Chan v Penrith City Council

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

Texts Cited: Penrith Development Control Plan 2014

Category: Principal judgment

Parties: Hiu Ching Chan (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
G McKee (Solicitor) (Applicant)
D Le Breton (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2024/289355

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a 2-storey co-living housing development containing 12 rooms, at 110 Barry Street, Cambridge Park. The development application was lodged with the respondent on 11 April 2024. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 February 2025 and continued by Online Court on various occasions, until a final agreement was reached on 12 May 2025. I presided over the conciliation conference.

3. The agreement that was filed on 12 May 2025 is an agreement as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments have relocated the car parking spaces from within the front setback, to the now proposed basement garage with a garage door, which has increased the landscaped area. The proposed basement is integrated with the overall architectural form in order to achieve a streetscape presentation that is consistent with the character of a residential dwelling. The amended development application also includes a range of updated reports, including an Arboricultural impact assessment, geotechnical advice, an access report, a traffic impact assessment, waste management plan and acoustic report.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Note that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (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:

6. The site is zoned R2 Low Density Residential, pursuant to the Penrith Local Environmental Plan 2010 (PLEP). Whilst development for the purpose of co-living housing is prohibited in the R2 zone pursuant to the PLEP, it is permissible with consent pursuant to s 67 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) on the basis that shop top housing is permissible in the zone.

7. The provisions of Pt 3 Ch 3 of the SEPP Housing apply to the development. At s 69, consent cannot be granted unless certain requirements are met. Based on the Jurisdictional Note and on the architectural plans dated 24 February 2025, I am satisfied that each of the matters in s 69(1) of the SEPP Housing are met by the proposed development.

8. Further, consistent with s 69(2) of the SEPP Housing, and based on the Jurisdictional Note, the streetscape analysis and the architectural plans dated 24 February 2025, I have considered whether the setbacks comply with the minimum setback requirements under the Penrith Development Control Plan 2014 (PDCP), whether the communal living area receives 3 hours direct solar access, and whether the design of the building will be compatible with the desired elements of the character of the local area or the desired future character of the area.

9. I note also that s 68 of the SEPP Housing sets out a number of grounds on which consent cannot be refused if certain criteria are met. The Jurisdictional Note confirms that the proposed development meets the criteria for the size and dimensions of the communal living area and the communal open space, as well as car parking spaces and landscaping requirements. Accordingly, consent cannot be refused on any of those grounds.

10. The proposed development complies with the height development standard that applies pursuant to the PLEP.

11. The development application includes earthworks for the excavation for the basement and ground floor slab. Based on the Jurisdictional Note and the Geotechnical Investigation Report dated 20 March 2024, I have considered the matters set out in cl 7.1(3) of the PLEP.

12. Clause 7.4 of the PLEP concerns sustainable development, and, based on the Jurisdictional Note and the architectural plans dated 24 February 2025, I have considered the matters in cl 7.4.

13. Clause 7.6 of the PLEP concerns salinity. Based on the Jurisdictional Note, the Geotechnical Investigation Report dated 20 March 2024 and the Stormwater Concept Plans dated 26 February 2025 which allow for onsite stormwater detention, I have considered the matters in cl 7.6(2).

14. Clause 7.7 of the PLEP concerns the servicing of the development. Based on the location of the site in an existing residential area where water and sewage disposal are already available, I am satisfied of the matters in cl 7.7(2).

15. Clause 7.30 of the PLEP concerns urban heat and sets out mandatory considerations in cl 7.30(3). Based on the Jurisdictional Note, the NCC 2022 Section J DTS Report dated 11 February 2025 and the landscape plans dated 25 February 2025, I am satisfied of the matters in cl 7.30(3).

16. The site is in the Hawkesbury-Nepean Catchment, and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. Based on the Jurisdictional Note, the Stormwater Concept Plans dated 26 February 2025 and the Geotechnical Investigation Report dated 20 March 2024, I am satisfied of the matters in ss 6.6(2) and 6.7(2) of the SEPP B&C. Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

17. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

18. The development application was publicly exhibited and notified between 29 April 2024 and 12 May 2024, and 9 written submissions were received. I have considered the issues raised in those written submissions.

19. Having reached the state of satisfaction that the decision is one that the Court could have made 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)).

20. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.

