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[2025] NSWLEC 1874
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-10
Miller AC
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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: Wiseman Capital Pty Ltd v Inner West Council [2025] NSWLEC 1874
Hearing dates: Hearing and Conciliation conference on 24 November 2025
Date of orders: 10 December 2025
Decision date: 10 December 2025
Jurisdiction: Class 1
Before: Miller AC
Decision: The orders of the Court are:
(1) The appeal is upheld.
(2) Development Application DA/2025/0177 for the demolition of existing structures and construction of a three-storey shop-top housing development with basement car parking, a ground floor commercial premises and 20 co-living housing rooms at 106 Crystal Street, Petersham (Lot Z in DP 963258), is determined by the grant of consent subject to the conditions contained in Annexure A.
Catchwords: APPEAL — development application — co-living housing — conciliation conference — agreement reached — orders made
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation
2021 (NSW), ss 23, 38
Inner West Local Environmental Plan 2022, cll 2.3, 2.7, 4.3, 4.4, 4.6, 6.2, 6.3, 6.8, 6.13
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.9
State Environmental Planning Policy (Housing) 2021, Ch 3, Pt 3, ss 67, 68, 69
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119
Category: Principal judgment
Parties: Wiseman Capital Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation: Counsel:
A Knox (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Inner West Council (Respondent)
File Number(s): 2025/184158
Publication restriction: Nil
COMMISSIONER: This appeal concerns a development application (DA/2025/0177) for the demolition of existing structures and construction of a three-storey shop-top housing development with basement car parking, a ground floor commercial premises and 22 co-living housing rooms at 106 Crystal Street, Petersham (Lot Z in DP 963258) (the site). The Applicant lodged an appeal on 14 May 2025 pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of the application by Inner West Council.
This matter commenced as a hearing however the parties, having reached agreement, requested that the matter be relisted as a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The request was granted and the conciliation conference, which I presided over, was held on 24 November 2025.
At the conciliation, 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 decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, additional information submitted and the documents that are referred to in Condition 3 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
The Court notes leave was granted to the applicant to rely on amended plans on 15 October 2025. Further the Council, as the consent authority, consented to the further amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) as detailed on the following Architectural plans prepared by CD Architects Pty Ltd:
| Drawing No. | Description | Revision | Date | | DA 1001 | Ground Floor Plan | F | 24.11.2025 | | DA 1002 | Level 1 Floor Plan | F | 24.11.2025 | | DA 1003 | Level 2 Floor Plan | D | 24.11.2025 | | DA1104 | Level 3 Floor Plan | E | 24.11.2025 |
(a) Reduction in the number of co-living rooms from 22 to 20 and increase in their lot size and layout; (b) Removal of communal open space from the ground floor; (c) Addition of communal rooms on Levels 2 and 3 and revision of the communal open space on Level 3; (d) Revision of the proportions of the front-facing first floor windows and the appearance of the front façade, including changes to the roof form and the addition of a pergola on the roof; (e) Rearrangement of parking spaces, services and plant room on the ground floor and increase in communal floor space from 60m2 to 66m2; (f) Provision of updated solar diagrams to reflect amendments to the plans and reduced solar impacts; (g) Increase in, and rearrangement of, waste collection, bulky waste and bin loading areas on the ground floor; (h) Revision of the pedestrian entry door on the ground floor, and; (i) Reduction in the floor space ratio to 1.17:1.
The site is zoned E1 Local Centre under Inner West Local Environmental Plan 2022 (IWLEP). Development for the purposes of co-living housing is permissible with consent in the E1 zone as in accordance with s 67 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP), co-living housing is permissible on land where shop-top housing is permitted. Shop-top housing is permissible in the E1 zone under IWLEP. Further development for the purposes of commercial development, which is proposed on the ground floor fronting Crystal Street, is also permissible with consent in the E1 zone under IWLEP.
In accordance with cl 2.3 of IWLEP consideration has been given to the objectives of the E1 zone and the parties advise that the proposal is consistent with those objectives.
In accordance with cl 2.7 of IWLEP, consent is sought for demolition of the existing buildings on site.
Clause 4.3 height of buildings applies to the site, permitting a maximum height of 11m. The proposal has a maximum height of 10.94m and therefore complies with this requirement.
