Vvland Capital Pty Ltd ATF Vvland Capital Unit Trust v Newcastle City Council

[2025] NSWLEC 1058

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vvland Capital Pty Ltd ATF Vvland Capital Unit Trust v Newcastle City Council [2025] NSWLEC 1058

Hearing dates:

Conciliation conferences on 16 September, 14 October, 28 October and 5 November 2025

Date of orders:

04 February 2025

Decision date:

04 February 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the development application in the agreed amount of $7,000.00 within 21 days of these orders.

(3) Development consent is granted to Development Application DA2924/00033 as amended for the demolition of existing structures, tree removal and construction of a 3-storey co-living housing development containing 26 rooms and associated landscaping and at-grade parking on the land at 93 Blue Gum Road, Jesmond 2299, legally known as Lot 1 DP 1295741 subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.15, Div 2, Sch 1, s 7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 38, 61, Sch 7, s 3, Div 2, Pt 4 ss 69, 70, 85

Newcastle Local Environmental Plan 2012, cll 2.1, 2.3, 2.7, 4.3, 4.4, 6.1,

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

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

Texts Cited:

Australian Standards 2601 – 2001, The demolition of structures, 13 September 2001

Newcastle Community Participation Plan 2019

Newcastle Development Control Plan 2012

Category:

Principal judgment

Parties:

Vvland Capital Pty Ltd ATF Vvland Capital Unit Trust (Applicant)
Newcastle City Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
A Foley (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Marsden Law Group (Respondent)

File Number(s):

2024/102145

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA2024/00033 (the DA) for the demolition of an existing dwelling house, removal of 8 trees and the erection of a 3-storey co-living housing development containing 25 rooms and associated landscaping on the land at 93 Blue Gum Road, Jesmond, 2299 legally known as Lot 1 in DP 1295741 (the site).

2. A s 34 conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties was convened by the Court on 16 September 2024. I presided over the conciliation conference, which commenced with an on-site view. One submission had been received in response to the notification of the DA, however the submitter did not attend the on-site view.

3. The s 34 conciliation conference was adjourned a number of times before a s 34 agreement was reached on 5 November 2024.

4. A signed s 34 agreement with Annexure A was filed with the Court on 5 November 2024, with amended plans (the amended DA) and additional documents as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

5. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in the Statement of Facts and Contentions (SOFAC), and that the main changes to the proposed development in the amended DA are as follows:

1. Increase in second floor level setback to southern boundary from 3m to 6m;

2. Removal of south-facing balconies at first and second floor levels;

3. Provide a chamfered edge to the southern side of the front wall where Room 110 extends into the southern setback at first floor level;

4. Amend accessible rooms to be accessed externally and not via the communal living area;

5. Amended room number and mix to 22 x double rooms and 4 x single rooms (from 23 x double rooms and 2 x single rooms originally proposed);

6. Increased glazing to northern elevation and floor to ceiling windows added to stairwell at each level;

7. Modified pitched roof form introduced to northern side of building;

8. Revised proportions of openings and increased articulation of northern façade, including updated materials schedule;

9. Balustrades to street facing balconies revised from glass to solid;

10. Deletion of wall to southern boundary;

11. 1 additional parking space included at southern side of building;

12. Waste room relocated to northern side of building and reconfigured to accommodate required bin numbers; and

13. Rainwater tanks relocated from below ground to above ground in the southern setback adjacent to Rooms G03 and G04.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a jurisdictional note accompanying the s 34 agreement, and those requirements have been satisfied as follows:

Jurisdictional Prerequisites

Owner’s Consent

9. The parties advise that Vvland Capital Pty Ltd is the owner of the site and provided their written consent to the lodgment of the DA.

Newcastle Community Participation Plan 2019 (Sch 1, Div 2, s 7(1) of the EPA Act)

10. The DA was notified to adjoining and surrounding properties for a period of 14 days between 25 January 2024 and 8 February 2024 in accordance with as required under the provisions of the Newcastle Community Participation Plan 2019. One submission was received in response to that notification.

