3133CSI Pty Ltd v Campbelltown City Council

Cases Cited: 3133CSI Pty Ltd v Campbelltown City Council [2023] NSWLEC 1300
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: 3133CSI Pty Ltd (Applicant)
Campbelltown City Council (Respondent)

Representation: Counsel:
A Sarkis (Solicitor) (Applicant)
J Merlino (Solicitor) (Respondent)
Solicitors:
Fortis Law (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2024/179436

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application 806/2024/DA-RA by Campbelltown City Council (Council).

2. The site is 31-33 Carlisle Street, Ingleburn, legally identified as Lot 11 in Deposited Plan 566107 and Lot 12 in Deposited Plan 566107 (site). The proposal seeks consent for alterations and additions to an approved development application over the site, referenced as DA 1611/2022/DA-C (approved DA). On 16 June 2023, the Land and Environment Court delivered judgment relating to the approved DA after a s 34 agreement was reached 3133CSI Pty Ltd v Campbelltown City Council [2023] NSWLEC 1300 (2023 judgement). With the 2023 judgement, orders were made granting consent for the demolition of existing structures and construction of a four-storey mixed use building containing a childcare centre, gymnasium, commercial tenancies and basement car parking.

3. The proposal now before the Court comprises:

4. Retention of the four-storey building, subject to modifications including altering the size and use of the commercial suites on the ground floor, conversion of level 1 commercial suites to a childcare facility, waste room, stormwater, and the retention of three levels of basement car parking;

5. Introduction of four storeys of co-living housing with:

(a) fourteen co-living rooms on the third, fourth, fifth and sixth floors comprising two single rooms with an area of 25m2 and twelve rooms double rooms with an area of between 27-32m2; and (b) seven co-living rooms on the seventh floor comprising double rooms with an area of between 22m2 and 32m2, and communal open space and a communal room.

Conciliation and agreement between the parties

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment C**ourt Act 1979 (LEC Act), which was held on 11 July 2025 and at which I presided. The parties had filed an 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 and granting consent to the DA, as amended, in accordance with agreed conditions.

Jurisdiction

5. 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 point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties’ agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [62]-[65]).

6. Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties’ agreed statement of jurisdictional prerequisites (SJP), originally forwarded to the Court on 26 June 2025 and finalised on 15 July 2025.

Campbelltown Local Environmental Plan 2015

7. The parties advise that the site is zoned MU1 Mixed Use under the applicable Campbelltown Local Environmental Plan 2015 (CLEP). While co-living housing is prohibited under this zoning, according to the agreed advice of the parties, the DA relies on s 67 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) which provides that co-living development may be carried out with consent on land in a zone in which development for the purposes of "residential flat buildings" or "shop top housing" is permitted in another environmental planning instrument. I note that these uses are permissible in the MU zone and accept the advice of the parties that, as such, the proposed co-living development is permissible with consent.

8. The parties have indicated their agreed opinion that the proposal is consistent with the objectives of the R3 zone. The jurisdictional requirement under cl 2.3(2) CLEP is that “regard” has been had to the zone objectives in the determination of the proposal and it is clear to me that this has occurred.

9. I accept the advice of the parties that the proposal complies with floor space ratio and building height development standards, as applicable (SJP par 19-20).

10. The site is within a flood planning area and cl 5.21 applies. Council indicates it has considered the matters at cl 5.21(3) and was satisfied with respect to each of the matters at cl 5.21(2). The parties also indicate to me that cl 5.21 was attended to in the 2023 judgement where, based on expert advice, the court found it was satisfied with respect to the points at cl 5.21(2). The parties have advised that I can also adopt the position previously adopted by the Court because the proposed alterations and additions do not relevantly affect flooding considerations. I accept this advice and am satisfied with respect to the points at cl 5.21(2).

