Wang v Strathfield Municipal Council

[2025] NSWLEC 1474

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wang v Strathfield Municipal Council [2025] NSWLEC 1474

Hearing dates:

Conciliation conferences on 20 February and 20 and 25 March 2025

Date of orders:

02 July 2025

Decision date:

02 July 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the agreed amount of $9,000.00 to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) The Applicant’s written request pursuant to cl 4.6 of the Strathfield Local Environmental Plan 2012 seeking a variation to the development standard for building setbacks and separation set out in s 69(2)(a) & (b) of the Housing SEPP prepared by Planning Ingenuity dated 21 March 2025 is upheld.

(4) The Applicant’s written request pursuant to cl 4.6 of the Strathfield Local Environmental Plan 2012 seeking a variation to the development standard for height of building set out in cl 4.3 of the Strathfield Local Environmental Plan 2012 prepared by Planning Ingenuity dated 21 March 2025 is upheld.

(5) Development Application DA2024.44, as amended, for the demolition of an existing dwelling and the construction of a four-storey co-living development comprising 35 private co-living rooms and 2 common rooms with basement level parking at 15 Homebush Road, Strathfield, NSW, 2135, legally identified as Lot 1 in DP31394, is determined by the grant of development consent, subject to the conditions included in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – co-living housing – Cl 4.6 variations - orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Strathfield Local Environmental Plan 2012, cll 2.2, 2.7, 4.1A, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pts 6.1, 6.1, Chs 2, 6, ss 6.6, 6.7, 6.8, 6.9

State Environmental Planning Policy (Housing) 2021, Pt 3, Ch 1, 3, ss 3, 67, 68, 69, 70

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

State Environmental Planning Policy (Sustainable Buildings) 2022

Texts Cited:

Apartment Design Guide 2015

Strathfield Development Control Plan 2005

Category:

Principal judgment

Parties:

Qin Huang Wang (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
G McKee (Applicant)
M Mallos(Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Strathfield Municipal Council (Respondent)

File Number(s):

2024/312823

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 DA2024.44 for the demolition of the existing structure and construction of a four storey co-living development with basement parking level at land legally identified as Lot 5 in DP31394, known as 15 Homebush Road, Strathfield, NSW, 2135 (the site).

2. The DA was lodged with the Respondent on 7 May 2024. The Applicant filed a Class 1 Application with the Court on 23 August 2024. The Respondent filed its Statement of Facts and Contentions (the SOFAC) with the Court on 18 September 2024.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 February 2025. I presided over the conciliation conference, which began with an on-site view. Nine submissions were made against the proposal, however no submitters attended the on-site view.

4. The s 34 conciliation conference was adjourned to 20 March and 25 March 2025 to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent.

5. At the initial conciliation conference the parties indicated that they considered that they could reach an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

6. A signed s 34 agreement with Annexure A and amended plans (the amended DA) as agreed between the parties was filed with the Court on 25 March 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. The DA, as amended, seeks consent for the demolition of the existing structure and construction of four storey co-living development with basement parking level. There are a number of changes to the built form of the proposed development incorporated into the design arising from the s 34 conciliation conference and included in the amended DA.

8. 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.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

10. 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 written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows below.

Jurisdictional Matters

Owner’s consent

11. The parties advise that the DA was made with the written consent of the owner of the site.

Community Participation (Sch 1, Div 2, cl 7(1)) - Environmental Planning and Assessment Act1979

12. The DA was publicly notified by the Respondent between 13 May 2024 and 17 June 2024. Nine submissions were received in response to the notification of the DA.

13. The parties advise that they agree that having regard to amendments made and conditions of consent agreed upon, the submissions do not raise matters that warrant refusal of the DA.

