YW Property Development Pty Ltd v Cumberland Council

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: YW Property Development Pty Ltd (Applicant) Cumberland Council (Respondent)

Representation: Counsel:
G McKee (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Cumberland Council (Respondent)

File Number(s): 2025/288811

Publication restriction: No

JUDGMENT

1. 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. 2025/0309 for the demolition of existing structures and the construction of a development containing 44 co-living housing units and 7 boarding rooms, basement car parking and associated site works (the proposal), at 459-461 Guildford Road, Guildford (Lot A in DP 10962 and Lot B in DP 171122) (the site), by Cumberland 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 11 December 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 4.16 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.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW). The plans and documents comprising the amended application are as follows:

| Ref./Dwg. No. | Title/Description | Prepared By | Rev | Date/s | | Architectural Plans | | A001 | Section J Comments | Texco Design | 06 | 12/12/2025 | | A003 | Demolition Plan | | A004 | Tree Removal Plan | | A005 | Site Plan | | A101 | Basement Floor Plan (as annotated in red) | | A102 | Ground Floor Plan (as annotated in red) | | A103 | Level 1 Floor Plan | | A104 | Level 2 Floor Plan | | A105 | Level 3 Floor Plan | | A106 | Level 4 Floor Plan | | A107 | Roof Plan | | A201 | North & South Elevation | | A202 | West & East Elevation | | A301 | Section 1 | | A302 | Section 2 | | A303 | Section 3 (as annotated in red) | | A401 | Material Schedule | | A501 | Typical Kitchen Details | | Stormwater Concept Design (job no. 20240225) | | DA-SW100 | Cover Sheet | JCO Consultants Pty Ltd | 3 | 15/12/2025 | | DA-SW101 | General Notes and Specifications | | DA-SW200 | Stormwater Concept Design - Basement | | DA-SW201 | Stormwater Concept Design - Ground Floor | | DA-SW202 | Stormwater Concept Design - Roof | | DA-SW300 | Details Sheet 1 | | DA-SW301 | Details Sheet 2 | | DA-SW400 | Stormwater Catchment Plan | | DA-SW600 | Erosion and Sediment Control Details | | DA-C100 | Driveway Long Sections – LHS & RHS | | Landscape Plan (Project No. LPDA 25-191) | | 01 | Hardscape Plan (as annotated in red) | Concept Landscape Architects | B | 16/12/2025 | | 01 | Landscape Plan (as annotated in red) | | 03 | Section | | 04 | Details & Specification | | 05 | Hardscape Details | | Other Documents and Reports | | - | Letter of Support | EchoRealty NSW & Act Limited | - | 20/5/2025 | | 25001 | Traffic Impact Assessment | Genesis Traffic | 6 | 15/12/2025 | | | Clause 4.6 Variation Request – Height of Buildings development standard | Planning Ingenuity | | 10/12/2025 |

Pre-conditions to the grant of consent

State Environmental Planning Policy (Transport and Infrastructure) 2021

5. The site is located within 5m of a pole supporting an exposed overhead electricity power line. Consistent with s 2.48(2)(a), written notice was given to Endeavour Energy. Comments were received, and considered, in response to the effect that Endeavour Energy raised no objection subject to conditions.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

6. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies as the site is within the Sydney Harbour Catchment area. Subject to the installation and maintenance of sediment controls during building works in accordance with the Erosion and Sediment Control Plan and Details drawing SW600 Rev 3 by JCO Consultants dated 15 December 2025 and conditions of consent, the proposal will have a neutral effect on the quality of water entering a waterway pursuant to s 6.6, as follows:

7. the proposal is unlikely to increase stormwater runoff from the site in any significant or unacceptable manner;

8. the proposal does not incorporate on-site stormwater retention, infiltration or reuse;

9. the proposal will have no impact on the level and quality of the water table;

10. the cumulative environmental impacts of the proposal on the regulated catchment are negligible; and

11. given the limited extent of excavation proposed, no specific measures are required to protect the quality and quantity of groundwater.

State Environmental Planning Policy (Resilience and Hazards) 2021

7. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021, a Preliminary Site Investigation (PSI) [1] was submitted with the application. The PSI concluded that “the potential risks to human health and the environment to be very low to negligible… The site is considered suitable for the proposed development”.

