Freecity Alpha Development Pty Ltd v The Council of the City of Sydney

Case •

[2025] NSWLEC 1694

•

30 September 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Freecity Alpha Development Pty Ltd v The Council of the City of Sydney [2025] NSWLEC 1694
Hearing dates: 30-31 July 2025: written submissions on 8 and 13 August 2025
Date of orders: 30 September 2025
Decision date: 30 September 2025
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) The Applicant is to pay the Council’s costs thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

(2) The appeal is upheld.

(3) Development application D/2024/969 for the demolition of the existing brick building, retention and internal demolition of two terrace houses, construction of a co-living development with landscaping and associated works at 2 Arundel Street and 6-8 Parramatta Road, Forest Lodge is determined by the grant of development consent, subject to conditions of consent at Annexure A.

(4) All Exhibits are returned except for Exhibits A, B and D.

Catchwords:

DEVELOPMENT APPLICATION — co-living development — heritage conservation area — effect of the proposed development on heritage conservation area — whether proposed development exhibits design excellence

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 4.16, 7.3, 7.11, 7.13, 7.32, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9

State Environmental Planning Policy (Housing) 2021, ss 3, 14, 15, 67, 68, 69, 70

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120, 2.122

Sydney Local Environmental Plan 2012, cll 2.2, 4.3, 4.4, 4.6, 5.10, 6.21C, 7.13, 7.14

Cases Cited:

Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117

Texts Cited:

City of Sydney Affordable Housing Program dated 26 June 2023

Sydney Development Control Plan 2012, Council of the City of Sydney, 14 December 2012

Category:Principal judgment
Parties: Freecity Alpha Development Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)
Representation: Counsel:
A Galasso SC (Applicant)
A Hemmings (Respondent)
Solicitors:
Mills Oakley (Applicant)
The Council of the City of Sydney (Respondent)
File Number(s): 2024/462059
Publication restriction: Nil

JUDGMENT

  1. COMMISSIONER: A triangular site on the northern side of Parramatta Road, known as 2 Arundel Street and 6-8 Parramatta Road, Forest Lodge, is currently occupied by a one and two-storey building known as the Mackie Building, and two Victorian-era terraces.

  2. Development for the purposes of co-living housing is proposed that would require the demolition of the existing Mackie Building and the partial demolition of the terraces. To this end, development application D/2024/969 was lodged by the applicant in these proceedings, Freecity Alpha Development Pty Ltd (Freecity), with the Council of the City of Sydney (the Council) on 1 November 2024.

  3. As the development application was not otherwise determined, Freecity appealed its deemed refusal on 12 December 2024 under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

  4. Freecity was granted leave to rely on amended plans and other documents that had the effect of amending the development application on 6 May 2025, after which the development application, as amended, was further notified.

  5. On the eve of the hearing, Freecity sought leave to further amend the development application by Notice of Motion filed 25 July 2025. The Notice of Motion was not opposed by the Council, subject to the amending of the documents the subject of the Notice of Motion. The Council, as the relevant consent authority, approved the amending of the development application in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

  6. The amended plans and other documents that had the effect of amending the development application are contained in a bundle, later marked Exhibit A, comprising:

  1. Amended architectural plans prepared by Cox Architecture (Tab 2)

  2. Amended clause 4.6 Variation Request – FSR, prepared by Urbis dated 27 June 2025 (Tab 3)

  3. Amended Construction Methodology prepared by Freecity (Tab 4)

  4. Statement in relation to rooftop plant noise prepared by e-Lab Consulting dated 2 July 2025 (Tab 5)

  5. Statement in relation to sprinklers prepared by Collective dated 9 July 2025 (Tab 6)

  6. Interim Audit Advice prepared by Geosyntec dated 30 June 2025 (tab 7)

  7. Terracotta Panel Sample Example Sheet (Tab 9)

  8. Amended BCA Assessment Report prepared by Steve Watson & Partners dated 25 July 2025 (Tab 10)

  9. Amended Access Assessment Report prepared by Steve Watson & Partners dated 25 July 2025 (Tab 11)

  1. As I understand the amendments for which Freecity was granted leave constitute changes that are more than minor, Freecity is to pay the Council’s costs thrown away as agreed or assessed in accordance with s 8.15(3) of the EPA Act.

The site and its context

  1. The site is located in an elevated position to the north of Parramatta Road in close proximity what is known as the Chapman Steps and Chapman Steps footway (the Footway) that provide pedestrian access down to Parramatta Road.

  2. For clarity, two adjoining terraces to the west of the site front onto the Footway, with rear access to Arundel Street.

  3. The site also presents a northerly address to Arundel Street of around 75m in length.

  4. The Amended Statement of Facts and Contentions prepared by the Council (Exhibit 1) also describes the site and its context in the following relevant terms:

  1. The site has a frontage of 77.5m to the Footway, a 47.3m frontage to the residential terraces to the west, and a 5.5m frontage to the intersection of the Footway and Arundel Street to the east.

  2. The Mackie Building at 2 Arundel Street is built to the boundary on all sides, while the adjoining terraces are setback from Arundel Street by 17-20m, and from the Chapman Steps by 0.7-2.8m.

  3. The site comprises Lot 1 in DP 90215, Lots 1 and 3 to 6 in DP 979837, and Lot 7 in DP 78194.

  4. Across the road to the north, at 71 Arundel Street, is a five-storey educational building owned by the University of Sydney known as the Margaret Telfer building.

  5. Arundel Street continues to the east, with on street parking and a pedestrian footbridge connecting to the Footbridge Theatre and University of Sydney campus to the south, on the opposite side of Parramatta Road.

  6. To the west lies residential terrace development, that transitions into large floorplate commercial and light industrial premises at the intersection with Ross Street; such as an OfficeWorks, and car dealerships.

  1. The relevant map on the land use table at cl 2.2 of the Sydney Local Environmental Plan 2012 (SLEP) identifies that the eastern portion of the site is located within an area designated Mixed Use (MU1), and the western portion of the site on which the terraces are located is designated General Residential (R1).

  2. The objectives of the MU1 zone are as follows:

•  To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

•  To ensure land uses support the viability of nearby centres.

•  To integrate suitable business, office, residential, retail and other land uses in accessible locations that maximise public transport patronage and encourage walking and cycling.

  1. The objectives of the R1 zone are:

•  To provide for the housing needs of the community.