A maximum floor space ratio (FSR) of 1.2:1 applies to the site in accordance with cl 4.4. The proposal complies with this requirement having an FSR of 1.17:1 (GFA of 606m2) as agreed by the parties and as shown on the amended plans.
The proposed development includes earthworks for the construction of the proposed basement level and services such that cl 6.2 of the IWLEP applies. Based on the Civil Engineering Plans (prepared by John Romanus & Associates dated 26 September 2025), the Geotechnical Investigation Report (prepared by AE Geotechnical Engineers dated 13 October 2025) and the recommended conditions of consent, I am satisfied that consideration has been given to the matters set out in cl 6.2 of the IWLEP.
The development application also includes evidence in satisfaction of the requirements of cl 6.3(2) Stormwater Management of IWLEP in the form of updated stormwater plans prepared by John Romanus & Associates dated 26 September 2025.
Clause 6.8 of IWLEP applies to development in areas subject to aircraft noise and applies to the subject site requiring that consideration be given to whether the proposal will result in an increase in the number of dwellings or people affected by aircraft noise, the location in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF zones) and satisfaction that the development will meet the indoor design sound levels shown in Table 3.3. In this regard it is noted that an acoustic report has been prepared (Anavs - Acoustic Noise & Vibration Solutions, 18 July 2025) which concludes that subject to the recommendations contained therein the proposal will comply with the relevant requirements. In this regard it is noted that conditions of consent have been applied.
Clause 6.13 of IWLEP also applies and requires satisfaction that development for the purposes of residential accommodation is mixed use development, will have an active street frontage and is compatible with the desired future character of the area in relation to its bulk, scale and form. The parties advise that satisfaction of these requirements is achieved having regard to the amended plans.
The provisions of Pt 3, Ch 3 of the Housing SEPP apply to the proposed co-living development. As noted above s 67 permits co-living housing on land in a zone where shop-top housing is permissible. Shop-top housing is permissible in the E1 zone under IWLEP therefore co-living is permissible under the SEPP.
Section 68 provides non-discretionary development standards for co-living housing including in respect of FSR, communal living area, communal open space and parking. The parties have advised that the proposal complies with all relevant standards under the clause.
At s 69 of the Housing SEPP, consent for co-living housing cannot be granted unless certain requirements are met concerning room sizes, lot size, a manager’s workspace, adequate bathroom/laundry/kitchen facilities, and bicycle and motorcycle spaces. Based on the Jurisdictional Statement, the architectural plans and conditions of consent, I am satisfied that each of the matters in s 69(1) of the Housing SEPP are met by the proposed development with the exception of s 69(1)(b)(ii) which requires a minimum lot size of 800m2 where co-living is proposed. A variation request under cl 4.6 of IWLEP (GAT & Associates, 16 July 2025) has been submitted in this respect. I am satisfied that the request provides adequate justification that, in the circumstances of the case, compliance with the development standard is unreasonable or unnecessary and that there are sufficient environmental planning grounds to justify the contravention.
Further, consistent with s 69(2) of the Housing SEPP, and based on the Jurisdictional Statement and the architectural plans, I am satisfied that consideration has been given to whether the building will comply with the minimum separation distances outlined in the Apartment Design Guide, whether the communal living area receives three hours of direct solar access, and whether the design of the building will be compatible with the desired elements of the character of the local area or the desired future character of the area.
The development application is made by the owner of the site in accordance with s 23 of the EPA Reg.
The original development application was notified between 3 and 29 April 2025 with 16 submissions being received, 14 in opposition, one (1) in support and one (1) neutral. Following filing of the amended Notice of Motion plans with the Court, a further notification was undertaken between 23 October and 13 November 2025. A further nine (9) submissions were received in opposition. Five (5) submitters also gave oral submissions at the commencement of the site view. The parties have advised that regard has been had to the matters raised in submissions in making amendments to the proposal and in reaching agreement.
Having reached the state of satisfaction that the decision is one that the Court could have made 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, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.
The Court orders that:
The appeal is upheld.
Development Application DA/2025/0177 for the demolition of existing structures and construction of a three-storey shop-top housing development with basement car parking, a ground floor commercial premises and 20 co-living housing rooms at 106 Crystal Street, Petersham (Lot Z in DP 963258), is determined by the grant of consent subject to the conditions contained in Annexure A.
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Annexure A (487 KB, pdf)
Wiseman Capital Pty Ltd
Inner West Council [2025] NSWLEC 1874