State Environmental Planning Policy (Housing) 2021

8. The application is a mixed-use development which comprises co-living housing units and boarding rooms under the provisions of the State Environmental Planning Proposal (Housing) 2021 (Housing SEPP). The application includes additional gross floor area (GFA) as the permitted floor space ratio (FSR) is a compilation of a number of provisions, subject to the requirement under s 12A(2) that the maximum FSR is no more than 130% of the FSR development standard under cl 4.4 of the Cumberland Local Environmental Plan 2021 (LEP 2021). The following table addresses the requirements of s 12A of the Housing SEPP:

| State Environmental Planning Policy (Housing) 2021 Summary Compliance Table | | Section | Standard | Proposed | Complies | | Chapter 1 | Preliminary | | 12A | Limitation on additional floor space ratio | See below: | - | | 12A(1) | This section applies to development involving more than one of the following— (a) development for the purposes of in-fill affordable housing under Chapter 2, Part 2, Division 1, (b) development for the purposes of boarding houses under Chapter 2, Part 2, Division 2, (c) development for the purposes of co-living housing under Chapter 3, Part 3, (d) development for the purposes of seniors housing under Chapter 3, Part 5. | The proposal involves: (b) development for the purposes of boarding houses under Chapter 2, Part 2, Division 2, (c) development for the purposes of co-living housing under Chapter 3, Part 3 As such, this section applies. | Yes | | 12A(2) | If the development proposes to use the additional floor space ratio permitted under more than one relevant provision, the maximum floor space ratio must not exceed 130% of the maximum permissible floor space ratio for the development on the land. The development proposes additional floor space under more than one provision. FSR limit: 1.2:1 x 130%: 1:56:1 (GFA 1,581.216m2) | 1:56:1 (GFA 1,581.216m2) – see drawing A008 rev 06. | Y |

9. Chapter 2, Pt 2, Div 2 of the Housing SEPP establishes an approval pathway for boarding houses and sets out a series of development standards, including GFA incentives, that apply to such developments. Boarding houses are permitted with consent in the R4 Zone of LEP 2021 and as such are also permitted under s 23 of the Housing SEPP. Section 24 of the Housing SEPP contains non-discretionary development standards for boarding house developments. The proposal complies with those standards, as follows:

| State Environmental Planning Policy (Housing) 2021 Part 2 Development for Boarding House Summary Compliance Table | | Section | Standard | Proposed | Complies | | Part 2 | Boarding House | | 24 | Non-discretionary development standards | | 24(2) | The following are non-discretionary development standards in relation to the carrying out of development to which this Division applies | | 24(2)(a) | for development in a zone in which residential flat buildings are permitted—a floor space ratio that is not more than— (i) the maximum permissible floor space ratio for residential accommodation on the land, and (ii) an additional 30% of the maximum permissible FSR if the additional GFA is used only for the purposes of the boarding house | The maximum FSR permissible under LEP 2021 is 1.2:1 Given the proposal is for a boarding house development, the site can achieve a bonus of an additional 30%. However, in accordance with section 12A which limits the maximum FSR cap for the proposed development so it does not exceed 130% of the maximum FSR for the development on the land. The development complies with that cap, comprising the cumulative bonus for both the co-living and boarding house aspects, with the boarding house contributing 243.24m2 GFA, equating to a FSR component of 0.24:1. Drawing A008 rev 06. | Yes Drawing A008 rev 06. | | 24(2)(d) | for development on land in Zone R4 High Density Residential—the minimum landscaping requirements for residential flat buildings under a relevant planning instrument, Deep soil as per ADG: 7% (70.95m2) | 12.19% (183.41m2) – see Drawing A010 Rev 06 | Yes | | 24(2)(e) | at least 3 hours of direct solar access provided between 9am and 3pm at mid-winter in at least 1 communal living area, | The communal living area on Level 4 would receive 6 hours of direct solar access provided between 9am and 3pm at mid-winter – see drawing A015 Rev 06 | Yes | | 24(2)(f) | for a boarding house containing 6 boarding rooms— | Contains 6 boarding rooms. Applies. See below: | - | | 24(2)(f) (i) | a total of at least 30m2 of communal living area (being 32m2), and | 33.18m2 – see drawing A009 Rev 06 | Yes | | 24(2)(f) (ii) | minimum dimensions of 3m for each communal living area, | >3m– see drawing A106 Rev 06 | Yes | | 24(2)(h) (i) | Communal open space with a total area of at least 25% of the site area, • 253.4m2 | 37.61% (381.29m2) – see Drawing No. A011 Rev 06 Shared with co-living housing, but for which the boarding house rooms have access to all areas. | Yes | | 24(2)(h) (ii) | each with minimum dimensions of 3m, | >3m | Yes | | 24(2)(i) | if a relevant planning instrument does not specify a requirement for a lower number of parking spaces—at least the following number of parking spaces— | See below: | - | | 24(2)(i) (i) | for development on land within an accessible area—0.2 parking spaces for each boarding room, • Within 800m of Guildford Railway Station; 7 rooms x 0.2 spaces: 1.4 car spaces | 2 spaces | Yes |

