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[2026] NSWLEC 1085
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-26
Kullen AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Chinese Australian Services Society Ltd v Canterbury-Bankstown Council [2026] NSWLEC 1085
Hearing dates: Conciliation conference held on 9 December 2025
Date of orders: 26 February 2026
Decision date: 26 February 2026
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders that:
(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $4,000.
(2) The appeal is upheld.
(3) Development Application DA-365/2025 for the change of use of an existing building from a residential care facility to seniors housing (hostel), community facility, ancillary offices and associated works for BCA compliance at 253 Cooper Road, Yagoona, NSW, 2199, legally known as Lot 6 in DP 227677, is determined by the grant of development consent subject to the conditions of consent in Annexure A.
Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – change of use – seniors housing – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Pt 1, ss 4.15, 4.16, 4.17, 8.7, 8.11, 8.15, 8.18, 9.34, Sch 1, Div 1, cl 7, Sch 5 Land and Environment Court Act 1979 (NSW), s 34 Canterbury-Bankstown Local Environmental Plan 2023, cll 2.1, 2.2, 2.3, 2.7, 4.3, 4.4, 5.21, 6.9 Environmental Planning and Assessment Regulation 2021 (NSW), ss 3, 27, 29, 38, Sch 7 Standard Instrument – Principal Local Environmental Plan (2006 EPI) State Environmental Planning Policy (Housing) 2021, Pt 5, Div 3, ss 81, 85, 95, Div 7, s 107, Sch 8 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022
Texts Cited: Canterbury-Bankstown Community Participation Plan 2019
Canterbury-Bankstown Development Control Plan 2023
Category: Principal judgment
Parties: Chinese Australian Services Society Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)
Representation: Counsel:
A Knox (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)
File Number(s): 2025/210580
Publication restriction: Nil
COMMISSIONER: This is 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 by Canterbury-Bankstown Council of development application DA-365/2025 (the DA) for the change of use of an existing residential care facility to seniors housing (hostel), community facility, ancillary offices and associated works required for BCA compliance on land at 253 Cooper Road, Yagoona, NSW, 2199, legally known as Lot 6 in DP 227677 (the site).
The proposed development includes:
An administrative office on the ground floor of the building;
The use for seniors housing (hostel) on a portion of the ground floor with 18 single occupancy units;
A community facility on the ground floor;
Twenty-seven at grade car parking spaces that currently exist on the site; and
The whole first floor space of the building noted as “not in use” on the further amended plans is not proposed to be used as part of the DA, as well as the stair access from the ground floor to the first floor.
There is a Class 1 Development Appeal pursuant to s 8.18 of the EPA Act against the Development Control Order issued by the Respondent on 12 February 2025 under s 9.34 and Pt 1 of Sch 5 of the EPA Act (DCO), requiring the Applicant to stop the use of 253 Cooper Road, Yagoona for the purposes of a boarding house (proceedings 2025/95549 refers).
Both matters were listed by the Court concurrently. The resolution of 2025/95549 depends on the granting of development consent to the proposed development which is the subject of this appeal. The proposed DCO in 2025/95549 will require the proposed development on the site to comply with Condition 72 of the conditions of consent in the further amended DA, which is the subject of this matter, when approved by the Court.
The DA was lodged on 7 April 2025. The Applicant lodged a Class 1 Application with the Court on 2 June 2025. The Respondent’s Statement of Facts and Contentions (SOFAC) was filed with the Court on 26 June 2025.
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 28 July 2025. The s 34 conciliation conference was terminated on 18 August 2025. The parties had made progress on resolving the contentions but were unable to reach agreement. The matter was listed for hearing by the Court on 9 and 10 December 2025.
On 22 October 2025, the Applicant filed a Notice of Motion with the Court to amend the DA. The amendment to the DA was granted by the Court on 29 October 2025.
An amended SOFAC was filed by the Respondent with the Court on 5 November 2025, addressing the amended DA.
The parties filed with the Court joint expert reports for waste management (on 19 November 2025) and town planning (on 24 November 2025).
The on-site view on 9 December 2025 was vacated at the request of the parties, who advised the Court that no submitters wished to attend an on-site view or make verbal submissions. The parties reached a s 34 agreement on the proposed development which was filed with the Court on 8 December 2025 with the further amended plans.
