Abdul-Rahman v Strathfield Municipal Council

Texts Cited: Strathfield Council Community Participation Plan (April 2023)
Strathfield Consolidated Development Control Plan 2005

Category: Principal judgment

Parties: Mehedin Abdul-Rahman (Applicant)
Strathfield Municipal Council (Respondent)

Representation: Counsel:
J Koprivnjak (Solicitor) (Applicant)
C Norton (Respondent)
Solicitors:
Shaw Reynolds (Applicant)
Bartier Perry Pty Limited (Respondent)

File Number(s): 2025/236546

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This Class 1 appeal follows the deemed refusal of development application DA/2025.47 by Strathfield Municipal Council that seeks consent for the demolition of all existing structures, construction of a two-storey attached dual occupancy development and associated landscaping at Lot A in Deposited Plan 951855, otherwise known as 40 Abbotsford Road, Homebush.

2. The Council publicly notified the DA from 29 April 2025 to 13 May 2025, in accordance with the Strathfield Council Community Participation Plan, and again between 12 and 27 January 2026 following the amendment of the DA.

3. As the DA was not otherwise determined at the time, the Applicant appealed its deemed refusal on 20 June 2025, under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)

4. The Applicant in these proceedings, Mr Mehedin Abdul-Rahman, was granted leave to amend the DA on 27 November 2025.

5. The appeal was listed for mandatory conciliation on 3 March 2026 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act).

6. Prior to the conciliation conference, the Court was advised that the parties had reached in-principle agreement on all matters in contention between them. A signed agreement was submitted to the Court on 27 February 2026, in accordance with s 34(10) of the LEC Act.

7. 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 parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites, with respect to the following environmental planning instruments that must be satisfied before this function can be exercised.

Strathfield Local Environmental Plan 2012

8. The site is located within an area identified by the Strathfield Local Environmental Plan 2012 (SLEP) as R2 Low Density Residential in which dual occupancy development is prohibited. However, the proposed development is permissible in the R2 zone by operation of s 166 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) when read in conjunction with s 164 and the inclusion of the subject site in a low and mid-rise housing area as defined at s 163 of the Housing SEPP.

9. The site is located within the Abbotsford Road Heritage Conservation Area (Abbotsford Road HCA), identified in Sch 5 of the SLEP. It is not listed as an item of heritage significance. A Heritage Impact Statement prepared by Urbis dated 28 March 2025 is supplemented by an Amended Heritage Impact Statement prepared by PCN Urban dated 18 February 2026 (Amended HIS). Additionally, the heritage experts engaged by the parties in this matter agree the amended plans and other documents are acceptable. I have considered the effect of the proposed development on the Abbotsford Road HCA in accordance with cl 5.10 of the SLEP, and I conclude the proposal does not adversely impact the Abbotsford Road HCA.

10. As the site is located within the Powells Creed Flood Study Area, cl 5.21 of the SLEP applies to regulate flood planning. On the basis of the Overland Flow Assessment Report prepared by CFSE Solutions dated 17 November 2025 (the Flood Report), I am satisfied that, in respect of flood planning, the proposed development:

11. is compatible with the flood function and behaviour of the land when regard is had to TUFLOW modelling of that flood behaviour in sections 5.3 and 6.1 of the Flood Report, and that the development will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

12. by virtue of a flood void to permit free movement of overland flow, will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

13. proposes shelter in place on the first floor of the dwellings as the identified measures to manage risk to life in the event of a flood; and

14. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses having regard to the closest watercourse, Powells Creek, located approximately 720 m to the east of the site, and to stormwater plans prepared by Australiawide Consulting Service (the Stormwater Plans).

15. The site is also identified in an area of Class 5 Acid Sulfate Soils on the relevant Acid Sulfate Soils Map at cl 6.1(2) of the SLEP. However, given the minor extent of cut and fill depicted on Architectural plan DA7081, I accept that the development is unlikely to have any impact on the water table and I note the site is more than 500 m away from any soil of another class.

16. Relatedly, in considering the earthworks proposed, I accept the following amended plans and other documents serve to satisfactorily address those matters required to be considered at cl 6.2(3) in respect of earthworks:

17. cut and fill diagram on Architectural plan DA7081 that demonstrates the extent of disruption likely due to excavation.