10. Section 25 of the Housing SEPP contains development standards for boarding house developments. The proposal complies with those standards, as follows:

| State Environmental Planning Policy (Housing) 2021 Part 2 Development for Boarding House Summary Compliance Table | | Section | Standard | | | Part 2 | Boarding House | | 25 | Standards for boarding house | | 25 | Development consent must not be granted for the purpose of boarding house unless the consent authority is satisfied of the following: | | 25(1)(a) | no boarding room will have a gross floor area, excluding an area, if any, used for the purposes of private kitchen or bathroom facilities, of more than 25m2, and | 16.12m2 – 18m2- see drawing No. A106 rev 06. | Yes | | 25(1)(b) | no boarding room will be occupied by more than 2 adult residents, and | Max 2 boarders per room for each double room. | Yes | | 25(1)(c) | adequate bathroom, kitchen and laundry facilities will be available within the boarding house for the use of each resident, and | Each boarding room provided with an ensuite and kitchenette. Drawing No. A106 rev 06. | Yes | | 25(1)(f) | for a boarding house containing at least 6 boarding rooms—the boarding house will have at least 1 communal living area, and | 1 communal living area provided. Drawing No. A106 rev 06. | Yes | | 25(1)(g)(ii) | the minimum lot size for the boarding house is not less than— for development not in the R2 Low Density Residential zone, 800m2 | 1,013.6m2 | Yes | | 25(1)(h) | each boarding room has a floor area, excluding an area, if any, used for the purposes of private kitchen or bathroom facilities, of at least the following— 16m2 for a boarding room not intended to be used by a single resident | 16.12m2 – 18m2- see drawing No. A106 rev 06. | Yes | | 25(1)(i) | Boarding house will include adequate bicycle and motorcycle parking spaces | Adequate – see Drawing A101 rev 06 which includes 12 bicycle and 11 motorcycle parking spaces, shared communally with the co-living development. | Yes | | 25(2) | Development consent must not be granted under this Division unless the consent authority considers whether— | See below. | - | | 25(2)(a)(ii) | the design of the boarding house will be compatible with— for precincts undergoing transition—the desired future character of the precinct, | Boarding house is of an appropriate bulk and scale to reflect the high density residential zoning and intended character of the area. | Yes | | 25(2)(b) (ii) | the front, side and rear setbacks for the boarding house are not less than—for development on land in Zone R4 High Density Residential—the minimum setback requirements for residential flat buildings under a relevant planning instrument: Cumberland DCP 2021. Part B, cl. 3.1(C2): | See below: | Yes | | Front: No less than 6m or correspond with the existing prevalent building setback or with emerging setbacks in areas undergoing transition | 6m Consistent with adjacent front setbacks | Yes | | Side: 3m | 3-6m | Yes | | 25(2)(c) | if the boarding house has at least 3 storeys—the building will comply with the minimum building separation distances specified in the Apartment Design Guide: • 6m for habitable and 3m for non-habitable rooms | 6m minimum | Yes | | 26(1) | Development consent must not be granted under this Division unless the consent authority is satisfied that from the date of the issue of the occupation certificate and continuing in perpetuity— | See below: | - | | 26(1)(a) | the boarding house will be used for affordable housing, and | The boarding house will be used for affordable housing in perpetuity – see condition Nos 123 & 138 | Yes | | 26(1)(b) | the boarding house will be managed by a registered community housing provider. | The boarding house will be managed by a registered community housing provider being .EchoRealty NSW & ACT Limited; a letter from the provider accompanies the application indicating their willingness to manage the property. This wis also be assured by condition Nos. 123 & 138 | Yes | | 27 | Development consent must not be granted for the subdivision of a boarding house. | Subdivision not proposed. | N/A |

11. Co-living housing is permissible with consent under s 67(b) of the Housing SEPP by virtue of residential flat buildings and shop top housing being permitted in the R4 zone under LEP 2021.

