108 Barry Pty Ltd v Penrith City Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 3.42, 4.5, 4.15, 8.7, 8.15
Fisheries Management Act 1994 (NSW)
Land and Environment Court Act 1979 (NSW), s 34
Local Land Services Act 2013 (NSW), Pt 5B, s 60O
Water Management Act 2000 (NSW)
Environmental Planning and Assessment Regulation 1979 (NSW) s 37
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 2.6, 2.7, 6.6, 6.7, 6.8, 6.10
State Environmental Planning Policy (Housing) 2021, Ch 3, Pt 3, s 67, 68, 69
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Penrith Local Environmental Plan 2010, cll 2.7, 4.3, 7.1, 7.4, 7.6, 7.7, 7.13, 7.30

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Penrith City Council’s Community Engagement Strategy and Community Participation Plan 2022-26
Penrith Development Control Plan 2014

Category: Principal judgment

Parties: 108 Barry Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
K Dolan (solicitor) (Respondent)
Solicitors:
Macquarie Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2024/346497

Publication restriction: Nil

JUDGMENT

1. Development Application No. DA24/0279 (DA), seeks consent for the demolition of existing structures and the construction of a two-storey co-living housing development with 12 rooms and associated works at 12 Raschke Street, Cambridge Park NSW 2747 (Lot 1 in Deposited Plan 630887) (the Site).

2. The DA was lodged by the Applicant on 12 April 2024.

3. The Respondent in these proceedings is Penrith City Council (Council) who is the consent authority pursuant to s 4.5(d) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

4. As the DA was the subject of 10 or more unique submissions by way of objection, the DA was determined by the Penrith Local Planning Panel (Panel) on behalf of the Council. Council is subject to the control and direction of the Panel in connection with the conduct of the appeal pursuant to s 8.15(4) of the EPA Act.

5. On 18 September 2024, The Applicant commenced these proceedings in Class 1 of the court's jurisdiction pursuant to s 8.7(1) of the EPA Act being an appeal against the Respondent's deemed refusal of the DA. It is noted that the DA was formally determined by the Panel by way of refusal on 30 October 2024.

6. A conciliation conference pursuant to s 34 of the L**and and Environment Court Act 1979 (NSW) took place on 27 March 2025 which was terminated without reaching agreement.

7. On 3 April 2025, the matter was set down for a hearing on 19 August to 21 August 2025.

8. The Court arranged a second conciliation conference under s 34 of the LEC Act between the parties which was held on 8 August 2025. I presided over the conciliation conference. Prior to the conciliation conference an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the DA. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 4 August 2025.

9. As part of the conciliation, the Applicant also seeks to formally amend its DA with the agreement of the Respondent, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulations), in accordance with the following amended plans and supporting documentation:

| Architectural Plans prepared by Texco Designs | | Drawing | Description | Issue | Date | | 002 | General Basix Commitments | E | 15 July 2025 | | 004 | General Demolition Plan | E | 15 July 2025 | | 005 | General Site Plan | E | 15 July 2025 | | 006 | General Site Analysis | E | 15 July 2025 | | 007 | General Streetscape Analysis | E | 15 July 2025 | | 008 | General GFA Calculation | E | 15 July 2025 | | 009 | General Unit Schedule | E | 15 July 2025 | | 010 | General CLA & COS Calculation | E | 15 July 2025 | | 011 | General Landscape and Deep Soil Calculation | E | 15 July 2025 | | 012 | General Sun Eye Diagram | E | 15 July 2025 | | 013 | General Shadow Diagram | E | 15 July 2025 | | 014 | General Evacuation Diagram | E | 15 July 2025 | | 015 | General Height Limit Diagram | E | 15 July 2025 | | 016 | General Cut & Fill Plan | E | 15 July 2025 | | 017 | General Retaining Wall Level Plan | E | 15 July 2025 | | 101 | Plans Ground Floor Plan | E | 15 July 2025 | | 102 | Plans – Level 1 Plan | E | 15 July 2025 | | 103 | Plans – Roof Plan | E | 15 July 2025 | | 201 | Elevation – North & South Elevation | E | 15 July 2025 | | 202 | Elevation – East Elevation & West Elevation | E | 15 July 2025 | | 203 | Elevation – Front Fence Elevation | E | 15 July 2025 | | 301 | Section | E | 15 July 2025 | | 401 | Schedule – Material Schedule | E | 15 July 2025 | | 402 | Schedule – Window Schedule | E | 15 July 2025 | | 403 | Schedule – Door Schedule | E | 15 July 2025 | | 501 | Details – Typical Kitchen Details | E | 15 July 2025 | | 701 | 3D Perspective – Perspective 01 | D | 10 June 2025 | | 702 | 3D Perspective – Perspective 02 | D | 10 June 2025 | | Landscape Plan prepared by Conzept Landscape Architects | | 01 | Hardscape Plan | G | 16 June 2025 | | 02 | Landscape Plan | G | 16 June 2025 | | 03 | Details | G | 16 June 2025 | | 04 | Planting Palette | G | 16 June 2025 | | 05 | Sections | G | 16 June 2025 | | 06 | Specification | G | 16 June 2025 | | Civil Engineering Plans prepared by Telford Civil | | C000 | General Notes, Locality Plan and Drawings Schedule | B | 11 June 2025 | | C101 | Civil Works Layout Plan | B | 11 June 2025 | | C201 | Driveway Profile Longitudinal Sections | A | 30 April 2025 | | C301 | Raschke Street - Longitudinal Section | A | 30 April 2025 | | C302 | Barry Street – Longitudinal Section | A | 30 April 2025 | | C401 | Raschke Street – Cross Sections | A | 30 April 2025 | | C402 | Barry Street – Cross Sections | A | 30 April 2025 | | C501 | Typical Cross Sections | A | 30 April 2025 | | C601 | Constructions Notes and Details Sheet | A | 30 April 2025 | | Stormwater Plans prepared by Telford Civil | | 101 | Stormwater Concept Plan Ground Floor | G | 17 June 2025 | | 102 | On-site Detention Details and Calculations Sheet | E | 17 June 2025 | | 103 | Catchment Plan and Music Results | F | 17 June 2025 | | 103.1 | Water Re-Use, Node Water Balance and Rainwater Tank Details | B | 13 June 2025 | | 104 | Sediment and Erosion Control Plan & Details | B | 25 March 2025 | | 105 | Miscellaneous Details Sheet | C | 25 March 2025 | | 106 | Maintenance Schedule Sheet | A | 25 March 2025 |

| Reports | | Description | Issue | Date | | Statement of Environmental Effects prepared by Think Planners | - | 13 June 2025 | | Plan of Management prepared by Think Planners | - | 13 June 2025 | | Section J Report prepared by AENEC | - | 11 June 2025 | | Access Report prepared by Vista Access Architects | B | 12 June 2025 | | Waste Management Letter prepared by MRA Consulting Group | - | 11 June 2025 |

10. As the presiding Commissioner appointed under s 34(14) of the LEC Act, I am satisfied that the decision reached between the parties 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). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution. (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

11. The Applicant, 108 Barry Pty Ltd, applied for development consent, with the consent of the owners of the Site in accordance with s 23(1)(b) of the EPA Regulation.

12. The DA was notified in accordance with the Respondent's Community Engagement Strategy and Community Participation Plan 2022-26 (Community Participation Plan) between 29 April 2024 to 12 May 2024. 10 submissions were received in response to the notification of the DA.

13. The DA, as amended, was notified in accordance with the Respondent's Community Participation Plan between 7 and 21 July 2025. Three submissions were received in response to the notification of the Amended DA.

14. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated; and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out; and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

