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Legend Australian Investment Pty Ltd v City of Parramatta Council [2026] NSWLEC 1044 | Case summary | Zoe

NSWNSWLEC

Legend Australian Investment Pty Ltd v City of Parramatta Council

[2026] NSWLEC 1044

Land and Environment Court (NSW)|2026-02-06|Before: Dickson C

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-02-06

Before

Dickson C

Catchwords

DEVELOPMENT APPLICATION – demolition and construction of a co living
development – conciliation conference- amended plans
and documents –
agreement between the parties – orders made.

Source

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Catchwords

DEVELOPMENT APPLICATION – demolition and construction of a co livingdevelopment – conciliation conference- amended plansand documents –agreement between the parties – orders made.

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Legend Australian Investment Pty Ltd v City of Parramatta Council [2026] NSWLEC 1044

Hearing dates: Conciliation conference 21 January 2025, 23 January 2026

Date of orders: 06 February 2026

Decision date: 06 February 2026

Jurisdiction: Class 1

Before: Dickson C

Decision: The Court orders that:
(1) The appeal is upheld.
(2) 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 are thrown away as a result of amending the Development Application in the agreed amount of $5,000.00 within 14 days of this order.
(3) Development Application DA/324/2024 for the demolition of all existing structures, tree removal and construction of a 5-storey co-living housing development comprising of 41 rooms over basement carparking at 36 Keeler Street, Carlingford (Lot 8 in DP 202217) is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords: DEVELOPMENT APPLICATION – demolition and construction of a co living development – conciliation conference- amended plans and documents – agreement between the parties – orders made.

COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application DA/324/2024. As amended the development application seeks consent for demolition of the existing structures on the site and construction of a 5 storey co-living residential development with basement parking. The development is proposed at 36 Keeler Street, Carlingford (Lot 8 in DP 202217).
A conciliation conference was held between the parties on 21 January 2025. Following the conciliation conference, the Applicant made amendments to their development application responsive to the Respondent's contentions, however the conciliation was ultimately terminated on 2 June 2025, and the matter was listed for hearing. Notwithstanding the termination of the conciliation conference, the parties continued to negotiate in relation to the form of the development and appropriate conditions of consent. These negotiations were productive and the parties reached an agreement based on an amended development application. The parties’ agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A. The parties sought a further conciliation conference which was arranged for 23 January 2026 and the hearing was adjourned. I presided over the further conciliation conference.
The parties’ agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMilan) at [51].
As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions see McMillan at [51]. I form this state of satisfaction on the basis that:
The development application was lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation). Further, the conditions of consent in Annexure A include a condition requiring the creation of drainage easement over land at 38 Keeler Street, Carlingford. Owners consent for this drainage easement has been provided by this landowner, which is an adequate arrangement Georges River Council v Eskander [2024] NSWLEC 98 at [58].
The development application was notified by the Respondent from 20 June to 11 July 2024 and 24 submissions were received. Following the changes to the development application, the amended development application was notified by the Respondent from 18 December 2025 to 19 January 2026. One submission was received which raised concern about the potential for the development to generate adverse traffic and parking impacts. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires a consent authority to consider the contamination of land when determining a development application. The historical use of the site was as part of the grounds of a residential dwelling. This history is detailed in the Statement of Environmental Effects (SEE). The parties agree, and I accept, that there is no evidence indicating the site may be contaminated. Further, the use of the site is proposed to remain as residential. On the basis of the preceding, and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.
The proposed development seeks consent to remove three trees. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. The development includes planting eight trees, and the landscape plan forms part of the approved plans in Annexure A. On this basis I can be satisfied that the provisions of Ch 2 of SEPP BC are met.
Further pursuant to SEPP BC, the site is located within the Sydney Harbour Catchment as shown on the Sydney Harbour Catchment Map. Sections 6.6, 6.7, 6.8, 6.9 and 6.10 of SEPP BC contain matters which the consent authority must consider before the grant of consent. In undertaking these considerations, I am assisted by the SEE, the Stormwater Management Plans, the Landscape Plans which form part of the development application and the annexed conditions which confirm that the concept stormwater drainage design meets the requirements of SEPP BC.
Further, in determining the development application I am satisfied that the proposal appropriately considers the matters set out at ss 6.6, 6.7, 6.8, 6.9 and 6.10 of SEPP BC, which deal with mandatory water quality, aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, and adverse environmental impacts on any adjacent or downstream local government areas. The parties agree, and I accept, that no clearing is proposed nor is consent sought under the Water Management Act 2000 (NSW) or the Fisheries Management Act 1994 (NSW). There are no known wetlands or significant aquatic ecology that will be affected by the proposed development. Further, the proposed development will not result in the release of pollutants or affect water quality in the locality nor alter the natural recession of water.
The development application relies on s 67 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) to be permissible. Further, s 68 provides non-discretionary development standards for co-living housing. The amended development application complies with these standards. Section 69(1) contains development standards to which the Court must be directly satisfied are met. I am satisfied that the standards listed at s 69(1)(a) through (h) are met by the amended development application. Section 69(2) of SEPP Housing details matters which must be considered prior to the grant of consent. The parties have provided an assessment of the amended development application against those standards. In determining the development application, I have considered the matters in ss 68 and 69 of SEPP Housing.
Pursuant to the Parramatta Local Environmental Plan 2023 (LEP 2023) the site is zoned R4 High Density Residential. In determining the development application, I have given consideration to the zone objectives. The proposed use, co-living housing, is prohibited in the zone. However, co-living housing is permitted, pursuant to s 67(b) of SEPP Housing, as development for the purposes of residential flat buildings and shop top housing are permitted in the R4 zone.
Demolition is permitted with consent pursuant to cl 2.7 of LEP 2023.
Pursuant to cl 4.3 Height of Buildings in LEP 2023, the maximum permissible building height for the site is 17.5m. The amended development application has a maximum building height of 18.497m. The proposed non -compliance relates to the lift overrun and minor roof elements.
Accordingly, the development application seeks a variation to the development standard pursuant to cl 4.6 of LEP 2023. The development application is accompanied by a written request to vary the standard. I have read the written request prepared by Think Planners dated November 2025 and in accordance with cl 4.6 of LEP 2023, I am satisfied that:

Clause 4.4(2) of LEP 2023 provides for a maximum floor space ratio (FSR) for the site of 1.3:1. Applying, s 68(2)(a) of SEPP Housing the development results in a 10% bonus, with a resulting permissible FSR of 1.43:1. The proposed development is compliant with this standard.
The site is not a listed heritage item, nor is it located with a heritage conservation area. However, the site is in proximity to heritage items in the locality. The parties agree and I accept that the proposed development, due to the physical separation, will have a neutral impact on the locally listed heritage item is the locality.
Pursuant to cl 5.21 ‘Flood Planning’ of LEP 2023 the site is identified as flood prone. The development application is accompanied by a Flood Investigation Report which concludes that the proposed development meets the requirements of LEP 2023 and is consistent with the NSW Flood Risk Management Manual. I accept that the requirements of cl 5.21 of LEP 2023 are met.
Clause 6.2 ‘Earthworks’ of LEP 2023 requires the consent authority to consider certain matters prior to the grant of consent. Clause 6.2 Earthworks applies as the development application involves excavation for the basement and lift pit. The development application is accompanied by a geotechnical report prepared by Stantec Australia dated 5 March 2024. I accept the agreement of the parties that based on the findings and recommendations of this report I can be satisfied that the excavation proposed in the development application will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. Further, appropriate conditions of consent have been included to address required earthworks and the potential impacts of same. In determining whether to grant development consent, I have given consideration to the matters at cl 6.2 and find that none warrant the refusal of the application.
Clause 6.4 ‘Stormwater’ of LEP 2023 requires the consent authority to give consideration to the listed matters in determining a development application. With the assistance of the stormwater engineering plans prepared by Hydracor, I accept the agreement of the parties, that in considering those matters, none warrant the refusal of the development application.
Pursuant to cl 6.12 ‘Essential Services’, I am satisfied that the site is currently, and will remain, serviced by the listed services.
Parramatta Development Control Plan 2023 (DCP 2023) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP 2023. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.
Having reached the state of satisfaction that the decision is one that the Court could make 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)).
In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, 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.