ABA Square Pty Ltd v Fairfield City Council [2026] NSWLEC 1369

Catchwords: DEVELOPMENT APPLICATION – shop top development – in-fill affordable housing – cl 4.6 written request – height of buildings – landscaped area – agreement between the parties – orders Land and Environment Court New South Wales Medium Neutral Citation: ABA Square Pty Ltd v Fairfield City Council [2026] NSWLEC 1369 Hearing dates: Conciliation conference held 15 August, 5, 14, 19 and 26 November, 15 December 2025, 11 February, 5 and 23 March, 13 April, and 7 May 2026 Date of orders: 21 May 2026 Decision date: 21 May 2026 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA 25.1/2025 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent ’ s costs thrown away as a result of amending the Development Application in the sum of $30,000 within 21 days of the date of these orders. (3) The appeal is upheld. (4) Consent is granted to Development Application DA 25.1/2025 (as amended) for the demolition of existing structures and construction of a shop top housing development comprising of 145 apartments, basement parking and associated landscaping at 896-898 Woodville Road and 15 Hilwa Street, Villawood , subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – shop top development – in-fill affordable housing – cl 4.6 written request – height of buildings – landscaped area – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), ss 26, 27, 29, 37, 38 Fairfield Local Environmental Plan 2023, cll 2.1, 2.3, 2.7, 4.3, 4.6, 5.10, 5.21, 5.22, 6.1, 6.2, 6.9, 6.10, 6.11, 7.8 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 6.6, 6.7, 6.8, 6.9, 6.10 State Environmental Planning Policy (Housing) 2021, Chs 2, 4, Pt 2, Div 1, ss 3, 15C, 16, 18, 19, 20, 21, 147, Sch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 2.120, 2,122 Cases Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015) Fairfield City Council Community Engagement Strategy 2024 Texts Cited: Fairfield Council 2024 Community Engagement Strategy NSW Department of Planning and Environment, Apartment Design Guide (July 2015) Category: Principal judgment Parties: ABA Square Pty Ltd (Applicant) Fairfield City Council (Respondent) Representation: Counsel: S Siv (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2025/124573 Publication restriction: Nil JUDGMENT COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by ABA Square Pty Ltd (the Applicant), against the deemed refusal of Development Application DA 25.1 /2025 (the DA) by Fairfield City Council (the Respondent). At the date of its lodgement on 22 January 2025, the DA sought consent for demolition of existing structures and construction of an 11 - storey shop top housing development comprising two towers over a united podium, 255 car parking spaces within three levels of basement parking, ground floor uses including 12 retail premises, 1 cafe and 1 kiosk, 148 apartments on Levels 1-11, and ancillary works including tree removal, landscaping, consolidation of lots and dedication of land at 896-898 Woodville Road and 15 Hilwa Street, Villawood (the site). The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 15 August, 5, 14, 19 and 26 November, 15 December 2025, 11 February, 5 and 23 March, 13 April, and 7 May 2026. I presided over the conciliation conference. During the conciliation conference, the parties reached agreement to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. Of particular note , the proposal has been amended by agreement between the parties to resolve the contentions raised by the Respondent. These contentions included issues of exceedance of the relevant height of building control, insufficient landscape provision, inconsistency with the existing and desired future character, inadequate internal amenity, concerns for the proposed urban design interfaces and streetscape presentation, inadequate stormwater drainage, inadequate car parking provision, and potential site contamination, amongst other contentions. Agreed design amendments have now been made to improve the proposed building’s relationship to the site and its context, particularly to minimise offsite impacts of overshadowing. Changes have been made to improve the internal configuration of the proposal to provide acceptable levels of internal amenity and to contribute to the streetscape in an appropriate manner. A series of changes have been made to resolve vehicular access and parking. The amended proposal resolves stormwater drainage and site contamination issues. Additional information has also been provided to the satisfaction of the Respondent. These amendments and additional information, working together with agreed conditions of consent, have the effect of resolving each of the Respondent’s contentions. 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 of the EPA Act to grant consent to the amended DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. The DA was publicly notified in accordance with the Respondent’s Community Engagement Strategy between 7 February and 21 February 2025. No submissions were received by the Respondent. The amended DA was re-notified publicly between 19 December 2025 and 23 January 2026. The Respondent received one submission in response to this renotification. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent have satisfactorily considered the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. The parties agree, and I am satisfied, that the Fairfield Local Environmental Plan 2013 (FLEP) is the relevant local environmental planning instrument. Pursuant to cl 2.1 of the FLEP - Land use zones - the site is zoned part E1 Local Centre and part RE1 Public Recreation. The amended DA - characterised as sho p top housing and commercial premises - is permissible with consent within the E1 zone. The portion of the site zoned RE1 Public Recreation is to be dedicated to the Respondent for the purposes of a civic plaza and pathways. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the FLEP - Zone objectives and Land Use Table - the amended DA is consistent with the E1 Local Centre zone objectives, which include - to provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area; to encourage investment in local commercial development that generates employment opportunities and economic growth; to enable residential development that contributes to a vibrant and active local centre and is consistent with the [Respondent’s] strategic planning for residential development in the area; to encourage business, retail, community and other non-residential land uses on the ground floor of buildings; and to ensure local centres are not dominated by one type of development and have ongoing capacity to provide a mix of retail, business and community uses. Similarly, I am satisfied the amended DA is consistent with the RE1 Public Recreation zone objectives, which include to enable land to be used for public open space or recreational purposes; to provide a range of recreational settings and activities and compatible land uses; and to protect and enhance the natural environment for recreational purposes. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the FLEP - Demolition requires development consent - the amended DA proposes demolition of the existing structures occupying the site. The parties agree, and I am satisfied, that all principal development standards of the FLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings. Of particular note , the site is not subject to development standards for minimum lot size or floor space ratio (FSR) . Height of Buildings Pursuant to cl 4.3 of the FLEP - Height of buildings - the site benefits from a development standard for building height of 27m. However, certain provisions set out within Ch 2 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing), dealing with affordable housing, make up to an additional 30% building height available in exchange for the provision of 15% of the proposed gross floor area (GFA) as in-fill affordable housing. The amended DA seeks to rely upon 30% additional building height, taking the resultant building height development standard to 35.1m. The amended DA proposes a maximum height of building of 37.41m, which exceeds the development standard by 2.31m or approximately 6.6%. Clause 4.6(3) of the FLEP requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. Accordingly, the Applicant has provided a written document seeking to vary the relevant development standard for height of building, prepared by DMPS. The parties agree, and I am satisfied, that the written document adequately justifies the proposed variance to the height of buildings development standard for the following reasons: The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality. The area and extent of the building height exceedance is relatively minor and is generally associated with the building parapet, core and lift overruns, which are located within the site in a manner that minimises its visibility from more sensitive public vantage points. The proposed height exceedance has been amended by agreement to not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties. The parties agree, and I am satisfied that, the amended DA is consistent with the relevant objectives of the FLEP E1 Local Centre land use zone. The parties agree, and I am satisfied that, the amended DA is consistent with the relevant objectives of cl 4.3 of the FLEP - Height of buildings, which include - to establish the maximum height for buildings; to ensure that the height of buildings complements the streetscape and character of the area in which the buildings are located; to minimise the visual impact, disruption of views, loss of privacy and loss of solar access to existing development; to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality; to ensure that taller buildings are located appropriately in relation to view corridors and view impacts and in a manner that is complementary to the natural topography of the area; and to allow adequate natural light and ventilation between dwellings and sufficient separation for acoustic and visual privacy. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the relevant height of building development standard, and I find to uphold the written request. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the FLEP - Heritage conservation - the site is not an identified heritage item, nor is it situated within a Heritage Conservation Area (HCA). The parties agree, and I am satisfied, that the amended DA brings with it no impacts to any identified heritage item or HCA. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the FLEP - Flood planning - the site is not flood affected. The parties agree, and I am satisfied, that pursuant to cl 5.22 of the FLEP - Special flood considerations - the matters set out at cl 5.22(3) have been given appropriate consideration in the assessment of the amended DA. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the FLEP- Acid sulfate soils - the site is not mapped on the Acid Sulfate Soils Map, and therefore no acid sulfate soils management plan is required. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the FLEP- Earthworks - the Applicant has provided a Preliminary Geotechnical Assessment prepared by Ei Australia Pty Ltd and amended Stormwater Plans prepared by C&S Engineering Services, which are agreed to satisfactorily consider the matters set out in cl 6.2(3). Agreed conditions of consent are imposed to regulate excavation and construction phase works. The parties agree, and I am satisfied, that pursuant to cl 6.9 of the FLEP - Essential services - the site is currently serviced by water, electricity, telecommunications, stormwater drainage and sewer. The site also has frontage to public roads facilitating vehicular access. The parties agree, and I am satisfied, that pursuant to cl 6.10 of the FLEP - Active street frontages - the site’s Howatt Street frontage is identified as requiring an active street frontage, and the amended DA provides appropriate ground floor retail uses. The parties agree, and I am satisfied, that pursuant to cl 6.11 of the FLEP - Ground floor business premises, medical centres and retail premises - the amended DA provides ground floor retail uses consistent with cl 6.11(2). The parties agree, and I am satisfied, that pursuant to cl 7.8 of the FLEP - Villawood —height of buildings - the site meets the minimum area requirement of 4,000 sqm necessary to exceed a 9m maximum height of buildings development standard. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument. Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree, and I am satisfied, that the amended DA proposes tree removal and is supported by an Arboricultural Impact Assessment Report prepared by Seasoned Tree Consulting, dated 16 December 2025, and by amended landscape plans, which propose new trees within the site and adjacent street trees, deep soil and the embellishment of planting areas on the site. Accordingly, I am satisfied that Ch 2 of SEPP BC has been appropriately addressed. Chapter 6 of SEPP BC deals with water catchments. The parties agree, and I am satisfied, that the site is situated within the Georges River Catchment. The Applicant has provided amended stormwater plans, prepared by Civil and Stormwater Engineering Services. Pursuant to the provisions of s 6.6 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon water quality and quantity within the catchment. Agreed conditions of consent are imposed to control erosion and sediment during construction. Pursuant to the provisions of s 6.7 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon aquatic ecology within the catchment. Pursuant to the provisions of s 6.8 of SEPP BC, the parties agree, and I am satisfied, that the amended DA is unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems, and will not result in the release of pollutants that may have an adverse impact on water quality of a natural waterbody, or on the natural recession of floodwaters into wetlands or other riverine ecosystems. Pursuant to the provisions of s 6.9 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no impact upon recreational land or public access to foreshores or natural water bodies within the catchment. Pursuant to the provisions of s 6.10 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no adverse impacts upon adjacent or downstream local government areas within the catchment. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the Applicant has provided a Detailed Site Investigation (DSI) prepared by Ei Australia, dated 16 December 2024. An addendum to the DSI has also been provided by the Applicant. Based on the findings and recommendations of the DSI, the parties agree, and I am satisfied, that the site can be made suitable for the proposed development. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (S EPP Infrastructure) is an additional relevant environmental planning instrument. Section 2.48 of SEPP Infrastructure applies to the amended DA since the site is within close proximity to an overhead electricity power line. The DA was referred to the electricity supply authority, Endeavour Energy, which provided a response on 26 March 2025. The parties agree, and I am satisfied, that the relevant jurisdictional prerequisite to the grant of consent has been satisfied. Agreed conditions of consent are imposed relating to safe work practices in proximity to electricity assets. Pursuant to s 2.119 of SEPP Infrastructure, the site does not have access to a classified road. Pursuant to s 2.120 of SEPP Infrastructure , the site’s proposed residential use and proximity to Woodville Road, with an average daily traffic volume of more than 20,000 vehicles, triggers certain requirements to mitigate against road noise and vibration. Accordingly, the Applicant has provided an amended Acoustic Report prepared by Acouras Consultancy and dated 3 September 2025 addressing the requirements of s 2.120 and setting out recommendations to ensure appropriate mitigation against acoustic impacts within the proposed residential apartments. Agreed conditions of consent are imposed to ensure implementation of the recommendations in the Acoustic Report. Pursuant to s 2.122 of SEPP Infrastructure , the amended DA triggers certain requirements given it exceeds 200 or more car spaces. The DA was referred to Transport for NSW, which has provided a response on 2 March 2026. The parties agree, and I am satisfied, that the relevant jurisdictional prerequisite to the grant of consent has been satisfied. Agreed conditions of consent are imposed relating to traffic management and works within the Woodville Road reservation. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg), a BASIX certificate, No 1778238M_03 , dated 24 March 2026, has been provided with the amended DA. Pursuant to s 2.1(5) of the SEPP Sustainable Buildings, the BASIX certificate quantifies embodied emissions attributable to the development. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate. The parties agree, and I am satisfied, that SEPP Housing is an additional relevant environmental planning instrument. Chapter 2 of SEPP Housing deals with Affordable Housing, and the amended DA is subject to the relevant provisions for in-fill affordable housing set out at Pt 2, Div 1. Pursuant to s 15C of SEPP Housing , I am satisfied that development for the purposes of shop top housing is permitted with consent in the E1 Local Centre Zone. The affordable housing component proposed within the amended DA is equivalent to 15.02% of the proposed FSR. Pursuant to s 16(1) of SEPP Housing, there is no relevant FSR development standard provided within the FLEP. Pursuant to s 18 of SEPP Housing , up to an additional 30% of building height is available in exchange for the provision of 15% of the proposed GFA as in-fill affordable housing. As addressed earlier in this judgment, the site benefits from a development standard for building height of 27m (as set out in the FLEP), and the amended DA seeks to rely upon the 30% additional building height provided by SEPP Housing, taking the resultant building height development standard to 35.1m. The amended DA proposes a maximum building height of 37.41m. Consistent with s 18(2) of SEPP Housing, the amended DA is required to allocate a minimum of 15% of FSR (2,252.5 sqm of GFA) as in-fill affordable housing. The amended DA proposes that 28 units be provided as in-fill affordable housing for a period of at least 15 years. Section 19(2) of SEPP Housing provides a number of relevant non-discretionary development standards. The amended DA complies with all relevant non-discretionary development standards with the exception of s 19(2)(b) - landscaped area. Pursuant to s 19(2)(b) of SEPP Housing, the amended DA is subject to a minimum landscaped area development standard equal to the lesser of either 35 sqm per dwelling or 30% of the site area. The amended DA comprises 145 dwellings and the site area is 4,412.7 sqm. On this basis, the lesser requirement is for a minimum landscaped area of 30% of the site, equating to 1,323.8 sqm. The amended DA is agreed to provide a landscaped area of 295.6 sqm (equivalent to 7.7% of the site area ) representing a 1,028.2 sqm shortfall to the minimum landscaped area development standard, or a variation of 77.7%. The SEPP Housing minimum landscaped area development standard may be varied by operation of cl 4.6(3) of the FLEP, which requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. Accordingly, the Applicant has provided a written document seeking to vary the development standard for minimum landscaped area , prepared by DMPS. The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the minimum landscaped area development standard for the following reasons: The amended DA is agreed to provide an acceptable quantity and quality of landscaped area suited to the nature of the proposed development. The shortfall is agreed to result, in part, from the SEPP Housing definition of landscaped area excluding landscaped and planted areas over structures. The site specific development controls applicable to the site anticipate zero setbacks to the north and east and minimal setbacks to south and west. The site is required to activate three street frontages with business or commercial development at ground level within the Villawood local centre . Deep soil is not able to be achieved within the southern setback due to the agreed placement of stormwater services in this location. The amended DA proposes to dedicate land for public domain works, and the site adjoins and expands a RE1 Public Recreation zone. I am satisfied the amended DA is consistent with the objectives of the FLEP E1 Local Centre land use zone. I am satisfied the amended DA is consistent with relevant principles of SEPP Housing as set out at s 3 . Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the relevant minimum landscaped area development standard, and I find to uphold the written request. Section 20(3) of SEPP Housing sets out certain design requirements. The parties agree, and I am satisfied, that the amended DA is compatible with the desired character of the local area, noting that the operation of SEPP Housing means the local area is a precinct undergoing transition. Section 21(1)(a) of SEPP Housing requires that, commencing at occupation certificate stage, the development will provide the in-fill affordable housing component for a period of fifteen years. Further, s 21(1)(b) requires the consent authority (the Court in this instance) to be satisfied that the affordable housing component will be managed by a registered Community Housing Provider (CHP). Accordingly, and consistent with s 26 of the EPA Reg , the amended DA specifies Community Housing Corner as the CHP. Chapter 4 of SEPP Housing deals with the design of residential apartment development. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of SEPP Housing. Pursuant to the relevant provisions of SEPP Housing, the EPA Reg, the Applicant's architect, Tony Owen Partners (and its nominated architect Mr Tony Owen - NSW registered architect 7080) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. The Court notes that: Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent. The Applicant has lodged the final amended DA with the Court on 7 May 2026. Orders The Court orders that: Leave is granted to the Applicant to amend Development Application DA 25.1/2025 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the sum of $30,000 within 21 days of the date of these orders. The appeal is upheld. Consent is granted to Development Application DA 25.1/2025 (as amended) for the demolition of existing structures and construction of a shop top housing development comprising of 145 apartments, basement parking and associated landscaping at 896-898 Woodville Road and 15 Hilwa Street, Villawood , subject to the conditions of consent at Annexure A. M Pullinger Acting Commissioner of the Court Annexure A (3.00 MB, pdf) Architectural Plans Part1 (36.1 MB, pdf) Architectural Plans Part2 (36.3 MB, pdf) Architectural Plans Part3 (36.4 MB, pdf) Architectural Plans Part4 (1.56 MB, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2026