//
[2025] NSWLEC 1900
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-17
Porter C
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: CNC Assets Holdings Pty Ltd v The Hills Shire Council [2025] NSWLEC 1900
Hearing dates: Conciliation conferences on 5 December 2025
Date of orders: 17 December 2025
Decision date: 17 December 2025
Jurisdiction: Class 1
Before: Porter C
Decision: The Court orders:
(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 consent authority that are thrown away as a result of amending the Development Application in the agreed amount of $7,000.00.
(2) The appeal is upheld.
(3) Development Application 991/2025/HA for the demolition of existing buildings and the construction of a co-living housing development comprising 52 double rooms and four communal living areas at 9 Ashford Avenue, Castle Hill is determined by the grant of consent subject to the conditions set out in Annexure A.
Catchwords: DEVELOPMENT APPLICATION – co-living - conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38
The Hills Local Environmental Plan 2019, cll 2.3, 2.7, 4.3, 4.4, 4.6, 7.2, 9.2, 9.5
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, 6, ss 6.6, 6.7, 6.8, 6.11, 6.12, 6.13
State Environmental Planning Policy (Housing) 2021, Pt 3, ss 67, 68, 69
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Texts Cited: The Hills Development Control Plan 2012
Category: Principal judgment
Parties: CNC Assets Holdings Pty Ltd (Applicant)
The Hills Shire Council (Respondent)
Representation: Counsel:
G McKee (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)
Solicitors:
McKees (Applicant)
Marsdens (Respondent)
File Number(s): 2025/50100
Publication restriction: Nil
COMMISSIONER: This is a Class 1 development appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application 991/2025/HA. The development application seeks consent for the demolition of the existing structures and construction of a seven storey co-living development with basement parking (DA) at 9 Ashford Avenue, Castle Hill (Lot 232 in DP 249973).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 5 December 2025. I presided over the conciliation conference.
The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending DA 991/2025/HA in accordance with the documents listed below:
| Reference/Dwg No | Title/Description | Prepared By | Date/s | | | Architectural Plans | | | A000 Rev D | Cover Page | Texco Design ______________ ______________ | 28/08/2025 30/09/2025 | | | A001 Rev D | Section J Commitments | | | A002 Rev D | Survey | | | A003 Rev D | Demolition Plan | | | A004 Rev D | Tree Removal Plan | | | A005 Rev D | Site Plan | | | A006 Rev D | Site Analysis | | | A007 Rev D | Streetscape Analysis | | | A008 Rev D | GFA Calculation | | | A009 Rev D | Unit Schedule | | | A010 Rev D | Unit Schedule | | | A011 Rev D | Communal Living Area | | | A012 Rev D | Communal Open Space | | | A013 Rev D | Landscape and Deep Soil Calculation | | | A014 Rev D | Sun Eye Diagram — 21st June | | | A015 Rev D | Shadow Diagram — 21st June | | | A016 Rev D | Evacuation Diagram | | | A017 Rev D | Height Limit Diagram | | | A101 Rev D | Basement 1 Plan | | | A102 Rev E | Ground Floor Plan | | | A103 Rev D | Level 1 Plan | | | A104 Rev D | Level 2 Plan | | | A105 Rev D | Level 3 Plan | | | A106 Rev D | Level 4 Plan | | | A107 Rev D | Level 5 Plan | | | A108 Rev D | Level 6 Plan | | | A109 Rev D | Roof Plan | | | A201 Rev D | North Elevation | | | A202 Rev D | South Elevation | | | A203 Rev D | West Elevation | | | A204 Rev D | East Elevation | | | A301 Rev D | Section 01 | | | A302 Rev D | Section 02 | | | A303 Rev D | Ramp Section | | | A304 Rev D | Section Details | | | A401 Rev D | Material Schedule | | | A402 Rev D | Doors Schedule | | | A403 Rev D | Windows Schedule | | | A404 Rev D | Typical Kitchen Details | | | Civil Plans | | | S100 Revision 07 | Cover Sheet | Deboke Engineering Consultants | 02/09/2025 | | | S101 Revision 07 | Specifications Sheet | | | S200 Revision 07 | General Arrangement Plan | | | S300 Revision 07 | Slope Analysis Plan | | | S301 Revision 07 | Bulk Earthwork Plan | | | S400 Revision 07 | Driveway Long Sections | | | S500 Revision 07 | Council Standard Drawings | | | Landscaping Plans | | | Sheet 01 Rev C | Hardscape Plan | Conzept Landscape Architects | 29/08/2025 | | | Sheet 02 Rev C | Soil Depth Plan | | | Sheet 03 Rev C | Landscape Plan – GF | | | Sheet 04 Rev C | Landscape Plan - L4 | | | Sheet 05 Rev C | Planting Palette | | | Sheet 06 Rev C | Details & Specification | | | Sheet 07 Rev C | Sections | | | Stormwater Plans | | | S100 Revision 06 | Cover Sheet | Deboke Engineering Consultants | 02/09/2025 | | | S101 Revision 06 | Specifications Sheet | | | S200 Revision 06 | Basement Floor Plan | | | S201 Revision 06 | Ground Floor Plan | | | S300 Revision 06 | Details Sheet 1 of 5 | | | S301 Revision 06 | Details Sheet 2 of 5 | | | S302 Revision 06 | Details Sheet 3 of 5 | | | S303 Revision 06 | Details Sheet 4 of 5 | | | S304 Revision 06 | Details Sheet 5 of 5 | | | S400 Revision 06 | Erosion and Sediment Control Plan | | | Document Name | | Date | Prepared By | | Access 2022 A1 Indicative Compliance Report | Issue v2.0 | 16/07/2025 | Building Innovations Australia | | Arborist Report | Version 5 | 17/07/2025 | Arbor Express | | Clause 4.6 Variation to Development Standards (Height of Building) | | 30/10/2025 | Minto Planning Services | | NCC 2022 Section J DTS Report | | 15/07/2025 | AENEC | | Proposed Residential Redevelopment Geotechnical Investigation Report | Version 1 | 26/06/2025 | Elite Geosciences | | Supplementary Geotechnical and Groundwater Assessment | | 26/06/2025 | Elite Geosciences | | Traffic Impact Assessment | Version 4 | 30/09/2025 | Genesis Traffic | | Traffic Operation Plan | Version 3 | 30/09/2025 | Genesis Traffic | | Waste Management Plan | Rev B | 17/07/2025 | Gateway Consulting Group |
The parties reached 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 for the amended DA and granting development consent to the amended application subject to conditions of consent.
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.
As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.
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 considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65] and Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202] (Al Maha).
I have carried out the required jurisdictional check. For the reasons set out below, 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.
The Respondent notified the DA between 20 December 2024 and 1 February 2025. 26 submissions were received. The amended plans were renotified between 30 September 2025 and 15 October 2025 where nine submissions were received.
Different from the consideration of the Court at a hearing, as the parties have entered into an agreement, the Court’s role is limited to ensuring that there is power to grant consent, and not to considering the merits of the issues raised in Al Maha.
In reaching agreement, the parties have advised the Court that they considered the concerns raised in the objections.
The requirements of Ch 2 do not apply as development consent is sought through the amended DA for the removal of trees and replacement with 17 trees.
Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies as the site is located within the Hawkesbury Nepean Catchment Area. The amended DA is accompanied by the following reports and documentation:
Civil Plans prepared by Deboke Engineering Consultants dated 2 September 2025 (Civil Plans).
Stormwater Drainage Plans prepared by Deboke Engineering Consultants dated 2 September 2025 (Stormwater Plans).
Geotechnical Investigation Report dated 16 September 2024, Proposed Residential Redevelopment Geotechnical Report dated 26 June 2025, Supplementary Geotechnical and Groundwater Assessment dated 26 June 2025, all prepared by Elite Geosciences Pty Ltd (Geotech Reports).
The parties agree and I accept that the provisions of ss 6.6, 6.7, 6.8, 6.11, 6.12 and 6.13 have been satisfied on the basis of the above documents and jurisdictional statement. Sufficient stormwater and flood management measures have been implemented by the development to minimise impacts on adjoining properties, natural waterways (Cattai Creek) or the Riverine Scenic Area. I accept that the proposal will have a neutral or beneficial effect on water quality and that flora, fauna or other environmental areas identified by the BC SEPP have been adequately managed by the proposed development.
As set out in the jurisdictional statement and demonstrated by the documentation accompanying the amended DA, the parties agree, and I accept that the identified preconditions to the grant of consent in Pt 3 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) are met.
The proposal relies on s 67 of the Housing SEPP for permissibility. The R4 High Density zone in The Hills Local Environmental Plan 2019 (HLEP) permits residential flat buildings and therefore, co-living is permitted with consent pursuant to s 67 of the Housing SEPP.