•  To provide for a variety of housing types and densities.

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

•  To maintain the existing land use pattern of predominantly residential uses.

  1. For reasons that will be made clear, it is relevant that shop top housing is permitted with consent in both the MU1 and R1 zones, and that residential flat buildings are permitted with consent in the R1 zone.

  2. The site is also located within the Hereford and Forest Lodge Heritage Conservation Area (C33), and also within the Ross Street Locality under the provisions of Sydney Development Control Plan 2012 (SDCP).

  3. The Locality statement that applies to the Ross Street Locality is in the following terms at Section 2.6.2 of the SDCP:

“The Ross Street neighbourhood is bounded by Parramatta Road to the south, Seamer Street and the rear of lots facing Lodge Street to the east, Bridge Road and the rear of lots on the north side of St John’s Road and the rear of lots facing Ross Street, with an additional ‘spur’ to the west along Parramatta Road. Ross Street is to continue to serve local shopping and dining needs and is to include a mix of retail, commercial and residential uses with high quality designed buildings and an enhanced public domain. The neighbourhood is to include a mix of retail, commercial and residential uses with high quality designed buildings and an enhanced public domain. Future uses and built form introduced on the corner of St John’s Road and Ross Street is to help integrate and enliven the area, and the section of Ross Street, between Parramatta Road and St Johns Road is to be treated as a key pedestrian and vehicle access to Forest Lodge. The future development on the site on the corner of Parramatta Road and Ross Street is to provide a strong entry feature to the neighbourhood.

Principles

(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.

(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.

(c) Consolidate the pattern of large street edging buildings to provide a new visual focus and corner anchor to strengthen views towards Sydney University.

(d) Introduce tree planting in breaks or recesses in buildings located outside of the commercial core.

(e) Align buildings to the street and introduce uses that interact with the street at the ground and first floor level.

(f) Maintain the lower scale of buildings on St John’s Road in keeping with its role as the ‘secondary axis’ of the neighbourhood centre.

(g) Provide continuous awnings for pedestrian amenity, to unify the streetscape and to provide weather protection.”

Contentions

  1. While the contentions express the scope of the dispute differently, the parties agree that there are just 2 issues for the Court to consider:

  1. Whether the heritage significance of the Hereford and Forest Lodge Heritage Conservation Area (Forest Lodge HCA) is adversely affected by:   

  1. The extent of demolition proposed to the terraces

  2. The external material and finishes selection for the façade.

  1. The parties’ competing positions on the appropriate without prejudice conditions of consent.

  1. The Council does not object to the exceedance by the proposal of the height standard, or the floor space ratio that applies to the site.

  2. However, as those matters are jurisdictional matters necessary to enliven the power to grant consent, I will deal with the height and FSR first, before considering those matters at [18].

  3. I will then consider the evidence of the experts in order to assist my consideration of whether the proposal exhibits design excellence in accordance with cl 6.21C of the SLEP, being a matter also contended by Council by virtue of those matters at [18].

Floor space ratio standard and height standard is exceeded

  1. Freecity relies on a written request prepared by Urbis dated 27 June 2025 (FSR Request) (Exhibit A, Tab 3) that identifies two FSR standards applicable to the site, and includes the bonus of 10% derived from s 68(2)(a)(ii) of the Housing SEPP is included.

  1. On Site A, identified as 6-8 Parramatta Road, a FSR standard of 1.375:1 is permitted

  2. On Site B, identified as 2 Arundel Street, a FSR standard of 1.65:1 is permitted.

  1. The FSR of the proposed development is likewise expressed according to the two sites in the following terms:

  1. On site A: 0.8:1, otherwise expressed as 41% below that permitted.

  2. On site B: 1.85:1, otherwise expressed as an exceedance of 12%

  1. When the FSR permitted on both site A and B is combined, together with the bonus permitted by Housing SEPP, a FSR standard of 1.577:1 applies. The proposal complies with this standard.

  2. The FSR Request asserts that the proposed development is consistent with the objectives of the FSR standard notwithstanding the exceedance in accordance with cl 4.6(3)(a) of the SLEP.

  3. Those objectives, at cl 4.4 of the SLEP, are as follows:

(a)  to provide sufficient floor space to meet anticipated development needs for the foreseeable future,

(b)  to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,

(c)  to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,

(d)  to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

  1. Consistency with the objectives above may be summarised in the following terms:

  1. Firstly, the objectives of the FSR standard are achieved notwithstanding the non-compliance because the development complies with the FSR standard when the quantum of floor space is calculated across the entire site.

  2. Secondly, the density of the development is regulated by the fixing of a FSR standard on the site understood as a whole, for reasons shown in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61, at [49]. An aspect of the land use intensity is the generation of vehicle and pedestrian traffic that the FSR Request addresses by characterising the accommodation proposed in the development as student accommodation located close to the University of Sydney campus, and in an area well served by public transport. Furthermore, as the accommodation integrates built-in furniture, the FSR Request states that delivery vehicles such as removalist vans and trucks are not expected. To the extent vehicle modes are catered for, 56 bicycle parking spaces are proposed.

  3. For reasons similar to those summarised above, the proposal complies with the total allowable maximum floor space for the site and as such the intensity is comparable to reasonable expectations for consolidated development on the site.

  4. Finally, the FSR Request asserts that the proposal responds positively to, and complements, the Forest Lodge HCA by retaining and upgrading the terraces that are identified as contributory to the area, and by proposing a built form that creates a street edge, strengthening views to the University of Sydney and apportioning height and bulk to the southern portion of the site that avoids impacts on four mature street trees to Arundel Street. Next the materials and colours are compatible with those in the area, and rooftop communal open space is regulated by a proposed Plan of Management and supported by an acoustic assessment to minimise adverse impacts on the locality.

  1. The FSR Request also advances environmental planning grounds it argues are sufficient to justify the contravention of the development standard that may be summarised as follows:

  1. The exceedance arises because of the two standards that apply on the two parcels of land that comprise the site, and as a result of which no inconsistency with the objectives of the FSR standard arise. The proposal complies with the FSR standard when the site is understood as a whole.

  2. The apportioning of floor space on Site B is consistent with heritage advice so that the terraces on Site A may be retained and new bulk is limited to this part of the development.

