YY Property Development Pty Ltd v Cumberland Council

Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827

Texts Cited: Apartment Design Guide

Category: Principal judgment

Parties: YY Property Development Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation: Counsel:
G McKee (Solicitor) (Applicant)
C S R McFadzean (Solicitor) (Respondent)
Solicitors:
McKee Lawyers (Applicant)
Cumberland Council (Respondent)

File Number(s): 2025/00017127

Publication restriction: Nil

Judgment

1. COMMISSIONER: The Applicant filed the appeal in these proceedings on 15 January 2025 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in accordance with the time provisions in ss 8.10(1)(a) and 8.11(1) seeking development consent to development application No DA2024/0658 (DA) lodged on 18 November 2024 with Cumberland Council (Council) for the construction of a mixed-use development comprising co-living housing and a residential flat building on Lot 9 Section 1 in Deposited Plan 979564 known as 26 Smythe Street, Merrylands (Land).

2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is s 4.16(1) of the EPA Act.

4. The DA as amended seeks consent for construction of a mixed-use development comprising 38 co-living housing units and a six-room boarding house.

5. The Land is situated in R4 High Density Residential Zone under the Cumberland Local Environmental Plan 2021 (CLEP 2021).

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 5 May 2025 and 12 June 2025, with a s 34(3) Agreement being filed on 19 June 2025 together with amended documents, and the amended plans being filed on 23 June 2025. I presided over the conciliation conference.

7. 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. This decision involved the Court upholding the appeal and granting development consent to the DA as amended subject to the conditions in Annexure A.

8. 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(1) of the EPA Act to uphold the appeal and grant consent to the DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how they have been satisfied, as set out below.:

9. The Applicant is the owner of the Land and therefore complies with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPAR 2021) for the purpose of lodging the DA with Council, and filing the appeal in this Court (Class 1 Application Tab 1).

10. The State Environmental Planning Policy (Resilience and Hazards) 2021 (R&H SEPP) s 4.6(1) requires the Court to consider if the Land is contaminated. A Preliminary Site Investigation Report prepared by EI Australia (Class 1 Application Tab 3, p 16) concluded that “the potential for contamination to exist on the site was low”. The site was deemed to be suitable for the proposed residential development.

11. The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&D SEPP) Ch 6 applies as the Land is within the Sydney Harbour Catchment area. The Land is not mapped by Council as being flood liable land (s 6.5).

12. In relation to s 6.8(1) of the B&D SEPP, the parties confirm that:

(a) Subject to installation and maintenance of sediment controls during building works in accordance with the Stormwater Concept Design Plan prepared by JCO Consultants dated 21 August 2024 and conditions of consent, the development will have a neutral effect on the quality of water entering a waterway. (b) The DA will not have an adverse impact on water flow in a natural waterbody, and it is unlikely to increase stormwater runoff from the Land in any significant or unacceptable manner. (c) The DA does not incorporate on-site stormwater retention, infiltration or reuse. (d) The DA will not have any impact on the level and quality of the water table. (e) The cumulative environmental impacts from the development on the regulated water catchment are negligible. (f) Having regard to the extent of excavation proposed, no specific measures are required to protect the quality and quantity of groundwater.

2. In relation to s 6.6(2) of the B&D SEPP, the parties confirm that the effect on the quality of water entering a natural waterbody will be as close as possible to neutral.
3. In relation to s 6.7(1) of the B&D SEPP, the parties confirm that:

(a) To the extent of any direct, indirect or cumulative adverse impact on terrestrial aquatic or migratory animals or vegetation, the impact is minor and not determinative of the DA. (b) The DA does not involve the clearing of riparian vegetation. (c) The development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway. (d) The development will not have an adverse impact on wetlands. (e) The development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures. (f) The DA does not adjoin a natural waterbody. (g) In relation to s 8.7(2) of the B&D SEPP, the parties are satisfied that: (h) Repeat (c) (i) above. (i) The DA will not have a direct, indirect or cumulative adverse impact on aquatic reserves. (j) No approval or permit is required under the Water Management Act 2000 (NSW) or the Fisheries Management Act 1994 (NSW). (k) The Land does not abut a natural waterbody, and there will be no adverse impact on wetlands.

