Monterey Equity Pty Limited v Bayside Council

Case •

[2023] NSWLEC 1718

•

29 November 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Monterey Equity Pty Limited v Bayside Council [2023] NSWLEC 1718
Hearing dates: Conciliation conference on 24 May, 18 August and 12 September 2023
Date of orders: 29 November 2023
Decision date: 29 November 2023
Jurisdiction:Class 1
Before: Byrne AC
Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent is granted to Development Application No. 2021/95 for the demolition of existing structures and construction of a part 2 and part 3 storey residential aged care facility comprising 112 rooms (115 beds), basement level parking, front fencing and signage at 119 Barton Street, Monterey, NSW 2217, being Lot 2 in DP 857520, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – integrated development – contribution condition – aged care facility – Voluntary Planning Agreement – conciliation conference – agreement between the parties – orders

Legislation Cited:

Bayside Local Environmental Plan 2021

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 7.4, 7.11, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Rockdale Local Environmental Plan 2011, cl 4.6

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cl 40

State Environmental Planning Policy (Housing) 2021

Texts Cited:

Rockdale Section 94 Contributions Plan 2004 (Incorporating Amendments 1-5)

Category:Principal judgment
Parties: Monterey Equity Pty Limited (Applicant)
Bayside Council (Respondent)
Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 2022/360916
Publication restriction: Nil

Judgment

  1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) from a condition imposed pursuant to s 7.11 of the EPA Act by the Sydney Eastern City Planning Panel (SECPP) as consent authority of DA-2021/95 (PPSEC – 130) in granting consent for a residential aged care facility (the Proposed Development) at 119 Barton St, Monterey, NSW 2217, known as Lot 2 DP 857520 (the Site). The Site is located on the southern side of Barton Street between Jones Avenue and The Grand Parade and has a total area of 7,218 sqm.

  2. The Bayside Council (the Council) is the Respondent in the appeal.

  3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held at Court. I presided over the conciliation conference.

  4. The s 34 conciliation conference resulted in an agreement to amend the conditions and otherwise enter into a Voluntary Planning Agreement (VPA) on terms agreed by the parties. The finalisation of the s 34 conference was delayed due to the mandatory legislative provisions concerning the preparation, notification and approval of the VPA, which the Council required and the Applicant agreed, would replace the s 7.11 EPA Act contribution condition (No 29), the primary issue in the appeal.

The Development Application:

  1. The Development Application 2021/95 (the DA) sought the approval of integrated development being the demolition of existing structures and the construction of a part 2 and part 3 storey residential care facility comprising of 112 rooms (115 beds), basement level parking, front fencing and signage (the Proposed Development) at the Site.

  2. On 8 December 2021, the SECPP considered the amended DA and approved it subject to conditions set out in the Notice of Determination dated 21 December 2021 (the Consent). The conditions included a condition No 29 which required the payment of a s 7.11 contribution of $627,949.70 to the Council.

Jurisdictional matters:

  1. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

  2. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Statement (the Statement) provided on 14 September 2023. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions in Reply.

  3. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following matters that apply to the Site and the Proposed Development.

  4. The Site was at the relevant time within the R3 Medium Density Residential zone under the Rockdale Local Environmental Plan 2011. The Proposed Development being a type of “Seniors Housing” is a permissible use with consent in the R3 zone. It is noted that the DA was made and determined under the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors SEPP)

  1. The parties agree that provisions of the Seniors SEPP apply to the DA.

  2. The Seniors SEPP was in force at the time of lodgement of DA-2021/95 which was on 15 March 2021. Although State Environmental Planning Policy (Housing) 2021 was gazetted on Friday, 26 November 2021, it contained savings and transitional provisions that the Seniors SEPP continues to apply to the application.

  3. The application was made and determined under the Seniors SEPP. The parties agree that the Court as consent authority can be satisfied that all relevant matters in same are unchanged.

  4. In particular, it is noted three cl 4.6 objections under the Seniors SEPP were upheld by the SECPP when it originally approved the Consent. The cl 4.6 objections are referred to in the s 34 agreement and accompanied the Class 1 application.

  5. Other documents in relation to the assessment and determination of the DA by the grant of consent are before the Court as follows:

  • The SECPP minutes upholding the cl 4.6 objections;

  • Council’s Planning Assessment Report and Supplementary Assessment Report in relation to the Proposed Development, which consider other relevant clauses of the Seniors SEPP.

  1. In these circumstances, the parties agree the Court would be content to uphold the cl 4.6 objections as referred to in the s 34 agreement so as to allow the appeal to be determined subject to the modified conditions as agreed to by the parties.

Environmental Planning and Assessment Regulations 2000 (EPA Regs)

  1. The parties agree that there is no limit to the power to amend an application pursuant to cl 55 of the EPA Regs.

  2. The parties agree that the amendment to the Consent by way of the deletion of condition No 29 and insertion of condition No 9A is appropriate and that the Court has the power to uphold the appeal subject to the conditions in Annexure A.

