7A Queen St Petersham Pty Ltd v Inner West Council [2026] NSWLEC 1240

Catchwords: MODIFICATION APPLICATION DIRECT TO THE COURT – modification to conditions of consent - conciliation conference – agreement between the parties - orders Land and Environment Court New South Wales Medium Neutral Citation: 7A Queen St Petersham Pty Ltd v Inner West Council [2026] NSWLEC 1240 Hearing dates: Conciliation conference held on 24 April 2026 Date of orders: 06 May 2026 Decision date: 06 May 2026 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) Development Consent No DA-201700221 is modified in the terms in Annexure A. (2) Development Consent No DA-201700221 as modified by the Court is Annexure B. Catchwords: MODIFICATION APPLICATION DIRECT TO THE COURT – modification to conditions of consent - conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) , ss 4.55 Land and Environment Court Act 1979 (NSW) , s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Housing) 2021, Sch 7A, cl 2 Cases Cited: Philip Ralph v Inner West Council [2017] NSWLEC 1726 Category: Principal judgment Parties: 7A Queen St Petersham Pty Ltd ACN 667 664 084 (Applicant) Inner West Council (Respondent) Representation: Counsel: A Knox (Solicitor)(Applicant) S Turner (Solicitor)(Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2026/110298 Publication restriction: No Judgment COMMISSIONER : This is a Class 1 A pplication directly to the court seeking approval pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to mod ify a development consent DA-201700221 granted by the Court for alterations and additions to an existing warehouse and change of use to a 22 room boarding house and 2 basement car spaces ( the Consent ) at 7A Queen Street Petersham legally described as Lot 1 in D P 721669 (the Site). The modification application seeks to delete Condition 69 of the Consent which was granted by the Court in Philip Ralph v Inner West Council [2017] NSWLEC 1726 The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 24 April 2026 . I presided over the conciliation conference. At the conciliation conference, 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 approving the modification application subject to conditions. 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 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. The parties ’ decision involves the Court exercising the function under s 4. 55 of the EPA Act to modify a development consent . There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in a juris di ctional note provided to the Court . The Consent was subject to a deferred commencement condition required to be satisfied within 2 years of the date of determination o f 15 December 2017. This deferred commencement condition was satisfied and the consent became operational on 17 April 2019. Construction is currently underway. Section 4.55(8) states: (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court. Under this section, a direct application can be made to the Court for the modification of a development application that was approved by the Court. The Proposed Modification seeks the deletion of Condition 69 which provides as follows: “ 69. Prior to the issue of an Occupation Certificate the person acting on this consent shall enter into a lease, licence or other agreement with a social housing provider to allow the social housing provider to undertake the daily operation and management of the premises; and shall maintain a licence or lease with a social housing provider while ever the premises are used as a boarding house. For the purposes of this condition, social housing provider has the same meaning as clause 4 of State Environmental Planning Policy (Affordable Rental Housing) 2009 Reason : To ensure that the premises are used consistently with State Environmental Planning Policy (Affordable Rental Housing) 2009” The now repealed State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP (ARH) 2009 ) continues to apply to the Consent: Sch 7A, cl 2(1)(d) and cl 2(2), State Environmental Planning Policy (Housing) 2021 . A s set out at p 3 of the Modification Report prepared by GAT & Associates Pty Ltd dated 16 March 2026 (Modification Report) filed with the Class 1 Application, “ there is nil requirement [in the SEPP (ARH) 2009 ] for a boarding house to be managed and operated by a social housing provid er , nor any requirement for the boarding house to strictly be considered or maintained for the purpose of affordable housing ” . I accept that the modification involves no environmental impact: s 4.55(1A), EPA Act. The Court may modify the consent if 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) : s 4.55(1A)(b), EPA Act. The Modification Report explain s that: “The modification to delete Condition 69 does not modify the nature, bulk, scale, or amenity considerations of the development. It only affects the operational management of the premises, which as discussed above, is contrary to the provisions of the SEPP (ARH) 2009 … The development remains qualitatively and quantitatively substantially the same.” I accept that e xplanation and also note that s 4.55(5) of the EPA Act provides as follows: To avoid doubt, a consent authority is not prevented from modifying a consent under subsection (1), (1A) or (2) 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. Accordingly, 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. 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. Orders: The Court orders: Development Consent No DA-201700221 is modified in the terms in Annexure A. Development Consent No DA-201700221 as modified by the Court is Annexure B. E Espinosa Commissioner of the Court ********** Annexure A (179 KB, pdf) Annexure B (326 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2026