Conditions

11. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Newcastle Local Environmental Plan 2012

12. The Newcastle Local Environmental Plan 2012 (the LEP) is the relevant local environmental planning instrument that applies to the site. Under the LEP provisions, the site is zoned R3 Medium Density Housing pursuant to cl 2.1 of the LEP. The parties advise that the proposed use is permissible with consent in addition to the permissibility otherwise afforded by State Environmental Planning Policy (Housing) 2021 (the Housing SEPP) (refer to para [19]).

13. The R3 Zone objectives pursuant to cl 2.3 of the LEP are:

1. To provide for the housing needs of the community within a medium density residential environment.

2. To provide a variety of housing types within a medium density residential environment.

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

4. To allow some diversity of activities and densities if—

1. the scale and height of proposed buildings is compatible with the character of the locality, and

2. there will be no significant adverse impact on the amenity of any existing nearby development.

5. To encourage increased population levels in locations that will support the commercial viability of centres provided that the associated new development—

1. has regard to the desired future character of residential streets, and

2. does not significantly detract from the amenity of any existing nearby development.

14. I am satisfied that the proposed development for co-living housing is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

15. Clause 2.7 of the LEP relates to demolition. The demolition of a building or work is permissible with consent in accordance with cl 2.7 of the LEP.

16. The site is subject to a maximum height of buildings (HoB) of 10m pursuant to the HoB map referred to in cl 4.3 of the LEP. The parties advise that the proposed development does not exceed 10m in height from ground level (existing) as depicted on the amended architectural plans.

17. The site is subject to a maximum floor space ratio (FSR) of 0.9:1 pursuant to the FSR Map referred to in cl 4.4 of the LEP. However, s 68(2)(a) of the Housing SEPP facilitates a 10% bonus FSR where the additional FSR is only used for the purposes of co-living housing (refer to para [20]). The maximum FSR is therefore 0.99:1, equating to a maximum GFA of 814.87m² having regard to the area of the site as shown on DP 1295741. The parties advise that as shown on the amended architectural plans, the proposed development has a maximum GFA of 813.76m² being a FSR of 0.99:1, which complies with the Housing SEPP.

18. Clause 6.1 of the LEP relates to Acid Sulfate Soils. The site is identified as being affected by Class 5 acid sulfate soils on the Acid Sulfate Soils Map referred to in cl 6.1 of LEP 2012. The parties advise that the site is not located within 500m of adjacent Class 1, 2, 3 or 4 land and development consent is therefore not required pursuant to cl 6.1 of the LEP.

State Environmental Planning Policy (Housing) 2021

19. The parties advise that in accordance with s 67 of the Housing SEPP, development for the purposes of co-living housing may be carried out with consent on land in a zone in which development for the purposes of co-living housing is permitted under another environmental planning instrument or development for the purposes of residential flat buildings or shop top housing is permitted under another environmental planning instrument. Development for the purposes of co-living housing, shop top housing and residential flat buildings are all permissible with consent in Zone R3 Medium Density Residential under the LEP as forms of residential accommodation and the development is therefore permissible with consent.

20. Section 68(2) of the Housing SEPP contains various non-discretionary development standards in relation to development for the purposes of co-living housing. The parties advise that the proposed development complies with the various non-discretionary development standards as follows:

1. Section 68(2)(a): the FSR of the proposed development does not exceed 0.99:1 as described below under the LEP;

2. Section 68(2)(b): not applicable as the proposed development has more than 6 private rooms;

3. Section 68(2)(c): a total of 70m2 of communal living area is required and the development provides a total of 70.72m² with dimensions of greater than 3m;

4. Section 68(2)(d): communal open space with an area of 164.62m² is required based on the site area and the development provides an area in excess of this amount;

5. Section 68(2)(e): a total of 5.2 car parking spaces is required based on the number of rooms and the development being within an “accessible area” and the development provides 6 spaces;

6. Section 68(2)(f): the development meets the minimum landscaping requirements for multi dwelling housing under the Newcastle Development Control Plan 2012 (the DCP); and

7. Section 68(2)(g): not applicable due to the zoning of the site.

21. Section 69(1) of the Housing SEPP states that development consent must not be granted for development for the purposes of co-living housing unless the consent authority is satisfied that certain standards are met. The parties advise that those standards are met by the proposed development (in the amended DA) as follows:

1. Section 69(1)(a): the 4 single rooms have an area of not less than 12m² and the remaining 22 double rooms have an area of not less than 16m²;

2. Section 69(1)(b): the site has an area of greater than 800m²;

3. Section 69(1)(c): not applicable due to the zoning of the site;

4. Section 69(1)(d): the proposed development has an appropriate workspace for the manager in the ground floor communal living room;

5. Section 69(1)(e): not applicable due to the zoning of the site;

6. Section 69(1)(f): the private rooms contain bathroom, laundry and kitchen facilities and further facilities are available in the communal living room;

7. Section 69(1)(g): no private room is proposed or able to be used by more than 2 occupants; and

8. Section 69(1)(h): the proposed development provides 1 motorcycle parking space and bicycle cages at ground floor level, which is considered to be adequate for the purposes of the development.

22. Section 69(2) of the Housing SEPP prevents a consent authority from granting consent to development for the purposes of co-living housing unless it has considered various matters. The parties advise that the matters listed in s 69(2) of the Housing SEPP have been considered in the assessment of the amended DA and the proposed development (as amended) is generally considered to be acceptable with reference to those matters.

23. Development consent cannot be granted to the subdivision of co-living housing into separate lots in accordance with s 70 of the Housing SEPP. The parties advise that no subdivision is proposed in the DA.

State Environmental Planning Policy (Building Sustainable Index: BASIX) 2004

24. The parties advise that a co-living housing development that accommodates more than 12 residents or which has a gross floor area (GFA) exceeding 300m² is excluded from the definition of “BASIX building” and therefore “BASIX development” and no BASIX Certificate is required pursuant to s 27 of the EPA Regulation (refer to para [26(1] below).

State Environmental Planning Policy (Resilience and Hazards) 2021

25. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), s 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise, and I am satisfied that:

1. The site has a long history of residential use and there are no known previous land uses or activities on the site that would raise concern in terms of the potential for contamination; and

2. The site is therefore considered suitable in its current state for the proposed development.

Environmental Planning and Assessment Regulation 2021

26. The parties advise that:

1. A co-living housing development that accommodates more than 12 residents or which has a gross floor area (GFA) exceeding 300m² is excluded from the definition at Sch 7 of the EPA Regulation of “BASIX building” and therefore “BASIX development”. No BASIX Certificate is required pursuant to s 27 of the EPA Regulation.

2. Australian Standard AS 2601—2001: The Demolition of Structures has been considered in relation to the demolition of the existing dwelling house as required by s 61(1) of the EPA Regulation and conditions of consent are included in Annexure “A” requiring compliance with the standard and regulating demolition work more generally.

3. The following relevant prescribed conditions of consent in Div 2 of Pt 4 of the EPA Regulation have been included in Annexure A:

1. Section 69 - Compliance with Building Code of Australia and insurance requirements under Home Building Act 1989 (condition of consent 24);

2. Section 70 - Erection of Signs (conditions of consent 24 and 55); and

3. Section 85 - Co-living housing (condition of consent 47).

Newcastle Development Control Plan 2012

27. The parties advise that the provisions of the DCP have been considered during the assessment of the DA as required by section 4.15(1)(a)(iii) of the EPA Act.

28. The parties further advise that the development application is saved from the application of Newcastle Development Control Plan 2023 due to the date of its lodgment.

Conclusion

29. Having considered the advice of the parties provided above at [9]-[38], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. approval of the proposed development is in the public interest.

30. Further, 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.

31. 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.