4. In relation to s 6.8(1) and (2) of the B&D SEPP the parties confirm that the DA will have no impact on periodic flooding that benefits wetlands other riverine ecosystems, and will not result in a release of pollutants in the event of a flood.

5. In relation to s 6.9(1) of the B&D SEPP, the parties confirm that the DA will have no impact on recreational land uses in the Sydney Harbour Catchment, and the DA has no impact on public access to and around the foreshores of Sydney Harbour. Nor will the DA have any impact on public access to and from natural waterbodies for recreational purposes.

6. In relation to s 6.10 of the B&D SEPP, the parties confirm that the DA will not have an adverse environmental impact for adjacent and downstream local government areas.

7. In relation to s 6.11 of the B&D SEPP, the Land is not within 100m of a natural waterbody – Duck Creek is approximately 500m away to the south-east of the Land.

8. Sections 6.12, 6.13 and 6.14 of the B&D SEPP are not applicable to the Land.

9. State Environmental Planning Policy (Sustainable Buildings) 2021 (Sustainable Buildings SEPP): Chapter 2: Standards for residential development – BASIX:

10. While a BASIX Certificate is generally required for residential development, the EPAR 2021 defines a “BASIX Building” as:

“a building that contains at least 1 dwelling but does not include the following –

(a) hotel or motel accommodation;

(b) a boarding house, hostel or co-living housing that –

(i) accommodates more than 12 residents, or

(ii) has a gross floor area exceeding 300 square metres.”

2. As the DA is for a mixed-use development with co-living housing and boarding house development that comprises more than 12 rooms and exceeds 300m2, the DA is not required to address the BASIX requirements under Ch 2 of the Sustainable Buildings SEPP.

3. State Environmental Planning Policy (Housing) 2021 (Housing SEPP): The DA is a mixed-use development which comprises boarding house and co-living housing development under the provisions of the Housing SEPP. As outlined in the below tables, the DA proposes to use the additional floor space ratio permitted under more than one relevant provision. The following table addresses s 12A of the Housing SEPP in this regard.

| 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: | - | | State Environmental Planning Policy (Housing) 2021 Summary Compliance Table | 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 development involves: (b) development for the purposes of boarding houses under Chap 2, Part 2, Div 2, (c) development for the purposes of co-living housing under Chap 3, Pt 3 And, as such, this section applies. | Y | | 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: 1.1:1 x 130%: 1:43:1 (GFA 1,394.822m2) | 1:43:1 (GFA 1,394.47m2) – see drawing A007 rev D. | Y |

1. 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 floor space ‘incentives’, which apply to such development.
2. Boarding houses are permitted with consent in the R4 Zone of the CLEP 2021 and as such are also permitted under s 23 of the Housing SEPP.
3. Section 24 of the Housing SEPP contains non-discretionary development standards for boarding developments. Below is a summary compliance table which has been prepared for the DA (as amended):

| State Environmental Planning Policy (Housing) 2021 Part 2 Development for Boarding House Summary Compliance T****able | | Section | Standard | Proposed | Complies | | Part 2 | Boarding House | | 24 | Non-discretionary development standards - the Act, s 4.15 | | 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 floor space ratio if the additional floor space is used only for the purposes of the boarding house, | The maximum FSR permissible under the CLEP 2021 is 1.1:1 Given the proposal is for a boarding house development, the site can achieve a bonus of an additional 30%. However, in accordance with s 12A which limits the maximum FSR cap for the proposed development so it does not exceed 130% of the maximum floor space ratio 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 214.588m2 GFA, equating to a FSR component of 0.22:1. | Y | | 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 Australian Design Guide (ADG): 7% (68.278m2) | 16.68% (162.73m2) – see Drawing A011 Rev D | Y | | 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 3 would receive 7 hours of direct solar access provided between 9am and 3pm at mid-winter – see drawing A012 Rev D | Y | | 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, and | 31.32m2 – see drawing A105 Rev D | Y | | 24(2)(f) (ii) | minimum dimensions of 3m for each communal living area, | >3m– see drawing A105 Rev D | Y | | 24(2)(h) (i) | Communal open space with a total area of at least 20% of the site area, • 195.08m2 | 32% (308.2m2) – see Drawing No. A10 Rev D, Shared with co-living housing, but for which the boarding house rooms have access to all areas. | Y | | 24(2)(h) (ii) | each with minimum dimensions of 3m, | >3m | Y | | 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 Merrylands Railway Station; 6 rooms x 0.2 spaces: 1.2 car spaces | 2 spaces | Y |

