Tang v Newcastle City Council

Category: Principal judgment

Parties: Zhifang Tan (First Applicant)
Yan Han (Second Applicant)
Newcastle City Council (Respondent)

Representation: Counsel:
T To (Applicants)
J King (Respondent)
Solicitors:
Sparke Helmore Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2023/439113

Publication restriction: Nil

Judgment

1. 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 refusal of development application DA2023/00965. The development application sought consent for the demolition of the existing dwelling and structures and construction of a two storey co-living housing development with 30 individual rooms (DA) at 14 Sunderland Street, Mayfield.

2. These proceedings were originally listed for a hearing on 1-3 October 2025. Prior to the hearing, the parties reached agreement that the contentions had been resolved and requested a conciliation conference. Part of the resolution of contentions was based on the delegate for the Minister of Planning determining to not proceed with the planning proposal to list the site as a heritage item. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 1 October 2025. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulations 2021 (NSW) (EPA Reg 2021) to the Applicant amending DA2023/00965 in accordance with Annexure B. These changes are described in the jurisdictional statement as including a reduction in the overall rooms proposed, design changes, increased landscaping and amendments to the Plan of Management to address concerns raised by the objectors.

4. 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.

Jurisdictional Prerequisites

5. 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.

6. 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.

7. 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] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]) (Al Maha). 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.

Owner’s consent

9. I am satisfied that owner’s consent accompanied the development application, as the owners are the Applicants.

Community notification and objections

10. The Respondent notified the DA between 20 October 2023 and 3 November 2023 and further notified from 10 November 2023 to 24 November 2023. 69 submissions were received.

11. Prior to the conciliation conference, the Court received and read further written submissions from several objectors.

12. 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 (Al Maha).

13. In reaching agreement, the parties have advised the Court that they considered the concerns raised in the objections and where possible, that these have been addressed.

Newcastle Local Environmental Plan 2012

14. I accept the parties’ agreement that the identified preconditions to grant consent are satisfied as detailed below.

15. The site is zoned R3 Medium Density Residential. The proposed development for co-living housing is permissible with consent in the zone. Pursuant to cl 2.3, the parties’ have had regard to the objectives of the zone as demonstrated in the Statement of Environmental Effects (SEE) prepared by Wilson Planning Pty Ltd dated April 2025.

16. Clause 2.7 permits the proposed demolition.

17. Clause 4.3 height of buildings applies to the site, with a maximum height of 10m. The amended DA is a maximum height of 8.34m as shown on the architectural plans prepared by BJ Architects Revision B (architectural plans) and stated at paragraph 2.15 of the jurisdictional statement.

18. Clause 4.4 floor space ratio (FSR) prescribes a maximum of 0.9:1. The proposal complies, at 0.74:1.

19. Clause 5.21 flood planning, as the site is identified as a low flood risk (south-eastern corner) and the rest of the site is a residual risk. I accept that the provisions have been satisfied as the finished flood level is above the flood planning level and in an emergency, an on-site refuge area has been identified on site for flash flooding. A detailed plan is enforced through conditions of consent. The parties agree that the proposal will not adversely divert flood water behaviour.

20. Further, it is agreed that the proposed Stormwater Management Plans prepared by Amity Engineers Revision E (Stormwater Plans) proposes adequate stormwater management discharging to the street.

21. Clause 6.2 earthworks applies due to the works associated with the stormwater management system. The parties agree that the Stormwater Plans show adequate erosion and sediment details, which are enforced through various conditions at Annexure A.

State Environmental Planning Policy (Housing) 2021

15. As set out in the jurisdictional statement, the parties agree, and I accept that the identified preconditions to the grant of consent in Ch 3, Pt 3 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) are met. Attachment 1 of the jurisdictional statement provides an updated assessment of the amended DA, which I have considered. The parties agree and I accept that the provisions of ss 67, 68 and 69 are all complied with by the proposed development (noting that some provisions are development standards and others are non-discretionary development standards).

State Environmental Planning Policy (Resilience and Hazards) 2021

16. The site is identified on the Coastal Environment Area Map and accordingly, ss 2.10 and 2.12 applies. I accept the parties’ agreement that the provisions are satisfied, as the SEE at 2.2.3 sets out the lack of impacts and proximity to the areas the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) is concerned with.

17. The provisions of s 4.6 of RH SEPP apply to the site. The parties agree that the site has a long history as a residential use and there are no indications of any contamination. On this basis, the parties agree and I accept that s 4.6 has been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

18. Section 2.48 applies as works are in proximity to electrical infrastructure. The DA was referred to Ausgrid, who provided a condition of consent that has been included in Annexure A. I accept the provisions have been satisfied.

Heads of consideration

19. On the basis of the material accompanying the Class 1 appeal and the jurisdictional statement, I accept that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act have been adequately considered.

Conclusion

20. 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.

21. 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.

Orders:

22. The Court orders:

23. The appeal is upheld.

24. Development Application DA2023/00965 for the demolition of an existing dwelling and shed, and construction of a two-storey co-living development comprising 26 individual rooms and associated landscaping, is determined by the grant of consent subject to conditions set out in Annexure A.

S Porter

Commissioner of the Court

Annexure A (347 KB, pdf)

Annexure B (105 KB, pdf)

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