Strathfield Pronto Pty Ltd v Strathfield Municipal Council

[2025] NSWLEC 1614

Land and Environment Court

New South Wales

Medium Neutral Citation:

Strathfield Pronto Pty Ltd v Strathfield Municipal Council [2025] NSWLEC 1614

Hearing dates:

Conciliation conference on 22 August 2025

Date of orders:

27 August 2025

Decision date:

27 August 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The applicant is to pay the Council’s costs thrown away by reason of the amendment of Development Application DA2024.124 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979 (NSW), as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA2024.124 for the demolition of existing structures and the construction of a nine (9) storey mixed use development comprising ground level commercial premises, a 119 place child care centre and 122 residential apartments, above three (3) levels of basement car parking, at 41-47 Punchbowl Road, Strathfield South, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — mixed use development — conciliation conference — agreement between the parties — orders

Legislation Cited:

Environmental Planning and Assessment Act1979 (NSW), ss 4.16, 8.7, 34

Land and Environment Court Act 1979 (NSW), s 34

Education and Care Services National Regulations 2021 (NSW), ss 107, 108

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

State Environmental Planning Policy (Housing) 2021, ss 15C, 16, 18, 19

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

State Environmental Planning Policy (Sustainable Buildings) 2022,

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, ss 2.119, 2.120, 3.22

Strathfield Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.1, 6.2, 6.4

Category:

Principal judgment

Parties:

Strathfield Pronto Pty Ltd (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
J Ede (Solicitor) (Applicant)
M Mallos (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Strathfield Municipal Council (Respondent)

File Number(s):

2024/464320

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Strathfield Municipal Council, of Development Application DA2024.124. This application seeks consent for the demolition of existing structures, and the construction of a nine storey in-fill affordable housing, mixed-use development, comprising ground level commercial premises and a 120 place childcare centre, 132 residential apartments and three levels of basement parking at 41-43 and 45-47 Punchbowl Road, Strathfield South.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (NSW) (EPA Act).

3. Due to successful without prejudice negotiations between the parties, at the parties’ request, the Court arranged a conciliation conference before me as Duty Commissioner under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 22 August 2025.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application. This results in an amended application before the Court that now seeks consent for the demolition of existing structures, and construction of a nine storey mixed use development, comprising ground level commercial premises, a 119 place child care centre and 122 residential apartments above three levels of basement parking.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified from 21 October to 18 November 2024, during which time four submissions were received. Based on the amended application the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions, and the parties agree that the amended application does not necessitate renotification.

9. The proposed development has frontage to Punchbowl Road, which is a classified road, however vehicular access is provided via Walter Street. Accordingly, Ch 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) applies to the development. Pursuant to the SEPP T&I, From the Traffic Report by CJP Consulting Engineers dated 1 October 2024, the Acoustic Report prepared by Acoustic Noise & Vibration Solutions P/L dated 10 June 2025, the Air Quality Impact Assessment by Benbow Environmental dated 1 October 2024, and the parties’ submissions, I accept that:

1. Practical and safe vehicular access to the site is provided via a road other than the classified road (s 2.119(2)(a)).

2. The safety, efficiency and ongoing operation of Punchbowl Road will not be adversely affected in any of the ways listed in s 2.119(2)(b).

3. The development includes measures to ameliorate potential traffic noise and vehicle emissions arising from Punchbowl Road (s 2.119(2)(c)).

4. The development will not be adversely affected by road noise or vibration (s 2.120(3)).

5. The development, which is ‘traffic generating development’, was referred to Transport for NSW who have confirmed no objection subject to the imposition of certain conditions. These conditions have been included in the agreed conditions of consent.

10. The application as amended complies with the indoor and outdoor unencumbered space requirements set out in ss 107 and 108 of the Education and Care Services National Regulations 2021 (NSW), and therefore concurrence of the regulatory authority pursuant to s 3.22 of the SEPP T&I is not required.

11. From the amended application and the parties’ submission, I accept that the applicable provisions of the Child Care Planning Guideline have been considered and the amended application complies with the relevant provisions of this guideline.

12. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the Detailed Site Investigation by EI Australia dated 27 May 2025, I accept that in terms of contamination, subject to the agreed conditions of consent, the site is suitable for the intended use.

13. A BASIX certificate has been issued that relates to the development as amended, and a NABERS Embodied emissions materials form, in accordance with the requirements of the State Environmental Planning Policy (Sustainable Buildings) 2022.

14. The proposed development proposes, in part, in-fill affordable housing and as such relies on Ch 2, Pt 2, Div 1 In-fill affordable housing provisions of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing).