Conditions

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

StrathfieldLocal Environmental Plan 2012

15. The Strathfield Local Environmental Plan 2012 (the LEP) is the relevant local environmental planning instrument that applies to the site. Under the LEP provisions:

1. The site is zoned R3 Medium Density Residential pursuant to cl 2.2 of the LEP; and

1. Development for the purposes of co-living housing is prohibited within the R3 Medium Density Residential zone. However, co-living housing is permissible with consent pursuant to s 67(b) of the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP) by virtue of residential flat buildings being permitted in the R3 zone under the LEP;

2. The zone objectives for the R3 zone in the Land Use Table in the LEP include:

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

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

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

3. The parties advise that the proposed development:

1. Will provide high quality and affordable co-living housing to meet the diverse needs of the growing population in Homebush;

2. Is located in an “accessible area” as defined in Sch 10 the Housing SEPP (being 390m from Homebush Railway Station) is ideally located near significant employment generating activities including Flemington Markets, Sydney Olympic Park and Strathfield Plaza;

3. Is a suitable and compatible land use within the zone that results in limited amenity impacts to neighbouring residents; and

4. Will create additional diversity in housing stock with co-living developments and boarding houses emerging within the locality;

4. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;

2. The DA seeks consent for demolition under cl 2.7 of the LEP;

3. Clause 4.1A of the LEP relates to Minimum Lot size. The parties advise that the site has an area of 809.4m2, and that the proposed development complies with the minimum site area requirement of 800m2 under s 69(1)(b)(ii) of the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP) which prevails over cl 4.1A of the LEP (refer to para [25] below);

4. Pursuant to cl 4.3 of the LEP the maximum height of buildings on the site is 11m. The amended DA proposes a maximum building height of 12.65m. The DA as amended is supported by a cl 4.6 request prepared by Planning Ingenuity dates 21 March 2025.

5. The parties advise that the cl 4.6 of the LEP request provides a detailed assessment of cl 4.6 of the LEP and its objectives, whether compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, whether there are sufficient planning grounds to justify the contravention of the development standard and whether the DA as amended will be in the public interest. The cl 4.6 of the LEP request concludes that:

1. This written request has been prepared in relation to the proposed variation to the 11m height of buildings development standard contained in cl 4.3 of the LEP to allow a maximum height of 12.65m for the lift overrun and roof line and a variation of 1.65m (15%);

2. Having regard to all of the above, it is the parties’ opinion that compliance with the maximum height development standard is unreasonable and unnecessary in the circumstances of this case as the development meets the objectives of that standard and the zone objectives. The proposal has also demonstrated sufficient environmental planning grounds to support the breach; and

3. Therefore, insistence upon strict compliance with that standard would be unreasonable. On this basis, the requirements of cl 4.6(3) of the LEP are satisfied and the variation supported.

6. The parties submit that the Court can be satisfied that the written clause 4.6 request adequately addresses the following matters that are required to be demonstrated under cl 4.6 of LEP:

1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, and

2. that there are sufficient environmental planning grounds to justify contravening the development standard.

7. I am satisfied that the Applicant’s cl 4.6 written request is well founded and that the variation to the height of building (HoB) development standard is acceptable noting that:

1. The appearance of the existing area is not characterised by development that is compliant with the HoB development standard;

2. The site is located at the intersection of three different height limits of 9.5m to the south, 11m for the site and 15m to the east;

3. In this locality there is a diversity in the building typologies and residential accommodation largely due to the different site amalgamations, lots sizes and ages of development;

4. The proposed development provides a reduced building height compared to the existing approved development on the site;

8. I am satisfied that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the HoB development standard, notwithstanding the HoB exceedance for the reasons provided within the Applicant’s written request, which I adopt;

9. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons:

1. The height exceedance is minor and does not significantly impact on the amenity of neighbouring properties. The additional height creates no additional overshadowing impacts to adjoining properties, no additional privacy impacts and will not result in any significant view loss;

2. The proposal seeks to achieve an environmental planning outcome by providing additional co-living housing rooms without having an adverse impact on the amenity of adjoining properties;

3. The proposed development is compatible with the character and built form of the locality, as well as the future desired urban character of the neighbourhood;

4. The proposed variation to the HoB standard will give better effect to the Principles of Policy at Ch 1, s 3 of the Housing SEPP.