  1. The proposed development also exceeds the maximum height of buildings standard of 12m that applies to the site, and Freecity relies on a written request also authored by Urbis and dated 18 April 2025 (Height Request) (Exhibit B, Tab 7).

  2. The Height Request identifies, in Table 2, (p 7) the height of the development as follows:

  1. Lift core: 15.11m

  2. Stair 1 Lid: 13.23m

  3. Southern Building: 13.67m

  4. Awning: 12.78m

  1. The Height Request asserts that the proposed development is consistent with the objectives of the height standard notwithstanding the exceedance in accordance with cl 4.6(3)(a) of the SLEP.

  2. The objectives of the Height standard are relevantly:

4.3 Height of Buildings

…

(a)  to ensure the height of development is appropriate to the condition of the site and its context,

(b)  to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,

…

  1. The Height Request asserts the proposal is consistent with the objectives listed above for the reasons that follow:

  1. The apportioning of the greater height to the southern portion of the site permits the continued health of the mature street trees on Arundel Street that are a prominent landscape feature in the locality, and achieves a complying height to this address. While the height of buildings in the area varies, the Margaret Telfer building to the immediate north of the site is taller form that is similarly triangular and when viewed together with the height of the proposed development, the two will act as ‘marker buildings’ in the immediate context.

  2. The height of the proposal will appear compatible with the large institutional buildings within the University of Sydney campus that are taller still and are read atop walls of around 5m in height when viewed from vehicles on Parramatta Road.

  3. Shadow diagrams accompanying the Height Request demonstrate overshadowing is predominantly to Parramatta Road between 9am-3pm in mid-winter, and only minor overshadowing to the rear of 10 Kerridge Place. When the shadow otherwise generated by development of complying height is compared to that cast by the proposal, the proposal is superior due to the retention of the Terraces that affords greater passage of sunlight to areas beyond, and generally falls within the shadow cast by a complying building envelope.

  4. The proposal is also consistent with the Ross Street Locality character statement and principles found in Section 2.6.2 of the Sydney Development Control Plan 2012 (SDCP) by virtue of:

  1. The proposal positively responds to and compliments the heritage conservation area character by retaining and upgrading the contributory terraces and a built form that is otherwise complementary to the terrace house typology in the Ross Street Neighbourhood.

  2. The proposal creates a street edge building form that anchors the street corner and strengthens views to the University beyond.

  3. The proposal sets back the building from the northern and southern boundaries to create street level private open space to enhance surveillance and activate the edges of the site.

  1. The Height Request also then addresses objective cl 4.3(1)(b) of the SLEP by once again stating that additional building height has been apportioned to the south of the site adjoining Parramatta Road and away from the finer grain of Arundel Street, and

  1. The frontage to Arundel Street takes the form of a continuous row that complements the existing terrace character in the Forest Lodge HCA.

  2. The elements that exceed the height standard are located either centrally or to the southern boundary of the site, creating a transition to the lower building form on Arundel Street.

  1. Next, the Height Request advances four primary environment planning grounds it relies on to be sufficient to justify the contravention.

  1. Firstly, the elements that exceed the height standard, when understood in context, are located on the lower portion of the site, and so reflect the slope of the land, and the location of street trees that are unaffected as a result of the decision to locate the additional height elsewhere. The overall height and presentation of the proposal is contextual to the taller buildings in the immediate vicinity, such as the 5-storey Margaret Telfer building opposite.

  2. Secondly, the height exceedance will have only a minor visual impact from the public domain, and largely limited to Parramatta Road where the sightline is distant and subject to significant change in level.

  3. Thirdly, the shadow diagrams demonstrate that the effect of overshadowing that arises from the additional bulk is negligible when compared to the shadow cast by compliant development, and generally falls on Parramatta Road or on the rear of 10 Kerridge Place for only one hour.

  4. Fourthly, the elements that exceed the height standard provide access to rooftop plant, and to communal open space that is said to be consistent with a draft proposal by Council to encourage active, green rooftops.

  1. Freecity’s position that the proposed development is consistent with objective cl 4.4(1)(d) to ensure that new development reflects the desired character of the locality is contested by the Council’s experts. So too is the assertion relied on in the Height Request that the proposal provides appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, being the objective at cl 4.3(1)(b).

  2. As such it is relevant to consider the evidence of the experts in respect of the character of the Forest Lodge HCA. In doing so, the experts identify three issues that are dealt with in their oral evidence:

  1. The materials proposed for the façade.

  2. The works proposed to the terraces.

  3. The impact substation blast wall on the adjoining terrace.

  1. Experts in the following fields assisted the Court in this matter:

  1. Planning: Mr Stephen White, on behalf of Freecity and Mr Shannon Rickersey on behalf of the Council.

  2. Urban Design: Mr Alan Cadogan on behalf of Freecity and Ms Cindy Ch’ng on behalf of the Council.

  3. Heritage: Ms Alexandria Cornish on behalf of Freecity and Mr John Poulton on behalf of the Council who initially conferred in the preparation of a joint expert report on heritage (Exhibit 3), and also participated in further joint conferencing with other experts in the preparation of a supplementary joint report (Exhibit 8).

  1. I note the planning and urban design experts jointly conferred in the preparation of a joint expert report (Exhibit 4), and joined the heritage experts to prepare the supplementary report marked Exhibit 8.

The materials proposed for the façade

  1. The architectural plans depict a material palette that features aluminium, perforated metal screens, sandstone and terracotta.

  2. While Ms Ch’ng is concerned at the lack of precise specification for each of these, it is expressed in part in the form of a without prejudice condition of consent requiring the submission of a materials and finishes sample board.

  3. However, Ms Ch’ng’s primary position, shared by Mr Poulton, is that terracotta is not a cladding material common to the Forest Lodge HCA. Instead, Council’s experts are of the view that brick is a more appropriate material given the ubiquity of its use in buildings in the locality.

  4. Ms Ch’ng’s evidence is that the proposed terracotta material does not respond to nor complement heritage items or contributory buildings within the Hereford HCA, including streetscapes and lanes. As such, it is contrary to the principles of the Ross Street Locality. Ms Ch’ng sets out the desirable elements of the locality to demonstrate what she regards as the departures, and to also distil the characteristics with which the development must be compatible when regard is had to the terms of s 69(2)(f)(i) of State Environmental Planning Policy (Housing) 2021 (Housing SEPP). These include:

  1. Mature trees (both street trees and on private land)

  2. Low scale development of 2-3 storeys, but for the institutional buildings in the area.

  3. Building types including;

  1. fine grained terraces, predominantly of brick construction, palisade fencing and a landscaped front setback, rear yards, front terraces and light weight balconies over, a mix of parapet and pitched roofs, chimneys and the like,.