11. Under cl 7.9(3), within the MU1 zone, development consent must not be granted to the erection of a building that will contain a residential component, unless the consent authority is satisfied that:

7.9 Mixed use development in Zones E2 and MU1

...

(a) the building will have an active street frontage after its erection or change of use, and

(b) the ground floor will only accommodate non-residential land use

12. I accept the advice of the parties that each of two requirements are satisfied in this case.

13. Clause 7.10 (in relation to essential services) applies. I accept the advice of the parties that the relevant services that are essential for the development are available or that adequate arrangements have been made to make them available when required.

14. Clause 7.13 is concerned with design excellence and applies to the proposal. Council indicates it has considered the matters at cl 7.13(4) and considers that the development exhibits design excellence with respect to cl 7.13(3). In coming to this conclusion the council relies on arguments put in the statement of environmental effects accompanying the proposal; including that the development (SJP par 30):

“adopts a high level of design, materials and detailing appropriate in a MU1 context, and the form and appearance will improve the quality and amenity of the public domain.”

15. I accept this advice and consider that the development exhibits design excellence.

16. I accept the advice of the parties that I can be satisfied with respect to cl 7.31(3), relating to flood evacuation, as the requirements are satisfied with the flood response letter contained in the final amending material (SJP par 18).

State Environmental Planning Policy (Housing) 2021

17. Part 3 of Chapter 3 (co-living housing) applies. Section 69(1) outlines the development standards for co-living housing. The parties advise that the DA, as amended, complies with each. The parties advise that the appropriate consideration has also been given to s 69(2).

State Environmental Planning Policy (Transport and Infrastructure) 2021

18. Chapter 3, relating to education establishments and child care facilities, applies to the proposal. The proposal provides for certain changes to the child care facilities approved in the 2023 judgement. When a comparison is drawn with the 2023 judgement, the proposal would:

19. increase the number of child care places from one hundred and twenty (120) places, to one hundred and fifty (150) places and the subsequent number of educators; and

20. relocate the child care centre from the second and third floor, to the ground, first and second floor.

21. The parties advise that, in relation to s 3.22, the proposal complies with requirements for indoor and outdoor un-encumbered space and there is no need for concurrence from the regulatory authority in this instance. Otherwise appropriate consideration of relevant matters has occurred, according to the parties.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. Chapter 4 (Remediation of Land) applies with s 4.6 providing that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated or potentially contaminated land, and, if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. Again the parties take me to the 2023 judgement and consistent with the findings at [23] I am satisfied with respect to s 4.6.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)

21. The parties take me to Chapter 6, which applies to the proposed development as the site is located within the Georges River catchment. There are a range of matters identified for consideration and a number of areas where positive findings of satisfaction are required. Council advises it has considered ss 6.6(1)(a)-(g), 6.7(1)(a)-(f), 6.8(1) and 6.9(a)-(b) of the Biodiversity and Conservation SEPP; and that the development complies with the requirements under ss 6.6(2)(a)-(b), 6.7(2)(a)-(e), 6.8(2)(a)-(b) and 6.9(2)(a)-(c) of the SEPP. I accept this advice and am satisfied in relation to these technical matters.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

22. The parties have advised that five objecting submissions were received and they have been considered.

Conclusion

23. With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

24. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notations

25. With respect to the amendments of the DA, the Court notes that:

26. The Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. 806/2024/DA-RA in accordance with the following amended plans (Amended Development Application):

