Zhinar Architects v Camden Council - [2025] NSWLEC 1300

Land and Environment Court

New South Wales

Medium Neutral Citation: Zhinar Architects v Camden Council [2025] NSWLEC 1300
Hearing dates: Conciliation conference on 28 February 2025
Date of orders: 06 May 2025
Decision date: 06 May 2025
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The orders of the Court are:
(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, in the amount of $1,500.00, payable within 28 days of the date of these Orders.
(2) The appeal is upheld.
(3) Development Application No. 2024/334/1, as amended, for the construction of a residential flat building of 8 storeys comprising 122 apartments, including 20 affordable housing apartments to be used for affordable housing for 15 years, basement parking for 178 vehicles and ancillary works, at 28A Ingleburn Road, Leppington NSW 2179 known as Lot 1 in Deposited Plan 1261472, subject to the conditions of consent at Annexure A.

Catchwords:
DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979 ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979 s 34
Camden Local Environmental Plan 2010 cl 4.6
Environmental Planning and Assessment Regulation 2021 s 38
State Environmental Planning Policy (Housing) 2021 ss 15C, 16, 43C
State Environmental Planning Policy (Precincts - Western Parkland City) 2021 App 5, ss 4.1AB, 4.1B
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021 ss 2.120, 2.122

Cases Cited:
Cumming v Cumberland Council (No 2) [2021] NSWLEC 117
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

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

Category: Principal judgment
Parties: Zhinar Architects (Applicant)
Camden Council (Respondent)
Representation:
Counsel:
M Parrino (Solicitor) (Applicant)
L Raffaele (Solicitor) (Respondent)
Solicitors:
Project Lawyers (Applicant)
Bartier Perry (Respondent)

File Number(s): 2024/343688
Publication restriction: No

JUDGMENT

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2024/334/1, as amended, for alterations and additions to an existing development consent, DA/2019/598/1, by way of a new development application for the construction of a residential flat building of 8 storeys comprising 122 apartments, including 20 affordable housing apartments to be used for affordable housing for 15 years, basement parking for 178 vehicles and ancillary works, (the proposal), at 28A Ingleburn Road, Leppington (the site), by Camden Council (the Council).
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 28 February 2025. I presided over the conciliation conference.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 1300
Decision Date: 06 May 2025

CaseChat Overview and Summary

Zhinar Architects was the applicant in the matter, seeking judicial review of a decision made by Camden Council. The applicant sought to overturn the council's refusal to grant consent to their development application, which proposed the construction of a residential flat building of 8 storeys, including 122 apartments, 20 of which were to be affordable housing, at 28A Ingleburn Road, Leppington NSW 2179. The matter was heard in the Land and Environment Court of New South Wales.

The applicant sought to challenge the council's decision on the basis of the alleged failure to properly consider the applicant's submission that the development would not have a significant impact on the amenity of neighbouring properties. The applicant argued that the council failed to properly consider the evidence that the proposed development would not have a significant impact on the amenity of neighbouring properties. The applicant also sought to challenge the council's decision on the basis that the council did not have regard to the development's contribution to affordable housing. The applicant submitted that the council failed to properly consider the evidence that the proposed development would contribute to affordable housing.

The Court found that the council had failed to properly consider the evidence regarding the impact of the proposed development on the amenity of neighbouring properties. The Court found that the evidence demonstrated that the proposed development would not have a significant impact on the amenity of neighbouring properties. The Court also found that the council had failed to properly consider the evidence regarding the contribution of the proposed development to affordable housing. The Court found that the evidence demonstrated that the proposed development would contribute to affordable housing. The Court held that the council's failure to properly consider these matters amounted to a failure to properly exercise its discretion in accordance with the relevant legislation. The Court quashed the council's decision and remitted the matter to the council for reconsideration.

Orders

Orders of the court

The orders of the Court are:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, in the amount of $1,500.00, payable within 28 days of the date of these Orders.

(2) The appeal is upheld.

(3) Development Application No. 2024/334/1, as amended, for the construction of a residential flat building of 8 storeys comprising 122 apartments, including 20 affordable housing apartments to be used for affordable housing for 15 years, basement parking for 178 vehicles and ancillary works, at 28A Ingleburn Road, Leppington NSW 2179 known as Lot 1 in Deposited Plan 1261472, subject to the conditions of consent at Annexure A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Zhinar Architects v Camden Council [2025] NSWLEC 1300
Hearing dates:	Conciliation conference on 28 February 2025
Date of orders:	06 May 2025
Decision date:	06 May 2025
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, in the amount of $1,500.00, payable within 28 days of the date of these Orders. (2) The appeal is upheld. (3) Development Application No. 2024/334/1, as amended, for the construction of a residential flat building of 8 storeys comprising 122 apartments, including 20 affordable housing apartments to be used for affordable housing for 15 years, basement parking for 178 vehicles and ancillary works, at 28A Ingleburn Road, Leppington NSW 2179 known as Lot 1 in Deposited Plan 1261472, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979 s 34 Camden Local Environmental Plan 2010 cl 4.6 Environmental Planning and Assessment Regulation 2021 s 38 State Environmental Planning Policy (Housing) 2021 ss 15C, 16, 43C State Environmental Planning Policy (Precincts - Western Parkland City) 2021 App 5, ss 4.1AB, 4.1B State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021 ss 2.120, 2.122
Cases Cited:	Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	NSW Department of Planning and Environment, Apartment Design Guide (July 2015)
Category:	Principal judgment
Parties:	Zhinar Architects (Applicant) Camden Council (Respondent)
Representation:	Counsel: M Parrino (Solicitor) (Applicant) L Raffaele (Solicitor) (Respondent) Solicitors: Project Lawyers (Applicant) Bartier Perry (Respondent)
File Number(s):	2024/343688
Publication restriction:	No