4. Section 25 of the Housing SEPP contains development standards for boarding house developments. Below is a summary compliance table against the relevant provisions which has been prepared for the DA (as amended):

| 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 that | | 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 | 16.14m2 – 18.6m2- see drawing No. A105 rev D. | Y | | 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. | Y | | 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. Condition 20 requires provision of a washer/dryer within each kitchenette, for which there is room. | Y | | 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. | Y | | 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 | 975.4m2 | - | | 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 | 16.14m2 – 18.6m2- see drawing No. A105 rev D. | - | | 25(1)(i) | Boarding house will include adequate bicycle and motorcycle parking spaces | Adequate – see Drawing A101 rev D which includes 10 bicycle and 10 motorcycle parking spaces, shared communally with the co-living development. | Y | | 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. | | | 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: | Y | | 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 | Y | | Side: 3m | 3m | Y | | Rear: Up to four storeys: 20% the length of the site, or 6m, whichever is greater: • 10.668m | 7.2m This is consistent with adjacent development and the ADG. | A | | 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 ADGn: • 6m for habitable and 3m for non-habitable rooms | 3m minimum. Where the side elevations contain windows or balconies, these are screened or fitted with obscure glass to achieve a satisfactory separation and privacy outcome | Y | | 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— | A | - | | 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 conditions 100 & 106 in Annexure A | Y | | 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 will also be assured by conditions 100 & 106 in Annexure A | Y | | 27 | Development consent must not be granted for the subdivision of a boarding house. | Subdivision not proposed. | N/A |

5. Chapter 3 Pt 3 of the Housing SEPP establishes an approval pathway for co-living housing and sets out a series of development standards, including floor space ‘incentives’ that apply to such a development.
6. The DA relies on s 67(b) of the Housing SEPP for permissibility of use and the pathway to approval. In accordance with s 67(b) of the Housing SEPP, co-living housing is permitted within a zone where residential flat buildings are permitted as defined by the Council’s Land Use Map in CLEP 2021. The Land is zoned R4 High Density Residential under CLEP 2021 which permits residential flat buildings. As such, co-living is permitted on the Land.
7. Section 68 of the Housing SEPP contains non-discretionary development standards for co-living housing developments. Below is a summary compliance table which has been prepared for the DA (as amended):

| State Environmental Planning Policy (Housing) 2021 Part 3 Development for Co-living Housing Summary Compliance Table | | Section No. | Standard | Proposed | Complies | | Part 3 | Development Standards | | 68 | Non-discretionary development standards - the Act, s 4.15 | | 68(2) | The following are non-discretionary development standards in relation to development for the purposes of co-living housing— | | 68(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 10% of the maximum permissible floor space ratio if the additional floor space is used only for the purposes of co-living housing, | The maximum FSR permissible under the CLEP 2021 is 1:1. Given that the proposal is for co-living development, the subject site can achieve a FSR bonus of 10%. That bonus is to be read in conjunction with the boarding house bonus and the 30% bonus cap under s 12A. The co-living GFA (1,180.21m2) equates to an FSR of 1.21:1, while the cumulative FSR (1.43:1) complies with the maximum contemplated by the 30% cap – see Drawing A007 rev D. | Y | | 68(2)(c) | for co-living housing containing 6 private rooms— (i) 94m2 of communal living, and (ii) minimum dimensions of 3m for each communal living area, | 94.1m2 – see drawing No. A09 rev D. All areas have a minimum dimension of 3m. | Y | | 68(2)(d) | communal open spaces— (i) with a total area of at least 20% of the site area, and (ii) each with minimum dimensions of 3m, | The development is required to provide a minimum of 195.08m2 of communal open space. The development proposes a total of 229.30m2 of communal open space on the ground floor with a minimum dimension of 3m – see drawing No A10 rev D. | Y | | 68(2)(e) | unless a relevant planning instrument specifies a lower number— (i) for development on land in an accessible area—0.2 parking spaces for each private room, or (ii) otherwise—0.5 parking spaces for each private room, | The development is required to provide a minimum of 7.6 spaces. The development proposes 8 spaces, including 1 accessible spaces – see drawing No. A101 rev D. | Y | | 68(2)(g) | for development on land in Zone R4 High Density Residential—the minimum landscaping requirements for residential flat buildings under a relevant planning instrument. • Minimum deep soil (ADG): 7% of site area (minimum) with a minimum dimension of 3m. | The development is required to provide a minimum of 68.3m2. The development proposes 16.68% ( 162.73m2) – see Drawing A011 Rev D | Y |