| No | Document | Ref No. | Prepared by | Rev | Date | | 1. | Architectural Plans | | Cover Sheet | DA 1001 | CD Architects | Q | 23 May 2025 | | Safety Notes | DA 1002 | CD Architects | M | 5 Dec 2023 | | Perspectives & Massing | DA 1003 | CD Architects | Q | 23 May 2025 | | Perspectives & Massing | DA 1003.1 | CD Architects | B | 23 May 2025 | | Compliance Table | DA 1004 | CD Architects | Q | 23 May 2025 | | Site Analysis | DA 2001 | CD Architects | P | 28 Jan 2025 | | Demolition Plan | DA 2002 | CD Architects | M | 5 Dec 2023 | | Site Plan | DA 2003 | CD Architects | P | 23 May 2025 | | Ground Floor Plan | DA 2004 | CD Architects | S | 28 Jan 2025 | | Level 1 & 2 Floor Plan | DA 2005 | CD Architects | Q | 28 Jan 2025 | | Typical Level 3-6 Floor Plan | DA 2006 | CD Architects | Q | 05 Dec 2024 | | Level 7 Floor Plan | DA 2007 | CD Architects | S | 23 May 2025 | | Roof Plan | DA 2008 | CD Architects | A | 23 May 2025 | | Basement 1 & 2 Floor Plan | DA 2009 | CD Architects | S | 28 Jan 2025 | | Basement 3 & Roof Plan | DA 2010 | CD Architects | Q | 13 Jan 2025 | | Elevations | DA 3001 | CD Architects | R | 23 May 2025 | | Elevations | DA 3002 | CD Architects | R | 23 May 2025 | | Elevations | DA 3003 | CD Architects | R | 23 May 2025 | | Elevations | DA 3004 | CD Architects | R | 23 May 2025 | | Sections | DA 4001 | CD Architects | P | 23 May 2025 | | Sections | DA 4002 | CD Architects | P | 23 May 2025 | | Sections | DA 4003 | CD Architects | P | 23 May 2025 | | Childcare Open Play Area Visual Privacy Section | DA 4004 | CD Architects | N | 05 Dec 2023 | | 9AM Shadow Diagram | DA 5001 | CD Architects | O | 23 May 2025 | | 12PM Shadow Diagram | DA 5002 | CD Architects | O | 23 May 2025 | | 3PM Shadow Diagram | DA 5003 | CD Architects | O | 23 May 2025 | | Solar Access Model – Outdoor Play Area | DA 6001 | CD Architects | O | 28 Jan 2025 | | Solar Access Study – Outdoor Play Area | DA 6002 | CD Architects | O | 28 Jan 2025 | | Solar Access Model – Outdoor Play Area (Carlisle Street Side) | DA 6002.1 | CD Architects | A | 28 Jan 2025 | | Solar Access Model – Outdoor Play Area (Carlisle Street Side) | DA 6002.2 | CD Architects | A | 28 Jan 2025 | | Solar Access Study – Outdoor Play Area | DA 6003 | CD Architects | O | 28 Jan 2025 | | Solar Access Study – Outdoor Play Area | DA 6004 | CD Architects | O | 28 Jan 2025 | | Solar Access Study – Outdoor Play Area | DA 6005 | CD Architects | O | 28 Jan 2025 | | Solar Access Study – Communal Open Space | DA 6998 | CD Architects | A | 23 May 2025 | | Solar Access Study – Communal Open Space | DA 6999 | CD Architects | O | 23 May 2025 | | Playarea Wet Area Details | DA 7001 | CD Architects | N | 13 Jan 2025 | | Accessible Unit Layout | DA 7002 | CD Architects | N | 5 Dec 2023 | | Schedule of Materials and Finishes | DA 8001 | CD Architects | P | 28 Jan 2025 | | GFA Calculation | DA 8002 | CD Architects | S | 23 May 2025 | | Area Calculations | DA 8003 | CD Architects | O | 23 May 2025 | | Area Calculations | DA 8004 | CD Architects | O | 23 May 2025 | | LEP Height Blanket | DA 8005 | CD Architects | N | 5 Dec 2023 | | 22. | Landscape Plans | | Ground FR | DA-L101 | Canvas | E | 07 Feb 2025 | | Level 01 | DA-L102 | Canvas | E | 07 Feb 2025 | | Level 02 | DA-L103 | Canvas | E | 07 Feb 2025 | | Level 07 | DA-L104 | Canvas | E | 07 Feb 2025 | | Landscape Typical Details, Proposed Plan Schedule & Maintenance Program | DA-L105 | Canvas | E | 07 Feb 2025 | | 25. | Stormwater Plans | | Cover Sheet | SW001 | Capital Engineering Consultants | K | 06 Dec 2024 | | Notes & Details Sheet 1 | SW002 | Capital Engineering Consultants | K | 06 Dec 2024 | | Notes & Details Sheet 2 | SW003 | Capital Engineering Consultants | K | 06 Dec 2024 | | Basement Level 3 Plan, Notes & Details | SW010 | Capital Engineering Consultants | K | 06 Dec 2024 | | Basement Level 3 Perimeter Drainage Plan, Notes & Details | SW011 | Capital Engineering Consultants | K | 06 Dec 2024 | | Basement Level 2 Plan, Notes & Details | SW020 | Capital Engineering Consultants | K | 06 Dec 2024 | | Basement Level 1 Plan, Notes & Details | SW030 | Capital Engineering Consultants | K | 06 Dec 2024 | | Ground Floor Plan, Notes & Details | SW040 | Capital Engineering Consultants | K | 06 Dec 2024 | | On-Site Detention Sections & Details | SW041 | Capital Engineering Consultants | K | 06 Dec 2024 | | Drains Model and Results | SW042 | Capital Engineering Consultants | K | 06 Dec 2024 | | Erosion & Sediment Control Demolition Stage | ER001 | Capital Engineering Consultants | K | 06 Dec 2024 | | Erosion and Sediment Control Plan Excavation Stage (1/2) | ER002 | Capital Engineering Consultants | K | 06 Dec 2024 | | Erosion and Sediment Control Plan Excavation Stage (2/2) | ER003 | Capital Engineering Consultants | K | 06 Dec 2024 | | Erosion and Sediment Control Plan During Construction | ER004 | Capital Engineering Consultants | K | 06 Dec 2024 | | Erosion and Sediment Control Plan Notes & Details (1/4) | ER005 | Capital Engineering Consultants | K | 06 Dec 2024 | | Erosion and Sediment Control Plan Notes & Details (2/4) | ER006 | Capital Engineering Consultants | K | 06 Dec 2024 | | Erosion and Sediment Control Plan Notes & Details (3/4) | ER007 | Capital Engineering Consultants | K | 06 Dec 2024 | | Erosion and Sediment Control Plan Notes & Details (4/4) | ER008 | Capital Engineering Consultants | K | 06 Dec 2024 | | 40. | Clause 4.6 & Town Planning Letter | Think Planners | - | 06 Dec 2024 | | 41. | Waste Letter | 230/02-24 | MultiPro Consultants | - | 07 Dec 2024 | | 42. | Waste Management Plan | 230 | MultiPro Consultants | 4 | 07 Dec 2024 | | 43. | Noise Impact Assessment | R211126R1 | Rodney Stevens Acoustics | 4 | 17 Dec 2024 | | 44. | Flood Letter | SW22063 | Capital Engineering Consultants | 02 | 20 Dec 2024 | | 45. | Traffic Engineering Advice | 240475 | McLaren Traffic Engineers | 01 | 07 Feb 2025 |

Orders

26. The Court orders that:

27. The Appeal is upheld.

28. Development consent is granted to development application 806/2024/DA-RA, as amended, for the Retention of the four-storey building approved under DA 1611/2022/DA-C, subject to modifications to the size and use of the commercial suites on the ground and first floor levels, waste room, stormwater and three levels of basement carparking, including the construction of an additional four storeys of co-living housing and roof-top common open space at 31-33 Carlisle Street, Ingleburn, subject to the conditions in the annexure marked “A”.

29. The Applicant is to pay the Respondent's costs thrown away by reason of the amended development application as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

P Walsh

Commissioner of the Court

Annexure A (741 KB, pdf)

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