New South Wales Rugby Union Ltd v Bayside Council

[2024] NSWLEC 1396

Land and Environment Court

New South Wales

Medium Neutral Citation:

New South Wales Rugby Union Ltd v Bayside Council [2024] NSWLEC 1396

Hearing dates:

Conciliation conference on 13 May, 3 June and 13 June 2024.

Date of orders:

11 July 2024

Decision date:

11 July 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed sum of $18,000, payable within 21 days of Orders being made.

(2) The appeal is upheld.

(3) Development Application No DA‑2022/164 for modification of conditions 17, 21 and 22 of Development Consent No DA‑2020/455, so as to permit:

(a)   public games to be held on 12 days per year with a maximum of 400 attendees for a trial period of 18 months,

(b)   revised hours of operation for the outdoor facilities, the indoor high performance unit and gym, and indoor administrative spaces, and

(c)   use of a public address system during public games at 35 Banks Avenue, Daceyville NSW (Lot 3876 in DP 91234), subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – changes to sporting activity – amended application – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, s 38
Bayside Local Environmental Plan 2021, cll 2.2, 5.21

Category:

Principal judgment

Parties:

New South Wales Rugby Union Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
F Rourke (Solicitor)(Applicant)
J Corradini-Bird (Solicitor)(Respondent)

Solicitors:
Allens (Applicant)
Marsdens (Respondent)

File Number(s):

2023/328049

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by New South Wales Rugby Union Ltd (the Applicant) against the refusal by Bayside Council (the Respondent) of Development Application No DA-2022/164. The Development Application was lodged with the Respondent via the NSW Portal on 3 June 2022.

2. The Development Application seeks development consent to modify the original development consent, DA-2020/455. A separate modification application to allow the use of a public address system was also considered by the Respondent and was subsequently refused. The applicant started the appeal process with two appeals, one for each of the above applications. Subsequently, the development application was amended to include the components of the modification application relating to the public address system. It is this amended development application that is the subject of this appeal process.

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 13 May, 3 June and 13 June 2024. At the commencement of proceedings, the parties undertook a view of the site and heard submissions from third parties.

4. As a result of the conciliation process, the Development Application has been further amended. The Development Application, as finally amended, now seeks development consent for:

1. public games to be held on 12 days per year with a maximum of 400 attendees for a trial period of 18 months;

2. revised hours of operation for the outdoor facilities, the indoor high performance unit and gym, and indoor administrative spaces; and

3. use of a public address system during public games;

4. modification of conditions 17, 21 and 22 of the Original Consent to remove inconsistency with paragraphs [4(1)] to [4(3)] above.

5. The parties advised the Court that an agreement under s 34(3) of the LEC Act was reached. The decision agreed upon by the parties is that the appeal is upheld, and the Development Application be approved, subject to the conditions of consent annexed to this judgment.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I have considered the relevant jurisdictional matters arising with this application.

8. The Bayside Local Environmental Plan 2021 (BLEP 2021) applies to the development. Pursuant to cl 2.2 of BLEP 2021, the subject site is zoned RE2 Private Recreation. In determining the development application, consideration has been given to the objectives of the zone.

9. In accordance with cl 5.21 of the BLEP 2021, development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development meets the criteria set out in that provision. A Floodplain Risk Management Plan forms part of the Development Application and it incorporates appropriate measures to manage risk to life in the event of a flood. The parties agree that the Proposed Development will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood.

10. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Conclusions

11. The Court notes:

1. That Bayside Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No DA-2022/164 to rely on the following amended pans and documents:

Document	Date
Planning Statement prepared by Ethos Urban	19 June 2024
Public Games Plan of Management prepared by Ethos Urban	19 June 2024
Acoustic Assessment prepared by Marshall Day Acoustics	30 April 2024
Revised Transport Impact Assessment prepared by Stantec	29 April 2024
Traffic Statement prepared by Stantec	19 June 2024

12. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed sum of $18,000, payable within 21 days of Orders being made.

2. The appeal is upheld.

3. Development Application No DA-2022/164 for modification of conditions 17, 21 and 22 of Development Consent No DA-2020/455, so as to permit:

1. public games to be held on 12 days per year with a maximum of 400 attendees for a trial period of 18 months,

2. revised hours of operation for the outdoor facilities, the indoor high performance unit and gym, and indoor administrative spaces, and

3. use of a public address system during public games at 35 Banks Avenue, Daceyville NSW (Lot 3876 in DP 91234), subject to the conditions in Annexure A.

S Harding AC

Acting Commissioner of the Court

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Annexure A

Decision last updated: 11 July 2024