Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 30:

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a 2-storey co-living housing development containing 12 rooms, at 110 Barry Street, Cambridge Park. The development application was lodged with the respondent on 11 April 2024. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the 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 [9] 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 5 February 2025 and continued by Online Court on various occasions, until a final agreement was reached on 12 May 2025. I presided over the conciliation conference.

3. The agreement that was filed on 12 May 2025 is an agreement as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments have relocated the car parking spaces from within the front setback, to the now proposed basement garage with a garage door, which has increased the landscaped area. The proposed basement is integrated with the overall architectural form in order to achieve a streetscape presentation that is consistent with the character of a residential dwelling. The amended development application also includes a range of updated reports, including an Arboricultural impact assessment, geotechnical advice, an access report, a traffic impact assessment, waste management plan and acoustic report.

4. 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 a Jurisdictional Note that sets out the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. 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. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties' have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

* The site is zoned R2 Low Density Residential, pursuant to the Penrith Local Environmental Plan 2010 (PLEP). Whilst development for the purpose of co-living housing is prohibited in the R2 zone pursuant to the PLEP, it is permissible with consent pursuant to s 67 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) on the basis that shop top housing is permissible in the zone.

*Rest of the document can be viewed at: (hhttps://www.caselaw.nsw.gov.au/decision/1970ef7bd547dfc623747d32)

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