8. Section 69 of the Housing SEPP contains development standards for co-living housing developments. Below is a summary compliance table against the relevant provisions which have been prepared for the DA (as amended).

| State Environmental Planning Policy (Housing) 2021 Part 3 Development for Co-living Housing Summary Compliance Table | | Section No. | Standard | Proposed | Complies | | Division 3 | Development Standards | | 69 | Standards for co-living housing | | 69(1) | Development consent must not be granted for development for the purposes of co-living housing unless the consent authority is satisfied that— | | 69(1)(a) | each private room has a floor area, excluding an area, if any, used for the purposes of private kitchen or bathroom facilities, which is not more than 25m2 and not less than— (i) for a private room intended to be used by a (ii) single occupant—12m2, or otherwise—16m2 | Single rooms – 12.03m2 – se drawings No. A102, A103 and A104 all rev D. Double rooms – 16.01m2 - 20.84m2 see drawing Nos. A102, A103 and A104 all rev D. | Y | | 69(1)(b)(ii) | the minimum lot size for the co-living housing is not less than 800m2 | 975.4m2 | N | | 69(1)(d) | the co-living housing will contain an appropriate workspace for the manager, either within the communal living area or in a separate space, and | A manager’s workspace has been provided on the ground floor level – see Drawing A102 rev D. | Y | | 69(1)(f) | adequate bathroom, laundry and kitchen facilities will be available within the co-living housing for the use of each occupant, and | Each co-living private room contains private bathroom and kitchen and laundry facilities, see drawing No. A501 rev D. | Y | | 69(1)(g) | each private room will be used by no more than 2 occupants, and | Each private room would be used by no more than 2 occupants. | Y | | 69(1)(h) | the co-living housing will include adequate bicycle and motorcycle parking spaces. | Adequate – see Drawing A101 rev D which includes 10 bicycle and 10 motorcycle parking spaces, shared communally with the boarding house rooms. | Y | | 69(2) | Development consent must not be granted for development for the purposes of co-living housing unless the consent authority considers whether— | | 69(2)(a) | the front, side and rear setbacks for the co-living housing are not less than— (i) for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential—the minimum setback requirements for multi dwelling housing under a relevant planning instrument, or (ii) 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): Front: No less than 6m or correspond with the existing prevalent building setback or with emerging setbacks in areas undergoing transition Proposed: 6m Consistent with adjacent front setbacks Side: 3m Proposed 3m Rear: Up to four storeys: 20% the length of the site, or 6m, whichever is greater: 10.668m Proposed: 7.2m. This is consistent with the adjacent development and the ADG | Y | | 69(2)(b) | if the co-living housing has at least 3 storeys—the building will comply with the minimum building separation distances specified in the ADG, and | 3m minimum. Where the side elevations contain windows or balconies, these are screened or fitted with obscure glass to achieve a satisfactory separation and privacy outcome | Y | | 69(2)(c) | at least 3 hours of direct solar access will be provided between 9am and 3pm at mid-winter in at least 1 communal living area, and | The communal living area on Level 3 would receive 6 hours of direct solar access provided between 9am and 3pm at mid-winter – see drawing A012 Rev D | Y | | 69(2)(f) | the design of the building will be compatible with— (i) the desirable elements of the character of the local area, or (ii) for precincts undergoing transition—the desired future character of the precinct. | The local area is undergoing gradual transition from low to higher density development. The surrounding residential context is transforming into that of higher density residential development, ranging in scale from three to seven storeys, from the detached dwellings that form part of the original housing stock. The proposed development is four storeys in height and would be compatible with the four-storey residential flat buildings located on either side of the site at 24 and 28 Smythe Street. Further, it would be of a scale, proportion, and design that would be compatible with the future character of the precinct. | Y |