10. Approval of the proposed development will be in the public interest for the reasons provided above (at [15(9)] above), and because the proposed development is consistent with the objectives for the HoB development standard and for development within the R3 Medium Density Residential zoning of the subject site, for reasons provided within the Applicant’s written request, which I also adopt;

11. Pursuant to cl 4.4 of the LEP, the site has a prescribed maximum floor space ratio (FSR) of 1.2:1. However, the parties advise that;

1. The FSR subject to a 10% bonus under s 68(2)(a) of the Housing SEPP which results in a maximum permissible floor space ratio of 1.32:1; and

2. The proposed floor space ratio, as amended, is 1.32:1 and therefore compliant with s 68(2)(a) of the Housing SEPP;

12. Clause 5.10 of the LEP relates to heritage conservation. The parties advise that:

1. The site is not identified as a heritage item nor within a heritage conservation area on the Heritage Map in the LEP; and

2. The site is bounded to the south by the Abbotsford Road Conservation Area and the I139 ‘Verani’ – Victorian Villa located opposite the site on Homebush Drive. The development application, as amended, is supported by a Statement of Heritage Impact prepared by Weir Phillips Heritage dated December 2024, which concludes that “the proposed works will have a minimum and acceptable impact on the heritage item at No. 24 Homebush Road and the Abbotsford Road HCA”;

13. Clause 6.1 of the LEP relates to acid sulfate soils. The site is impacted by Class 5 acid sulfate soils. The parties advise that the site is not located within 500 metres of Class 1, 2, 3 or 4 acid sulphate soils and therefore the provisions of the cl 6.1 of the LEP do not apply;

14. Clause 6.2 of the LEP relates to earthworks. The parties advise that they are satisfied that:

1. The proposed development will not result in any adverse impact to the drainage of the locality. A Stormwater Plan has been submitted with the DA;

2. The proposal is designed to reflect the topography of the site and responds to the constraints and opportunities of the site;

3. The site has previously been disturbed and it is unlikely that works will impact on any archaeological or aboriginal significance;

4. The site is not within proximity to any waterway or environmentally sensitive area;

5. The proposed development results in minor earthworks, other than for the basement excavation. Any cut and fill will be appropriately contained by retaining walls which will be wholly contained within the subject property; and

6. There will be no significant impact on the amenity of the area or adjoining properties as a result of the proposed earthworks.

15. Clause 6.4 of the LEP relates to essential services. The parties advise that the site contains existing connections to all essential services.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) requires approval from the consent authority for the removal or pruning of any vegetation unless exempted under a development control plan. The parties advise that:

1. The site does not contain any trees; and

2. There are 2 street trees that are in close proximity to the site along Homebush Road and 3 trees on neighbouring properties. These trees will be unimpacted by the proposed works and conditions of consent have been proposed to secure the retention of these trees.

17. Chapter 6 of the Biodiversity SEPP applies to the proposed development as the site is located within the Sydney Harbour Catchment, a regulated catchment for the purposes of Pts 6.1 and 6.2 of the Biodiversity SEPP. The parties advise that:

1. In relation to s 6.6(1) considerations of the Biodiversity SEPP, having regard to drawing no. SW600 Erosion and Sediment Control Plan and Stormwater Concept Plans, prepared by JCO Consultants, Revision 4 dated 3 March 2025, and Geotechnical Investigation Report prepared by ESWNMAN Pty Ltd dated 26 February 2024, the parties are satisfied that subject to the installation and maintenance of sediment controls during building works and compliance with approved plans and conditions of consent that:

1. the development will have a neutral effect on the quality of water entering a waterway;

2. the development will not have an adverse impact on water flow in a natural waterbody;

3. Increases to stormwater runoff can be adequately mitigated by the provision of the on-site detention tank;

4. the development incorporates on-site stormwater retention in the form of an OSD tank;

5. the development will have no impact on the level and quality of the water table;

6. cumulative environmental impacts from the development on the regulated catchment are negligible; and

7. the development makes adequate provision to protect the quality and quantity of groundwater.

2. In relation to s 6.6(2) considerations of the Biodiversity SEPP, having regard to the Stormwater Concept Design plans by JCO Consultants Pty Ltd, the parties are satisfied and the Court should be satisfied that:, the parties are satisfied that:

1. the effect on the quality of water entering a natural waterbody will be as close as possible to neutral; and

2. the development has negligible and satisfactory water flow impacts for a natural waterbody.

3. In relation to s 6.7(1) considerations of the Biodiversity SEPP, the parties are satisfied that:

1. to the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the application;

2. the development does not involve the clearing of riparian vegetation;

3. the development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway;

4. the development will not have an adverse impact on wetlands;

5. the development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures; and

6. the development does not adjoin a natural waterbody.

