Background
Auzoom Holdings Pty Ltd sought development consent for a four-storey building at 4 Queens Avenue, Kogarah, comprising 20 co-living rooms with a maximum of 43 lodgers. The project included tree removal, minor demolition, and alterations and additions to an existing heritage item listed on the Local Environment Plan. The development application (DA 2025/0266) was deemed refused after the council failed to determine it within the statutory timeframe, prompting Auzoom to appeal under section 8.7 of the Environmental Planning and Assessment Act 1979 (NSW).
The appeal proceeded to hearing, but before trial commenced, the parties reached agreement and participated in a conciliation conference on 4 June 2026. The agreement formed the basis for the court’s decision to grant development consent, subject to conditions of consent and approval of three variations to development standards under clause 4.6 of the Georges River Local Environmental Plan 2021.
The Court’s Holding
The Land and Environment Court upheld the appeal and granted development consent for the amended development application. The court approved three variations to mandatory development standards: (1) reduction of required parking spaces from four to two, justified by the site’s proximity to Kogarah Railway Station and alternative transport provisions including bicycle, motorbike, and carshare parking; (2) reduction of minimum lot size from 800 square metres to 686 square metres, acceptable because the development achieved all other State Environmental Planning Policy (Housing) 2021 standards and was contextually appropriate in scale; and (3) reductions in setback and building separation distances, permitted because non-compliant elements involved minor works related to the retained heritage building, posed no privacy impacts, and preserved heritage values.
The court found the proposed development complied with all applicable environmental planning legislation, including biodiversity requirements, stormwater management, electricity safety standards, and heritage conservation obligations. The court accepted the parties’ agreement that the development exhibited design excellence and would not adversely affect the significance of the heritage item. Critically, the court applied the test established in McMillan v Taylor to conclude the agreed decision was one the court could properly make within its statutory functions.
Key Takeaways
- Development standards under state planning policies can be varied where written requests demonstrate compliance is unreasonable or unnecessary in the circumstances, particularly when justifications address heritage conservation and contextual appropriateness.
- Co-living housing developments must satisfy specific mandatory standards regarding room sizes, facilities, and lot size, but these can be subject to variation mechanisms available under local environmental plans.
- Proximity to public transport and alternative transport infrastructure (bicycles, motorbikes, carshare) are recognised grounds to reduce statutory car parking requirements.
- Conciliation conferences under the Land and Environment Court Act can facilitate agreement-based outcomes, enabling courts to approve developments on negotiated terms without full merits assessment.
Why It Matters
This decision illustrates how planning law accommodates competing objectives: delivering co-living housing (a policy priority under State Environmental Planning Policy (Housing) 2021) while protecting heritage assets. The court’s approval of multiple standard variations demonstrates flexibility in applying development criteria where contextual factors and heritage conservation objectives justify relaxation. The case signals that variation requests supported by detailed planning justifications—particularly those addressing sustainability, heritage values, and transport accessibility—are likely to succeed even when departing substantially from statutory benchmarks.
For developers and local councils, Auzoom establishes that early conciliation and agreement-making in planning disputes can streamline outcomes and avoid contested litigation. The decision also affirms that heritage conservation is a material consideration that can justify reduced setbacks and modified built form, enabling sensitive redevelopment of heritage sites in high-density residential zones without triggering refusal on standard-compliance grounds alone.