The amended DA is consistent with the criteria of ss 68 and 69 as follows:
Section 68(2)(a) – FSR – accounting for the bonus FSR of 10%, the maximum FSR is 1.76:1. The amended DA is 1.73:1.
Section 68(2)(b) – N/A.
Section 68(2)(c) – Communal Living Space – 122m2 of communal living space is required. The architectural plans demonstrate communal living spaces of 128.15 m2 that exceed the minimum dimension of 3m2.
Section 68(2)(d) – Communal Open Space (COS) – a minimum of 20% COS or 195.28m2 in this instance is required. The architectural plans demonstrate 221.1m2.
Section 68(2)(e) – Carparking – 11 spaces are required and provided.
Section 68(2)(g) – Landscaping and deep soil – minimum deep soil requirement is 83.1m2 and 232.58m2 is provided. The minimum landscaping is 488.2m2, 491.67m2 is provided.
Section 69(1)(a) – floor space per room – all rooms do no exceed 25m2. All double rooms are at least 16m2 excluding the requisite areas, as shown on the architectural plans.
Section 69(1)(b)(ii) – minimum lot size – the site exceeds 800m2.
Section 69(1)(d) – the development contains a workspace for the manager as demonstrated by the architectural plans on the ground floor.
Section 69(1)(f) – services – adequate kitchen, bathroom and laundry services are provided in each room as shown on the architectural plans and detailed in the jurisdictional statement.
Section 69(1)(g) – The proposal is for a maximum of two occupants in each double room.
Section 69(1)(h) – adequate bicycle and motorbike parking facilities are provided.
Section 69(2)(a)(i) – the proposed setbacks seek a variation to the setback requirements in The Hills Development Control Plan 2012, Part D Section 19 Showground Station Precinct (DCP). I accept the parties’ agreement that the variation sought is warranted given the irregular shape of the site.
Section 69(2)(b) – the amended DA complies with the minimum building separation distances.
Section 69(2)(c) - the communal living areas on levels 4, 5 and 6 receive three hours of solar access between 9am and 3pm on the winter solstice.
Section 69(2)(f) – the proposed development is consistent with the desired future character of the area. The area is one undergoing transition.
I accept the parties’ agreement that the identified preconditions to grant consent are satisfied as detailed below.
The site is zoned R4 High Density Residential. The proposed development for a co-living development is not permissible in the zone, but relies on the Housing SEPP for permissibility. Pursuant to cl 2.3, the parties have had regard to the objectives of the zone as set out in the jurisdictional statement.
Clause 2.7 permits demolition with consent.
Clause 4.3 height of buildings applies to the site, with a maximum height of 21m. The amended DA seeks a variation to the height limit, with a maximum height of 22.085m as shown on the architectural plans prepared by Texco Design Revision D (architectural plans) and stated in the Clause 4.6 Exceptions to Development Standards (Height of Buildings) prepared by Minto Planning Consultants (written request). I accept that the written request adequately demonstrates the grounds relied on to satisfy cl 4.6(3)(a) and (b).
Clause 4.4 floor space ratio (FSR) applies a maximum FSR of 1.6:1. However, s 68(2) of Housing SEPP permits an additional 10% FSR for co-living, resulting in a maximum allowable FSR of 1.76:1. The proposal complies, with an FSR of 1.73:1.
Clause 7.2 earthworks applies to the proposal. I accept the parties’ agreement on the basis of the Geotech Reports that the provisions have been adequately consideration.
Clause 9.2 applies as the site is within the Showground Station Precinct. The proposal includes the required dedication of 2m of land over the front boundary of Ashford Avenue and the FSR calculations have been undertaken in accordance with the clause.
Clause 9.5 design excellence applies to the proposed development. The Urban Design Report prepared by TEXTCO Design (undated), SEE and jurisdictional statement set out how the proposed development satisfies the design excellence provisions. The Respondent detailed that they engaged the services of an urban designer who has considered that the provisions has been satisfied.
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.
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 orders:
The appeal is upheld.
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 consent authority that are thrown away as a result of amending the Development Application in the agreed amount of $7,000.00.
Development Application 991/2025/HA for the demolition of existing buildings and the construction of a co-living housing development comprising 52 double rooms and 4 communal living areas at 9 Ashford Avenue, Castle Hill is determined by the grant of consent subject to the conditions set out in Annexure A.
**********
CNC Assets Holdings Pty Ltd
The Hills Shire Council [2025] NSWLEC 1900
(2018) 233 LGERA 170
(2023) 111 NSWLR 634