4. In relation to s 6.7(2) criteria of the Biodiversity SEPP, having regard to the Stormwater Concept Plans by JCO Consultants Pty Ltd, Revision 4, dated 3 March 2025 and the Landscape Plan prepared by Conzept Landscape Architects dated 4 March 2025 the parties are satisfied that:

1. any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development;

2. the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves;

3. no approval or permit is required under the Water Management Act 2000 or the Fisheries Management Act 1994;

4. the land does not abut a natural waterbody; and

5. there will be no adverse impact on wetlands.

5. In relation to s 6.8(1) considerations of the Biodiversity SEPP, the parties position is that the development will have no impact on periodic flooding that benefits wetlands and other riverine ecosystems.

5. In relation to s 6.8(2) of the Biodiversity SEPP, the parties are satisfied that the development:

1. will not result in a release of pollutants in the event of a flood; and

2. will not have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

7. In relation to s 6.9(1) considerations of the Biodiversity SEPP, the parties’ position is that:

1. the development will have no impact on recreational land uses in the Sydney Harbour catchment; and

2. the development has no impact on public access to and around foreshores.

8. In relation to s 6.9(2) criteria of the Biodiversity SEPP, the parties are satisfied that:

1. the development has no impact on public access to and from natural waterbodies for recreational purposes;

2. the development does not involve new or existing points of public access to natural waterbodies; and

3. the land does not form part of a foreshore of a natural waterbody.

18. The parties further advise that the Court can be satisfied that the relevant planning considerations and planning policies of the Biodiversity SEPP are satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out.

20. The parties advise that the Court would be satisfied in relation to s 4.6 of the Resilience SEPP for the following reasons:

1. The DA is supported by a Preliminary Site Investigation report prepared by EI Australia dated 30 April 2024 and a Detailed Site Investigation report prepared by EI Australia dated 13 December 2024 (the DSI); and

2. The DSI concludes that the site is suitable for the proposed development. The report also confirms that based on historical information, the site has continuously been used for low-density residential purposes since the late 1940s/early 1950s.

21. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Sustainable Buildings) 2022

22. The State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) came into effect on 1 October 2023 and repealed the State Environmental Planning Policy (BASIX) 2004. Schedule 7 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulations), specifically excludes boarding houses, hostels, and co-living housing with more than 12 residents or a gross floor area exceeding 300 square metres from the definition of BASIX development.

23. A BASIX certificate for the erection of a new large boarding house, or alterations to an existing large boarding house, is not required as this development is not defined as BASIX development. As stated above, the definition of a BASIX building in the EPA Regulation excludes a boarding house, hostel or co-living housing that accommodates more than 12 residents, or has a gross floor area exceeding 300 square metres. The proposed development is for 35 private co-living rooms and thus is not a BASIX development.

State Environment Planning Policy (Housing) 2021

24. Chapter 3, Pt 3 of the Housing SEPP establishes an approval pathway for co-living housing and sets out a series of development standards, including floor space ‘incentives’, that apply to such development.

25. The parties advise that the proposed development relies on s 67 of the Housing SEPP for permissibility and the pathway to approval (refer to para [15(1)(a)] above).

26. Section 68 of the Housing SEPP contains minimum standards that cannot be used to refuse consent. The parties advise that the proposed development complies with these standards.

27. Section 69(1) of the Housing SEPP contains development standards and other subjective standards for co-living housing developments. The parties advise that the proposed development complies with these standards.

28. Section 69(2) of the Housing SEPP specifies matters that must be considered before development consent can be granted. The parties advise that the proposed development is compatible with a number of these considerations. Where the proposed development is deficient is in the proposed front and rear setbacks, and building separation, as specified in s 69(2)(a)(i) and (ii) of the Housing SEPP.

29. The proposed development has a height of 4 storeys. The minimum separation requirements as identified in Part 3F-1 of the Apartment Design Guide are applicable as stated in s 69(2)(b) of the Housing SEPP.

