Parker Logan Property Pty Ltd v Bayside Council

[2021] NSWLEC 1163

Land and Environment Court

New South Wales

Medium Neutral Citation:

Parker Logan Property Pty Ltd v Bayside Council [2021] NSWLEC 1163

Hearing dates:

Conciliation conference on 26 March 2021

Date of orders:

07 April 2021

Decision date:

07 April 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The deferred commencement conditions of development consent DA 2017/194 granted by the Land and Environment Court on 31 January 2018 for the demolition of existing structures and construction of a boarding house with 79 rooms and a retail area on the ground floor at 295-301 Bay Street, Brighton-Le-Sands (2018 Consent) are satisfied.

(3) The 2018 Consent is in force and operates from the date of these orders.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – deferred commencement condition satisfied – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16 and 8.7

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Parker Logan Property Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2020/230665

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against deemed refusal by Bayside Council (hereafter the Council) for the satisfaction of the deferred commencement condition annexed (A) to consent for Development Application (DA) 2017/194. The DA relates to the demolition of existing structures, and construction of a ten storey development with 79 room boarding house, retail space and basement parking on Lot 2 DP 709394, also known as 295-301 Bay Street, Brighton-Le-Sands (hereafter the site).

2. The deferred commencement condition in contention is described in Part A of the conditions of consent annexed to the DA, and relate to amendments to: access to a waste room; enclosure of external circulation area; basement car park circulation; and loading bay manoeuvrability. The relevant deferred commencement condition of consent in contention is described below:

“1. The following amendments are required to the plans to the satisfaction of Council:

a. Access to the waste room not being permitted directly from the eastern passage/communal area to avoid seepage of odours.

b. The external circulation area is to be enclosed in either glass (with operable louvres) or aluminium louvres to provide improved amenity and weather protection.

c. The windtech report is to be updated to reflect the approved DA plans and any recommendations are to be reflected in the Construction Certificate plans. Any changes other than within the internal area or which result in an increase in gross floor area as defined, are to be subject of a s96 application.

d. Revisions are required to the ground level access to / from the basement and within the basement car park to improve circulation and reduce the need for reversing activity.

e. Further design modifications are needed such as to reduce the number of manoeuvres required for a Small Rigid Vehicle (SRV, in accordance with AS2890.2-2002) to be positioned in the loading bay area such as to reduce or eliminate any potential for an SRV vehicle conflicting with traffic entering or leaving the site.

f. Air conditioning systems and mechanical ventilation units are to be placed in the basement.”

3. This Class 1 appeal, which relates to satisfaction of the deferred commencement condition, is made pursuant to s 8.7(2)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held before myself, as the duty commissioner on 26 March 2021, without an onsite view and by Microsoft Teams.

5. Based on discussions between the parties regarding the extent of work undertaken to satisfy the deferred commencement condition, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision of the parties is to uphold the appeal and determine that the deferred commencement condition for DA 2017/194 is satisfied.

6. Pursuant to s 34(3) of the LEC Act, I must 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. The parties' decision involves the Court exercising its function under s 8.7(2)(b) of the EPA Act, whereby the deferred commencement condition imposed on DA 2017/194 is satisfied and that the consent becomes operational.

7. The parties agree that the applicant has satisfied the deferred commencement condition, imposed pursuant to s 4.16(3) of the EPA Act occurred within the period of consent,. The satisfaction of the deferred commencement condition thereby makes the DA in force and operational from the date of the orders of the Court.

8. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that DA 2017/194 is in force and operates from the date of the Courts determination, as it satisfies the requirements of s 8.7 of the EPA Act.

9. 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.

10. The Court orders that:

1. The appeal is upheld.

2. The deferred commencement conditions of development consent DA 2017/194 granted by the Land and Environment Court on 31 January 2018 for the demolition of existing structures and construction of a boarding house with 79 rooms and a retail area on the ground floor at 295-301 Bay Street, Brighton-Le-Sands (2018 Consent) are satisfied.

3. The 2018 Consent is in force and operates from the date of these orders.

…………………………

Sarah Bish

Commissioner of the Court

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Decision last updated: 07 April 2021