JYH Group Pty Ltd ATF TH Investment Trust v Cumberland Council

Category: Principal judgment

Parties: JYH Group Pty Ltd ATF TH Investment Trust (Applicant)
Cumberland Council (Respondent)

Representation: Counsel:
G McKee (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Cumberland Council (Respondent)

File Number(s): 2024/289619

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Cumberland Council (the Council) of DA2024/0278 (the Development Application) for the demolition of the existing structures and construction of a new co-living house (the Proposed Development) on land at 26 Railway Terrace, Granville NSW 2142, being Lot 4 in DP86648 (the Site).

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 Site and at Council chambers.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to cl 38 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A.

4. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to Jurisdiction

5. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.

Cumberland Local Environmental Plan 2021 (CLEP)

6. The land is zoned R4 High Density Residential under the CLEP.

7. Development for the purposes of co-living housing is prohibited within the R4 High Density Residential zone. However, co-living housing is permissible with consent pursuant to s 67(b) of the State Environmental Planning Policy (Housing) 2021 by virtue of residential flat buildings and shop top housing being permitted in the R4 zone under the CLEP.

8. Clause 2.3 of CLEP indicates that regard must be had to the zone objectives when determining the modification application. The zone objectives for the R4 High Density Residential zone are set out in the Statement.

9. I accept the parties’ assessment and conclusions that the development application, as amended, aligns with the objectives of the zone as the proposed co-living housing responds to an undersupply of co-living specific housing in the Cumberland local government area, the site is close to public transport, local shops and education facilities, and the development is sited and arranged to minimise impact on residential amenity [Statement, para 28].

10. Regarding cl 4.3 Height of Buildings – the maximum permissible building height for the Site is 18m whereas the Proposed Development has a maximum building height of 19.0m. Accordingly a cl 4.6 request is required and the parties advise as follows: [Statement paras 31]

“The DA as amended is supported by a clause 4.6 request prepared by Minto dated 11 February 2025. The clause 4.6 request provides a detailed assessment of clause 4.6 and its objectives, whether compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, whether there are sufficient planning grounds to justify the contravention of the development standard and whether the DA as amended will be in the public interest. The clause. 4.6 request concludes that:

“**It is therefore my opinion based upon the content of this submission that a variation of the maximum height of building control as required by clause 4.3 of the Cumberland LEP is appropriate in this instance.””

11. The Court accepts and agrees with the parties’ position and I am satisfied to make the finding that the Applicant’s written request under cl 4.6 of the CLEP to vary the height of buildings control under cl 4.3 of the CLEP for the Proposed Development, as amended, at 26 Railway Terrace, Granville NSW 2142, is upheld.

12. The parties set out other relevant clauses of the CLEP in the Statement at paragraphs 32 to 40 and I am satisfied with their analysis in so far as jurisdiction is concerned.

State Environmental Planning Policies (SEPPs)

13. I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in detail in the parties’ Statement, and agree with the parties’ conclusions that no jurisdictional impediments arise pursuant to:

14. State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. State Environmental Planning Policy (Resilience and Hazards) 2021

16. State Environmental Planning Policy (Housing) 2021

17. As mentioned above, the Proposed Development for co-living housing is permissible as co-living housing with consent under s 67(b) of the State Environmental Planning Policy (Housing) 2021*.*

18. The parties advise as follows: Statement paras 41 to 46 (extract)

“Chapter 3, Part 3 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) establishes an approval pathway for co-living housing and sets out a series of development standards, including floor space ‘incentives’, that apply to such development. The development application relies on s67 of the SEPP Housing for permissibility and the pathway to approval, as described above in paragraph 26. Section 68 contains minimum standards that cannot be used to refuse consent. … Section 69(1) contains development standards and other subjective standards for co-living housing developments. The parties’ calculations for those standards……. Section 69(2) specifies matters that must be considered before development consent can be granted.

16. The parties’ Statement sets out in three tables a compliance table for the minimum standards, calculations for the development standards and other subjective standards for co-living housing developments, and matters for consideration under s 69(2) and s 70 before consent can be granted: Statement paras 43, 44, 45.

Public Consultation

17. The Development Application was notified by Cumberland Council from 11 July 2024 to 25 July 2024. Two submissions were received. A summary of the content of public submissions is addressed at paragraph 53 of the respondent’s SOFAC. The parties agree that having regard to amendments made and conditions of consent agreed upon, the submissions do not raise matters that warrant refusal of the DA.

18. One neighbour attended on Site to address her concerns and ask questions. The Applicant’s solicitor was able to explain aspects of the Proposed Development, as modified. I am satisfied that the objectors’ reasonable concerns were considered by the parties and the objectors were accorded procedural fairness.

Conclusion

19. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

20. 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. 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.

Notations

21. The Court notes:

22. Cumberland Council as the relevant consent authority has agreed, under cl 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application number DA2024/0278 in accordance with the plans and documents listed below:

| Reference/Dwg No | Title/Description | Prepared By | Date/s | | A003 Rev C | Demolition Plan | Texco Design | 24/1/2025 | | A004 Rev C | Site Plan | | A101 Rev C | Basement Plan | | A102 Rev C | Ground Floor Plan | | A103 Rev C | Level 01 Plan | | A104 Rev C | Level 02 Plan | | A105 Rev C | Level 03 Plan | | A106 Rev C | Level 04 Plan | | A107 Rev C | Level 05 Plan | | A108 Rev C | Roof Plan | | A201 Rev C | East Elevation & West Elevation | | A202 Rev C | North Elevation | | A203 Rev C | South Elevation | | A301 Rev C | Section A | | A302 Rev C | Section B | | A303 Rev C | Section C | | A401 Rev C | Schedule of Materials and Finishes | | A402 Rev C | Schedule of Materials and Finishes | | A403 Rev C | Schedule of Materials and Finishes | | SW100 Rev 4 | Coversheet | JCO Consultants Pty Ltd | 29/1/2025 | | SW101 Rev 4 | General notes and specifications | | SW200 Rev 4 | Basement Plan | | SW201 Rev 4 | Ground Floor Plan | | SW202 Rev 4 | Roof Plan | | SW300 Rev 4 | Details Sheet 1 | | SW301 Rev 4 | Details Sheet 2 | | SW302 Rev 4 | Details Sheet 3 | | SW400 Rev 4 | OSD Catchment Plan | | SW500 Rev 4 | Stormwater Longitudinal Sections | | SW600 Rev 4 | Erosion and Sediment Control Plan & Details |

| Document Name | | Date | Prepared By | | Flood Risk Management Report Rev C | | 13 December 2024 | JCO Consultants | | Clause 4.6 submission – Exceptions to height of building development standards (Height of Building) | | 11 February 2025 | Minto Planning Services | | Waste Management Plan | | 24 January 2025 | Gateway Consulting Group | | Traffic Impact Assessment | | 13 December 2024 | Genesis Traffic |

Orders:

22. The Court orders:

23. The appeal is upheld.

24. Development Application DA2024/0278 for the demolition of existing structures and the construction of a 44 room co-living housing development at 26 Railway Terrace, Granville, NSW 2142, being Lot 4 DP86648, is determined by the grant of consent subject to the conditions set out in Annexure A.

25. The Applicant is to pay the costs of the respondent thrown away Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of amending the Development Application, in the agreed amount of $1,500 to be paid within 28 days of the date of these orders.

L Byrne

Acting Commissioner of the Court

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289619.2024 Annexure A