Zhinar Architects v Camden Council - [2025] NSWLEC 1301

Land and Environment Court

New South Wales

Medium Neutral Citation: Zhinar Architects v Camden Council [2025] NSWLEC 1301
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. 2024/342/1, as amended, for the construction of a residential flat building of 8 storeys comprising 123 apartments, including 20 affordable housing apartments to be used for affordable housing for 15 years, basement parking for 163 vehicles and ancillary works, at 28B Ingleburn Road, Leppington NSW 2179 known as Lot 2 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): 2024/343698
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. 2024/342/1, 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 123 apartments, including 20 affordable housing apartments to be used for affordable housing for 15 years, basement parking for 163 vehicles and ancillary works, (the proposal), at 28B 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 1301
Decision Date: 06 May 2025

CaseChat Overview and Summary

In Zhinar Architects v Camden Council, the Applicant sought approval from Camden Council for a development application concerning the construction of an eight-storey residential flat building with 123 apartments, including 20 affordable housing apartments, basement parking for 163 vehicles, and ancillary works, at a specified address in Leppington, New South Wales. The Council initially rejected the application but later amended their decision, allowing the application subject to certain conditions. Dissatisfied with the amended decision, the Applicant appealed to the Land and Environment Court of New South Wales.

The court had to determine several legal issues, primarily whether the amendment of the application by the Council constituted an appealable decision and whether the Applicant's appeal was valid. Additionally, the court had to assess whether the conditions attached to the amended approval were reasonable and whether the Applicant should bear the costs incurred by the Council due to the amendment of the application.

The court found that the Council's amendment of the application, while it contained some new conditions, was not a fresh decision but a modification of the original refusal. Consequently, it was considered an appealable decision. The court determined that the Applicant's appeal was valid and that the amended approval was legally sound. However, the court also held that the Applicant was required to pay the costs incurred by the Council due to the amendment of the application. The court concluded that the conditions attached to the amended approval were reasonable and in line with planning objectives.

The court's orders included the requirement for the Applicant to pay costs to the Council, the upholding of the Applicant's appeal, and the approval of the amended development application subject to specific conditions. These conditions are detailed in Annexure A of the judgment.

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. 2024/342/1, as amended, for the construction of a residential flat building of 8 storeys comprising 123 apartments, including 20 affordable housing apartments to be used for affordable housing for 15 years, basement parking for 163 vehicles and ancillary works, at 28B Ingleburn Road, Leppington NSW 2179 known as Lot 2 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 1301
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. 2024/342/1, as amended, for the construction of a residential flat building of 8 storeys comprising 123 apartments, including 20 affordable housing apartments to be used for affordable housing for 15 years, basement parking for 163 vehicles and ancillary works, at 28B Ingleburn Road, Leppington NSW 2179 known as Lot 2 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):	2024/343698
Publication restriction:	No