SK Constructions Pty Ltd v Bayside Council

[2024] NSWLEC 1806

Land and Environment Court

New South Wales

Medium Neutral Citation:

SK Constructions Pty Ltd v Bayside Council [2024] NSWLEC 1806

Hearing dates:

Conciliation conference on 5 November 2024

Date of orders:

18 December 2024

Decision date:

18 December 2024

Jurisdiction:

Class 1

Before:

Thorpe AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA 2023/315 (as amended) for the demolition of existing structures, tree removal and construction of a two-storey townhouse development comprising seven dwellings including basement parking on the land legally described as Lot 107 and Lot 108 DP2237 known as 129-131 Russell Avenue, Dolls Point NSW 2219, subject to the conditions set out in Annexure A.

(3) The applicant is to pay the respondent's costs thrown away as a result of the amendment to the development application pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed amount of $2,000 within 28 days of these orders being made.

Catchwords:

DEVELOPMENT APPEAL – multi dwelling housing development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 4.47, 8.7

Land and Environment Court Act 1979, s 34

Water Management Act 2000, s 90

Bayside Local Environmental Plan 2021, cll 6.1, 6.2, 6.3, 6.11

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

Texts Cited:

Bayside Development Control Plan 2022

Category:

Principal judgment

Parties:

SK Constructions Pty Ltd ACN 052 869 438 (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
C Parsons (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

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

File Number(s):

2024/78984

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of development application DA/2023/315 (DA) by Bayside Council (Council).

2. SK Constructions Pty Ltd (SK Constructions) seeks consent for the demolition of existing structures and construction of a two storey townhouse development comprising seven dwellings including basement parking and strata subdivision at 129 - 131 Russell Avenue, Dolls Point, legally described as Lots 107 and 108 of DP 2237 (site).

Conciliation and agreement between the parties

3. At the parties’ request, the Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 5 November 2024. At the conference, the parties provided evidence of, and explained, the signed agreement behind the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended to address various contentions, and subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. I have considered whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement, and find that there are none. I attend to the relevant statutory matters below, assisted by the advice in the parties' agreed jurisdictional statement received by the Court on 5 November 2024.

Jurisdictional considerations

Integrated development

5. The parties advise that the DA is integrated development for the purposes of s 4.46 of the EPA Act, as the proposal requires approval under s 90(2) of the Water Management Act 2000. Water NSW provided GTAs which have been incorporated into condition 14 (the conditions of consent are provided at Annexure A to this judgment).

State Environmental Planning Policy (Resilience and Hazards) 2021

6. Section 4.6 requires the consent authority to consider whether land is contaminated, and if contaminated, to be satisfied that the land is suitable for the purpose proposed.

7. Based on the parties’ advice and the Joint Expert Planning Report filed on 18 October 2024, I am satisfied that the parties have considered the contamination status of the site and that the site can be made suitable for the proposed development. Specific conditions of consent have been proposed to address these matters, including remediation works (conditions 66 and 100). The requirements of s 4.6 have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

8. The parties advise that Ch 6 applies because the site is located within the Georges River Catchment.

9. I have considered the potential impacts in Ch 6, including on water quality and quantity, aquatic ecology, flooding, recreation and public access. I accept the advice of the parties and am satisfied that that the requirements of Chapter 6 are satisfied.

Bayside Local Environmental Plan 2021

10. The site is zoned R3 – Medium Density pursuant to Bayside Local Environmental Plan 2021 (BLEP). The proposed development, as amended, is permissible with consent within the R3 zone.

11. The parties agree and I accept that the DA is consistent with the aims of BLEP and with the objectives and land use table in respect of the R3 Medium Density zone. I accept the advice of the parties that the DA complies with all development standards under BLEP.

12. Clause 6.1 applies because site is located within a Class 3 Acid Sulfate Soils area. The DA is supported by an Acid Sulfate Soils Assessment prepared by STS Geotechnics which concludes that the works proposed do not require the preparation of an Acid Sulfate Soil Management Plan. The requirements of s 6.1 are met.

