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[2025] NSWLEC 1729
General information, not legal advice.
Land and Environment Court (NSW)
2025-10-17
O’Neill C
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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: Moini Pty Limited v Inner West Council [2025] NSWLEC 1729
Hearing dates: Conciliation conference on 23 September 2025
Date of orders: 17 October 2025
Decision date: 17 October 2025
Jurisdiction: Class 1
Before: O’Neill C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to
s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed amount of $5,000 within 28 days of these orders.
(3) Development Application No. 2024/0694, as amended, for partial demolition of the existing structures and construction of a new mixed-use retail and co-living housing development containing 104 co-living rooms, ground floor retail premises and a basement level, at 45-57 Parramatta Road, Annandale, is determined by the grant of consent, subject to the conditions of consent at Annexure A.
Catchwords: DEVELOPMENT APPLICATION — mixed use retail and co-living housing development — conciliation conference — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 8.7 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), s 38 Inner West Local Environmental Plan 2022, cll 4.4, 4.6, 5.10, 6.2, 6.9, 6.13 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.1, 6.6 State Environmental Planning Policy (Housing) 2021, ss 67, 68, 69 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.122
Cases Cited: Cumming v Cumberland Council (No 2) [2021] NSWLEC 117
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Category: Principal judgment
Parties: Moini Pty Limited (Applicant)
Inner West Council (Respondent)
Representation: Counsel:
A Pickles SC (Applicant)
T To (Respondent)
Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)
File Number(s): 2024/360872
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. 2024/0694 for partial demolition of the existing structures and construction of a new mixed-use retail and co-living housing development containing 104 co-living rooms, ground floor retail premises and a basement level (the proposal), at 45-57 Parramatta Road, Annandale (the site), by Inner West Council (the Council).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 23 September 2025. I presided over the conciliation conference. 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. 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.
| DOCUMENT | DATE | | Schedule of Amendments prepared by DesignInc | 22 September 2025 | | Amended Architectural Plans (Rev 5) prepared by DesignInc • DA000 Cover Page • DA012 Site Plan • DA013 Site Analysis • DA050 Floor Plan - Demolition - Ground • DA051 Floor Plan - Demolition - Level 1 • DA053 Floor Plan - Demolition - Roof • DA055 Section - Demolition • DA056 Section - Demolition • DA057 Section - Demolition • DA058 Section - Demolition • DA059 Section - Demolition • DA060 Section - Demolition • DA061 Elevation - Existing Facade • DA080 Urban Context - Ground Floor • DA081 Urban Context - Roof • DA085 Urban Context - Privacy Section • DA100 Plan - Proposed - Basement • DA101 Plan - Proposed - Ground • DA102 Plan - Proposed - Level 01 • DA103 Plan - Proposed - Level 02 • DA104 Plan - Proposed - Level 03 • DA105 Plan - Proposed - Level 04 • DA106 Plan - Proposed - Roof • DA200 Elevation - North (Courtyard) • DA201 Elevation - East • DA202 Elevation - South • DA203 Elevation - West • DA204 Elevation - South (Courtyard) • DA205 Elevation - North • DA250 Section A • DA251 Section B • DA252 Section C • DA253 Section D • DA254 Section E - Driveway • DA255 Section F • DA400 General Layout - GFA • DA410 General Layout - Compliance • DA490 Shadow Diagrams Sheet 1 • DA491 Shadow Diagrams Sheet 2 • DA492 Views From Sun Sheet 1 • DA493 Views From Sun Sheet 2 • DA500 DA - Material Board | 23 September 2025 | | Clause 4.6 Request – Car Parking prepared by Minto Planning Services | 18 September 2025 | | Revised Traffic and Parking Assessment Report prepared by Varga Traffic Planning | 9 September 2025 | | Clause 4.6 Request – FSR prepared by Minto Planning Services | 23 September 2025 | | Plan of Management, prepared by Minto Planning Services | 23 September 2025 | | Stormwater Management Plans (Rev E), prepared by Capital Engineering Consultants • SW001 – Stormwater Layout Plan Cover Sheet • SW010 – Stormwater Layout Plan Basement Floor Plan Notes & Details • SW020 – Stormwater Layout Plan Ground Floor plan Notes & Details (1/2) • SW021 – Stormwater