Environmental Planning and Assessment Act 1979 (EPA Act)

  1. The parties agree that the DA conditions as amended can be approved having regard to the matters in s 4.15(1)(a) – (e) of the EPA Act as follows:

  1. 4.15(1)(a)(i) - no relevant matters arise under Rockdale Local Environmental Plan 2011 in relation to the proposed amendments to conditions;

  2. 4.15(1)(a)(ii) - whilst Bayside Local Environmental Plan 2021 has come into force, the parties agree that the Proposed Development is to be assessed under the Rockdale Local Environmental Plan 2011. Whilst the parties consider that no relevant matters arise under Bayside Local Environmental Plan 2021 in relation to the proposed amendments to conditions, the Planning Assessment Report and Supplementary Assessment Report in relation to the Proposed Development consider the Bayside Local Environmental Plan 2021;

  3. 4.15(1)(a)(iiia) - a planning agreement has been entered into under s 7.4 between the parties which has been adequately notified to the community in accordance with the Council’s community participation plan;

  4. 4.15(1)(a)(iv) - the regulations have been considered;

  5. 4.15(1)(b) - the impacts of the amended DA conditions are acceptable;

  6. 4.15(1)(c) - the Site is already subject to a consent and is therefore considered suitable for the development;

  7. 4.15(1)(d) - the submissions made to the DA and as part of the appeal including at the s 34 have been considered;

  8. 4.15(1)(e) - the public interest has been considered in assessment of the DA and the amended conditions.

  1. In respect of other matters in the EPA Act, the parties say:

  1. there is no power preventing the Court from deleting a condition for a Part 7 contribution agreed by the parties;

  2. there is no power limiting the amendment of conditions as sought by the parties;

  3. there is no limitation on the power to impose a condition requiring the parties to enter into a planning agreement in the manner proposed by the parties.

  1. Further to the previous paragraph, the parties also direct the Court's attention to s 7.4(3)(d) and s 7.4(3A) of the EPA Act.

  2. Section s 7.4(3) of the EPA Act provides:

(3)  A planning agreement must provide for the following—

(a)  a description of the land to which the agreement applies,

(b)  a description of—

(i)  the change to the environmental planning instrument to which the agreement applies, or

(ii)  the development to which the agreement applies,

(c)  the nature and extent of the provision to be made by the developer under the agreement, the time or times by which the provision is to be made and the manner by which the provision is to be made,

(d) in the case of development, whether the agreement excludes (wholly or in part) or does not exclude the application of section 7.11, 7.12 or 7.24 to the development,

(e)  if the agreement does not exclude the application of section 7.11 to the development, whether benefits under the agreement are or are not to be taken into consideration in determining a development contribution under section 7.11,

(f)  a mechanism for the resolution of disputes under the agreement,

(g)  the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer. (emphasis added by the parties)

  1. Section 7.4(3A) of the EPA Act provides:

(3A) A planning agreement cannot exclude the application of section 7.11 or 7.12 in respect of development unless the consent authority for the development or the Minister is a party to the agreement.

  1. Accordingly, to the extent that the Consent with the proposed modified conditions does not impose s 7.11 contributions in lieu of the contributions to be paid pursuant to the VPA, the Court can take notice of the fact that the consent authority for the Proposed Development, being the SECPP, is a party to the VPA.

Rockdale Section 94 Contributions Plan 2004 (Incorporating Amendments 1-5) (Contributions Plan)

  1. The parties have resolved their dispute in relation to this matter and no further consideration need be given to the Contributions Plan.

Conditions of consent

  1. The parties agree that the conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and the appeal can be dealt with as follows which is reflected in Annexure A:

  1. insertion of condition No 9A

  2. deletion of condition No 29

  1. Having regard to all of the above matters, the parties are satisfied that the jurisdictional prerequisites to the proper exercise of the power to approve the DA as amended have been met. I accept the analysis and conclusions made by the parties regarding jurisdiction.

Conclusion:

  1. For these reasons, based on the evidence and material before me, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

  2. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Notations:

  1. The Court notes that the parties have agreed:

  1. The written requests pursuant to clause 4.6(3) of Rockdale Local Environmental Plan 2011 seeking the variation to clauses 40(4)(a), 40(4)(b) and 40(4)(c) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 prepared by Mecon dated November 2021, are each upheld.

Orders:

  1. The Court orders:

  1. The appeal is upheld.

  2. Development Consent is granted to Development Application No. 2021/95 for the demolition of existing structures and construction of a part 2 and part 3 storey residential aged care facility comprising 112 rooms (115 beds), basement level parking, front fencing and signage at 119 Barton Street, Monterey, NSW, 2217, being Lot 2 in DP 857520, subject to the conditions at Annexure A.

……………………….

L Byrne

Acting Commissioner of the Court

Annexure A (368753, pdf)

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Decision last updated: 29 November 2023

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