15. Pursuant to s 15C of the SEPP Housing, the development is permissible with consent under the Strathfield Local Environmental Plan 2012 (SLEP). Under the SLEP, the subject site is zoned E1 Local Centre and SP2 Classified Road, however no works are proposed on the SP2 zoned land. Development for the purposes of commercial premises, centre-based child care facility and shop top housing is permissible with consent in the E1 zone, and the proposed development is consistent with the objectives of this zone.

16. Additionally pursuant to s 15C of the SEPP Housing, the proposed affordable housing component is 15.1% of the total gross floor area, and a bus stop is located at the front of the site, with additional bus services within 400m of the site.

17. Section 16 of the SEPP Housing sets provisions for additional floor space ratio (FSR). The maximum FSR established under SLEP cl 4.4 is 3.1, however the development utilises the 30% bonus under the SEPP Housing resulting in a maximum FSR of 3.9:1, with which the development complies.

18. Similarly, s 18 of the SEPP Housing sets provisions for additional building height. Pursuant to SLEP cl 4.3, a maximum building height of 16m and 22m applies to the subject site. The proposed development exceeds this with building heights of 30.78m and 32.725m, utilising the 30% FSR bonus under s 18 of the SEPP Housing and an additional request to vary the development standard, pursuant to SLEP cl 4.6. This request has been prepared by GAT & Associates and is dated May 2025. From this request, I am satisfied that:

1. Compliance with the Height of Buildings development standard is unreasonable and unnecessary because the objectives of the development standard are achieved notwithstanding the non-compliance.

2. The request demonstrates sufficient environmental planning grounds in that the height exceedance provides for accessible rooftop communal open space that achieves solar access amenity targets compliant with the Apartment Design Guide.

19. Section 19 of the SEPP Housing proscribes several non-discretionary development standards. From the amended application and the parties’ submission, I accept that each of these standards, where relevant, have been complied with except for s 19(2)(b), requiring a minimum landscaped area. The minimum landscaped area required pursuant to s 19(2)(b) is 30% of the site area, and the proposed development achieves 22.1% of the site area. A second request has been prepared by GAT & Associates, dated May 2025, and from which I am satisfied that:

1. Compliance with the development standard is unreasonable and unnecessary in this case because the objectives of the standard are achieved notwithstanding the non-compliance. Further, the request demonstrates that the underlying objective or purpose of the standard – to deliver in-fill affordable housing – would be thwarted if strict compliance was required.

2. The request demonstrates sufficient environmental planning grounds in that the balance of landscaped area is achieved on the rooftop as communal open space, and that the non-compliance allows for the delivery of valuable in-fill affordable housing.

20. Pursuant to SLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map. Pursuant to cl 6.1(4), an Acid Sulfate Soil Assessment by EI Australia dated 29 July 2024 was provided with the Class 1 application, concluding that an acid sulfate soils management plan is not required for the works, and the consent authority has confirmed in writing that this is acceptable.

21. Earthworks are proposed under this development application. From the Geotechnical Investigation by EI Australia dated 16 September 2024, the parties submit, and I accept that the matters listed in SLEP cl 6.2(3) have been considered and the proposed earthworks are acceptable.

22. Based on the amended application and the parties’ submission, I accept that all essential services listed in SLEP cl 6.4 are available or that adequate arrangements have been made to make them available when required.

Conclusion

23. For these reasons, 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.

24. 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.

25. The Court notes:

1. Pursuant to s 38 of the EPA Regulation, the Respondent has approved the applicant amending Development Application DA2024.124, in accordance with the documents listed below:

1. List of Amendments prepared by CD Architects dated 27 May 2025.

2. Architectural plans, prepared by CD Architects, including the following:

Description	Reference No.	Date	Revision
Drawing List	1001	04/07/2025	D
DA Compliance table	1002	04/07/2025	D
Unit Schedule	1003	04/07/2025	D
Site Plan	1005	27/5/2025	C
Demolition plan	1006	17/4/2025	A
Materiality	1018	17/4/2025	A
Basement 3	1101	04/07/2025	D
Basement 2	1102	27/5/2025	C
Basement 1	1103	04/07/2025	D
Ground Floor	1104	04/07/2025	D
Level 01	1105	27/5/2025	D
Level 02	1106	27/5/2025	D
Level 03	1107	27/5/2025	D
Level 04	1108	27/5/2025	D
Level 05	1109	27/5/2025	D
Level 06	1110	27/5/2025	D
Level 07	1111	27/5/2025	D
Level 08	1112	27/5/2025	D
C.O.S Level	1113	27/5/2025	C
Roof Level	1114	27/5/2025	C
North Elevation	2001	04/07/2025	E
South Elevation	2002	27/5/2025	C
East Elevation	2003	27/5/2025	C
West Elevation	2004	27/5/2025	D
Section A	3001	04/07/2025	D
Section B	3002	27/5/2025	C
Detail Sections	3003	04/07/2025	D
C.O.S Planter Wall Section Detail	3004.1	17/4/2025	A
Skylight Section Detail	3004.2	17/4/2025	A
Loading Bay Section	3005	27/5/2025	C
Ramp Section	3100	7/5/2025	B
Pre+Post Adaptable Unit Layout	5001	7/5/2025	B
Pre+Post Adaptable Unit Layout	5002	17/4/2025	A
Detail Section – Ventilation System	7014	27/5/2025	C
Perforated Screen Detail – Childcare Centre	7030	17/4/2025	A
Communal Open Space/Deep Soil Zone Diagram	7061	27/5/2025	C
Childcare Kitchen Details	7104	17/4/2025	A

