Zeng v City of Parramatta Council

Category: Principal judgment

Parties: Juanting Zeng (First Applicant)
City of Parramatta Council (Respondent)

Representation: Counsel:
G Visentin (Solicitor) (Applicant)
J Palmer (Solicitor) (Respondent)
Solicitors:
McKees Lawyers (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 2024/281070

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 development appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application DA/317/2024. The development application sought consent for the demolition of the existing structures and construction of a 5 storey co-living housing development with basement parking (DA) at 74 Keeler Street, Carlingford, legally described as Lot 20 in DP 32722.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 1 October 2025. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning Assessment Regulations 2021 (NSW) (EPA Reg) to the Applicant amending DA/317/2024 in accordance with Annexure B.

4. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended application subject to conditions of consent.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor [2023] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 (Al Maha) at [202]). For the reasons set out below, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions as required by s 34(3) of the LEC Act.

Owner’s consent

9. I accept the parties’ agreement that owner’s consent accompanied the development application.

Community notification and objections

10. The Respondent notified the DA between 20 June 2024 to 11 July 2024. 22 submissions were received.

11. Different from the consideration of the Court at a hearing, as the parties have entered into an agreement, the Court’s role is limited to ensuring that there is power to grant consent, and not to considering the merits of the issues raised (Al Maha at [217]).

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

Biodiversity Conservation Act 2016

13. I accept the parties’ agreement that Pt 6 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) does not apply as there is no removal of native vegetation as set out in the jurisdictional statement and a Biodiversity Assessment report prepared by SAI Ecological & Environmental Planning Pty Ltd.

Parramatta Local Environmental Plan 2023

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

15. The site is zoned R4 High Density Residential. The proposed development is prohibited in the zone but permissible pursuant to s 67(b) of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) as residential flat buildings and shop top housing are permissible in the R4 zone. Pursuant to cl 2.3 of the Parramatta Local Environmental Plan 2003 (PLEP), the parties have had regard to the objectives of the zone.

16. Clause 2.7 permits the proposed demolition.

17. Clause 4.3 height of buildings applies to the site, with a maximum height of 17.5m. The proposal is below the maximum height as shown on the architectural plans prepared by Texco Design on various dates (architectural plans).

18. Clause 4.4 floor space ratio (FSR) prescribes a maximum of 1.3:1. Pursuant to s 68(2)(a), the Housing SEPP allows a 10% FSR bonus, resulting in a total maximum FSR of 1.43:1. As stated in the jurisdictional statement, the proposal complies at 1.43:1.

19. Clause 6.2 earthworks applies. I accept that the parties have considered the provisions as set out in the jurisdictional statement and the Geotechnical Report prepared by Stantec Australia dated 21 February 2024.

20. Clause 6.3 biodiversity applies to the site. The jurisdictional statement sets out that the parties are satisfied that the development is unlikely to adverse impact vegetation, habitats, fauna and flora or threatened species. Further, that the proposal has been sited and designed to minimise adverse impacts to the environment.

21. Clause 6.5 stormwater management is satisfied through the connection to an easement (with the relevant owner’s consent) and stormwater plans that accompany the DA.

22. Clause 6.7 essential services applies. On the basis of the Consultant Advice Note prepared by Traca Engineering Group, all essential services are either available to the site or able to be connected (including the above-mentioned method of stormwater management via an easement).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. The site is located within the Sydney Harbour Catchment area, a regulated catchment, and accordingly Ch 6 applies.

16. I accept the parties’ agreement that the proposed development will not adversely affect the quality of water or water flow, has incorporated onsite water management, will not adversely impact waterways or animals or vegetation and will have a neutral impact on water quality as demonstrated by the following plans and reports:

17. Erosion & Sediment Control Plan prepared by JCO Consultants.

18. Stormwater management plans, prepared by JCO Consultants, Revision 4 dated 15 September 2025.

19. Geotechnical Report prepared by Stantec Australia dated 21 February 2024.

20. I accept that the relevant provisions have been satisfied as set out in the jurisdictional statement.

State Environmental Planning Policy (Housing) 2021

18. As set out in the jurisdictional statement, the parties agree, and I accept that the identified preconditions to the grant of consent in Pt 3 of the Housing SEPP are met. Attachment 1 of the jurisdictional statement provides an updated assessment of the amended DA, which I have considered. The provisions of ss 67, 68 and 69 are all complied with by the proposed development, except s 69(2)(a) and (b). Both relate to variations to the standards for side setbacks. I accept from the jurisdictional statement and Statement of Environmental Effects prepared by Think Planners dated 8 April 2024, that the parties have considered the merits of the variation and that consent should be granted.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. The provisions of s 4.6 of State Environmental Planning Policy 2021 (RH SEPP) apply to the site. The parties agree that the site has a long history as a residential use and there are no indications of any contamination. On this basis, the parties agree, and I accept that s 4.6 has been satisfied.

Heads of consideration

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

Conclusion

21. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

22. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders:

23. The Court orders:

24. The Appeal is upheld.

25. Development Application DA/317/2024, as amended, for the demolition of all existing structures, tree removal and construction of a 5 storey co-living housing development comprising of 43 rooms over basement parking at 74 Keeler Street, Carlingford, is determined by the grant of consent subject to the conditions set out in Annexure A.

S Porter

Commissioner of the Court

Annexure A (415 KB, pdf)

Annexure B (118 KB, pdf)

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