5. A Geotechnical Investigation Report prepared by Eswnman concludes that the Site is suitable for the proposed development and associated works and the Statement of Environmental Effects states that the Site has always been used for urban purposes and is not known to have been used for any purposes that may give rise to the likelihood of contamination. Accordingly, I am satisfied that the Site is suitable for the proposed development use and is compliant with the relevant controls set out in s 4.6(1) of the Resilience and Hazards SEPP.
6. State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the Site and Ch 3, Pt 3 applies to the DA.
7. The DA is permissible on the Site having regard to s 67 of the Housing SEPP as shop top housing is permitted with consent in the R2 Low Density Residential Zone under the Penrith Local Environmental Plan 2010 (PLEP 2010).
8. Section 68 of the Housing SEPP sets out non-discretionary standards in relation to communal living areas and communal open space, parking and minimum landscaped areas with which I am satisfied that the DA, as amended, complies.
9. Section 69(1) of the Housing SEPP provides development standards for room size, minimum lot size, workspace, facilities, number of rooms and accessible areas and the maximum number of occupants. I am satisfied that the DA, as amended, complies with these development standards.
10. Section 69(2) specifies matters relating to setback, solar access, and desired future character that must be considered before development consent can be granted. I am satisfied that the DA as amended addresses these matters and they have been complied with.
11. The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the Site. Chapter 2 of the Biodiversity SEPP details provisions regarding the preservation and management of vegetation in non-rural areas. Pursuant to s 2.6(1), vegetation cannot be cleared on land to which this Chapter applies without the authority conferred by a permit granted by the Council. However, in accordance with s 2.7(1), a permit or approval to clear vegetation is not required if it is clearing of a kind that is authorised under the s 60O or Pt 5B of the Local Land Services Act 2013 (NSW).
12. The Applicant has provided amended Landscape Plans prepared by Conzept Landscape Architects dated 16 June 2025 and I am satisfied that the removal of trees on the Site is consistent with the Biodiversity SEPP having regard to the tree species, integrity, level of significance and replacement planting proposed in the landscape plans.
13. The Site is mapped as being within the Hawkesbury Nepean Catchment and is subject to the general planning controls in Chapter 6, Division 2 of Biodiversity SEPP.
14. The Applicant has prepared stormwater plans and civil engineering plans by Telford Civil Engineers to demonstrate that the DA, as amended will not result in an adverse impact on the Hawkesbury Nepean Catchment. Based on these plans, I accept the agreement of the parties that these plans ensure that:

(i) the proposed development which utilises a filter cage system to filter and remove pollutants and a media-filled cartridge to clean stormwater through a patented passive filtration system will ensure that the effect on the quality of water entering a natural waterbody will be neutral or beneficial; and (ii) the proposed development's impact on water flow in a natural waterbody will be minimised due to the proposed capture of stormwater and retention in onsite drainage system as demonstrated in the stormwater plans prepared by Telford Civil Engineers (s 6.6(2) of the Biodiversity SEPP).

15. Based on the parties’ agreement, I am satisfied of the matters set out in s 6.7(2) of the Biodiversity SEPP that the DA, as amended, will not:

(a) result in any significant direct or indirect impacts on terrestrial animals or vegetation as the stormwater management system will mitigate any indirect impacts on terrestrial animals and vegetation; (b) have a direct or indirect or cumulative adverse impact on aquatic reserves, due to its location away from any aquatic reserves; (c) require a controlled activity approval under the Water Management Act 2000 (NSW) or a permit under the Fisheries Management Act 1994 (NSW) is not required; (d) result in the erosion or sedimentation of a natural waterbody as it provides stormwater capture, filtration and discharge infrastructure as referenced in the stormwater plans and civil engineering plans prepared by Telford Civil Engineers; and (e) result in an adverse impact on wetlands or littoral rainforests due to its location well away from these areas.

16. In satisfaction of s 6.8(2)(a) and (b) of the Biodiversity SEPP, I am satisfied that the DA as amended utilises multiple points of filtration and stormwater quality treatment to ensure that if there is a flood, the effect on the quality of water entering a natural waterbody will be neutral or beneficial and will have no adverse impact to neighbouring upstream and downstream properties due to the additional capacity provided by the onsite drainage system. Accordingly, I am satisfied that the development will not have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems and is unlikely to have an adverse environmental impact on any adjacent or downstream local government areas (s 6.10 of the Biodiversity SEPP)
17. The PLEP 2010 is the applicable local environmental planning instrument to the Site and the Site is zoned R2 - Low Density Residential.
18. The use of the Site as "co-living housing" is prohibited within the R2 zone but is permitted under s 67 of the Housing SEPP which provides that co-living development may be carried out on land in a zone which development for the purposes of 'shop top housing' is permitted in another environmental planning instrument. 'Shop top housing' is permissible with consent in the R2 zone under the PLEP 2010.
19. Whilst the DA as amended is made under the Housing SEPP, I am satisfied that the DA is consistent with the prescribed R2 zone objectives in the PLEP 2010:

(a) To provide for the housing needs of the community within a low density residential environment; (b) To enable other land uses that provide facilities or services to meet the day to needs of residents; (c) To promote the desired future character by ensuring that development reflects features or qualities of traditional detached dwelling houses that are surrounded by private gardens; (d) To enhance the essential character and identity of established residential areas; and (e) To ensure a high level of residential amenity is achieved and maintained.