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

33. The Court notes that:

1. Newcastle City Council, as the relevant consent authority, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA2024/00033 made on 5 November 2024 to rely on the amended plans and documents specified below:

34 Plan number	Revision number	Plan title	Drawn by	Date of plan
Architectural Plans
Dwg.001	-	Cover Page	Texco Design	Undated
Dwg.001a	P10	North Elevation Render	Texco Design	1/11/2024
Dwg.002	P10	BASIX Commitments	Texco Design	1/11/2024
Dwg.004	P10	Demolition Plan	Texco Design	1/11/2024
Dwg.005	P10	Site Plan	Texco Design	1/11/2024
Dwg.006	P10	Site Analysis	Texco Design	1/11/2024
Dwg.007	P10	GFA Calculation	Texco Design	1/11/2024
Dwg.008	P10	Unit Schedule	Texco Design	1/11/2024
Dwg.009	P10	COS & CLA Calculation	Texco Design	1/11/2024
Dwg.010	P10	Deep Soil & Landscape Calculation	Texco Design	1/11/2024
Dwg.011	P10	Sun Eye Diagram (Proposed Development) – 21st June	Texco Design	1/11/2024
Dwg.011a	P10	Sun Eye Diagram (Proposed Development) – 21st June	Texco Design	1/11/2024
Dwg.011b	P10	Sun Eye Diagram (CDC House Compliant Massing) – 21st June	Texco Design	1/11/2024
Dwg.011c	P10	Sun Eye Diagram (CDC House Compliant Massing) – 21st June	Texco Design	1/11/2024
Dwg.011d	P10	Sun Eye Diagram (Proposed Development Massing With 6m Southern Side Setback on Level 1) – 21st June	Texco Design	1/11/2024
Dwg.011e	P10	Sun Eye Diagram (Proposed Development Massing With 6m Southern Side Setback on Level 1) – 21st June	Texco Design	1/11/2024
Dwg.012	P10	Shadow Diagram – 21st June – CDC Compliant Massing	Texco Design	1/11/2024
Dwg.013	P10	Shadow Diagram – 21st June – Proposed	Texco Design	1/11/2024
Dwg.013.1	P10	Shadow Diagram – 21st June – Proposed at 1m Elevated Level Equal to a Resident’s Seated Position	Texco Design	1/11/2024
Dwg.013a	P10	Shadow Diagram – 21st Dec – CDC Compliant Massing	Texco Design	1/11/2024
Dwg.013b	P10	Shadow Diagram – 21st Dec – Proposed	Texco Design	1/11/2024
Dwg. 014	P10	10m Height Limit Diagram	Texco Design	1/11/2024
Dwg. 014a	P10	8.5m Height Limit Diagram	Texco Design	1/11/2024
Dwg. 015	P10	Streetscape Analysis	Texco Design	1/11/2024
Dwg. 016	P10	Shadow Analysis – 21st June – Proposed – On Natural Ground Level	Texco Design	1/11/2024
Dwg. 016a	P10	Shadow Analysis – 21st June – Proposed – On Residents’ Seated Level	Texco Design	1/11/2024
Dwg. 017	P10	Waste Management Diagram	Texco Design	1/11/2024
Dwg. 018	P10	Tree Encroachment Diagram	Texco Design	1/11/2024
Dwg. 019	P10	Future 3-Storey Residential Flat Building Development General Plan (89A & 91 Blue Gum Road)	Texco Design	1/11/2024
Dwg. 020	P10	Sun Eye Diagram (Proposed Development to Future 3-Storey Residential Flat Building Development on 89A & 91 Blue Gum Rd) – 21st June	Texco Design	1/11/2024
Dwg. 021	P10	Sun Eye Diagram (Proposed Development to Future 3-Storey Residential Flat Building Development on 89A & 91 Blue Gum Rd) – 21st June	Texco Design	1/11/2024
Dwg. 022	P10	Detail Site Plan – 91 Blue Gum Road	Texco Design	1/11/2024
Dwg. 23	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Proposed Development) – 21/06	Texco Design	1/11/2024
Dwg. 23a	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Proposed Development) – 21/06	Texco Design	1/11/2024
Dwg. 23b	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Proposed Development) – 21/06	Texco Design	1/11/2024
Dwg. 23c	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Proposed Development) – 21/06	Texco Design	1/11/2024
Dwg. 24	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Proposed Development) – 21/06 at 1m Elevated Level Equal to a Resident’s Seated Position	Texco Design	1/11/2024