12. Section 68 of the Housing SEPP contains minimum standards that cannot be used to refuse consent. The proposal complies with those standards, as follows:

| Element | Standard | Proposed | Reference | | Floor space ratio | 1.2:1 + 10% if the additional floor space is used only for co-living | 1.32:1 | Drawing A008 rev 06 | | Communal living area | 106m2 with a 3m minimum dimension | 110.54m2 all at >3m | Drawing A009 rev 06 | | Communal open space | 202.72m2 with a 3m minimum dimension | 381.29m2 all at >3m | Drawing A011 rev 06 | | Parking | 9 spaces | 9 spaces | Drawing A101 rev 06 | | Landscaping | 7% at 3m wide | 12.19% | Drawing A010 rev 06 |

13. Section 69(1) of the Housing SEPP contains development standards and other standards for co-living housing developments. The proposal complies with those standards, as follows:

| Element | Standard | Proposed | Reference | | Room size (exc kitchen and bathroom) | 16m2 to 25m2 | 16m2 – 23m2 | Drawings A102 to A106, all rev 06 | | Lot size | 800m2 minimum | 1,013.6m2 | Survey drawing 9000472_A | | Workspace for manager | Provided within the communal living area or in a separate space | Provided within the ground floor communal living area | Drawing A102 rev 06 | | Facilities | Adequate bathroom, laundry and kitchen facilities will be available for the use of each occupant | Adequate bathroom, laundry and kitchen facilities will be available for the use of each occupant | Drawings A102 to A106 all rev 06 and A501 rev 06 | | Maximum occupants | 2 per room | 2 | Drawings A102 to A106, all rev 06 | | Bicycle and motor bike parking | Provide adequate number of parking spaces | Adequate – 12 bicycle and 11 motor bike spaces | Drawing A101 rev 06 |

14. Section 69(2) of the Housing SEPP specifies matters that must be considered before development consent can be granted. Each matter has been considered, as follows:

| Element | Control | Proposed | Reference | | Setbacks | Front - No less than 6m or correspond with prevalent setback or emerging setbacks Secondary Street - Side – 3m minimum | Front –6m Secondary Street –4m Side (east) – 3m Side (north) – 6m | Drawing A102 to A106, all rev 06 | | Building Separation | Habitable up to 4 storeys – 6m Habitable above 5th storey – 9m | North Up to 4 storeys habitable – 6m 5 storey habitable – 9.6m East Up to 4 storeys habitable – 3.0m Above 5th storey habitable – 3.9m | Drawing A102 to A106, all rev 06 | | Solar access | 3 hours direct solar access between 9am to 3pm at mid-winter to at least 1 communal living area | Achieved | Drawing A015 rev 06 | | Building design | Compatible with the desired future character of the precinct | Compatible | Drawing A007 rev 06 |

15. No subdivision of the rooms into separate lots is proposed, consistent with the restriction imposed under s 70 of the Housing SEPP.

Cumberland Local Environmental Plan 2021

16. The site is zoned R4 High Density Residential under LEP 2021. Co-living housing, as a subset of residential accommodation, is prohibited within the zone. The proposal is permissible under s 67(b) of the Housing SEPP. The R4 zone objectives, to which regard must be had, are:

To provide for the housing needs of the community within a high density residential environment.

To provide a variety of housing types within a high density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To ensure that non-residential land uses are located in a setting that minimises impacts on the amenity of a high-density residential environment.

To encourage residential development that maintains the amenity of the surrounding area.

17. Demolition of the existing buildings is permitted with consent under cl 2.7 of LEP 2021.

18. Under cl 4.3 of LEP 2021, the height of buildings development standard for the site is 15m. The maximum building height is 16.25m (see drawing A018 rev 06).

19. Under cl 4.4 of LEP, the FSR for the site is 1.2:1, which is subject to a 30% bonus under the Housing SEPP for the proposal, resulting in a FSR of 1.56:1. The proposal complies with the FSR development standard with a FSR of 1.56:1 (see drawing A008 rev 06).

