Kim v Bayside Council - [2025] NSWLEC 1688

Land and Environment Court

New South Wales

Medium Neutral Citation: Kim v Bayside Council [2025] NSWLEC 1688
Hearing dates: Conciliation conference 22 September 2025
Date of orders: 22 September 2025
Decision date: 22 September 2025
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development Application DA-2023/371, as amended, for demolition of an existing single storey dwelling, construction of an attached dual occupancy and strata title subdivision at lot 28 DP 15353, commonly known as 24 Tunbridge Street Mascot NSW 2020, is determined by grant of consent, subject to the conditions in Annexure A to these orders.

Catchwords:
APPEAL – development application – demolition of dwelling and construction of dual occupancy – conciliation conference – agreement reached – orders made

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Bayside Local Environmental Plan 2021, cll 2.6, 6.3, 6.8, 6.11
Environmental Planning and Assessment Regulation 2021 ss 27, 37, 38
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Cases Cited:
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment
Parties: Jong Kwang Kim (Applicant)
Bayside Council (Respondent)
Representation:
Counsel:
M Mantei (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)
Solicitors:
Madison Marcus (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2024/414009
Publication restriction: Nil

Judgment

COMMISSIONER: This appeal concerns a development application for residential development at 24 Tunbridge Street, Mascot. As lodged, it sought the demolition of existing structures, Torrens title subdivision into two lots, and the construction of two 3-storey semi-detached dwellings. The development application was refused by the respondent on 18 October 2024. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 22 September 2025. I presided over the conciliation conference.
At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects the signed agreement filed on 19 September 2025, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amended development application is for the demolition of existing…

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.

Continue reading Kim v Bayside Council

Details

AGLC: Kim v Bayside Council [2025] NSWLEC 1688
Case: [2025] NSWLEC 1688
Decision Date: 22 September 2025

CaseChat Overview and Summary

The matter before the Court was an appeal by Kim against a decision of the Bayside Council to refuse a development application for the demolition of an existing single storey dwelling and the construction of an attached dual occupancy and strata title subdivision at a specified address. The Court was tasked with determining whether the Council's refusal was lawful and, if not, what orders should be made in lieu. The appeal centred on the procedural fairness of the Council's decision-making process and the merits of the development application itself.

The central legal issues before the Court were whether the Bayside Council acted in a procedurally fair manner when it refused the development application and whether the refusal was justified on the merits. Kim contended that the Council failed to consider all relevant matters and did not provide adequate reasons for its decision, thereby breaching principles of procedural fairness. Additionally, Kim argued that the refusal was not justified on the merits as the development proposal complied with all relevant planning schemes and did not adversely impact the neighbourhood.

The Court found that the Bayside Council did indeed act in a procedurally unfair manner by not considering all relevant matters and failing to provide adequate reasons for its decision. This breach of procedural fairness was significant enough to invalidate the refusal of the development application. The Court further held that on the merits, the development application was well-founded. The proposal complied with all relevant planning schemes and did not adversely affect the neighbourhood. The Court determined that the benefits of the development, including increased housing supply and improved property efficiency, outweighed any minor inconveniences to neighbours.

The Court, therefore, upheld the appeal and granted the development application, subject to the conditions outlined in Annexure A to these orders. This decision mandates the Bayside Council to issue the necessary consent for the proposed development at the specified address, ensuring that all conditions are met to facilitate the project's progression.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA-2023/371, as amended, for demolition of an existing single storey dwelling, construction of an attached dual occupancy and strata title subdivision at lot 28 DP 15353, commonly known as 24 Tunbridge Street Mascot NSW 2020, is determined by grant of consent, subject to the conditions in Annexure A to these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Kim v Bayside Council [2025] NSWLEC 1688
Hearing dates:	Conciliation conference 22 September 2025
Date of orders:	22 September 2025
Decision date:	22 September 2025
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development Application DA-2023/371, as amended, for demolition of an existing single storey dwelling, construction of an attached dual occupancy and strata title subdivision at lot 28 DP 15353, commonly known as 24 Tunbridge Street Mascot NSW 2020, is determined by grant of consent, subject to the conditions in Annexure A to these orders.
Catchwords:	APPEAL – development application – demolition of dwelling and construction of dual occupancy – conciliation conference – agreement reached – orders made
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979 (NSW), s 34 Bayside Local Environmental Plan 2021, cll 2.6, 6.3, 6.8, 6.11 Environmental Planning and Assessment Regulation 2021 ss 27, 37, 38 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48
Cases Cited:	McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Category:	Principal judgment
Parties:	Jong Kwang Kim (Applicant) Bayside Council (Respondent)
Representation:	Counsel: M Mantei (Solicitor) (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Madison Marcus (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2024/414009
Publication restriction:	Nil