Background
Harry Haider appealed against Canterbury-Bankstown Council’s deemed refusal of DA-1041/2025 for a co-living development at 3 Graham Road, Narwee. The original proposal was for 24 double rooms and five off-street parking spaces. One public submission raised concerns about solar access, parking and congestion.
After a conciliation process was terminated and the matter was listed for hearing, the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 (NSW). The application was amended to provide 20 double rooms and four parking spaces. The applicant also sought variations to the applicable 800-square-metre minimum lot size and 11.5-metre height standards.
The Court’s Holding
Commissioner Targett upheld the appeal and granted consent to the amended development, subject to conditions. The Court held that the parties’ agreed outcome was one it could make in the proper exercise of its functions, requiring it to give effect to the agreement under s 34(3).
The Court accepted that co-living housing was permissible in the R4 High Density Residential zone through the State Environmental Planning Policy (Housing) 2021, despite being prohibited by the local plan. It also accepted that the lot-size and height departures were justified under cl 4.6 of the Canterbury-Bankstown Local Environmental Plan 2023. The applicant was ordered to pay the Council $5,000 in agreed costs thrown away by the amendments.
Key Takeaways
- A s 34 agreement must be adopted where the Court is satisfied it could lawfully make the agreed decision.
- The Housing SEPP made the co-living use permissible in the R4 zone despite the local-plan prohibition.
- The Court approved justified departures from the minimum lot-size and building-height standards.
Why It Matters
The decision illustrates the practical role of conciliation in NSW Class 1 planning appeals: once parties agree on an amended proposal, the Court’s task is to confirm that the result is within its lawful powers, rather than conduct a fresh merits assessment of the former dispute.
It also confirms that co-living proposals may rely on the Housing SEPP’s permissibility provisions and, where justified, seek local-plan standard variations through cl 4.6.