  2. Shop top terraces, again predominantly in brick

  3. Larger footprint buildings which are predominantly brick with high site coverage built to the boundary.

  1. Initially, the heritage experts and, for that matter, Ms Ch’ng on behalf of the Council, also agreed that the terracotta was not appropriate due in part to the size of the terracotta unit, being a form of terracotta ‘tile’.

  2. However, it is important, in my view, to place the expert evidence on materials and finishes into some context. Firstly, it is relevant that the documents to which they had regard in the initial joint reports (respectively Exhibits 3 and 4) include an earlier version of the architectural plans than those now before the Court.

  3. Ms Ch’ng’s written evidence is that the size proposed was in the order of 800mm x 1400mm and/or 1200mm x 3000mm (Exhibit 4, par 76).

  4. Secondly, and relatedly, it is also relevant to note the architectural elevations do not appear to consistently depict a specific size. Instead, the terracotta material size now proposed is found in a technical specification sheet stating the size to be 150mm x 400mm. (Exhibit A, Tab 9)

  5. As noted by Ms Ch’ng, it is well known that a common house brick is 230mm wide x 76mm high x 110mm deep.

  6. According to the experts, the proposed terracotta material is either approximately the size of a house brick, or twice the size of a house brick.

  7. Next, the Council’s experts agree that brick is capable of being concealed by render or paint, or both, or in the case of the Forest Lodge Hotel, by tile. Ms Ch’ng accepts that brick may be concealed to some facades, but that side return walls, or rear wings or other features such as chimneys will generally reveal the fine grain texture of brick; whether face brick or painted.

  8. Mr Cadogan’s written evidence is that nowhere in the Ross Street Locality statement, cited at [17], is face brick identified as characteristic – a fact he considers to be borne out in a survey undertaken by him that showed only 6.6% of the 272 properties in the locality to be face brick, or 17.6% if brickwork evident as a substrate to paint or bagged cement is included. (Exhibit 4, pars 44-46)

  9. Once rendered, whether the substrate material is concrete, sandstone, concrete block, brick or lightweight block known as Hebel is unknowable to the passer by.

  10. According to Mr Cadogan, terracotta derives from fired clay, and is generally found in colours and tones that result from the colour or tone of the clay used in its manufacture – a characteristic terracotta shares with brick.

  11. Five colours of terracotta are proposed which Mr Cadogan considers likely to result in a high degree of articulation and modulation to the building’s elevations.

  12. I accept and agree with the premise of Mr Cadogan’s evidence – that terracotta is not so different to brick as to be uncharacteristic of a locality in which brick, whether unfinished, or finished with paint or bagged cement or any other applied surface, is characteristic.

  13. The format size of the terracotta, at 150mm x 400mm, is larger than a common brick but is not such a departure from the size of a brick or masonry block to be at odds with either, and the colour and texture evident in the physical samples tendered (Exhibit E) are also similar to the colour and texture of a common house brick.

The works proposed to the terraces

  1. Mr Poulton regards the terraces to be a fine example of the federation era style, which is consistent to the terraces fronting the Footway. Internally, Mr Poulton identified features such as the original stairs, timber fretwork, keyhole archways and original cornices that represent an intact example of its type.

  2. As I understand it, Ms Cornish substantially agrees with Mr Poulton’s assessment. The difference between them is that Ms Cornish believes it is common practice, in terraces within a heritage conservation area, to retain the front two rooms virtually unchanged, and that demolition north of these rooms is not unreasonable.

  3. Mr Poulton believes that a greater extent of original fabric can and should be retained. For example, rooms to the rear that are currently used as bedrooms could continue to be used for that purpose. However, Mr Poulton also believes that later additions such as the rear single storey lean-tos could be removed, and a new single storey addition added, set back from the mature trees in the rear yard.

  4. Mr Poulton believes the view to the rear of the terraces from Arundel Street is an important one in the Forest Lodge HCA. Rather than the rear yard of the terraces being characterised as a ‘missing tooth’ to the Arundel Street streetscape, the mature trees in the rear yard affords amenity and the view provides an appreciation afforded for more than a century.

  5. Mr Poulton also believes the terraces make an important contribution to the streetscape character of Kerridge Place to the west, given the degree of consistency in features that are characteristic of terraces of this era.

  6. These characteristics include rear wings with skillion roof form and chimneys, original breezeway setbacks and the use of brick, whether painted or otherwise. Figure 3 of the joint report, re-produced below, demonstrates these characteristics, according to Mr Poulton.

  1. On the basis of the onsite view, the terraces on the subject site make a very different contribution, in my view, when considered in the context of rear wings and chimneys that present within Kerridge Place. This is largely because the deep setback of the rear wings on the subject site presents no more than a view to the western boundary wall of 8 Parramatta Road. As such, the built form on the subject site is viewed, essentially, as a two-dimensional plane and not as a three-dimensional form in the manner of those wings viewed from within Kerridge Place. As a consequence, the terraces on the subject site make little contribution to Kerridge Place.

  2. To the extent Mr Poulton considers the view to the rear of the terraces from Arundel Street to be significant, I accept that it is a view that has been enjoyed from particular vantage points in Arundel Street for many decades. However, I agree with Ms Cornish that this is largely a function of the constrained site depth that is not sufficient to have been divided by the extension of the rear lane. The proposal does not seek to change, but instead reinforce, this subdivision pattern.

  3. The proposed development does propose the removal of rear wings, in which the existing rooms are highly constrained by load bearing walls and a circulation pattern that requires passage through one room to access another, as is often the case in the rear wing of terraces of this era. At the first floor, the existing stairs, bathroom and rear-most room are once again highly constrained by load-bearing walls and are of a size that makes adaptive reuse difficult and where access and circulation is unlikely to meet contemporary standards. Commentary to this effect is included at p 28 of the BCA Assessment Report prepared by Steve Watson and Partners, in which the dimensions of the treads and risers to the stairs are said to be inconsistent, contrary to Clause D3D14 of the BCA (Exhibit A Tab 10).

