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

1. 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).

2. 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.

3. 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:

1. 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

2. BASIX Certificate

BASIX Certificate No.	Dated
1762332M_03	2 July 2025

3. Landscape Plans

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

4. Stormwater Plans

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

5. Other Documents

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

4. As part of the conciliation conference process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended application and granting development consent to the amended DA subject to conditions of consent.

Jurisdictional Prerequisites

5. 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.

6. 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.

7. 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].

8. 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

9. Owner’s consent accompanied the DA as required by s 23 of the EPA Reg.

10. 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.

Community notification and objections

11. 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.

12. 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.

13. Conditions in relation to access are found at conditions 46, 64(a), 65 and 84 at Annexure A.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the proposed development. The parties are satisfied that the provisions have been met, as demonstrated by the Statement Letter prepared by Telford Civil dated 19 August 2025 and the suite of stormwater plans accompanying the DA. I accept that the proposal will have a neutral or beneficial effect, will not adversely affect water flow or any waterbody and will not exceed pre-development stormwater runoff levels.

State Environmental Planning Policy (Housing) 2021

15. 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).

16. 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.

17. 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.

18. 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).

19. 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.

20. 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.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the site. The amended DA is supported by two Remedial Action Plans prepared by NEO Consulting dated 9 October 2024 and 12 June 2025 that find that the site can be made suitable. The recommendations have been included in the conditions of consent. The parties agree and I accept, that the provisions of s 4.6 of the SEPP RH have been satisfied.

State Environmental Planning Policy (Sustainable Buildings) 2021

22. State Environmental Planning Policy (Sustainable Buildings) 2021 (SEPP SB) applies to the proposed development. The amended DA is accompanied by an amended BASIX Certificate dated 2 July 2025 and a letter from SLR Consulting Australia dated 12 September 2025 confirming that s 2.1(5) of the SEPP SB has been met. I accept the parties’ agreement that the provisions of the SEPP SB have been met, including s 2.1(5) embodied emissions.

Inner West Local Environmental Plan 2022

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

Heads of consideration

30. On the basis of the material accompanying the Class 1 appeal and the jurisdictional statement, I accept that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act have been adequately considered.

Conclusion

31. 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.

32. 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.

33. 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.

Orders

34. 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.

S Porter

Commissioner of the Court

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Annexure A (484 KB, pdf)

Decision last updated: 18 September 2025