Layout Plan Ground Floor Plan Notes & Details (2/2) • SW022 – Stormwater Layout Plan Onsite Detention Plan, Notes & Details • SW023 – Stormwater Layout Plan WSUD Plan, Notes & Details • SW024 – Stormwater Layout Plan Onsite Detention Plan, Notes & Details • ER001 – Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details • ER002 – Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details | 2 September 2025 | | Revised Remedial Action Plan, prepared by Reditus | 22 September 2025 | | Revised Access Report, prepared by Vista Access Architects | 17 September 2025 | | Updated Flood Modelling, prepared by Capital Engineering Consultants | 1 September 2025 | | Updated Survey Plan, prepared by CMS Surveyors | 22 September 2025 | | Landscape Plans (Rev B), prepared by Design Inc • DA800 – Cover Page Landscape • DA801 – General Legend and Note • DA803 – Planting Schedule • DA805 – Material Schedule • DA810 – Landscape GA Plan Ground Floor • DA811 – Landscape GA Plan 5th Floor • DA830 – Sections and Elevations – Sheet 1 • DA840 – Typical Details – Sheet 1 • DA841 – Typical Details – Sheet 2 • DA842 – Typical Details – Sheet 3 • DA843 – Typical Details – Sheet 4 | 22 September 2025 |
Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to any development 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.
A Preliminary Site Investigation and Detailed Site Investigation have been prepared in relation to the site by Reditus Consulting. The Detailed Site Investigation concludes that the site could be made suitable for the proposed use and that a remedial action plan would need to be prepared and implemented. A Remedial Action Plan (RAP) prepared by Reditus Consulting dated 22 September 2025, provides that:
Appropriate contingencies and controls have been made to accommodate data gaps and unexpected finds during the remediation phase. All remediation works will be subject to appropriate documentation and validation sampling to confirm, or otherwise, the suitability of the site following implementation of the remedial works.
The RAP includes suitable provisions for the removal of the underground storage tank, excavation & disposal of tanks sands to reduce the risk of exposure to future site users. Further to this appropriate capping contingency protocols have been included to ensure the remedial works can occur alongside any geotechnical and heritage constraints at the site. The proposed remediation is considered appropriate to render the site suitable for the proposed ongoing commercial-industrial land use.
I am satisfied that the site can be made suitable for the proposed use pursuant to s 4.6 of the Resilience and Hazards SEPP.
In accordance with s 2.119 of the Transport and Infrastructure SEPP, a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that the development is safe and will not have an adverse effect on the safety, efficiency and ongoing operation of the classified road. The section applies to the application as the site has a frontage to Parramatta Road, a classified road. Vehicular access is proposed via this road.
The proposal is expected to have minimal impact on the safety, efficiency and ongoing operation of the classified road, with a small increase to the traffic movements during peak hours as confirmed in the Revised Traffic & Parking Assessment Report prepared by Varga Traffic Planning dated 9 September 2025. Given that there are 4 off-street car parking spaces, the traffic generation from the development will be minimal and is likely to yield a traffic generation of approximately 2 vehicles per hour. I am satisfied that the amended proposal complies with s 2.119 of the Transport and Infrastructure SEPP.
In accordance with s 2.122 of the Transport and Infrastructure SEPP, a consent authority must provide written notice to Transport for NSW (TfNSW) for residential accommodation that proposes over 75 dwellings and has access to a classified road. The application has been referred to TfNSW and revised concurrence was provided by TfNSW on 19 September 2025.
Section 67 of the Housing SEPP, co-living housing, applies to the amended proposal. Development for the purpose of co-living housing can be carried out with consent on land in a zone in which development for the purpose of co-living housing is permitted under another environmental planning instrument. Shop-top housing is permissible with consent in the E1 Local Centre zone of the Inner West Local Environmental Plan 2022 (LEP 2022). As a form of shop top housing, co-living housing located above commercial development is permitted with consent.