21. The Court notes:

22. Penrith City Council, as the relevant consent authority, has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending development application number DA24/0272 in accordance with the plans and documents listed below:

| Drawing Title | Drawing/ Sheet No | Prepared by | Issue | Dated | | Architectural Plans | | Title Sheet | 001 | Texco Design | D | 24/02/2025 | | Section J Commitments | 002 | Texco Design | D | 24/02/2025 | | Demolition Plan | 004 | Texco Design | D | 24/02/2025 | | Site Plan | 005 | Texco Design | E | 08/04/2025 | | Unit Schedule | 010 | Texco Design | D | 24/02/2025 | | CLA & COS Calculation | 011 | Texco Design | D | 24/02/2025 | | Landscape and Deep Soil Calculations | 012 | Texco Design | D | 24/02/2025 | | Evacuation Diagram | 016 | Texco Design | D | 24/02/2025 | | Cut & Fill Plan | 018 | Texco Design | D | 24/02/2025 | | Retaining Wall Level Plan | 019 | Texco Design | D | 24/02/2025 | | Basement Plan | 101 | Texco Design | E | 08/04/2025 | | Ground Floor Plan | 102 | Texco Design | E | 08/04/2025 | | Level 1 Plan | 103 | Texco Design | E | 08/04/2025 | | Roof Plan | 104 | Texco Design | D | 24/02/2025 | | North & South Elevation | 201 | Texco Design | D | 24/02/2025 | | East & West Elevation | 202 | Texco Design | D | 24/02/2025 | | Section A&B | 301 | Texco Design | D | 24/02/2025 | | Section C&D | 302 | Texco Design | D | 24/02/2025 | | Section E&F | 303 | Texco Design | D | 24/02/2025 | | Material Schedule | 401 | Texco Design | D | 24/02/2025 | | Material Schedule - Elevations | 402 | Texco Design | D | 24/02/2025 | | Door Schedule | 403 | Texco Design | E | 08/04/2025 | | Window Schedule | 404 | Texco Design | D | 24/02/2025 | | Civil Plans | | Coversheet | DA-C100 | JCO Consultants Pty Ltd | 2 | 25/02/2025 | | General Notes and Specifications | DA-C101 | | Civil Works – General Arrangement Plan | DA-C200 | | Longitudinal Sections Along Proposed Driveway – LHS & RHS | DA-C400 | | Longitudinal Sections Along Proposed Pedestrian Access – LHS & RHS | DA-C401 | | Details Sheet 1 | DA-C600 | | Details Sheet 2 | DA-C601 | | Stormwater Plans | | Coversheet | DA-SW100 | JCO Consultants Pty Ltd | 3 | 26/02/2025 | | General Notes and Specifications | DA-SW101 | | Stormwater Concept Design – Basement Plan | DA-SW200 | | Stormwater Concept Design – Ground Floor Plan | DA-SW201 | | Stormwater Concept Design –Details Sheet 1 | DA-SW300 | | Stormwater Concept Design – Details Sheet 2 | DA-SW301 | | Stormwater Concept Design – MUSIC Catchment Plan | DA-SW500 | | Stormwater Concept Design – MUSIC Result | DA-SW501 | | Erosion and Sediment Control Plans and Details | DA-SW600 | | Landscape Plans | | Hardscape Plan | LP-01 | Conzept Landscape Architects | G | 25/02/2025 | | Landscape Plan | LP-02 | | Section | LP-03 | | Details | LP-04 | | Specification | LP-05 | | Design Intent Images | LP-06 |

| Document Title | Reference | Prepared By | Date | | Arboricultural Impact Assessment | AIA6/01/2025 v4 Final | Arbor Express | 31/03/2025 | | Geotechnical Advice | 2025038 L1 Rev0 | Elite Geosciences | 25/02/2025 | | Access Report | Rev B | Ergon Consulting | 09/04/2025 | | Traffic Impact Assessment | 24023 Rev 4 | Genesis Traffic | 26/02/2025 | | Waste Management Plan | 25WMP-1304 Rev C | Gateway Consulting Group | 26/02/2025 | | DA Acoustic Report – Co-Living Residential Development | 12788 Rev: R01v2 | PKA Acoustic Consulting | 28/03/2025 |

9. The Court orders that:

10. The applicant is granted leave to file the Amended Development Application referred to in [8].

11. 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, in the agreed sum of $6,000.00, to be paid within 14 days of the date of these orders.

12. The appeal is upheld.

13. Development Application DA24/0272, as amended, for the demolition of existing structures and the construction of a two storey co-living housing development containing 12 rooms and associated works on land legally described as Lot 3 in DP608907, being 110 Barry Street, Cambridge Park, is determined by the grant of consent subject to the conditions set out in Annexure A.

J Gray

Commissioner of the Court

**********

Annexure A (305 KB, pdf)