Rye 10 Pty Ltd v Bayside Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rye 10 Pty Ltd v Bayside Council [2024] NSWLEC 1021

Hearing dates:

Conciliation conference on 19 January 2024

Date of orders:

25 January 2024

Decision date:

25 January 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Consent is granted to Modification Application MDA2023/90.

(2) Development consent DA-2017/194, granted by the Land and Environment Court on 31 January 2018, is modified in the terms in Annexure A.

(3) Development consent DA-2017/194, as modified by the Court, is Annexure B.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Bayside Local Environmental Plan 2021, cll 4.4, 4.6, 6.2, 6.4, 6.9

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Environmental Planning and Assessment Regulation 2021, ss 23, 113

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, Pt 2, Div 2, ss 23, 24, 25

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120

Cases Cited:

Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157

Parker Logan Property Pty Ltd v Bayside Council [2017] NSWLEC 1709

Texts Cited:

Bayside Development Control Plan 2022

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Category:

Principal judgment

Parties:

Rye 10 Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
D Johnson (Solicitor) (Respondent)

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

File Number(s):

2023/173449

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: These proceedings arise following an application, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), for the modification of a development consent (DA2017/194) granted by the Court on 31 January 2018 in Parker Logan Property Pty Ltd v Bayside Council [2017] NSWLEC 1709 (the 2018 consent).

2. The 2018 consent approved the construction of a nine-storey boarding house above ground floor retail and two levels of basement on land described as Lot 2 in DP709394, being 295-301 Bay Street, Brighton-Le-Sands.

3. The Applicant now seeks approval for the following modifications to the development:

• The provision of an additional level of basement.

• Increase in number of boarding rooms from 79 to 84.

• Redesign of structural core and basement core.

• Redesign of Boarding House Foyer.

• Relocation of accessible rooms.

• Provision of additional retail space.

• Relocation of services.

• Change to the external façade of Bay Street.

4. 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 on 31 October 2023. That conciliation conference was adjourned, but ultimately terminated on 18 December 2023.

5. Following the conciliation conference, the parties continued without prejudice discussions and reached in principle agreement on the basis of amended plans and additional documents. By consent, the parties sought a further conciliation conference which was held on 19…