  4. The proposal is to retain the terraces, with alterations and additions that do not significantly alter the appearance of the principal and significant facades that front the Footway and Parramatta Road.

  5. As such, I consider the proposal consistent with Section 3.9.7 of the SDCP that requires, at (3), alterations and additions to a contributory building to:

“(a) respect significant original or characteristic built form;

(b) respect significant traditional or characteristic subdivision patterns;

(c) retain significant fabric;

(d) retain, and where possible reinstate, significant features and building elements, including but not limited to original balconies and verandahs, fences, chimneys, joinery and shop front detailing;

(e) remove unsympathetic alterations and additions, including inappropriate building elements;

(f) use appropriate materials, finishes and colours; and

(g) respect the pattern, style and dimensions of original windows and doors”

  1. To the rear, the proposal adopts the characteristic built form of the rear wings, uses appropriate materials and respects the pattern of windows to the rear, albeit in a contemporary manner. The rear elevation is to be finished in face brick finish, with a form of chimney replicated on the rear wing, and in the location of the existing chimney. This elevation is re-produced below.

The impact substation blast wall on the adjoining terrace

  1. A substation is proposed in the north west corner of the site fronting Arundel Street. As I understand the requirements of such a kiosk, a wall is required in the event of failure of the kiosk.

  2. A wall, referred to as a ‘blast wall’, is proposed adjoining the terrace to the west of the site, known as 2A Arundel Street. The wall is 6m high.

  3. The Council contends this wall is uncharacteristic in the Forest Lodge HCA, and it is inappropriate for it to be placed so close to a contributory item in the Ross Street Locality. Furthermore, in practical terms, the blast wall obstructs subfloor vents and other openings in the adjoining terrace.

  4. Council’s experts recommend, at par 27 of the supplementary joint report, a setback of 600mm for this purpose to permit access for a person to undertake maintenance.

  5. Freecity argues it is not uncommon for development to abut an existing building and for ventilation to be obtained by other sub floor openings. There is no dimension shown on the architectural plans to indicate what setback is proposed to the boundary. Freecity also argues that there is no requirement to provide access for maintenance or any other reason and that to do so may require an easement to be sought by the owner of the adjoining terrace.

  6. Mr Rickersey notes that no confirmation has been obtained from Ausgrid or any services consultant as to whether the proposed substation/substation kiosk meets Ausgrid’s requirements.

  7. While the substation enclosure is not dimensioned, neither are other elements such as the fire booster. When the layout and clearances of both components are understood in the context of the architectural plans, and the scale at which the plans are drawn, I consider the allowances reasonable, and with some degree of tolerance such that final resolution is not likely to be material to the function or appearance of the areas of the development in which they are located.

  8. I also accept that structures are regularly erected immediately adjoining existing buildings with vented openings and that such vents are generally located on each face of a building such that a degree of airflow is maintained. I do not consider it reasonable or necessary to impose a setback of the blast wall. Doing so would only appear to draw greater attention to a wall that will otherwise be read as a subservient element against the backdrop of a more dominant, taller and longer element, which is the side wall of 2A Arundel Street.

  9. The Statement of Significance for the Forest Lodge HCA is in the following relevant terms:

“Hereford and Forest Lodge Conservation Area has historic significance of the its rare surviving early residential development Swiss Cottages (c.1842) and Glenwood (c. 1837). The area possesses the ability to evidence early villa estates; Hereford (c.1829), Rosebank (c.1832) and Forest Lodge (c.1836) and their incremental subdivision.

…

Hereford and Forest Lodge Conservation Area has aesthetic significance for its ability to illustrate various periods of development and architectural styles and building types (some of a very early date), and its landscape qualities. Residential development, encourage by the tram extension in Hereford/Forest Lodge, reflects the varied character of historic subdivisions, divided by the historic and aesthetically important Bridge Road. The predominantly Victorian character is supported by several other important historic layers. The diverse social mix that is reflects in the building stock to the character of the suburb.”

  1. When the proposed development is understood as a whole, I accept that the repetitive terrace-like form of the elevation fronting Arundel Street and the Footway, finished in terracotta in a mix of natural hues, is in no way inconsistent with the Victorian character cited in the Statement of Significance for the Forest Lodge HCA, and is consistent with the objectives and controls at Section 3.9.6 of the SDCP.

  2. Furthermore, the retention of the street trees and of the two mature trees in the rear of the terraces at 6-8 Parramatta Road maintains the landscape qualities that are also of note in the Forest Lodge HCA and appropriately contributes to the interface between the public domain and building alignments sought in Section 3.9.6 of the SDCP.

  3. For completeness, Section 3.9.6 of the SDCP provides;

“New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings.

(1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to:

(a) topography and landscape;

(b) views to and from the site;

(c) significant subdivision patterns and layout, and front and side setbacks;

(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;

(e) the interface between the public domain and building alignments and property boundaries; and

(f) colour schemes that have a hue and tonal relationship with traditional colour schemes.

(2) New infill buildings and alterations and additions to existing buildings in a heritage conservation area are not to be designed as a copy or replica of other buildings in the area, but are to complement the character of the heritage conservation area by sympathetically responding to the matters identified in (1)(a) to (e) above.

(3) Infill development is not to include garages and car access to the front elevation of the development where these are not characteristic of the area.

(4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area.”

  1. I can only conclude the materials and finishes proposed in the development, the alterations and additions to the terraces and the form and scale of the substation enclosure are all acceptable in the effect that results in the Forest Lodge HCA, and on those heritage items identified in Sch 5 of the SLEP that are in the vicinity of the site including:

  1. Adjoining the south of the site, local heritage item “Stone retaining wall, fence and steps” (I71);

  2. To the northwest starting at 12 Arundel Street and continuing west, local heritage item “Street Trees” (I631).

  3. Across Parramatta Road to the South, local heritage item “Site landscaping, University of Sydney perimeter fencing and gates” (I72), as well as the following nearby local heritage items at the University of Sydney:

  1. “Heydon-Laurence Building, University of Sydney including interior” (I75);

  2. “Refectory Building, University of Sydney including interior, forecourt and loggia” (I76); and

  3. “Holme Building, University of Sydney including interior” (I77).

