Parker Logan Property Pty Ltd v Bayside Council

[2021] NSWLEC 1162

Land and Environment Court

New South Wales

Medium Neutral Citation:

Parker Logan Property Pty Ltd v Bayside Council [2021] NSWLEC 1162

Hearing dates:

Conciliation conference on 26 March 2021

Date of orders:

06 April 2021

Decision date:

06 April 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The application pursuant to section 4.54 of the Environmental Planning and Assessment Act 1979 to extend the lapsing period of 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, is granted for one (1) year from the date of this determination.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.53, 4.54 and 8.22

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):

2020/230664

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against deemed refusal by Bayside Council (hereafter the Council) to extend the lapsing period of the consent for Development Application (DA) 2017/194 to satisfy a deferred commencement condition. The DA relates to demolition of existing structures, and construction of a ten-storey development with a 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 (A) to the DA, which relates to amendments for the: 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. The 24-month period of the DA as approved, lapsed on 21 January 2020, pursuant to s 4.53 of the Environmental Planning and Assessment Act 1979 (EPA Act), and which required Council to be satisfied as to the completion of deferred commencement condition, imposed pursuant to s 4.16(3). On 23 January 2020, the applicant formally sought extension of the consent from Council, pursuant to s 4.54. Council has no record of receipt of this application for extension and therefore did not respond in time before the consent lapsed.

4. This Class 1 appeal is made pursuant to s 8.22 of the EPA Act, after no notice for extension was received by the applicant by the lapsing date of the approved DA.

5. 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 held by Microsoft Teams.

6. Based on discussions between the parties regarding the extent and timing of discussions undertaken before the lapse date, together with acknowledged progress to address the deferred commencement condition, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. The decision of the parties is to uphold the appeal and extend the grant of consent for DA 2017/194 for one (1) year from the date of determination of the Court.

7. 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 4.54(4)(b) of the EPA Act after being satisfied, to extend the consent granted to DA 2017/194, with the same conditions, for one (1) year.

8. The parties identified the jurisdictional prerequisites of particular relevance to the Court in these proceedings, as consistency with s 4.54 of the EPA Act.

9. The parties agree that the applicant has shown good cause to warrant extension of the consent, including significant progress to addressing to Council’s satisfaction the deferred commencement conditions imposed on the original grant of consent, recognising there were issues since consent was granted associated with natural disasters, and the opening of timely discussions by the applicant, pursuant to s 4.54(2) of the EPA Act. The agreed extension of the consent relates primarily to the deferred commencement condition, which is extended for a period of one (1) year from the date of the determination of this appeal, pursuant to s 4.54(4).

10. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that DA 2017/194 should be extended for one (1) year from the date of the Court’s determination, as it satisfies the requirements of s 4.54 of the EPA Act.

11. 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.

12. The Court orders that:

1. The appeal is upheld.

2. The application pursuant to section 4.54 of the Environmental Planning and Assessment Act 1979 to extend the lapsing period of 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, is granted for one (1) year from the date of this determination.

…………………………

Sarah Bish

Commissioner of the Court

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Decision last updated: 06 April 2021