Strathfield Hotel Pty Ltd v Burwood Council

File Number(s): 2025/87125

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of the Modification Application No 2016.152.3 (the proposal) to modify Development Consent No. 152/2016 (the development consent) issued by the Burwood Local Planning Panel on 8 January 2019 for the demolition of existing building and construction of a hotel and mixed use development, at 27-33 Everton Road, Strathfield (Lots 1-2 in DP 303721, Lots 26-30 in Section 1 of DP 978482, and Lot 32 in DP 920734) (the site), by Burwood Council (the Council).

2. 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 17 October 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.

3. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent. There are preconditions to the exercise of power to modify a development consent.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW). The plans and documents comprising the amended application are as follows:

| TAB | DOCUMENT | DATE | | 1 | Architectural plans prepared by EJE Architects: • Cover Sheet Issue F • DA-0.5 Basement 4 Plan Issue F • DA-01 Basement 3 Plan Issue F • DA-02 Basement 2 Plan Issue F • DA-03 Basement 1 Plan Issue F • DA-04 Ground Floor Plan Issue H • DA-05 Level 1 Plan Issue G • DA-06 Level 2 Plan Issue F • DA-07 Level 3 Plan Issue F • DA-08 Level 4 Plan Issue F • DA-09 Level 5 Plan Issue F • DA-10 Level 6 Plan Issue F • DA-11 Level 7 Plan Issue F • DA-12 Level 8 Plan Issue G • DA-12.5 Level 9 Plan Issue G • DA-13 Level 10 Roof Terrace Issue H • DA-13.5 Roof Plant Level Issue C • DA-14 South Elevation Issue G • DA-15 East Elevation Issue G • DA-16 North Elevation Issue G • DA-17 West Elevation Issue G • DA-18 Section A Issue G • DA-19 Section B Issue G • DA-20 Section C Issue G • DA-21 Demolition Plan Issue F • DA-22 Ground Floor Services Connection Plan Issue F • DA-23 Finishes Schedule – South Issue F • DA-24 Finishes Schedule - North Issue F • DA - 25 Finishes Schedule - East & West Issue F • DA-26 Solar Access Issue F • DA-27 Natural Ventilation Plan Issue F • DA-28 Shadow Diagrams Issue F • DA-29 Neighbour Shadow Diagrams Issue F • DA-30 Neighbour Shadow Diagrams Issue F • DA-31 Acoustic Section Issue E • DA-33 Existing / Demolition Ground Floor Plan Issue A • DA-34 Existing / Demolition First Floor Plan Issue A • DA-35 Existing / Demolition Second Floor Plan Issue A | 7 August 2025 | | 2 | Landscape Plans prepared by Paul Scrivener Landscape (Issue E) • Landscape Plan- Ground Floor • Level 1 • Landscape Plan – Level 9 and 10 • Details • Planting Plan | 7 August 2025 | | 3 | Schedule of Conservation Approach prepared by City Plan | 3 September 2025 | | 4 | BASIX Certificate No. 1815599M | 2 October 2025 | | 5 | Design verification Statement prepared by EJE Architects | 25 September 2025 |

Background and pre-conditions to the modification of the development consent

5. The site is trapezoidal in shape with a total area of 1,924m², with a 43m frontage to Everton Road (south), 35m to Cowdery Lane (north), 43.5m along the western boundary and 64m to the eastern boundary.

6. The site is zoned MU1 Mixed Use pursuant to the Burwood Local Environmental Plan 2012 (LEP 2012).

7. The proposed changes to the development consent include:

(a) Height has changed as follows:

| Measurement | Height (approved) | Height (s34 agreement) | | Floor to Floor | 28.93m (Ground Floor RL17.50 to Roof Terrace Floor RL46.430) | 30.08m Ground Floor RL17.50 to Roof Terrace Floor RL50.58 | | Floor to top of lift/plant | 32.93m (Ground Floor RL17.50 to top of lift overrun RL50.43) | 38.18m Ground Floor RL17.500 to top of plant deck RL55.68 |

(b) Storeys have increased from 9 stories to 10 stories including separation of plant material above Level 10 roof communal open space. (c) Floor space ratio has increased from an approved FSR of 2.99:1 to 3.60:1 to accommodate the new storey. (d) Residential apartments have decreased from 60 to 59 due to floor plan changes. (e) Car parking spaces have increased from 81 to 136 consequential of the additional residential storey and commercial tenancy. (f) The qualitative changes can be summarised as follows: (g) Additional level of parking and residential storage provided; (h) Reconfiguration of hotel suites so that all rooms have ensuites providing improved amenity; (i) Reconfiguration of apartments (deleting studios) and reduction of one apartment; (j) Removal of common terraces; (k) Added a new level of apartments with increased provision of 2x bed apartments; (l) Amendment to roof structure and reconfiguration of communal open space; and (m) Façade articulation with heritage conservation approach.

8. I am satisfied that the proposal is substantially the same as the development for which consent was originally granted, pursuant to s 4.55(2)(a) of the EPA Act, having considered the quantitative and qualitative changes proposed. The proposed changes do not alter the nature of the development approved, or the general location of the building on the site. The overall height of the development will be increased by one level, but apart from a minor amount of extended overshadowing, there will be no material amenity impacts on the public domain, or on residents of adjoining and nearby developments.

9. I am satisfied that the proposal has had adequate regard to the design quality principles and the objectives specified in the Apartment Design Guide for the relevant design criteria, as required under s 147 of State Environmental Planning Policy (Housing) 2021.

10. The height of buildings development standard for the site is 30m, pursuant to cl 4.3 of LEP 2012 (Height of Buildings Map - Sheet HOB_001). The development consent, as modified, has a height of 32.93m (RL of 50.43). The proposal increases the height of the development to 38.18m (RL55.68). This is 8.18m above the height plane and 5.25m above the approved height.

11. The floor space ratio (FSR) development standard for the site is 3:1. The FSR of the proposal is 3.6:1 due to the addition of a residential level.

12. The site is identified as a local heritage item (I194 Whelan’s Strathfield Hotel, Sch 5 to LEP 2012). I am satisfied that the effect of the proposal on the heritage significance of the item has been properly considered by the Schedule of Conservation Approach prepared by City Plan and dated September 2025, pursuant to cl 5.10(4) of LEP 2012.

Conclusion

13. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 14 October 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

14. The orders of the Court are:

15. The appeal is upheld.

16. Development Consent No. 2016.152.3 is modified in the terms set out at Annexure A.

17. The consolidated conditions of consent of Development Consent No. 2016.152.3 are at Annexure B.

Susan O’Neill

Commissioner of the Court

**********

Annexure A (249 KB, pdf)

Annexure B (749 KB, pdf)