  1. As such I find the proposed development acceptable in terms set out at cl 5.10 of the SLEP.

The FSR and height exceedance is justified

  1. In finding this to be the case, I also find the proposed development is consistent with objective cl 4.4(1)(d) of the SLEP to ensure that new development reflects the desired character of the locality, and it provides appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas, being the objective at cl 4.3(1)(b).

  2. Accordingly, I am satisfied that it is unreasonable or unnecessary in the circumstances of this case to comply with the height and FSR standards because the proposed development is consistent with the objectives of those standards, pursuant to cl 4.6(3)(a) of the SLEP.

  3. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention. In particular, these grounds are:

  1. In respect of the FSR exceedance, I firstly accept that the exceedance arises because of the two standards that apply on the two parcels of land that comprise the site, and the proposal complies with the FSR standard when the site is understood as a whole. Secondly, I also accept that the apportioning, or preferencing of floor space to the east of the site is consistent with good heritage practice to retain the bulk, height and scale of the contributory terraces at 6-8 Parramatta Road.

  2. In respect of the height exceedance, I also accept that the overall height and presentation of the proposal is contextual and compatible with the taller buildings in the immediate vicinity, such as the Margaret Telfer building opposite and that the height is not achieved at the expense of street trees or the landscape qualities of the area. Instead, the height is located where the visual and other material impacts do not adversely affect surrounding properties.

  1. For these reasons I am satisfied that there are sufficient environmental planning grounds to justify the contravention of the development standard, in accordance with cl 4.6(3)(b) of the SLEP, and find the written requests in respect of height and FSR should be upheld.

Design Excellence

  1. Pertinent to those matters considered above, the Council submits that the proposed development fails to exhibit design excellence in terms set out at cl 6.21C of the SLEP.

  2. The Council’s experts confine this failure to only certain aspects of the provision, being limited to whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved (cl 6.21C(2)(a)), and because Council’s experts believe that the proposal does not adequately address the relevant streetscape constraints (cl 6.21C(2)(d)(iii)).

  3. While the particularising of those matters is unquestionably of assistance to the Court, for the reasons shown by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 (Toga). It is not sufficient for the Court to form an opinion as to whether the proposed development does or does not exhibit design excellence by having regard to the evidence of the urban design experts alone.

  4. Instead, cl 6.21C of the SLEP prescribes a framework for deciding whether a development exhibits design excellence (Toga, at [70]) and the Court must have regard to the particular terms of, and answer the particular questions raised by, the matters in the design excellence provisions (Toga, at [75]).

  5. The urban design experts address the design excellence provisions from pars 29-102 of the joint expert report. In particular, Mr Cadogan details a response to each of the provisions in cl 6.21C.

  6. I have considered those matters at cl 6.21C(2), and I accept that the proposal achieves a high standard of architectural design, materials and detailing appropriate to the building type and location (cl 6.21C(2)(a) of the SLEP), for the reasons set out at [54]-[55] and I note the experts now agree, as do I, that the solid-to-void ratio is acceptable.

  7. On the basis of the retention of existing trees and the integration of landscape setback to Arundel Street at the rear of the terraces; the provision of 14% of the site area as deep soil and the provision of a landscape space to the east of the site for public use, I also accept that the form and external appearance of the proposed development will improve the quality and amenity of the public domain (cl 6.21C(2)(b)) with appropriate interfaces including publicly available green space to the east of the site (cl 6.21C(d)(x), (xii) and (xiii)).

  8. While at the onsite view it was the opinion of Ms Ch’ng that the view to the Footbridge Theatre was impaired by the proposed development, a careful read of the ground floor architectural plan (A-DA-2100) shows the proposal is setback from the footprint currently occupied by the Mackie Building in this location. As such, when the setback and the materials are considered, I accept the proposal will likely enhance a view to the footbridge and the Footbridge Theatre beyond. I do not understand there to be established view corridors that would otherwise be considered under cl 6.21C(c)).

  9. Having found at [81] that the proposal is acceptable in the Forest Lodge HCA, and being located opposite the University of Sydney, I also accept the site is suitable for the development and proposes a mix of uses suited to such proximity (cl 6.21C(d)(i) and (ii)).

  10. For reasons stated at [77]-[81], the proposal is acceptable when the heritage issues and streetscape constraints are considered (cl 6.21C(d)(iii)), that likewise adequately addresses the bulk, massing and modulation of the building, and due to those reasons also summarised at [84], and so address the matters at cl 6.21C(d)(v) and (vi).

  11. Mr Cadogan’s enumerates sustainability initiatives at par 29(k) of the joint expert report that are consistent with those listed at pp 19-20 of the Amended Statement of Environmental Effects, including:

  1. A commitment to Net Zero operational carbon by 2025, and onsite renewable energy generated by rooftop photo voltaic panels.

  2. Passive design principles to balance solar access with heat load through appropriate shading and a high performing thermal envelope.

  3. Heat mitigation strategies such as greening of outdoor areas, and water sensitive urban design.

  4. Retention of the historic fabric to the terraces at 6-8 Parramatta Road is consistent with good conservation principles and reduces virgin material consumption and retains embodied carbon.

  1. As such, I accept that the proposal sufficiently addresses its environmental impacts, and the achievement of the principles of ecologically sustainable development (cl 6.21C(d)(vii) and (viii)).

  2. Finally, I note the provision of bicycle parking, and pedestrian access is provided to both the north and south of the site to provide a permeable pedestrian network for residents and visitors to the site, in answer to cl 6.21C(d)(ix).

  3. Accordingly, I am satisfied the proposed development exhibits design excellence in those terms set out at cl 6.21C.

State Environmental Planning Policy (Housing) 2021

  1. The Council contends that the proposed development fails to achieve principle in s 3(f) of the Housing SEPP that seeks to reinforce the importance of designing housing in a way that reflects and enhances its locality.

  2. Furthermore, the proposed development has not demonstrated that the design of the building is compatible with the desirable elements of the character of the local area in accordance with s 69(2)(f)(i) of SEPP (Housing) 2021 and the desired future character of the local area in accordance with s 69(2)(f)(ii) of SEPP (Housing) 2021.

  3. For the reasons stated previously, at [77] and [78], I have found the proposed development is consistent with those provisions of the Housing SEPP in respect of housing that reflects and enhances its locality, and that is compatible with the desirable elements of the character of the local area.