20. Pursuant to cl 4.3 of the PLEP 2010, a maximum building height of 8.5 metres applies to the Site and I am satisfied that the proposed development does not encroach 8.5 metres.
21. Clause 2.7 of the PLEP 2010 permits demolition of a building or work with development consent. The DA proposes earthworks and I am satisfied that the proposed development is acceptable having regard to the matters set out in cl 7.1(3) of the PLEP 2010.
22. Clause 7.4 of the PLEP 2010 applies to the Site which requires me to have regard to the principles of sustainable development as they relate to the DA as amended, based on a 'whole of building' approach. I am satisfied that the DA, as amended, has had regard to the principles of sustainable development which is demonstrated in the architectural plans and landscape plans by:

(a) Considering the orientation of the Site in the design; (b) The implementation of the landscape scheme consistent with the Council’s controls; and (c) The shadow diagrams show that reasonable solar access is achieved to the DA, as amended, and neighbouring properties.

23. Clause 7.6 of the PLEP 2010 requires me to consider whether or not the proposed development is likely to have an impact on salinity processes and whether or not salinity is likely to have an impact on the proposed development and any appropriate measures that can be taken to avoid or reduce undesirable salinity impacts. The DA as amended has been designed to have minimal excavation and to provide the required landscaping. Further, there is no known salinity impact to the Site. As such, I am satisfied that the minimal excavation and appropriate management of stormwater is appropriate to avoid undesirable salinity impacts.
24. Clause 7.7 of the PLEP 2010 requires me to be satisfied that the development will be connected to a reticulated water supply and have adequate facilities for the removal and disposal of sewage. The Site contains existing urban development and is zoned R2 under the PLEP 2010 and connection to water and sewage are already available. The conditions of consent agreed between the parties requires the relevant certificate and approvals to be obtained. Accordingly, I am satisfied that the services that are essential for the proposed development will be available when required.
25. Clause 7.30 of the PLEP 2010 requires that I am satisfied that planning and design measures are incorporated to reduce the urban heat island effect that maximises green infrastructure, retains water in the landscape, uses design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, that use of building, paving and other materials minimise heat impacts and reduce reliance on mechanical ventilation and cooling systems to conserve energy and to minimise heat sources.
26. The DA, as amended, proposes a landscaped area that meets the Penrith Development Control Plan 2014 control for the Site and includes canopy trees as shown on the landscape plan. The landscape plan also shows minimal outdoor paving and instead relies upon turf and gardens. The design of the building includes indents (and reduction in building bulk) to maximise solar access to the building and to minimise overshadowing of neighbours. As such, I am satisfied that planning and design measures have been incorporated to reduce the urban heat island effect consistent with cl 7.30(3) of the PLEP 2010.
27. Although the provisions of a development control plan made for the purposes of s 3.42(1) of the EPA Act are not, of themselves, statutory requirements or a jurisdictional matter, In determining the DA as amended, I have considered the provisions of the Penrith Development Control Plan 2014 (DCP) as required under s 4.15(1) of the EPA Act and am satisfied that the DA, as amended, either complies with the relevant controls in the DCP or that sufficient justification has been provided in relation to any non-compliances.
28. Ten (10) submissions were made by way of objection during the public notification period of the DA and an additional three in relation to the public notification of the DA, as amended. The matters raised in the submissions relate to:

(a) Bulk and scale of development (b) Out of character with the locality (c) Traffic generation and impacts with the road being a dead end (d) Pedestrian safety (e) Infrastructure impacts (f) Waste collection (g) Privacy, acoustic and amenity impacts (h) Inadequate car parking (i) Inadequate information (j) Value impacts of properties

29. I am satisfied that these issues raised by objectors, where appropriate, have been particularised in the Statement of Facts and Contentions and have been adequately addressed in the DA as amended and conditions of consent agreed between the parties.

30. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

31. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

13. The Court orders that:

14. Leave is granted to amend Development Application No. DA24/0279 with the plans and documents listed in the table at [9] of this judgment.

15. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed sum of $4,850 to be paid within 14 days of the date of these orders.

16. The appeal is upheld.

17. Development Application No. DA24/0279 for the demolition of existing structures and the construction of a two storey co-living housing development containing 12 double rooms and associated works on land legally described as Lot 1 in DP 630887, being 12 Raschke Street, Cambridge Park, is determined by the grant of consent subject to the conditions set out in Annexure A.

S Froh

Registrar of the Court

Annexure A (592 KB, pdf)

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