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[2026] NSWLEC 1199
General information, not legal advice.
Land and Environment Court (NSW)
2026-04-16
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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: Willows Hope Investment Group Pty Ltd v Penrith City Council [2026] NSWLEC 1199
Hearing dates: Conciliation conference on 10 April 2026
Date of orders: 16 April 2026
Decision date: 16 April 2026
Jurisdiction: Class 1
Before: O’Neill C
Decision: The orders of the Court are:
(1) The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed sum of $6,500.00, to be paid within 28 days of the date of these orders.
(2) The appeal is upheld.
(3) Development Application No DA25/0256, as amended, for the demolition of existing structures, the amalgamation of 2 lots into 1 lot, and the construction of a co-living development with a total of 29 rooms, at 32 Hargrave Street and 5 Derby Street, Kingswood NSW, is determined by the grant of consent, subject to the conditions set out at Annexure A.
Catchwords: DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Marine Estate Management Act 2014 (NSW), Pt 5 Div 2
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Penrith Local Environmental Plan 2010, cll 4.3 5.21, 7.4, 7.30
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 Div 2, ss 6.6, 6.7, 6.8
State Environmental Planning Policy (Housing) 2021, Ch 3 Pt 3, ss 67, 68, 69
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
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
Texts Cited: Penrith Development Control Plan 2014
Category: Principal judgment
Parties: Willows Hope Investment Group Pty Ltd (ACN 676 439 311) as trustee for Willows Hope Land Tax Unit Trust (Applicant)
Penrith City Council (Respondent)
Representation: Counsel:
J Reid (Applicant)
D Johnson (Solicitor) (Respondent)
Solicitors:
Macquarie Lawyers (Applicant)
Penrith City Council (Respondent)
File Number(s): 2025/214181
Publication restriction: No
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 deemed refusal of Development Application No DA25/0256 for the demolition of existing structures, the amalgamation of two lots into one lot, and the construction of a co-living development (the proposal), at 32 Hargrave Street and 5 Derby Street Kingswood NSW 2747 (Lot 3 and Lot 4 in DP 215149) (the site), by Penrith City 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 10 April 2026. 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.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.
| Architectural Plans prepared by Texco Designs | | Item No. 1 | Drawing | Description | Issue | Date | | A001 | Cover Page | - | - | | A002 | Section J Commitments | H | 26 February 2026 | | A004 | General Demolition Plan | H | 26 February 2026 | | A005 | General Tree Removal Plan | H | 26 February 2026 | | A006 | General Site Plan | H | 26 February 2026 | | A007 | General Site Analysis | H | 26 February 2026 | | A008 | General Streetscape Analysis | H | 26 February 2026 | | A009 | General Building Footprint Calculation | H | 26 February 2026 | | | A010 | General GFA Calculation | H | 26 February 2026 | | A011 | General CLA Calculation | H | 26 February 2026 | | A012 | General COS Calculation | H | 26 February 2026 | | A012a | General COS Detail Plan | H | 26 February 2026 | | A013 | General Landscape Calculation | H | 26 February 2026 | | A014 | General Unit Schedule | H | 26 February 2026 | | A015 | General Evacuation Diagram | H | 26 February 2026 | | A016 | General Sun Eye Diagram | H | 26 February 2026 | | A017 | General Shadow Diagram | H | 26 February 2026 | | A018 | General Height Limit Diagram | H | 26 February 2026 | | A018a | General Height Limit Diagram-Roof Plan | H | 26 February 2026 | | A019 | General Fence Plan – Acoustic Detail | H | 26 February 2026 | | A101 | Plans – Lower Ground Floor Plan | H | 26 February 2026 | | A102 | Plans – Ground Floor Plan | H | 26 February 2026 | | A103 | Plans – Level 1 Floor Plan | H | 26 February 2026 | | A104 | Plans – Roof Plan | H | 26 February 2026 | | A201 | Elevation – North & South Elevation | H | 26 February 2026 | | A202 | Elevation – East & West Elevation | H | 26 February 2026 | | A301 | Section – Section A | H | 26 February 2026 | | A302 | Section – Section B | H | 26 February 2026 | | A303 | Section – Section C | H | 26 February 2026 | | A401 | Schedule – Material Schedule | H | 26 February 2026 | | A402 | Schedule – Doors Schedule | H | 26 February 2026 | | A403 | Schedule – Windows Schedule | H | 26 February 2026 | | A404 | Schedule – Typical Kitchen Details | H | 26 February 2026 | | Item No. 2 | Landscape Plan prepared by Zenith Landscape Designs | | 01 | Lower Ground Floor Levels and Surfaces Plan | D | 16 March 2026 | | 02 | Lower Ground Floor Planting Plan & Plant Schedule | D | 16 March 2026 | | 03 | Existing Tree Plan and Canopy Cover Plan | D | 16 March 2026 | | Item No. 3 | Stormwater Plans prepared by Water Technology Engineers | | CD-00 | Title Sheet | J | 21 February 2026 | | CD-01 | Layout Plan | J | 21 February 2026 | | CD-02 | Details Sheet | J | 21 February 2026 | | CD-03 | Stormwater Longitudinal Section 1-2 | J | 21 February 2026 | | CD-04 | Stormwater Longitudinal