The Trustee for J. J. Discretionary Trust v Strathfield Municipal Council

[2025] NSWLEC 1101

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Trustee for J. J. Discretionary Trust v Strathfield Municipal Council [2025] NSWLEC 1101

Hearing dates:

Conciliation conference on 12 December 2024 and 24 January 2025

Date of orders:

25 February 2025

Decision date:

25 February 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The Applicant's written request pursuant to clause 4.6 of the Strathfield Local Environmental Plan 2012 seeking a contravention of the height of building development standard set out in clause 4.3 is upheld.

(2) The Applicant's written request pursuant to clause 4.6 of the Strathfield Local Environmental Plan 2012 seeking a contravention of floor space ratio development standard set out in clause 4.4 of Strathfield Local Environmental Plan 2012 and non-discretionary development standard set out in s 68(2)(a)(ii) of State Environmental Planning Policy (Housing) 2021 is upheld.

(3) The appeal is upheld.

(4) Development Application No DA2024.59 for demolition of existing structures and construction of a co-living housing development comprising 80 rooms with basement parking at 13-14 The Crescent, Homebush (Lot A and B DP 16209), is determined by the grant of consent subject to the conditions contained in Annexure A.

(5) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5,000 within 28 days of the date of these orders.

Catchwords:

APPEAL – development application – co-living housing – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6, Ch 6, ss 6.6, 6.7, 6.9

State Environmental Planning Policy (Housing) 2021, Ch 2, Pt 3 s. 47, Ch 3, Pt 3, ss 68, 69

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

Strathfield Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.4

Texts Cited:

Department of Planning, Guidelines for the Retention of Existing Affordable Rental Housing’ (October 2009)

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

Category:

Principal judgment

Parties:

The Trustee for J.J. Discretionary Trust (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
M Mellos (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Strathfield Municipal Council (Respondent)

File Number(s):

2024/255298

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application (DA2024.59) for demolition of existing structures and construction of a six-storey co-living housing development comprising 93 rooms and basement parking for 19 cars at 13-14 The Crescent, Homebush (Lot A and B DP 16209) (the site). The Applicant lodged an appeal on 8 August 2024 pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of the subject development application. In exercising the functions of the consent authority on 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 12 December 2024 and 24 January 2025 and which I presided over.

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. The agreement was recorded in a signed agreement filed on 24 January 2025.

4. The agreement follows the Council’s approval of an application for an amendment to the development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). Amendments to the plans were made to address the contentions identified by the Respondent. The amended plans reduced the proposal to 80 rooms with a commensurate reduction in gross floor area and increase in setbacks and landscape area.

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 an Agreed Statement of Jurisdictional Prerequisites (Agreed Statement), which sets out the jurisdictional requirements for the making of orders in accordance with the agreement. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 application and its attachments, and the documents that are referred to in condition 2. 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. I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. I am satisfied that consent should be granted, notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of building of 14 metres (m) pursuant to cl 4.3 of the Strathfield Local Environmental Plan 2012 (SLEP). The proposed maximum height of 18.3m represents a contravention of 4.3m above the numerical standard (30.7% exceedance). This contravention arises from the upper level of the building and the lift overrun. Having regard to the amended plans, the parties’ agreement and the other circumstances of the case, I am satisfied that:

1. The written request dated December 2024 prepared by Navon Planning lodged pursuant to cl 4.6 of the SLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height of building development standard.

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard, notwithstanding the non-compliance and that it will not result in any adverse impacts.

3. Based on the content of the written request and the parties’ agreement, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

2. I am also satisfied that consent should be granted, notwithstanding the contravention of the floor space ratio (FSR) development standard. The development standard establishes a maximum FSR of 1.595:1 pursuant to cl 4.4 of the SLEP (maximum 1.45:1) and the available 10% bonus under s 68(2)(a)(ii) of State Environmental Planning Policy (Housing) 2021 (Housing SEPP). The proposed FSR of 1.655:1 represents a contravention of 76.2m² above the numerical standard (3.8% exceedance). Having regard to the amended plans, the parties’ agreement and the other circumstances of the case, I am satisfied that:

1. The written request dated December 2024 prepared by Navon Planning lodged pursuant to cl 4.6 of the SLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the FSR development standard.

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard, notwithstanding the non-compliance and that it will not result in any adverse impacts.

3. Based on the content of the written request and the parties’ agreement, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

3. The site is zoned R3 Medium Density Residential under SLEP. Development for the purposes of co-living housing is permissible with consent in the R3 zone under the SLEP. Further, regard has been had to the zone objectives and the proposal is considered to be consistent with those objectives.

4. In accordance with cl 2.7 of SLEP, consent is sought for demolition of the existing buildings on site.

5. The site is not heritage listed nor is it located in a heritage conservation area. However, on the basis of the parties’ agreement and the Statement of Heritage Impact prepared by Cracknell and Lonergan (19 December 2024), I am satisfied that adequate consideration has been given to the impact of the proposal on heritage items in the vicinity as required by cl 5.10 of SLEP.