20. Development consent is required under cl 6.2 of LEP 2021 for the proposed basement excavation earthworks. I accept the Council’s submission in relation to the criteria under cl 6.2(3) of LEP 2021, as follows:

21. the proposal will not generally disrupt or detrimentally affect drainage patterns or soil stability in the locality in any meaningful way that is attributable to proposed earthworks;

22. the excavation is part of the proposed redevelopment of the site and will not of itself stymie the future use or redevelopment;

23. conditions of consent ensure the use of clean fill and disposal of excavated material to an appropriate destination;

24. the proposed excavation will not detrimentally affect existing and likely amenity of adjoining properties;

25. the likelihood of disturbing relics is low;

26. the prospect of adverse impacts on a waterway, drinking water catchment of environmentally sensitive area is managed by conditions addressing the provision and maintenance of sediment and erosion control measures; and

27. sediment and erosion control measures implemented during excavation will mitigate potential impacts stemming from the proposal.

28. Pursuant to cl 6.4 of the LEP 2021, I accept the Council’s assessment that water supply, electricity supply, sewage disposal, stormwater drainage and suitable vehicular access are available, or adequate arrangements can be made to make them available.

29. Pursuant to cl 6.7(2) of LEP 2021 regarding stormwater, I accept the Council’s assessment that the extent of water permeable surfaces is within reasonable expectations; onsite stormwater retention is not necessary; and adverse impacts of stormwater runoff on adjoining properties, native vegetation and receiving waters, to the extent they arise, are minimised and mitigated by conditions requiring the provision of sediment and erosion controls during the earthworks and construction stages.

30. The site is identified on the Salinity Map as ‘Potential Moderate Salinity Land’. In relation to cll 6.9(3) and 6.9(4) of LEP 2021, I accept the Council’s assessment that the proposal is not likely to have an adverse impact on salinity processes on the land; salinity is not likely to have an impact on the development in any meaningful way; and the proposal’s ground floor siting at AHD 38 and its positioning within the topographic catchment will avoid any potential significant adverse environmental impact with regard to salinity, meaning that no specific design measures are warranted to avoid salinity impacts.

31. In relation to cl 6.12(2) of LEP 2021, I accept the Council’s assessment that the proposal’s overall urban heat performance is satisfactory, as the building is designed to achieve passive thermal performance.

Contravention of the height of buildings development standard

25. The proposal has a maximum height of 16.25m above existing ground level to the top of the lift overrun. The height of buildings development standard for the site is 15m pursuant to cl 4.3 of LEP 2021. The objectives of the development standard, at cl 4.3(1) of LEP 2021, are:

(a) to establish a maximum height of buildings to enable appropriate development density,

(b) to ensure that the height of buildings is compatible with the character of the locality,

(c) to minimise the visual impact of development,

(d) to ensure sufficient solar access and privacy for neighbouring properties.

26. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Planning Ingenuity and dated 10 December 2025.

27. 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’s written request to contravene the height of buildings development standard

28. 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.

29. 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]:

30. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

31. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

32. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

33. the development standard has been abandoned by the council;

34. 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).

35. 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]).

36. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved, notwithstanding non-compliance with the standard. I accept that the written request has adequately justified the proposal’s consistency with the objectives of the development standard.

37. 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]).

38. 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 a justified response to accommodating the additional gross floor area (GFA) permitted under the Housing SEPP. The exceedance of the height of buildings development standard is limited to the lift overrun, and the roof structure and ceiling at the northern end of the building envelope in response to the topography of the site. The primary frontage of the proposal is consistent with the height of buildings development standard of 15m so that the building envelope of the proposal is consistent with the scale of neighbouring development. The part of the building envelope that exceeds the height of buildings development standard does not result in any additional amenity impacts on neighbouring development. I am satisfied that justifying the aspect of the development that contravenes the development standard as in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

39. The Applicant’s written request pursuant to cl 4.6 of the LEP 2021 seeking a variation to the development standard for the height of buildings set out under clause 4.3 of the LEP 2021 is upheld.

Conclusion

35. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 22 December 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

36. The orders of the Court are:

37. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent thrown away as a result of the amendment of the application, in the agreed amount of $2,000.00, to be paid within 28 days of the date of these orders.

38. The appeal is upheld.

39. Development Application No. 2025/0309 for the demolition of existing structures and the construction of a mixed-use development containing 44 co-living housing units and 7 boarding rooms, at 459-461 Guildford Road, Guildford (Lot A in DP10962 and Lot B in DP171122), is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

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Annexure A.623 KB.pdf

Endnote

Preliminary Site Investigation Report prepared by Elite Geosciences – Class 1 application, tab 12.