The application proposes 104 private rooms which requires 226m² amount of communal living area, in accordance with s 68(2)(c) of the Housing SEPP. The proposal provides for 240m² and is therefore compliant.
In accordance with s 68(2)(d) of the Housing SEPP, there is a non-discretionary development standard for communal open space of 20% of the site area with a dimension of 3m. A total area of 363m² of communal open space would meet the 20% standard. The proposed development provides for 421m².
In accordance with s 68(2)(e) of the Housing SEPP, for development on land in an accessible area, there is a non-discretionary standard of 0.2 parking spaces for each private room. The proposed development provides a car parking rate of 4 spaces, only one of which is allocated to the manager of the co-living development. Compliance with the standard would be achieved only if 22 spaces were provided for residents of the co-living development. I accept the parties’ agreement that strict adherence to the standard is unreasonable and unnecessary due to the following circumstances:
Off-street parking is proposed for a total of 80 bicycles and 4 motorcycles in a new basement parking area which also accommodates 4 off-street car parking spaces and a loading bay for 6.4m long SRV trucks;
Car share vehicles are positioned within the vicinity of the site and the use of car share vehicles is ideally suited to the needs of residents who do not own a car and do not need a car for regular trips such as the journey to work, but may need a car for a special purpose trip;
Existing bicycle routes located in the vicinity of the site and are readily accessible;
The site has excellent connectivity to reliable and frequent bus services and these connect with suburban rail services at Burwood, Ashfield, Lewisham, Central, Museum and Martin Place railway stations, offering a genuine alternative to private vehicle usage;
The bus services also provide direct access to multiple tertiary education in institutions such as the University of Sydney and University of Technology Sydney, as well as Royal Prince Alfred Hospital; and
The accessibility of the site by public transport services is ideally suited to the needs of essential workers such as hospital workers who require low cost, affordable housing near their place of work.
Section 69 of the Housing SEPP, standards for co-living housing, applies to the amended proposal. In accordance with s 69(1)(a), development consent must not be granted unless the consent authority is satisfied that the private rooms, excluding kitchen or bathroom facilities, are not greater than 25m2 and is not less than 12m² for rooms with single occupants 16m² otherwise. In accordance with s 69(1)(b), development consent must not be granted unless the consent authority is satisfied that the minimum lot size for a co-living housing is not less than 800m². The application proposes lot consolidation and will result in a total site area of 1,811m² and is compliant with the minimum lot size requirement.
In accordance with s 69(1)(d) of the Housing SEPP, development consent must not be granted unless the consent authority is satisfied that the co-living housing will contain an appropriate workspace for the manager. Adequate office workspace is provided for the manager on ground level.
Section 69(1)(e) of the Housing SEPP requires that for co-living housing on land in a business zone, no part of the ground floor that fronts the street will be used for residential purposes, unless another environmental planning instrument permits the use. Shop top housing is permitted in the E1 zone which allows for residential use at the street front.
In accordance with s 69(1)(f) of the Housing SEPP, development consent must not be granted unless the consent authority is satisfied that adequate bathroom, laundry and kitchen facilities will be available for the use of each occupant. All rooms within the amended proposal include a private kitchen, kitchenette, and shared laundry facilities and a communal kitchen is provided on the ground floor.
In accordance with s 69(1)(g) of the Housing SEPP, development consent must not be granted unless the consent authority is satisfied that each private room will be used by no more than 2 occupants. I am satisfied on the basis of the architectural plans and the conditions of consent that the private rooms will be occupied by no more than 2 occupants.
In accordance with s 69(1)(h) of the Housing SEPP, development consent must not be granted unless the consent authority is satisfied that adequate biking and motorcycle parking will be provided. The amended proposal provides for 80 bicycle spaces and 4 motorcycle spaces on basement level.
