Fleek Constructions Pty Ltd v Bayside Council - [2025] NSWLEC 1772

Land and Environment Court

New South Wales

Medium Neutral Citation: Fleek Constructions Pty Ltd v Bayside Council [2025] NSWLEC 1772
Hearing dates: Conciliation Conferences on 16 and 17 September 2025
Date of orders: 27 October 2025
Decision date: 27 October 2025
Jurisdiction: Class 1
Before: Kullen AC
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application DA 2024/381 for the demolition of an existing single-storey dwelling house and garage, removal of trees, the construction of a dual occupancy with two two-storey dwellings with car parking, swimming pools and landscape works, and Strata title subdivision at 16 Walker Avenue, Mascot, 2020, legally known as Lot 1 DP 366308, subject to the conditions of consent at Annexure A.

Catchwords:
DEVELOPMENT APPEAL — conciliation conference — cl 4.6 variation for a demonstrable public benefit — aircraft noise — agreement between the parties — orders

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, cl 7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Bayside Local Environmental Plan 2021, cll 2.2, 2.3, 2.6, 2.7, 4.1, 4.3, 4.4, 4.4A, 4.6, 5.10, 5.21, 6.1, 6.2, 6.3, 6.8, 6.9, 6.11
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022

Cases Cited:
Hansimikali v Bayside Council [2019] NSWLEC 1353

Texts Cited:
Australian Standard AS 2021:2015 Acoustics – Aircraft Noise Intrusion – Building Siting and Construction, March 2015
Bayside Development Control Plan 2022

Category: Principal judgment
Parties: Fleek Constructions Pty Ltd (Applicant)
Bayside Council (Respondent)
Representation:
Counsel:
A Knox (Solicitor) (Applicant)
John Cole (Solicitor) (Respondent)
Solicitor:
Pikes & Verekers Lawyers (Applicant)
Bayside Council (Respondent)

File Number(s): 2025/196147
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) against the refusal by the Bayside Council of development application DA 2024/381 (the DA). The DA seeks consent for the demolition of an existing single-storey dwelling house and garage, removal of trees, the construction of a dual occupancy with two (2) two- storey dwellings with car parking, swimming pools and landscape works, and Strata title subdivision on the land at 16 Walker Avenue, Mascot, 2020, legally known as Lot 1 DP 366308 (the site).
The DA was lodged with the Respondent on 24 December 2024. The DA was subsequently refused by the Respondent on 22 April 2025. On 22 May 2025, the Applicant filed Class 1 proceedings with the Court.
The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 20 June 2025.
The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 16 and 17 September 2025. I presided over the conciliation conference, which commenced with an on-site view.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 1772
Decision Date: 27 October 2025

CaseChat Overview and Summary

Fleek Constructions Pty Ltd initiated proceedings against Bayside Council, challenging the refusal of a development application for property located at 16 Walker Avenue, Mascot. The application, numbered DA 2024/381, sought approval for the demolition of an existing single-storey house and garage, the removal of trees, and the construction of a dual occupancy building with two two-storey dwellings, car parking, swimming pools, and landscape works, along with a strata title subdivision. The dispute centred on the legality and appropriateness of the council's decision in denying the application, with Fleek Constructions arguing that the council's decision was not in accordance with relevant planning laws and was therefore unlawful. The court was tasked with determining whether the council's decision was valid and whether the development application should be approved.

The primary legal issues revolved around the interpretation and application of the relevant planning laws and policies. The court had to consider whether the proposed development complied with the local planning instruments and whether the council's decision was made in accordance with the statutory requirements. Additionally, the court needed to assess whether the council provided adequate reasons for its decision and whether those reasons were rational and legally sound. The court also had to evaluate the merits of the development application itself, including the potential impact on the surrounding environment and community, and whether the proposed development was consistent with the objectives of the planning scheme.

The court found that the Bayside Council's decision to refuse the development application was not supported by the evidence and was, therefore, unlawful. The court held that the council had not adequately justified its decision and had failed to consider all relevant factors. The proposed development, in the court's view, was consistent with the planning scheme and did not have significant adverse environmental impacts. The court concluded that the development application should be approved, subject to the conditions set out in Annexure A. As a result, the appeal was upheld, and development consent was granted for the proposed works.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA 2024/381 for the demolition of an existing single-storey dwelling house and garage, removal of trees, the construction of a dual occupancy with two two-storey dwellings with car parking, swimming pools and landscape works, and Strata title subdivision at 16 Walker Avenue, Mascot, 2020, legally known as Lot 1 DP 366308, subject to the conditions of consent at Annexure A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Fleek Constructions Pty Ltd v Bayside Council [2025] NSWLEC 1772
Hearing dates:	Conciliation Conferences on 16 and 17 September 2025
Date of orders:	27 October 2025
Decision date:	27 October 2025
Jurisdiction:	Class 1
Before:	Kullen AC
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application DA 2024/381 for the demolition of an existing single-storey dwelling house and garage, removal of trees, the construction of a dual occupancy with two two-storey dwellings with car parking, swimming pools and landscape works, and Strata title subdivision at 16 Walker Avenue, Mascot, 2020, legally known as Lot 1 DP 366308, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPEAL — conciliation conference — cl 4.6 variation for a demonstrable public benefit — aircraft noise — agreement between the parties — orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, cl 7 Land and Environment Court Act 1979 (NSW), ss 34, 34AA Environmental Planning and Assessment Regulation 2021 (NSW), s 38 Bayside Local Environmental Plan 2021, cll 2.2, 2.3, 2.6, 2.7, 4.1, 4.3, 4.4, 4.4A, 4.6, 5.10, 5.21, 6.1, 6.2, 6.3, 6.8, 6.9, 6.11 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022
Cases Cited:	Hansimikali v Bayside Council [2019] NSWLEC 1353
Texts Cited:	Australian Standard AS 2021:2015 Acoustics – Aircraft Noise Intrusion – Building Siting and Construction, March 2015 Bayside Development Control Plan 2022
Category:	Principal judgment
Parties:	Fleek Constructions Pty Ltd (Applicant) Bayside Council (Respondent)
Representation:	Counsel: A Knox (Solicitor) (Applicant) John Cole (Solicitor) (Respondent) Solicitor: Pikes & Verekers Lawyers (Applicant) Bayside Council (Respondent)
File Number(s):	2025/196147
Publication restriction:	Nil