The Respondent has approved the application for an amendment to development application DA-365/2025 made on 8 December 2025 (the further amended DA).
The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.
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 4.16 of the EPA Act to grant consent to the development application.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.
The Canterbury-Bankstown Local Environmental Plan 2023 (the LEP) is the relevant local environmental planning instrument that applies to the site. Pursuant to cll 2.1 and 2.2 of the LEP, the site is zoned R4 High Density Residential Zone.
Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
The objectives of the R4 High Density Residential Zone under the LEP are:
• To provide for the housing needs of the community within a high density residential environment.
• To provide a variety of housing types within a high density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To minimise conflict between land uses within this zone and land uses within adjoining zones.
• To allow for increased residential density in accessible locations to maximise public transport patronage and encourage walking and cycling.
• To promote a high standard of urban design and local amenity.
The parties advise that they agree that the objectives of the R4 High Density Residential Zone in the LEP are achieved by the proposed development pursuant to the agreed architectural plans prepared by Calder Flower Pty Ltd dated 14 November 2025 and the operational plan of management dated 13 November 2025.
I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.
Development for the purposes of both seniors housing and community facility is permitted with consent in the R4 zone, pursuant to the land use table of the LEP. Ancillary offices are permitted without consent in the R4 zone.
Development for the purpose of demolition is permissible with consent pursuant to cl 2.7 of the LEP. The demolition of buildings on the site is not stipulated as part of the proposed development.
Pursuant to cl 4.3 of the LEP, the maximum height of buildings (HoB) on the site is 9 metres. The parties advise that the proposed development will be carried out in an existing approved two (2) storey building and will not exceed the HoB development standard.
Clause 4.4 Floor Space Ratio (FSR) of the LEP imposes a maximum FSR of 0.5:1 on the site. The parties advise that the DA proposes an FSR of 0.3:1 and therefore complies with the FSR development standard.
Clause 5.21 of the LEP makes provisions in relation to flood planning. The parties advise that the site is not identified on Council’s Flood Map as being within a flood plan area, and that cl 5.21 does not apply to the site.
Clause 6.9 of the LEP relates to Essential services. The parties advise that the site has access to all essential services and the Court can be satisfied that the requirements of cl 6.9 of the LEP are met.
Part 5 of the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP) applies to the proposed development. Pursuant to s 81 of the Housing SEPP, seniors housing is permissible with development consent on land zoned R4 under the LEP.
Section 85 of the Housing SEPP states that development consent must not be granted for development for the purposes of a hostel or an independent living unit unless the hostel or independent living unit complies with the relevant standards specified in Sch 4 of the Housing SEPP.
The parties advise that:
An assessment of the proposed development against Sch 4 of SEPP Housing is contained in the Statement of Environmental Effects (SEE) submitted in support of the DA; and
The Court can be satisfied that the requirements of s 85 are satisfied.
Section 95 of the Housing SEPP sets out requirements in relation to water and sewer which apply to the site. The parties advise that the site is connected to a reticulated water system and has adequate facilities for the disposal of sewerage and therefore the section is satisfied.
Section 107 of the Housing SEPP sets out non-discretionary development standards for hostels and residential care facilities and applies to the proposed development. An assessment of the relevant standards is in the SEE submitted in support of the DA. The parties advise that the Court can be satisfied that the requirements of s 107 of the Housing SEPP are satisfied.
Schedule 8 of the Housing SEPP sets out design principles for seniors housing and applies to the DA. An assessment of the DA against Sch 8 of the Housing SEPP is provided in the SEE submitted in support of the DA. The parties advise that the Court can be satisfied that the requirements of the Sch 8 of the Housing SEPP are met by reference to the agreed architectural plans prepared by Calder Flower Pty Ltd dated 14 November 2025 (which form part of the further amended DA).
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.
The parties advise that:
The site has been used for the purposes of a residential care facility for more than 30 years and it is considered highly unlikely that the site is contaminated; and
The Court can therefore be satisfied that the land is not contaminated and is suitable for the proposed development.
The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.
Pursuant to s 27 of the EPA Regulation, a development application for BASIX development must be accompanied by a relevant BASIX certificate.