Section 2-2 | J | 21 February 2026 | | Reports | | | Description | Issue | Date | | Item No. 4 | Statement of Environmental Effects prepared by Think Planners | - | 25 March 2025 | | Item No. 5 | Clause 4.6 Height Departure | | 17 March 2026 | | Item No. 6 | Plan of Management prepared by Think Planners | 3 | 17 March 2026 | | Item No.7 | Arboricultural Impact Assessment prepared by Arbor Express | 2 | 26 March 2025 | | Item No.8 | Access Report prepared by Building Innovations Australia | 1 | 26 March 2025 | | Item No. 9 | Acoustic Report prepared by PKA Acoustic Consulting | 4 | 6 November 2025 | | Item No. 10 | Evacuation Capability Assessment prepared by Water Technology | 25050004 _L01V03_ ECA | - | | Item No. 11 | Flood Impact Assessment prepared by Water Technology | V03 | 4 March 2026 | | Item No. 12 | Geotechnical Investigation Report prepared by Elite Geosciences | 0 | 10 February 2025 | | Item No. 13 | Preliminary Site Investigation Report prepared by Elite Geosciences | 0 | 10 February 2025 | | Item No. 14 | Waste Management Plan prepared by Gateway Consulting Group | D | 4 November 2025 | | Item No. 15 | SOFAC Response – Waste prepared by MRA Consulting | - | 17 March 2026 | | Item No. 16 | Traffic Impact Assessment prepared by Genesis Traffic | 5 | 10 November 2025 | | Item No. 17 | Section J Report prepared by Australian Energy Efficiency Consulting | - | 11 November 2025 |
I accept the Council’s assessment that the site is suitable for the development and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) have been addressed.
A Preliminary Site Investigation Report prepared by Elite Geosciences and dated 10 February 2025 (PSI) undertook a detailed desktop study of the history of the site, a site inspection, and testing of samples from four boreholes. The PSI concludes that the site is suitable for the proposed development and associated works.
The site has always been used for urban purposes and the land is not known to have been used for any purpose that may give rise to the likelihood of contamination, according to the Statement of Environmental Effects prepared by Think Planners and dated 25 March 2025 (SEE), and the SEE addresses the relevant matters under Ch 4 of the Resilience and Hazards SEPP.
Condition 23 of the conditions of consent at Annexure A requires an unexpected finds protocol to be developed by an appropriately qualified environmental consultant to be submitted to the Principal Certifier and complied with, consistent with the recommendation of the PSI at Part 6. Condition 46 requires a Construction Waste Management Plan to be submitted to and approved by Council, which will include a protocol for removal of any waste from the site, consistent with the recommendation of the PSI at Part 6.
Chapter 3, Part 3 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the proposal. The proposal is permissible under s 67 of the Housing SEPP as shop top housing is permitted with consent in the R3 Medium Density Zone under the Penrith Local Environmental Plan 2010 (LEP 2010).
Section 68 of the Housing SEPP sets out non-discretionary standards which, if complied with, prevent the consent authority from requiring more onerous standards for the matters. The proposed development complies with the relevant non-discretionary standards under s 68(2)(c) to (f).
Section 69(1) of the Housing SEPP provides development standards that a consent authority must be satisfied of for co-living housing. The application complies with those relevant development standards. I am satisfied on the basis of the evidence before me that the matters under s 69(2) of the Housing SEPP have been considered and addressed.
The site is mapped as being within the Hawkesbury Nepean Catchment and is subject to the general planning controls in Chapter 6, Division 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), to which the consent authority must be positively satisfied when granting consent to development in a regulated catchment.
The PSI undertook a desktop examination of groundwater and surface water conditions and prepared a preliminary conceptual site model which models actual and potential receptors including sensitive ecological receptors.
The applicant has prepared the following documentation to consider the matters under s 6.6(1) and to demonstrate that the proposal will not result in an adverse impact on the Hawkesbury Nepean Catchment:
Stormwater Management Plans prepared by Water Technology Engineers (Revision J) dated 27 February 2026.
Flood Impact Assessment prepared by Water Technology Engineers (Version V03) dated 4 March 2026.
In satisfaction of s 6.6(2)(a) of the Biodiversity SEPP, the proposed development utilises a filter cage system to filter and remove pollutants and a media-filled cartridge to clean stormwater through a patented passive filtration system to ensure that the effect on the quality of water entering a natural waterbody will be neutral or beneficial; and in satisfaction of s 6.6(2)(b), the proposed development’s impact on water flow in a natural waterbody will be minimised due to the proposed capture of stormwater and retention in onsite drainage system as demonstrated in the stormwater plans prepared by Water Technology Engineers.