9. In relation to s 70 of the Housing SEPP, no subdivision is proposed.

10. In relation to CLEP 2021:

11. The Land is zoned R4 High Density Residential (R4 zone). The DA is a mixed-use development for the purpose of a boarding house and co-living development. Subject to development consent, a boarding house is permissible in the R4 High Density Residential Zone. Co-living falls into another category, being defined in CLEP 2021’s definitions as:

co-living housing means a building or place that—

(a) has at least 6 private rooms, some or all of which may have private kitchen and bathroom facilities, and

(b) provides occupants with a principal place of residence for at least 3 months, and

(c) has shared facilities, such as a communal living room, bathroom, kitchen or laundry, maintained by a managing agent, who provides management services 24 hours a day,

but does not include backpackers’ accommodation, a boarding house, a group home, hotel or motel accommodation, seniors housing or a serviced apartment.

Note—

Co-living housing is a type of residential accommodation—see the definition of that term in this Dictionary.

residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following—

…

(baa) co-living housing,

…

but does not include tourist and visitor accommodation or caravan parks.

Residential accommodation is listed in the R4 zone as being prohibited, and co-living is not identified in the list of permissible uses for the R4 zone. On that basis and as it falls under the umbrella of ‘residential accommodation’, it is prohibited in the R4 zone. As co-living housing is prohibited in the R4 High Density Residential Zone, in this case it relies upon s 67(b) of the Housing SEPP for permissibility. Therefore both the boarding house use and the co-living use is permissible with consent in the R4 High Density Residential Zone.

2. Clause 2.3(2) of CLEP 2021 provides that regard must be had to the zone objectives. The zone objectives are:

Objectives of zone

• 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.”

The parties are satisfied that the DA meets the first, second and fifth zone objectives. The third and fourth objectives are not applicable to the DA.

3. Clause 4.3 of CLEP 2021 Height of Buildings: The maximum building height for the Land is 14m, and the DA has a height of 4.234m (a minor non-compliance due to the lift overrun). The DA (as amended) is supported by a cl 4.6 Variation Request – Building Height by PCN Urban filed on 19 June 2025 (PCN Urban Report). The PCN Urban Report sets out how the Applicant has demonstrated that compliance with the development standard as set out in cl 4.3 of CLEP 2021 is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening the development standard. The PCN Urban Report sets out the reasons on pp 4 – 8 and relies upon the five potential tests in Wehbe v Pittwater Council [2007] NSWLEC 827. The PCN Urban Report concludes at par [5.0] on p6 that the variation in the height control should be supported on the basis that strict application of the development standards is unnecessary:

a) The development meets the stated objectives of cl 4.3(1), specifically –

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.

b) There are sufficient environmental planning rounds to justify contravening the development standard.

The Council accepts that compliance with the development standard set out in cl 4.6 of CLEP 2021 is unreasonable and unnecessary, and there are sufficient environmental grounds to justify contravening the development standard..

Front page of PCN Urban Report showing a photomontage of the proposed development in the DA together with existing adjoining existing developments.

4. Clause 4.4 of CLEP 2021 Floor Space Ratio (FSR): the maximum FSR permissible is 1.1:1. However, that is subject to a 30% bonus under the Housing SEPP resulting in a maximum permissible FSR of 1.43:1. The DA complies with the FSR of 1.43:1 (Drawing No A007 Rev D).
5. The Land is not marked on the following maps in CLEP 2021:

(a) Additional Permitted Uses Map; (b) Land Reservation Acquisition Map; (c) Foreshore Building Line Map; (d) Biodiversity Map; (e) Riparian Lands and Watercourses Map; (f) Salinity Map; (g) Site specific Provisions Map; (h) Design Excellence Map; and (i) Key Sites Map.

