Denistone AB Pty Ltd v Penrith City Council

[2025] NSWLEC 1350

Land and Environment Court

New South Wales

Medium Neutral Citation:

Denistone AB Pty Ltd v Penrith City Council [2025] NSWLEC 1350

Hearing dates:

Conciliation conference 9 May 2025

Date of orders:

19 May 2025

Decision date:

19 May 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away by reason of the amendment of development application DA24/0231, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $16,000, to be paid within 21 days of the date of these orders.

(2) The appeal is upheld.

(3) Development application no. DA24/0231 (as amended) for the Construction of a three storey co-living housing development containing fifteen (15) rooms, car parking facilities, communal living and open space areas at 11 Blaxland Avenue, Penrith is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – co-living housing – conciliation conference – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

Penrith Local Environmental Plan 2010, cll 6.2, 7.4, 7.6, 7.7, 7.30

State Environmental Planning Policy (Housing) 2021, ss 67, 68, 69

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.9

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

Denistone AB Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Storey and Gough (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2024/236610

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a 3-storey co-living housing development, ground level (and under croft) car park, and associated civil, stormwater and landscaping works at 11 Blaxland Avenue, Penrith. The development application was lodged on 26 March 2024. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 May 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.

4. The agreement reflects that which was filed on 28 April 2025, with a final version filed on 13 May 2025. The agreement follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments include a reduction in room numbers from 20 to 15, a reduction in car spaces from 5 to 3, the provision of better facilities in each room, improved private open space, common areas and communal open space, and increased rear setbacks at the zone interface.

5. 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 statement of Jurisdictional Prerequisites that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent (the Statement). I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. The site is zoned R4 High Density Residential, pursuant to the Penrith Local Environmental Plan 2010 (PLEP). Whilst development for the purpose of co-living housing is not permissible in the zone pursuant to the PLEP, it is permissible with consent pursuant to s 67 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) on the basis that residential flat buildings are permissible in the zone.

2. The provisions of Pt 3 Ch 3 of the SEPP Housing apply to the development. At s 69, consent cannot be granted unless certain requirements are met. Based on the Statement and on the architectural plans, I am satisfied that each of the matters in s 69(1) of the SEPP Housing are met by the proposed development.

3. Further, consistent with s 69(2) of the SEPP Housing, and based on the Statement and the architectural plans, I have considered whether the setbacks comply with the minimum setback requirements under Part 2.5.6 of the Penrith Development Control Plan 2014 (PDCP), whether the communal living area receives 3 hours 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.

4. I note also that s 68 of the SEPP Housing sets out a number of grounds on which consent cannot be refused if certain criteria are met. The Statement confirms that the proposed development meets the criteria for the size and dimensions of the communal living area and the communal open space, as well as car parking spaces and landscaping requirements. Accordingly, consent cannot be refused on any of those grounds.

5. The proposed development complies with the height development standard that applies pursuant to the PLEP.

6. The development application includes minor earthworks to prepare the site for construction. Based on the Statement, I have considered the matters set out in cl 6.2(3) of the PLEP.

7. Clause 7.4 of the PLEP concerns sustainable development, and, based on the Statement of Environmental Effects dated 22 March 2024 (SEE), I have considered the matters in cl 7.4.

8. The site is identified as having “moderate salinity potential”, and therefore cl 7.6 of the PLEP applies. Based on the note from the applicant’s town planner received by email on 9 May 2025, I have considered the matters in cl 7.6(2).

9. Clause 7.7 of the PLEP concerns the servicing of the development. Based on the location of the site in an existing residential area where water and sewage disposal area already available, I am satisfied of the matters in cl 7.7(2).

10. Clause 7.30 of the PLEP concerns urban heat and sets out mandatory considerations in cl 7.30(3). Based on the landscape plans dated 6 March 2025 and the SEE, I am satisfied of the matters in cl 7.30(3).

11. The site is in the Hawkesbury-Nepean Catchment, and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. Based on the Statement, the SEE and the stormwater concept plans by Telford Consulting Engineers, I am satisfied of the matters in ss 6.6(2) and 6.7(2) of the SEPP B&C. Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

12. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the combined Preliminary and Detailed Site Investigation report dated January 2024, the site can be made suitable for the development, subject to the carrying out of works specified in the Remediation Action Plan dated 18 March 2024, which is required by the agreed conditions of consent (condition 36).

13. The development application was publicly exhibited and notified between 15 and 29 April 2024, and five written submissions were received. I have considered the issues raised in those written submissions.

7. 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)).

8. 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.

9. The Court notes that:

1. Penrith City Council, as the relevant consent authority has agreed, under cl 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application no. DA24/0231 the subject of these proceedings as shown in the following amended plans and reports:

Plan No.	Description	Prepared by	Revision	Date
Architectural Plans
A000	Cover Page	Janssen Designs	F	17.01.2025
A001	Calculations Page / LEP Maps	Janssen Designs	F	17.01.2025
A002	Site Context Plan	Janssen Designs	F	17.01.2025
A003	Site Analysis Plan	Janssen Designs	F	17.01.2025
A004	Site Plan	Janssen Designs	F	17.01.2025
A005	Ground Floor Plan	Janssen Designs	F	17.01.2025
A006	Level 1 Floor Plan	Janssen Designs	F	17.01.2025
A007	Level 2 Floor Plan	Janssen Designs	F	17.01.2025
A008	Roof Plan	Janssen Designs	F	17.01.2025
A009	Streetscape and Sections	Janssen Designs	F	17.01.2025
A010	Elevations	Janssen Designs	F	17.01.2025
A022	Colour and Finishes Schedule	Janssen Designs	F	17/01/2025
Stormwater Plans
000	Cover Sheet Plan	Telford Consulting Engineers	C	06.03.2025
101	Stormwater Concept Plan Ground Floor	Telford Consulting Engineers	F	06.03.2025
102	On-site Detention Details and Calculations	Telford Consulting Engineers	D	17.12.2024
104	Catchment Plan and MUSIC Results	Telford Consulting Engineers	F	06.03.2025
105	Sediment and Erosion Control Plan & Details	Telford Consulting Engineers	B	18.11.2024
106	Miscellaneous Details Sheet	Telford Consulting Engineers	C	06.03.2025
107	Maintenance Schedule Sheet	Telford Consulting Engineers	A	06.03.2025
Landscape Plans
L01	Landscape Plan	Zenith Landscape Designs	D	06.03.2025
L02	Landscape Plan	Zenith Landscape Designs	D	06.03.2025

• Acoustic Assessment for DA, ref 6247R001.LB.250312, Acoustic Dynamics, Revision 3, dated 14 March 2025.

• Tree Inspection Report, prepared by Treehaven Environscapes, dated 18/02/2025.

• Plan of Management, prepared by Think Planners Pty Ltd, dated 7 March 2025.

10. The Court orders that:

1. The applicant is to pay the respondent’s costs thrown away by reason of the amendment of development application DA24/0231, pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $16,000, to be paid within 21 days of the date of these orders.

2. The appeal is upheld.

3. Development application no. DA24/0231 (as amended) for the Construction of a three storey co-living housing development containing fifteen (15) rooms, car parking facilities, communal living and open space areas at 11 Blaxland Avenue, Penrith is determined by the grant of consent subject to the conditions set out in Annexure A.

J Gray

Commissioner of the Court

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Annexure A (307 KB, pdf)

Decision last updated: 19 May 2025