30. The proposed development has a minimum front setback of 7m, which exceeds the front setback of the neighbouring dwelling to the south and is greater than the 6.5m setback approved previously for the site. The Clause 4.6 variation report prepared by Planning Ingenuity dated 21 March 2025 states that:

“The proposed development will appear as a transition between the setbacks of the neighbouring properties and would not conflict with the existing streetscape, thereby complying with the front setback requirement which allows for an undetermined variation under Pt C2.2(2) of the DCP. Therefore, no further consideration of the front setback is required”.

31. The parties advise that the amended DA is supported by a Clause 4.6 variation report for s 69(2)(a)(i) and (b) of the Housing SEPP prepared by Planning Ingenuity dated 21 March 2025. The variation report concludes that:

“This written request has been prepared in relation to the proposed variation to the setback and separation requirements under Clause 69(2) of the Housing SEPP to allow minimum setbacks of 3m to the northern and southern side boundaries.The DA

Having regard to all of the above, it is our opinion that numeric compliance with the setback and separation development standard is unreasonable and unnecessary in the circumstances of this case as the development meets the assumed objectives of that standard, the intent of the building separation requirement of the ADG which is concurrently applicable with the minimum setback requirement and the development meets the zone objectives. The proposal has also demonstrated sufficient environmental planning grounds to support the breach.

Therefore, insistence upon strict compliance with that standard would be unreasonable. On this basis, the requirements of Clause 4.6(3) are satisfied and the variation supported.”

32. I am satisfied that the Applicant’s cl 4.6 written request is well founded and that the variation to s 69(2)(a)(i) and (b) of the Housing SEPP is acceptable noting that:

1. The proposed development establishes an appropriate building envelope for the co-living housing which has different functional and design requirements to multi-dwelling housing;

2. The proposed development incorporates setbacks and separation distances that have been carefully considered in terms of constraints of the site and the surrounding properties;

3. Where adjoining properties are vulnerable to reduced side setbacks, adequate privacy interventions are in place including awnings on windows and orientation of open space areas to the front and rear elevations; and

4. The setback and separation variations do not result in any adverse aural or visual impacts and do not result in any significant view loss.

33. I am satisfied that compliance with the side setback development standard at s 69(2)(a)(i) and (b) of the Housing SEPP is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the deemed or inferred objectives of the side setback development standard for the reasons provided within the Applicant’s written request, which I adopt.

34. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the side setback development standard contained at s 69(2)(a)(i) and (b) of the Housing SEPP, as required under cl 4.6(3)(b) of LEP, for the following reason:

1. The proposed development complies with the Principles at Ch 1 s 3 of the Housing SEPP through the efficient provision of co-living housing which is designed to minimise impacts from non-compliance with the side setback standard.

35. Approval of the proposed development will be in the public interest for the reasons provided above (at [34(1)] above), and because the proposed development is consistent with the actual, deemed or inferred objectives for the side setback development standard contained at s 69(2)(a)(i) and (b) of the Housing SEPP and for development within the R3 Medium Density Residential zoning of the subject site, for reasons provided within the Applicant’s written request, which I also adopt.

36. The parties advise that no separation of the rooms into separate lots is proposed, complying with the restriction imposed by s 70 of the Housing SEPP.

Strathfield Development Control Plan 2005

37. The Strathfield Development Control Plan 2005 (the DCP) applies to the site. Contentions relating to the proposed development’s non-compliance with other provisions of the DCP have been resolved in the amended DA.

Conclusion

38. Having considered the advice of the parties provided above at [11]-[37], 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.

39. 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.

40. 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.

41. The Court notes:

1. That the Council, as the consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application DA2024.44 made on 24 March 2025 to rely on the documents and plans specified below (the amended development application):