6. Clause 5:10 of CLEP 2021 Heritage conservation: although the Land is not marked as a heritage item, and nor is it within a Heritage Conservation Area, it is in the vicinity of two heritage items under Sch 5 cl 5.10(5): item 1208, a cottage situate at 59 Merrylands Road, and item 1212, Merrylands Railway Station. In relation to the DA, the parties are satisfied that given the physical separation between the Land and the two heritage items, the heritage impact on the cottage and the railway station will be negligible and therefore a heritage management report is not required.
7. The whole of the Land is clear of the flood planning areas and hence further consideration under cl 5.21 of CLEP 2021 is not requested (par [61] on p14 of the Council’s Statement of Facts and Contentions filed 12 February 2025).
8. Clause 6.1(2) of CLEP 2021 Acid Sulfate Soils: the Land is marked as Class 5 land on the Acid Sulfate Soils Map, and is approximately 450m away from Class 4 land at Granville Park. As that land is above 5m AHD, being approximately 14m AHD, development consent is not required under cl 6.1 of CLEP 2021.
9. Clause 6.2 of CLEP 2021 Earthworks: development consent is required under cl 6.2 for the proposed basement excavation earthworks. In relation to cl 6.2(3) criteria the parties confirm that:

(a) The DA will not generally disrupt or detrimentally affect drainage patterns which are stable in the locality in any meaningful way that is attributable to the proposed earthworks. (b) The excavation is part of the proposed redevelopment of the Land and will not of itself stymie the future use or redevelopment. (c) The quality of the soil to be excavated is of de minimis importance. Conditions in Annexure A ensure the use of clean fill and disposal of excavated material to an appropriate destination. (d) The proposed development will not detrimentally affect existing and likely amenity of existing properties. (e) Sufficient provision has been made for maintenance measures and sediment control measures in Annexure A.

10. Clause 6.4 of CLEP 2021 Essential Services: all essential services are available to the Land.
11. Clause 6.7(2) of CLEP 2021 Stormwater Management: the parties confirm that:

(a) The extent of water permeable surfaces are within reasonable expectations. (b) It is not practicable to provide onsite stormwater retention for use as an alternate supply to mains water. (c) Significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters will not arise and to the extent of any impact can be mitigated by the provision of sediment and erosion controls during the earthworks and constructions stages of the DA.

12. Clause 6.12(2) of CLEP 2021 Urban Heat: the parties confirm:

(a) The façade and roof of the proposed building and paved surfaces are designed to reduce adverse effects of solar heat on the surrounding land, including private open space and the public domain. (b) Awnings and eaves of the proposed building are designed to provide shelter from the sun and based upon their internal location will have no effect on public comfort levels at street level. (c) Green infrastructure is defined to mean the network of green spaces, natural systems and semi-natural systems that support sustainable communities and includes waterways, bushland, tree canopy and green ground cover, parks and open spaces. On this Land the green infrastructure is achieved by providing sufficient landscaping and green ground over. On that criteria, the DA performs satisfactorily. (d) The DA provides sufficient tree canopy, open space and deep soil zones to achieve urban cooling benefits. (e) The building is designed to achieve high passive thermal performance.

13. Public notification: the DA was notified from 16 January 2025 to 30 January 2025. No submissions were received. The DA (as amended) was notified from 22 May 2025 to 5 June 2025. No submissions were received.

14. As set out above, consideration has been given to the requirements of assessment in s 4.15(1)(a)-(e) of the EPA Act.

15. The parties have considered the conditions of consent in Annexure A and consider that they can be lawfully imposed pursuant to ss 4.16(1) and s 4.17 of the EPA Act, and relevant legal principles.

16. As set out above in the parties’ jurisdictional prerequisites, and in particular the exceedance of the height control in par [14(3)]] above, 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.

17. The Council has consented to the Applicant relying upon the DA (as amended) which includes plans, documents and a change in the description of the development. Section 37 of the EPAR 2021 provides, relevantly:

37 Amendment of development application

(1) An applicant may, at any time before a development application is determined, apply to the consent authority for an amendment to the development application.