The dictionary of the EPA Regulation defines BASIX development as follows:
BASIX development means the following development if it is not BASIX excluded development—
(a) development that involves the erection, but not the relocation, of a BASIX building,
(b) development that involves a change of building use by which a building becomes a BASIX building,
(c) development that involves the alteration of a BASIX building, if the estimated development cost is $50,000 or more,
(d) development for the purposes of a swimming pool or spa, or combination of swimming pools and spas, that—
(i) services 1 dwelling only, and
(ii) has a capacity, or combined capacity, of 40,000 litres or more.
The further amended DA is for the change of use of the site from a residential care facility to a hostel, for the purposes of seniors housing, and a community facility with ancillary offices.
'Hostel’ is not defined by the EPA Regulation, and therefore the definition of ‘hostel’ set out by the Standard Instrument applies, as per s 3(2) of the EPA Regulation. Hostel is defined by the Standard Instrument as follows:
hostel means premises that are generally staffed by social workers or support providers and at which—
(a) residential accommodation is provided in dormitories, or on a single or shared basis, or by a combination of them, and
(b) cooking, dining, laundering, cleaning and other facilities are provided on a shared basis.
The parties advise that as per the Operational Plan of Management filed with the s 34 agreement the proposed hostel is to provide residential accommodation in the form of single occupancy units (SOUs) and is to provide dining, cleaning and other facilities to the residents on a shared basis. Therefore, the definition of ‘hostel’ at [42] above is satisfied.
The EPA Regulation defines BASIX building as follows:
a building that contains at least 1 dwelling but does not include
(b) a boarding house, hostel or co-living housing that
(i) accommodates more than 12 residents, or
(ii) has a gross floor area exceeding 300 square metres.
As per the Statement of Environmental Effects filed with the s34 agreement, the proposed hostel accommodates a maximum of 18 residents and has a gross floor area of 1,057m2. Therefore, (i) and (ii) of the definition at [44] above are satisfied and the proposed development is not defined as a BASIX building for the purposes of the Regulation.
Accordingly, the Court accepts that a BASIX Certificate is not required for the proposed development.
Having considered the advice of the parties provided above at [16]-[48], I am satisfied that:
The Applicant’s further amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;
The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and
Approval of the proposed development is in the public interest.
Further, 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.
The Court notes:
That Canterbury-Bankstown Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to development application DA-365/2025 made on 8 December 2025 to rely on the documents specified below:
(a) Architectural plans prepared by Calder Flower Architects Pty Ltd as follows:
| Drawing No. | Description | Date | Revision | | A001 | New Site Plan | 14.11.2025 | C | | A002 | Building Classification Plans | 14.11.2025 | E | | A010 | Fire Compartment Plan – Ground Floor | 14.11.2025 | C | | A011 | Fire Compartment Plan – First Floor | 14.11.2025 | C | | A100 | Existing Ground Floor Plan – Level 1 | 14.11.2025 | C | | A101 | Existing Ground Floor Plan – Level 2 | 14.11.2025 | C | | A102 | New Ground Floor Plan – Level 1 | 14.11.2025 | F | | A103 | New Ground Floor Plan – Level 2 | 14.11.2025 | E | | A200 | Existing Elevations | 14.11.2025 | C | | A210 | Existing Sections | 14.11.2025 | C | | A400 | Room Details/Details | 14.11.2025 | A |
(b) BCA Assessment Report prepared by Blackett Maguire & Goldsmith Pty Ltd dated 12 November 2025 (c) Letter prepared by Pikes and Verekers Lawyers Pty Ltd dated 17 November 2025 (d) CPTED Report prepared by DFP Planning Pty Ltd dated 17 November 2025 (e) Operational Plan of Management prepared by DFP Planning Pty Ltd dated 13 November 2025 (f) Statement of Environmental Effects prepared by DFP Planning Pty Ltd dated 17 November 2025 (g) Waste Management prepared by DFP Planning Pty Ltd dated 17 November 2025
The Court orders that:
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $4,000.
The appeal is upheld.
Development Application DA-365/2025 for the change of use of an existing building from a residential care facility to seniors housing (hostel), community facility, ancillary offices and associated works for BCA compliance at 253 Cooper Road, Yagoona, NSW, 2199, legally known as Lot 6 in DP 227677, is determined by the grant of development consent subject to the conditions of consent in Annexure A.
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Chinese Australian Services Society Ltd
Canterbury-Bankstown Council [2026] NSWLEC 1085