3. Engineering Plans, prepared by C&S Engineering Services, including the following:

Description	Reference No.	Date	Revision
Cover Sheet Plan	000	22/7/2025	A
Stormwater Concept Plan Basement Level 3 Sheet 1 Of 2	101	22/7/2025	C
Stormwater Concept Plan Basement Level 3 Sheet 2 Of 2	102	22/7/2025	C
Stormwater Concept Plan Basement Level 2	103	22/7/2025	C
Stormwater Concept Plan Basement Level 1	104	22/7/2025	C
Stormwater Concept Plan Ground Level	105	22/7/2025	C
On-Site Detention Details And Calculation Sheet	106	22/7/2025	C
Catchment Plan And Music Results	107	22/7/2025	C
Sediment & Erosion Control Plan & Details	108	22/7/2025	B
Maintenance Schedule & Miscellaneous Details Sheet	109	22/7/2025	B
Cover Sheet Plan	000	22/7/2025	A

4. Landscape Plans prepared by Site Image Landscape Architects:

Description	Reference No.	Date	Revision
Landscape Coversheet	000	09.07.205	I
Landscape Plan - Ground Floor	100	06.06.2025	H
Landscape Plan - Level 1	101	05.06.2025	A
Landscape Plan - Level 2	102	05.06.2025	B
Landscape Plan - Roof Level	109	09.07.2025	I
Planting Plan - Ground Floor	300	09.07.2025	C
Planting Plan - Roof Level	309	09.07.2025	C
Landscape Details	501	06.06.2025	C
Landscape Sections	601	09.07.2025	B
Soil Depth and Volume Plans	901	09.07.2025	B

5. Clause 4.6 written request seeking to justify contravention of landscaped area development standard in s 19(2)(b) of State Environmental Planning Policy (Housing) 2021 prepared by GAT & Associates dated May 2025.

6. Clause 4.6 written request seeking to justify contravention of maximum building height bonus development standard in s 16(3) of State Environmental Planning Policy (Housing) 2021 prepared by GAT & Associates dated May 2025.

7. WaterNSW GTA, dated 2 April 2025

8. Section J Report prepared by Outsource Ideas P/L dated 27 May 2025.

9. Waste Management Plan (24116) dated July 2025 prepared by Dickens Solutions.

10. Acoustic Report – Part A (2024-219 – A, Rev 2) dated 10/06/2025 prepared by Anavs-Acoustic Noise and Vibration Solutions P/L.

11. Loading Dock Management Letter dated 16/5/2025 prepared by GAT & Associates Pty Ltd.

12. DSI Report (E26430.E0) dated 27/5/2025 prepared by EI Australia.

13. Childcare Plan of Management (Rev 4) dated 12/06/2025 prepared by Lynda Campbell.

14. Acoustic Report – Part B (2024-219 – B, Rev 3) dated 10/06/2025 prepared by Anavs-Acoustic Noise and Vibration Solutions P/L.

15. BCA Report   (Rev 3) dated 11/06/2025   prepared by Building Certification Services.

16. Access Report (224098) dated 16/5/2025 prepared by Accessible Building Solutions.

17. BASIX Certificate No. 1766917M dated 24/06/2025 prepared by OPUS.

Orders

26. The Court orders:

1. The applicant is to pay the Council’s costs thrown away by reason of the amendment of Development Application DA2024.124 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979 (NSW), as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA2024.124 for the demolition of existing structures and the construction of a nine (9) storey mixed use development comprising ground level commercial premises, a 119 place child care centre and 122 residential apartments, above three (3) levels of basement car parking, at 41-47 Punchbowl Road, Strathfield South, subject to the conditions in Annexure A.

E Washington

Commissioner of the Court

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Annexure A (501 KB, pdf)

Decision last updated: 27 August 2025