In accordance with s 69(2)(b)-(c) of the Housing SEPP, development consent must not be granted unless the consent authority is satisfied that the building will comply with the minimum building separation distances specified in the Apartment Design Guide, the provision of at least 3 hours of direct solar access between 9am and 3pm at mid-winter and the design of the building is compatible with the character of the area. The proposed setback is 19.8m². The shadow diagrams demonstrates that the proposal will receive direct solar access between 9am and 3pm at mid-winter.
Section 69(2)(f) of the Housing SEPP requires the consent authority to be satisfied that the design of the building will be compatible with the desirable elements of the local area or desired future character. I am satisfied, on the basis of the architectural plans and the agreement of the urban design and planning experts, that the amended proposal is compatible with the local area.
• To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.
• To encourage investment in local commercial development that generates employment opportunities and economic growth.
• To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.
• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.
• To provide employment opportunities and services in locations accessible by active transport.
• To provide retail facilities and business services for the local community commensurate with the centre’s role in the local centres hierarchy.
• To ensure Inner West local centres are the primary location for commercial and retail activities.
• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.
• To enhance the unique sense of place offered by Inner West local centres by ensuring buildings display architectural and urban design quality and contributes to the desired character and cultural heritage of the locality.
The site is located within the Annandale Heritage Conservation Area under LEP 2022 and contains a number of contributory items. The application is accompanied by a Heritage Impact Assessment Report, prepared by Weir Phillips Heritage dated August 2024 and an Addendum Statement of Heritage Impact prepared by Weir Phillips Heritage dated 24 July 2025, which conclude that the proposed development reflects a considered response to concerns around scale, context, amenity, and heritage integration. The application is also supported by a Fabric Survey prepared by Weir Phillips Heritage and a Building Condition Report prepared by Weir Phillips Heritage which provide information in relation to the condition of the facades along Parramatta Road and the subsequent measures required to rectify the existing damage and deterioration and ensure conservation of the retained heritage sections. A Structural Proposal Report, prepared by Structural Engineering Services dated 21 June 2025 provides measures to ensure that there will be no structural instability caused to the significant fabric of the existing walls.
I am satisfied that the requirements of cl 5.10(4) of the LEP 2022 are met as the amendments to the proposal have resulted in a more sympathetic building, in terms of bulk, scale and character, that better responds to the identified collective heritage significance of the Annandale Heritage Conservation Area and is more consistent with the desired future character of the Parramatta Road Commercial.
The site is identified as being affected in the 1% AEP Storm Event. A Flood Impact Assessment, prepared by Capital Engineering Consultants dated 22 July 2025, provides a detailed flood impact assessment and flood risk management plan. The report concluded that the proposed development does not have any adverse impacts on the flooding, nor does it increase flood levels and velocities in the neighbouring properties; occupants and visitors at an elevated risk are isolated from flooding areas exceeding Hazard Rating 'H1'; the proposed commercial areas are raised at or above the Flood Planning Level; and adequate provision for either on-site refuge or off-site evacuation is possible up to and including the PMF Storm Event for all intended usages of the development. I am satisfied that the flood mitigation measures provide a considerable degree of compatibility with the current and projected changes to flood behaviours as a result of climate change and that the proposed pool fencing reduces the risk of flooding to an acceptable level. It is agreed that the flood water is able to exit the site via two flow paths (consistent with the predevelopment conditions): (a) via 1A Trafalgar Street (rear adjoining lot), and (b) via existing breeze-way to Parramatta Road. Overflow of water via the pedestrian entry at Parramatta Road during a 1% storm event is satisfactory in circumstances where there is a reduction to the downstream overland flood levels and flooding is contained below the ramp in other modelled storm events (Supplementary Flood Modelling prepared by Capital Engineering Consultants dated 1 September 2025).