In satisfaction of s 6.7(2)(a) of the Biodiversity SEPP, the proposed development will not result in any significant direct or indirect impacts on terrestrial animals or vegetation as an appropriate stormwater management system is emplaced to mitigate any indirect impacts on terrestrial animals and vegetation. In satisfaction of section 6.7(2)(b), the proposed development will not have a direct or indirect or cumulative adverse impact on aquatic reserves (as, due to its location away from any aquatic reserves declared as such under Part 5, Division 2 of Marine Estate Management Act 2014 (NSW)).
Groundwater is expected to be at a depth greater than 4.5m. Excavation of the site is minimal and is not proposed to intersect groundwater.
In satisfaction of s 6.7(2)(d) of the Biodiversity SEPP, the proposed development will not result in the erosion or sedimentation of a natural waterbody due to its proximity to any natural waterbody and because it provides stormwater capture, filtration and discharge infrastructure as referenced in stormwater plans and civil engineering plans prepared by Water Technology Engineers.
In satisfaction of s 6.8(2)(a) of the Biodiversity SEPP, the proposed development includes onsite detention tank (OSD) with a capacity of 30.8m3 that is connected to a bio-retention filter. Water quality has been modelled by the stormwater engineer using a MUSIC model. The stormwater system reduces 99.4% of the existing gross pollutants in runoff and 85.2% of total suspended solids. The system is designed to capture runoff up to the 1% Annual Exceedance Probability event. The consent authority can be satisfied that if there is a flood the development will not result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody, noting that no runoff is directed to a natural waterbody and the site is not proximate to a natural waterbody.
In satisfaction of s 6.8(2)(b) of the Biodiversity SEPP, the proposed development will have no adverse impact to neighbouring upstream and downstream properties due to the following, as stated at par 40 of the parties’ Jurisdictional Statement:
“i. the additional capacity provided by the onsite drainage system; and
ii. the design of the development has maintained the natural flow path in the surrounding area without increasing any flood risk to neighbouring properties as outlined in the Flood Impact Assessment prepared by Water Technology Engineers.”
• To provide for the housing needs of the community within a medium density residential environment.
• To provide for a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to needs of residents.
• To provide for a concentration of housing with access to services and facilities
• To enhance the essential character and identity of established residential areas
• To ensure a high level of residential amenity is achieved and maintained.
• To ensure that development reflects the desired future character and dwelling densities of the area
The proposal, for co-living housing, is prohibited within the R3 zone but is permitted with consent under s 67 of the Housing SEPP which provides that co-living development may be carried out on land in a zone which development for the purposes of 'shop top housing' is permitted in another environmental planning instrument. 'Shop top housing' is permissible with consent in the R3 Zone under LEP 2010.
Clause 5.21 of LEP 2010 applies to the site as it is within a Flood Planning Area. A Flood Impact Assessment has been prepared by Water Technology Engineers dated 4 March 2026 (part of the amended application) (FIA). The FIA models the flood function and behaviour on the land sufficient to satisfy the matters in cl 5.21(2) and (3), when read together with the Evacuation Capability Assessment prepared by Water Technology Engineers (Amended DA).
I accept the Council’s submission that the proposal, as amended, has had regard to the principles of sustainable development under cl 7.4 of LEP 2010, including the following:
“a. Taking into account the orientation of the site in the design;
b. The implementation of the landscape scheme consistent with the Council’s
controls which includes shade from canopy trees;
c. The Section J Report prepared by Australian Energy Efficiency Consulting dated 11 November 2025 (Amended DA); and
d. The shadow diagrams show that reasonable solar access is achieved to the DA and neighbouring properties.”
The site has a maximum building height of 8.5m under cl 4.3 of LEP 2010. The proposal exceeds the height of building development standard by 2.42m (Drawings DA 018 and DA 018a, Issue H).
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by Think Planners dated 17 March 2026.
Clause 4.6(3) 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) 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 at [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; and
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 at [22]).
The applicant’s written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary because of the need to elevate habitable floor levels above flood affected areas and allow flood conveyance through the site; the adoption of a pitched roof form that is consistent with the prevailing residential character of the locality; and the architectural modulation of the building which reduces perceived bulk and scale.
The grounds relied on by the applicant in the written request under cl 4.6 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). The applicant’s written request defends the exceedance of the height of buildings development standard as justified because the development does not introduce additional storeys or floor space above what would otherwise be permissible.
I am satisfied that justifying the aspect of the development that contravenes the development standard as a response to the need to elevate habitable floor levels above flood affected areas and allow flood conveyance through the site can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].
The orders of the Court are:
The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed sum of $6,500.00, to be paid within 28 days of the date of these orders.
The appeal is upheld.
Development Application No DA25/0256, as amended, for the demolition of existing structures, the amalgamation of 2 lots into 1 lot, and the construction of a co-living development with a total of 29 rooms, at 32 Hargrave Street and 5 Derby Street, Kingswood NSW, is determined by the grant of consent, subject to the conditions set out at Annexure A.
Annexure A (454 KB, pdf)
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Willows Hope Investment Group Pty Ltd
Penrith City Council [2026] NSWLEC 1199
(2018) 236 LGERA 256
(2007) 156 LGERA 446