6. The site is mapped as having Class 5 Acid Sulfate Soils but is not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and accordingly no further assessment is required in accordance with cl 6.1 of SLEP.

7. The proposed development includes earthworks for the construction of the proposed basement level and services such that cl 6.2 of the SLEP applies. Based on the Civil Engineering Plans (prepared by Engineering Studios dated 13 January 2025), the Geotechnical Investigation Report (prepared by Crozier Geotechnical Consultants dated March 2024) and the recommended conditions of consent, I have considered the matters set out in cl 6.2 of the SLEP.

8. I am satisfied that the proposal complies with cl 6.4 of SLEP and that essential services will be provided to the site.

9. 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 (RH SEPP). A Detailed Site Investigation (prepared by EBG Environmental Geoscience dated 14 November 2024) and Remediation Action Plan (prepared by EBG Environmental Geoscience dated 9 December 2024) have been prepared which confirm, as required by the RH SEPP, that the site can and will be made suitable for the proposed development having regard to the recommended conditions of consent.

10. Chapter 2, Pt 3 of the Housing SEPP applies to the proposal in regard to the retention of existing affordable rental housing as the existing buildings, which are not strata subdivided, comprise low-rental residential buildings on land within the Eastern Harbour City. On the basis of the parties’ agreement and the statement prepared by Navon Planning dated 20 December 2024, I am satisfied that the matters required to be considered by s 47(2) of the Housing SEPP, including the ‘Guidelines for the Retention of Existing Affordable Rental Housing’ (Department of Planning, October 2009) have been considered.

11. The provisions of Pt 3, Ch 3 of the Housing SEPP also apply to the development. Section 68 provides non-discretionary development standards for co-living housing. The proposal complies with all relevant standards with the exception of s 68(2)(a)(ii) which allows a 10% FSR bonus where co-living is proposed. A cl 4.6 variation request has been submitted in this respect which I consider is justified in the circumstances as outlined at [6(2)] above.

12. At s 69 of the Housing SEPP, consent for co-living housing cannot be granted unless certain requirements are met concerning room sizes, lot size, a manager’s workspace, adequate bathroom/laundry/kitchen facilities, and bicycle and motorcycle spaces. Based on the Agreed Statement, the architectural plans and conditions of consent, I am satisfied that each of the matters in s 69(1) of the Housing SEPP are met by the proposed development.

13. Further, consistent with s 69(2) of the Housing SEPP, and based on the Agreed Statement and the architectural plans, I am satisfied that consideration has been given to whether the building will comply with the minimum separation distances outlined in the Apartment Design Guide, whether the communal living area receives three hours of 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.

14. The proposal includes the removal of one street tree in front of the site. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) therefore applies. The proposal is consistent with s 2.6 as consent is sought for tree removal and the impact has been found to be acceptable having regard to proposed replacement planting as outlined in the landscape plan prepared by Zenith Landscape Design (dated 16 December 2024) and the agreed conditions of consent.

15. The site is in the Sydney Harbour Catchment and therefore Ch 6 of the BC SEPP applies. Based on the Civil Engineering Plans (prepared by Engineering Studio dated 13 January 2025), I am satisfied of the matters in ss 6.6(2) and 6.7(2). 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).

16. The development application was notified between 15 June to 5 July 2024 with 15 submissions being received by way of objection and one by letter of support. A number of submitters also gave oral submissions at the commencement of the conciliation conference on site. The parties have had regard to the matters raised in submissions in making amendments to the proposal and in reaching agreement. Further, Council has advised that the amendments to the plans do not give rise to any additional impacts that would warrant renotification.

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 the Respondent, as the relevant consent authority, has approved under s 38(1) of the EPA Reg, the Applicant amending Development Application No 2024.59 in accordance with the amended plans and documents filed with the Court on 24 January 2025 and referred to in ‘Annexure A’.

10. The Court orders that:

1. The Applicant's written request pursuant to clause 4.6 of the Strathfield Local Environmental Plan 2012 seeking a contravention of the height of building development standard set out in clause 4.3 is upheld.

2. The Applicant's written request under clause 4.6 of the Strathfield Local Environmental Plan 2012 seeking a contravention of floor space ratio development standard set out in clause 4.4 of Strathfield Local Environmental Plan 2012 and non-discretionary development standard set out in s 68(2)(a)(ii) of State Environmental Planning Policy (Housing) 2021 is upheld.

3. The appeal is upheld.

4. Development Application No DA2024.59 for demolition of existing structures and construction of a co-living housing development comprising 80 rooms with basement parking at 13-14 The Crescent, Homebush (Lot A and B DP 16209), is determined by the grant of consent subject to the conditions contained in Annexure A.

5. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5,000 within 28 days of the date of these orders.

H Miller

Commissioner of the Court

Annexure A

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Decision last updated: 25 February 2025