Pursuant to cl 6.2 of the LEP 2022, the consent authority must consider the potential detrimental impact on drainage, soil stability, neighbouring sites, heritage, or environmentally sensitive areas. Excavation is sought as part of the application for the basement level. Geotechnical Investigation prepared by JC Geotechnics Pty Ltd dated 16 January 2023 provides recommendations (such as an engineered retention system and adequate horizontal restraint) for the excavation to ensure that there will be no detrimental impacts to the soil stability or the adjoining properties, and provides that:
a. ‘Based on the investigation results, the proposed basement excavation is expected to extend through fill, residual soil and possibly through sandstone bedrock. Generally, excavation within the soils and very low strength sandstone (if encountered) is expected to be readily achieved using the bucket of a large hydraulic excavator, particularly if fitted with ‘tiger teeth’, down to the level of low strength bedrock. However, localised use of rock breaking equipment or ripping maybe required where medium to high strength bands are encountered’.
I am satisfied on the basis of the evidence before me and the amended Stormwater Plan (Rev E), prepared by Capital Engineering Consultants dated 2 September 2025, that the amended proposal achieves the relevant requirements that the excavation will not cause detrimental impacts.
I am satisfied that the amended proposal exhibits design excellence pursuant to cl 6.9 of the LEP 2022. I accept and agree with the conclusions of the Design Excellence Report, prepared by DesignInc, which provides a detailed analysis of the matters set out under cl 6.9(4) and identifies the future and existing development for this section of Parramatta Road. I accept the agreement of the urban designers that the amended proposal exhibits design excellence.
I am satisfied that the amended proposal meets the requirements of cl 6.13 of the LEP 2022, for residential accommodation in zone E1 because the proposal is mixed use development, will have an active street frontage, and is compatible with the desired character of the area in relation to its bulk, form, uses and scale.
The site is subject to a FSR of 1:1 under cl 4.4 of the LEP 2022. Clause 4.4(A) provides a maximum FSR of 1.5:1 as the site is within an area marked as ‘Area 1’ on the FSR map and the proposal is for mixed use development incorporating active street frontages in Zone E1 Local Centre.
The proposal has a FSR of 1.57:1, which represents a 4.67% variation to the maximum FSR. The applicant provided a written request seeking to justify the contravention of the FSR development standard prepared by Minto Planning Services and dated 23 September 2025.
Clause 4.6(3) of the LEP 2022 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(3). The consent authority, or the Court on appeal, must be satisfied that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) of the LEP 2022 have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:
the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
the development standard has been abandoned by the council;
the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).
The applicant’s written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary for the following reasons:
The proposal reflects the likely desired future character of the locality, specifically in relation to the Parramatta Road and Norton Street Urban Design Study as part of the Parramatta Road Corridor Urban Transformation Strategy;
The proposal is within the environmental capacity of the site and will not result in any unreasonable impacts to the adjoining properties;
The proposed bulk and scale is sympathetic to the adjoining properties and has been designed to provide for the new built elements to be setback from Parramatta Road in order to maintain the visual strength of the existing façades;
The proposal allows for an appropriate development density when considering changes envisaged by the Parramatta Road Corridor Urban Transformation Strategy;
The proposal is a positive contribution to this section of Parramatta Road; and
There will not be any unreasonable streetscape or character impacts.
The grounds relied on by the applicant in the written request under cl 4.6 of the LEP 2022 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LEP 2022. The applicant’s written request defends the exceedance of the FSR development standard as a justified response to maintaining the visual dominance of the existing façades by further setting back the new building envelope of the proposal from Parramatta Road. I am satisfied that justifying the aspect of the development that contravenes the development standard as an appropriate design response to the context including retaining the heritage streetscape of Parramatta Road can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].
The Court orders that:
The appeal is upheld.
The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed amount of $5,000 within 28 days of these orders.
Development Application No. 2024/0694, as amended, for partial demolition of the existing structures and construction of a new mixed-use retail and co-living housing development containing 104 co-living rooms, ground floor retail premises and a basement level, at 45-57 Parramatta Road, Annandale, is determined by the grant of consent, subject to the conditions of consent at Annexure A.
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Annexure A (744 KB, pdf)
Moini Pty Limited
Inner West Council [2025] NSWLEC 1729
(2018) 236 LGERA 256
(2007) 156 LGERA 446