…

(6) If the amendment will result in a change to the development, the application must contain details of the change, including the name, number and date of any plans that have changed, to enable the consent authority to compare the development with the development originally proposed.

(7) A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court.

19. I am satisfied that the Council had the power to approve the DA (as amended) which includes changing the description of the proposed development to read: “Construction of a mixed-use development comprising 38 co-living housing units and a 6 room boarding house”.

20. I am not required to consider the merits of the DA, and I have not done so.

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. I shall uphold the appeal and grant consent to the DA pursuant to s 4.16(1) of the EPA Act subject to the conditions of consent (which comply with s 4.17(1) of the EPA Act) in Annexure A.

22. The Court notes:

23. Pursuant to ss 37(1), (6) and (7) and 38(1) of the Environmental Planning and Assessment Act 1979 (NSW), Cumberland Council has approved the amendment to the description of development application No DA2024/0658 for construction of a mixed-use development comprising 38 co-living housing units and a six (6) room boarding house, together with the amended plans and documents set out below.

Approved Plans and Supporting Documents

23. The development must be carried out in accordance with the following endorsed plans and documents, except as otherwise provided by the conditions of this consent.

| Reference/Dwg No. | Title/Description | Prepared By | Date/s | | A004 Rev D | Site Plan | Texco Design | 9/5/2025 | | A101 Rev D | Basement 1 Plan | | A102 Rev D | Ground Floor Plan | | A103 Rev D | Level 1 Plan | | A104 Rev D | Level 2 Plan | | A105 Rev D | Level 3 Plan | | A106 Rev D | Roof Plan | | A201 Rev D | North & South Elevation | | A202 Rev D | East Elevations | | A203 Rev D | West Elevations | | A301 Rev D | Section A | | A302 Rev D | Section B | | A303 Rev D | Section C | | A401 Rev D | Material Schedule | | A402 Rev D | Doors Schedule | | A403 Rev D | Windows Schedule | | A501 Rev D | Typical Kitchen Details | | 224/01 | Hardscape Plan | Conzept Landscape Architects | 15/5/2025 | | 224/02 | Landscape Plan/GF | | 224/03 | Landscape Plan/L3 | | 224/04 | Details | | 224/05 | Section | | 224/06 | Specification | | DA-SW100 | Coversheet | JCO Consultants Pty Ltd | 23/8/2024 | | DA-SW101 | General Notes and Specifications | | DA-SW200 | Stormwater Concept Design - Basement Plan | | DA-SW201 | Stormwater Concept Design - Ground Floor Plan (with amendments in red) | | DA-SW202 | Stormwater Concept Design - Roof Plan | | DA-SW300 | Stormwater Concept Design - Details Sheet - Sheet 1 of 2 (with amendments in red) | | DA-SW301 | Stormwater Concept Design - Details Sheet - Sheet 2 of 2 | | DA-C100 | Concept Civil Works Driveway Plan (with amendments in red) | | E26413.E01_Rev0 | Preliminary Site Investigation | EI Australia | 8 August 2024 | | ESWN-PR-2024-2309 | Geotechnical Investigation Report | ESWNMAN Pty Ltd | 31 May 2024 | | P996 | Plan of Management for Co-living Housing | PCN Urban | Revision A, 15 May 2025 | | P996 | Plan of Management for Boarding House | PCN Urban | Revision A, 15 May 2025 | | 12850 R01v2 | DA Acoustic Report | PKA Acoustic Consulting | 14 May 2025 | | General Terms of Approval | CNR-76931 | Endeavour Energy | 15/12/2024 |

Orders

24. The Court orders:

25. The appeal is upheld.

26. Development Application No DA2024/0658 for construction of a mixed-use development comprising 38 co-living housing units and a six-room boarding house at Lot 9 Section 1 in Deposited Plan 979564 known as 26 Smythe Street, Merrylands is determined by the grant of consent subject to Annexure A.

27. 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 that are thrown away as a result of amending the Development Application in the agreed amount of $2,000 within 28 days of the date of these orders.

M Peatman

Acting Commissioner of the Court

Annexure A (407 KB, pdf)

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