  4. As noted at [15], shop top housing and residential flat buildings are permitted in the MU1 and R1 zones. Section 67 of the Housing SEPP provides that development for the purpose of co-living housing may be carried out with consent in those zones that permit development for such a purpose.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP).

  2. A Preliminary Site Investigation prepared by Martens & Associates dated October 2024 (Exhibit D, Tab 18) concluded that the site had likely exposure to sources of potential contamination and recommended a Detailed Site Investigation (DSI) be undertaken.

  3. A DSI prepared by Martens & Associates dated December 2024 (Exhibit B, Tab 17) records the results of five boreholes sunk to a maximum depth 7.93m, and laboratory analysis that concludes that the site requires remediation.

  4. A Remedial Action Plan, authored by Martens & Associates dated November 2024 (Exhibit B, Tab 18) is cited in the without prejudice conditions of consent.

  5. On the basis of the above, I am satisfied that the site can be made suitable for the development proposed to be carried out.

  6. Relatedly, while the site is identified on the relevant map at cl 7.14(2) of the SLEP, within an area marked Class 5 Acid Sulfate Soils (ASS), I do not understand the site to be within 500m of another class of ASS when references is had to those maps within such vicinity of the site.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map.

  2. Section 6.6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) precludes the grant of consent unless the Council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

  3. The Concept Stormwater Management Plans prepared by Martens & Associates (Exhibit B, Tab 3) depict a combined onsite detention (OSD) tank of 59m3 and rainwater tank. I note a stormfilter chamber is fitted with water quality treatment devices. MUSIC modelling predicts the effect of water quality treatment will result in a reduction of suspended solids, phosphorous, nitrogen and gross pollutants such that I am satisfied that the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial impact, in accordance with s 6.6(2)(a), and that water flow in or to a natural waterbody will be minimised, pursuant to s 6.6(2)(b) of the Biodiversity SEPP.

  4. For similar reasons I have also considered those matters at s 6.7(1) of the Biodiversity SEPP and am satisfied there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation, and result in no adverse impact on aquatic reserves, or in terms of erosion.

  5. I note that the site is not identified as flood liable land to which s 6.8 of the SEPP is directed and so does not apply.

  6. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

  1. The site is located in close proximity to Parramatta Road, but does not have a frontage such that vehicular access is possible due to the significant difference in level. As there is no existing vehicular access, and none is proposed, I am satisfied that the safety, efficiency and ongoing operation of Parramatta Road will not be adversely affected by any means of access, and nothing is proposed that would affect the nature, volume or frequency of vehicles using Parramatta Road because access to the site is not proposed by vehicle from Parramatta Road.

  2. As the proposed development is residential development, I note measures to ameliorate potential traffic noise are set out in a Noise and Vibration Impact Assessment prepared by E-Lab dated 24 October 2024 (Exhibit D, Tab 16) with which compliance is required by the proposed condition of consent at Condition 23. As such I am satisfied that the development includes measures to ameliorate the effect of traffic noise in residential units, in accordance with s 2.119 and includes appropriate measures to ensure relevant levels on the development, consistent with s 2.120(3) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP).

  3. As the site does not have direct access to Parramatta Road, and does not have a connection to Parramatta Road within 90m of the site, the provisions of s 2.122 are not engaged.

Conditions of consent are disputed

  1. At the conclusion of the hearing, parties were directed to confer and file and serve without prejudice conditions of consent and provide short written submissions on those conditions not otherwise agreed.

  2. The Council provided written submissions in closing and without prejudice conditions of consent on 8 August 2025.

  3. Freecity filed conditions of consent in reply on 13 August 2025.

Condition 1A(a) External facades

  1. On the basis of my finding at [54]-[55], the Council’s condition requiring a change of material is deleted.

Condition 1A (d) – Blast wall

  1. On the basis of my findings at [74]-[75] and [80], I do not accept such a setback to the blast wall is necessary nor, to the extent it may be taken as a precedent, desirable. The Council’s proposed design change is deleted. The implications of such a change to the presentation of the development to Arundel Street are not certain but likely to result in an increased prominence of the substation and reduced frontage of landscape.

Parking on Arundel Street

  1. The Applicant seeks changes to on street parking arrangements to that a 'No Parking' zone of 18m in length is provided at the Arundel Street site frontage to allow a 10.6m waste collection truck to park and collect the bins. This no parking zone will also allow ride share vehicles, delivery vehicles, food delivery and taxis to pick up and drop off goods and passengers.

  2. The parties agree that a separate submission is required to the Local Pedestrian, Cycling and Traffic Calming Committee via the City Infrastructure and Traffic Operations Unit seeking the City’s approval for any changes to kerb side parking arrangements.

  3. A letter authored by JMT Consulting dated 9 February 2025 (Exhibit B, Tab 22) explains an existing kerbside zone with a length of 20m that is not currently subject to parking restrictions and which is located directly outside the proposed waste room.

  4. The Council proposes a deferred commencement condition at Condition 1 pursuant to s 4.16(3) of the EPA Act for changes to the parking conditions along Arundel Street.

  5. Freecity seeks to relocate the condition from one that defers the operation of the consent to being a prerequisite to the issue of a construction certificate.

  6. The Local Pedestrian, Cycling and Traffic Calming Committee is a function of the Council, and is not some other external entity. In the event the proposal for the no parking zone as proposed is not supported, waste collection would not occur at the kerbside, but in the street as is not uncommon, and on a street that would appear capable of supporting such an arrangement.

  7. For these reasons, the condition is adopted in the form preferred by Freecity.

Affordable housing contribution

  1. The Council seeks to impose a contribution under cl 7.13 of the SLEP and, separately, to impose an Affordable Housing contribution under the City of Sydney Affordable Housing Program dated 26 June 2023 (Exhibit 6).

  2. The Council submits that an affordable housing contribution is both authorised and required by s 7.13 of the EPA Act by reference to s 7.32 of the EPA Act that relevantly provides:

  1. Consistent with s 7.32(1), s 14 of the Housing SEPP identifies there is a need for affordable housing within each area of the State.

  2. Subject to those provisos at subs (3), a condition requiring the payment of a monetary contribution to be used for the purpose of providing affordable housing is permitted.

