other hand, contended that the proposed development was not compatible with the surrounding character and did not adequately address the objectives of the relevant planning instruments.

The Court found that the proposed development was consistent with the objectives of the planning instruments, including the provision of affordable housing and the enhancement of the neighbourhood centre. The Court considered that the proposed development would provide significant community benefits, including improved access to health services and increased housing supply. The Court further found that the proposed development would not adversely impact the surrounding character and was in the best interests of the area. Consequently, the Court held that the refusal of the development application was unreasonable and set aside the decision. The Court granted the development application, subject to the conditions outlined in Annexure A.

In addition to setting aside the decision of the Council, the Court ordered that Seashell Group Pty Ltd, trading as Seashell, pay the Respondent's costs thrown away in the agreed sum of $8,000 within 28 days of this order. The Court further ordered that the appeal be upheld and that the development application DA/2024/0874, as amended, be granted consent subject to the conditions contained at Annexure A.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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