Dwg. 24a	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Proposed Development) – 21/06 at 1m Elevated Level Equal to a Resident’s Seated Position	Texco Design	1/11/2024
Dwg. 24b	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Proposed Development) – 21/06 at 1m Elevated Level Equal to a Resident’s Seated Position	Texco Design	1/11/2024
Dwg. 24c	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Proposed Development) – 21/06 at 1m Elevated Level Equal to a Resident’s Seated Position	Texco Design	1/11/2024
Dwg. 25	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Future CDC Massing Scenario) – 21/06	Texco Design	1/11/2024
Dwg. 25a	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Future CDC Massing Scenario) – 21/06	Texco Design	1/11/2024
Dwg. 25b	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Future CDC Massing Scenario) – 21/06	Texco Design	1/11/2024
Dwg. 25c	P10	Perspective Shadow Diagram for P.O.S of 91 Blue Gum Road (Future CDC Massing Scenario) – 21/06	Texco Design	1/11/2024
Dwg.101	P10	Ground Floor Plan	Texco Design	1/11/2024
Dwg.102	P10	First Floor Plan	Texco Design	1/11/2024
Dwg.103	P10	Second Floor Plan	Texco Design	1/11/2024
Dwg.104	P10	Roof Plan	Texco Design	1/11/2024
Dwg.201	P10	East & West Elevation	Texco Design	1/11/2024
Dwg.202	P10	North & South Elevation	Texco Design	1/11/2024
Dwg.301	P10	Section A & B	Texco Design	1/11/2024
Dwg.401	P10	Window & Door Schedule	Texco Design	1/11/2024
Dwg.402	P10	Material Schedule	Texco Design	1/11/2024
Dwg.501	P10	Typical Kitchen Detail	Texco Design	1/11/2024
Stormwater Plans
DA-SW100	5	Coversheet	JCO Consultants Pty Ltd	31/10/2024
DA-SW101	5	General Notes & Specifications	JCO Consultants Pty Ltd	31/10/2024
DA-SW200	5	Stormwater Concept Design - Ground Floor Plan	JCO Consultants Pty Ltd	31/10/2024
DA-SW300	5	Stormwater Concept Design - Details Sheet 1	JCO Consultant Pty Ltd	31/10/2024
DA-SW301	5	Stormwater Concept Design - Details Sheet 2	JCO Consultants Pty Ltd	31/10/2024
DA-SW400	1	Stormwater Concept Design - Site Impervious Plan	JCO Consultants Pty Ltd	25/11/2023
DA-SW500	5	Stormwater Concept Design - Music Catchment Plan	JCO Consultants Pty Ltd	31/10/2024
DA-SW600	5	Erosion & Sediment Control Plan & Details	JCO Consultants Pty Ltd	31/10/2024
Landscape Plans
LPS34 24 - 99 Sheet 01	E	Hardscape Plan	Conzept Landscape Architects	31/10/2024
LPS34 24 - 99 Sheet 02	E	Landscape Plan	Conzept Landscape Architects	31/10/2024
LPS34 24 - 99 Sheet 03	E	Details	Conzept Landscape Architects	31/10/2024
LPS34 24 - 99 Sheet 04	E	Planting Palettes	Conzept Landscape Architects	31/10/2024
LPS34 24 - 99 Sheet 05	E	Specification	Conzept Landscape Architects	31/10/2024

Document title	Prepared by	Date of document
Crime Risk Assessment (Ref: 239)	Gemstone Planning	27 September 2024
Plan of Management	Gemstone Planning	October 2024
Social Impact Assessment	Gemstone Planning	-
Site Waste Minimisation Management Plan	Yi Cui	2 September 2024

2. The Court notes that a BASIX Certificate is not required for the proposed development pursuant to s 27 and Sch 7 of the EPA Regulation.

34. The Court orders:

1. The appeal is upheld.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the development application in the agreed amount of $7,000.00 within 21 days of these orders.

3. Development consent is granted to Development Application DA2924/00033 as amended for the demolition of existing structures, tree removal and construction of a 3-storey co-living housing development containing 26 rooms and associated landscaping and at-grade parking on the land at 93 Blue Gum Road, Jesmond 2299, legally known as Lot 1 DP 1295741 subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court 

Annexure A

**********

Decision last updated: 04 February 2025