  3. Those provisos at subs (3) are satisfied because:

  1. The condition complies with all “relevant” requirements made by the SEPP Housing with respect to the imposition of conditions under s 7.32 of the EPA Act, in that s 15 of the Housing SEPP must be considered but is not a “relevant” requirement for the imposition of a monetary contribution. (s 7.32(3)(a))

  2. The condition is authorised to be imposed by s 7.3 of the EPA Act and the “scheme” is that identified in cl 7.13(4) of the SLEP, being the City of Sydney Affordable Housing Program adopted 26 June 2023 and provides the relevant calculations of the contribution. (s 7.32(3)(b))

  3. The condition requires a reasonable dedication or contribution, having regard to any other dedication or contribution required to be made by the applicant under this section or section 7.11, consistent with s 7.32(3)(c)).

  1. The Council regards it as relevant that Freecity has not challenged the calculation in the condition proposed by the Council as to the quantum of the affordable housing contribution pursuant cl 7.13 of the SLEP and the City of Sydney Affordable Housing Program.

  2. Furthermore, the Council submits there is no evidence before the Court to suggest that the quantum of the contribution is not “reasonable” having regard to the contribution required under s 7.11 of the EPA Act in Condition 6, and that the onus falls to Freecity to satisfy the Court that the contribution under that ‘scheme’ is unreasonable having regard to s 7.11.

  3. Freecity argues that the imposition of an affordable housing contribution is unreasonable in the circumstances because the proposal is student housing, that may also be described as affordable housing. Accordingly, the discretion available to the Court to impose such a condition should not be exercised as the purpose of the development is for student accommodation.

  4. The Statement of Environmental Effects makes it plain that the development is for the purposes of student accommodation, that may be regarded as synonymous with affordable housing.

  5. The term “affordable housing” is defined in s 1.4 of the EPA Act as:

affordable housing means housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument.

  1. The term “affordable housing” is defined in the SEPP Housing to mean:

13 Affordable housing—the Act, s 1.4(1)

(1)  In this Policy, a household is taken to be a very low income household, low income household or moderate income household if—

(a)  the household—

(i)  has a gross income within the following ranges of percentages of the median household income for Greater Sydney or the Rest of NSW—

(A)  very low income household—less than 50%,

(B)  low income household—50–less than 80%,

(C)  moderate income household—80–120%, and

(ii)  pays no more than 30% of the gross income in rent, or

(b)  the household—

(i)  is eligible to occupy rental accommodation under the National Rental Affordability Scheme, and

(ii)  pays no more rent than the rent that would be charged if the household were to occupy rental accommodation under the Scheme.

(2)  In this section—

Greater Sydney means the area that the Australian Bureau of Statistics determines from time to time to be the Greater Sydney—Greater Capital City Statistical Area.

National Rental Affordability Scheme has the same meaning as in the National Rental Affordability Scheme Act 2008 of the Commonwealth.

Rest of NSWmeans the area that the Australian Bureau of Statistics determines from time to time to be the Rest of NSW—Greater Capital City Statistical Area.

  1. While Freecity is not constrained from charging rent equivalent to more than 30% of the household income, it is reasonable to conclude that as the development is for the purpose of student accommodation, it is likely that the development will accommodate very low, low, or moderate income households.

  2. Freecity also relies on the NSW Affordable Housing Ministerial Guidelines 2023/2024 (Exhibit F) to suggest that where “affordable housing” comprises a household with a median income of up to $132,900, this is likely to describe the circumstances of those residents of the development that must, by the terms of the Plan of Management (Exhibit D, Tab 17), be registered students.

  3. The Plan of Management, at Section 16, requires that a prospective resident of the development provide evidence of identity and of enrolment in any “registered training organisation in Australia”.

  4. Finally, the development is not capable of being subdivided into separate lots by the terms at s 70 of the Housing SEPP, and so it can be concluded that the development is, and will remain, for the purposes of student accommodation that, of themselves, constitute households of a median income no greater than $132,900.

  5. I accept Freecity’s submission that the characterisation of the development and terms of the Plan of Management so define the development as to constitute grounds for the Court to exercise the discretion at s 7.32(2) of the EPA Act so as to not impose a condition for dedication of part of the land for the purpose of providing affordable housing, or the payment of a monetary contribution to be used for that purpose.

  6. I decline to impose the condition sought by the Council because the development is likely to accommodate residents that meet the description of a household with a very low, low or moderate income band. Such a conclusion is also reasonable, in my view, when the modest scale of individual units is understood, designed in conformity with the requirements of s 69 of the Housing SEPP that limits the size of each private room to not more than 25m2 and not less than 12m2,  for a private room intended to be used by a single occupant, or otherwise 16m2.

Site consolidation survey

  1. Finally, the parties are apart on the timing of a survey required for the consolidation of the site. Mr Rickersey argues that the survey should be completed prior to demolition as the current survey plan pertaining to the site dates from the 1830s and demolition may remove evidence of survey markers and the like.

  2. While Freecity’s position is expressed differently in written submissions in closing, Freecity accepts that a survey is capable of being undertaken prior to demolition. On this basis, and with regard to the grounds set out by Mr Rickersey, the Council’s preferred condition is adopted at Condition 20.

Waste and Recycling Management

  1. While the Council does not press contentions in respect of waste management, the terms of Condition 36 which deals with this subject are differently expressed by the final form of without prejudice conditions of consent.

  2. I understand the issues initially contended for by the Council, but struck in the Amended Facts and Contentions cited at [11], are resolved by the response provided to those contentions in the letter prepared by Sustainable Transport Surveys Pty Ltd, trading as SALT, and dated 17 April 2025 (Exhibit B, Tab 23).

  3. The issues are somewhat related to the provision for parking considered at [124]-[130], and to the internal configuration of the waste room. For completeness, Freecity’s preferred form of wording is adopted to reflect that an amended Waste Management plan is required to deal with the location for residents to dispose of problem waste and tricky to recycle items.

Orders

  1. The Court orders that:

  1. The Applicant is to pay the Council’s costs thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

  2. The appeal is upheld.

  3. Development application D/2024/969 for the demolition of the existing brick building, retention and internal demolition of two terrace houses, construction of a co-living development with landscaping and associated works at 2 Arundel Street and 6-8 Parramatta Road, Forest Lodge is determined by the grant of development consent, subject to conditions of consent at Annexure A.

  4. All Exhibits are returned except for Exhibits A, B and D.

T Horton

Commissioner of the Court

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Annexure A.527 KB.pdf

Decision last updated: 30 September 2025

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