Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 15:

1. COMMISSIONER: The Applicant filed the appeal in these proceedings on 15 January 2025 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in accordance with the time provisions in ss 8.10(1)(a) and 8.11(1) seeking development consent to development application No DA2024/0658 (DA) lodged on 18 November 2024 with Cumberland Council (Council) for the construction of a mixed-use development comprising co-living housing and a residential flat building on Lot 9 Section 1 in Deposited Plan 979564 known as 26 Smythe Street, Merrylands (Land).

2. The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is s 4.16(1) of the EPA Act.

4. The DA as amended seeks consent for construction of a mixed-use development comprising 38 co-living housing units and a six-room boarding house.

5. The Land is situated in R4 High Density Residential Zone under the Cumberland Local Environmental Plan 2021 (CLEP 2021).

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 5 May 2025 and 12 June 2025, with a s 34(3) Agreement being filed on 19 June 2025 together with amended documents, and the amended plans being filed on 23 June 2025. I presided over the conciliation conference.

7. At the conciliation conference, the parties reached 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 DA as amended subject to the conditions in Annexure A.

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. The parties' decision involves the Court exercising the function under s 4.16(1) of the EPA Act to uphold the appeal and grant consent to the DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how they have been satisfied, as set out below.:

9. The Applicant is the owner of the Land and therefore complies with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPAR 2021) for the purpose of lodging the DA with Council, and filing the appeal in this Court (Class 1 Application Tab 1).

10. The State Environmental Planning Policy (Resilience and Hazards) 2021 (R&H SEPP) s 4.6(1) requires the Court to consider if the Land is contaminated. A Preliminary Site Investigation Report prepared by EI Australia (Class 1 Application Tab 3, p 16) concluded that "the potential for contamination to exist on the site was low". The site was deemed to be suitable for the proposed residential development.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197f237fe7bb26b5aaa56c84)

Disclaimer: Curated by HT Syndication.