Australia, June 18 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:

1. COMMISSIONER: This appeal concerns a development application for the construction of a 3-storey co-living housing development, ground level (and under croft) car park, and associated civil, stormwater and landscaping works at 11 Blaxland Avenue, Penrith. The development application was lodged on 26 March 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 [10] 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 8 May 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.

4. The agreement reflects that which was filed on 28 April 2025, with a final version filed on 13 May 2025. 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 include a reduction in room numbers from 20 to 15, a reduction in car spaces from 5 to 3, the provision of better facilities in each room, improved private open space, common areas and communal open space, and increased rear setbacks at the zone interface.

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

6. 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:

1) The site is zoned R4 High Density Residential, pursuant to the Penrith Local Environmental Plan 2010 (PLEP). Whilst development for the purpose of co-living housing is not permissible in the 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 residential flat buildings are permissible in the zone.

2) The provisions of Pt 3 Ch 3 of the SEPP Housing apply to the development. At s 69, consent cannot be granted unless certain requirements are met. Based on the Statement and on the architectural plans, I am satisfied that each of the matters in s 69(1) of the SEPP Housing are met by the proposed development.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196cd20d7e62f976bba88e6e)

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