Reference/Dwg No	Title/Description	Prepared By	Date/s
A000(1) Revision D	General Perspective	Texco Design	11/3/2025
A001 Revision D	Section J Commitments
A002 Revision D	Survey
A003 Revision D	Demolition Plan
A004 Revision D	Site Plan
A006 Revision D	Streetscape Analysis
A007 Revision D	GFA Calculations
A008 Revision D	Unit Schedule
A009 Revision D	Communal Living Area Calculation
A014 Revision D	Height Limit Diagram
A015 Revision D	Shadow Diagram-21st June
A016 Revision D	Sun Eye Diagram-Approved DA
A017 Revision D	Sun Eye Diagram-Proposed Development
A018 Revision D	Sun Eye Diagram-Proposed Development-21st June -09am
A019 Revision D	Sun Eye Diagram-Proposed Development-21st June - 10am
A020 Revision D	Sun Eye Diagram-Proposed Development-21st June - 11am
A021 Revision D	Sun Eye Diagram-Proposed Development-21st June – 12pm
A022 Revision D	Sun Eye Diagram-Proposed Development-21st June – 1pm
A023 Revision D	Sun Eye Diagram-Proposed Development-21st June – 2pm
A024 Revision D	Sun Eye Diagram-Proposed Development-21st June – 3pm
A101 Revision D	Basement Plan
A102 Revision D	Ground Floor Plan
A103 Revision D	Level 1 Plan
A104 Revision D	Level 2 Plan
A105 Revision D	Level 3 Plan
A106 Revision D	Roof Plan
A201 Revision D	North Elevations
A202 Revision D	South Elevations
A203 Revision D	East & West Elevations
A301 Revision D	Section A
A302 Revision D	Section B
A303 Revision D	Ramp Section
A401 Revision D	Material Schedule
A402 Revision D	Door Schedule
A403 Revision D	Window Schedule
Sheet 01 Revision E	Hardscape Plan	Conzept Landscape Architects	4/3/2025
Sheet 02 Revision E	Soil Depth Plan
Sheet 03 Revision E	Landscape Plan - GF
Sheet 04 Revision E	Landscape Plan – L1,2,3
Sheet 05 Revision E	Sections
Sheet 06 Revision E	Details & Specification
DA-SW100 Rev 4	Coversheet	JCO Consultants Pty Ltd	3/3/2025
DA-SW101 Rev 4	General notes and specifications
DA-SW200 Rev 4	Stormwater Concept Design -Basement Plan
DA-SW201 Rev 4	Stormwater Concept Design -Ground Floor Plan
DA-SW300 Rev 4	Stormwater Concept Design -Details Sheet 1
DA-SW301 Rev 4	Stormwater Concept Design -Details Sheet 2
DA-SW400 Rev 4	Stormwater Concept Design -Drainage Longsection
DA-SW600 Rev 4	Erosion and Sediment Control Plan & Details

Document Name		Date		Prepared By
Amended Clause 4.6 variation request – Exceptions to building setbacks and separation development standards		21 March 2025		Planning Ingenuity
Amended Clause 4.6 variation request – Exceptions to height of building development standards		21 March 2025		Planning Ingenuity
CPTED Report Revision B		2 March 2025		PCN Urban
Plan of Management		March 2025		Planning Ingenuity
NCC Section J DTS Report, Job No. AE6642		1 March 2025		AENEC
Access 2022 Indicative Compliance Report		6 March 2025		Building Innovations Australia
Hazardous Materials Survey		13 December 2024		EI Australia
Detailed Site Investigation		13 December 2024		EI Australia
Statement of Heritage Impact		December 2024		Weir Phillips Heritage
Traffic Assessment		6 February 2025		Genesis Traffic

Orders

42. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the agreed amount of $9,000.00 to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. The Applicant’s written request pursuant to cl 4.6 of the Strathfield Local Environmental Plan 2012 seeking a variation to the development standard for building setbacks and separation set out in cl 69(2)(a) & (b) of the Housing SEPP prepared by Planning Ingenuity dated 21 March 2025 is upheld.

4. The Applicant’s written request pursuant to cl 4.6 of the Strathfield Local Environmental Plan 2012 seeking a variation to the development standard for height of building set out in cl 4.3 of the Strathfield Local Environmental Plan 2012 prepared by Planning Ingenuity dated 21 March 2025 is upheld.

5. Development Application DA2024.44, as amended, for the demolition of an existing dwelling and the construction of a four-storey co-living development comprising 35 private co-living rooms and 2 common rooms with basement level parking at 15 Homebush Road, Strathfield, NSW, 2135, legally identified as Lot 1 in DP31394, is determined by the grant of development consent, subject to the conditions included in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (434 KB, pdf)

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Amendments

17 July 2025 - Correction of orders - 4 common rooms to 2 common rooms

Decision last updated: 17 July 2025