18. the Flood Report and Stormwater Plans cited at [10] that demonstrate the effect of the development on drainage patterns on the site, on the existing and likely amenity of adjoining properties, and steps taken to avoid adverse impacts on the Powells Creek catchment; and

19. agreed Conditions of consent, in particular conditions 22, 54 and 57 of the Conditions that are directly relevant to the matters to be considered such as the disposal of soil proposed to be excavated.

20. As the site is located within a highly urbanised locality, and seeks to replace development that occupied the site, I am satisfied that the essential services of water, electricity, sewage, waste disposal, stormwater drainage, and suitable vehicular access will be available when required in accordance with cl 6.4 of the SLEP. The Site has historically been used for residential purposes where all of these services were available and there is no reason to expect they will not be for this development when required.

State Environmental Planning Policy (Housing) 2021

14. I accept that the Landscape Plans prepared by Canvas Landscape Architects, have been prepared having regard to the Tree Canopy Guide for Low and Mid Rise Housing (Tree Guide), in accordance with s 167(2) of the Housing SEPP, and I am satisfied the guidance objectives of the Tree Guide are achieved because:

15. When the existing trees to be retained are factored, a canopy spread of 174.2 m² is achieved, otherwise expressed as 25% of the area of the site; and

16. the calculations shown on Architectural drawing DA7061, while relevant to landscaped area, are indicative of deep soil, as defined by the Tree Guide, of at least 25% of the site area.

17. When the architectural plans prepared by CD Architects are read, the development complies with all of the non-discretionary development standards in cl 168(2), as follows:

18. The site is greater than the minimum lot size of 450 m2 at 696.8 m2;

19. the site has a lot width of 15.24 m, according to the survey prepared by Ensure Consulting, that is greater than the minimum 12 m at the building line;

20. as the Strathfield Consolidated Development Control Plan 2005 does not otherwise specify a maximum, each dwelling is served by one car parking space;

21. architectural drawing DA7001 confirms the FSR proposed on the site is 0.627:1, which complies with the maximum 0.65:1; and

22. the proposed building height is less than the maximum of 9.5 m, which is also consistent with the height standard at cl 4.3 of the SLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. The parties agree the site is not a strategic foreshore site, a heritage item on the Sydney Harbour heritage map or land within a wetlands protection area.

17. Section 6.6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) precludes the grant of consent unless the Respondent Council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

18. I am satisfied of those matters at s 6.6(2) of the Biodiversity SEPP because the development proposes on site detention of stormwater and retention in rainwater tanks fitted with first flush diverter devices. Specifically, I accept the development proposes filtration to water in the post-development scenario in a manner that achieves a neutral or beneficial effect on the water quality, and that the OSD and rainwater tank minimises water flow into the catchment.

19. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied that the retention of water and post development flows will keep any direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and will not have an adverse impact on aquatic reserves, or in terms of erosion.

20. For reasons set out at [12(2)], I am satisfied that the development will not result in a release of pollutants that would have an adverse impact on the water quality of, or have an adverse impact on the natural recession of floodwaters into, Powells Creek (s 6.8 of the Biodiversity SEPP). Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). On the basis of the reference made in the Amended Heritage Impact Statement cited at [9] which in turn relies on the historical chronology of development in the area set out in Section 3 – Historical Summary in the Heritage Impact Statement prepared by Urbis dated 28 March 2025 and the agreed conditions of consent that deal with unexpected finds, I am satisfied the site is suitable for the purpose for which development is proposed to be carried out.

State Environmental Planning Policy (Sustainable Buildings) 2022

22. The application is accompanied by a BASIX certificate for each of the dual occupancy dwellings (Cert No. 1783470S_06 and 1783467S_06 dated 26 February 2026) prepared by William Wong in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP). An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

23. 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.

24. 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.

25. The Court notes that:

26. Strathfield Municipal Council as the relevant consent authority approves under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant amending the development application number DA/2025.47 in accordance with the plans and documents listed in Annexure A.

27. The Applicant filed those amended plans and other documents with the Court on 3 March 2026.

Orders

26. The Court orders that:

27. The applicant is granted leave to further amend Development Application No. DA2025.47 to include and substitute the documents in Annexure A.

28. The appeal is upheld.

29. Development consent is granted to Development Application No. DA/2025.47, for demolition of all existing structures, tree removal, and construction of a two storey attached dual occupancy development, with associated landscaping and a front fence, at 40 Abbotsford Road, Homebush, subject to the conditions in Annexure B.

T Horton

Commissioner of the Court

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Annexure A (154 KB, pdf)

Annexure B (327 KB, pdf)