13. Section 6.2 applies because the DA proposes excavation works on the site. These earthworks have been investigated, are supported by the Geotechnical Investigation Report prepared by STS GeoEnvironmental, and will be undertaken in accordance with Council’s standard conditions of consent (38, 39, 47, 52, 53, 54, 55, 59, 86, 92 and 97). I have considered the matters in cl 6.2(3). Based on the parties’ advice, I am satisfied that the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. The requirements of s 6.2 of BLEP are met.

14. The parties have considered the matters set out in s 6.3(2). Based on their advice, I am satisfied the proposed stormwater and drainage works meet the relevant requirements of this section.

15. The parties advise that the supply of potable water, electricity, gas, telecommunications and the disposal and management of sewage are available to the site and will be connected following completion of the proposed development. The requirements of s 6.11 are met.

Other considerations

16. The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions.

17. Two submissions were received during the exhibition period, raising issues in relation to car parking, loss of privacy and overshadowing. These submissions have been provided to me. Council advises that all submissions have been considered and are satisfactorily addressed in the DA and conditions of consent.

18. The parties also advised me that they have considered Bayside Development Control Plan 2022 and that the proposal is generally compliant or otherwise satisfactory in their considered view.

Conclusion

19. Based on the above details, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

20. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

21. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notations

22. The Court notes that the respondent, as the relevant consent authority, has approved, pursuant to s 38(1) of the EPA Regulation, to the Applicant amending its Development Application No. DA 2023/314 to include the following plans and documents:

Plan Name	Drawing No.	Rev	Date	Prepared By
Amended Architectural Plans
Location Plan	LEC 1/17	D	4 October 2024	SOFCORP Architecture
Site Plan	LEC 2/17	D	4 October 2024	SOFCORP Architecture
Ground Floor	LEC 3/17	D	4 October 2024	SOFCORP Architecture
First Floor	LEC 4/17	D	4 October 2024	SOFCORP Architecture
Basement	LEC 5/17	D	4 October 2024	SOFCORP Architecture
Roof Plan	LEC 6/17	D	4 October 2024	SOFCORP Architecture
North (Front) Elevation Dwelling Units 1 and 2	LEC 7/17	D	4 October 2024	SOFCORP Architecture
West (Side) Elevation	LEC 8/17	D	4 October 2024	SOFCORP Architecture
Clareville Lane Elevation	LEC 9/17	D	4 October 2024	SOFCORP Architecture
East (Side) Elevation	LEC 10/17	D	4 October 2024	SOFCORP Architecture
South (Rear) Elevation Dwelling Units 1 and 2	LEC 11/17	D	4 October 2024	SOFCORP Architecture
North Elevation Dwelling Unit 3	LEC 12/17	D	4 October 2024	SOFCORP Architecture
South Elevation Dwelling Unit 5	LEC 13/17	D	4 October 2024	SOFCORP Architecture
North (Front) Elevation Dwelling Units 6 and 7	LEC 14/17	D	4 October 2024	SOFCORP Architecture
South (Rear) Elevation Dwelling Units 6 and 7	LEC 15/17	D	4 October 2024	SOFCORP Architecture
Section A-A	LEC 16/17	D	4 October 2024	SOFCORP Architecture
Basix Commitments	LEC 17/17	D	4 October 2024	SOFCORP Architecture
Materials and Finishes
Materials and Finishes	LEC 3.00	B	4 October 2024	SOFCORP Architecture
Reports and Advice
Acid Sulfate Soils (ASS) Assessment	23/3613	-	November 2023	STS Geotechnics
Remedial Action Plan	N09219	-	4 April 2024	NEO Consulting
Detailed Site Investigation Report	N09790	-	27 March 2024	NEO Consulting
Hazardous Materials Survey	N09791	-	25 March 2024	NEO Consulting
Gutter Flow Analysis Report	-	-	28 March 2024	United Consulting Engineers
Supplementary Traffic Report	-	-	27 March 2024	Terraffic
Terraffic correspondence to Mr Korlevski	-	-	30 October 2023	Terraffic
Other Documents
WaterNSW General Terms of Approval	-	-	16 April 2024	WaterNSW
BASIX Certificate 1159252M_09	-	-	31 October 2024	Sustainability -Z Pty Limited

Orders:

23. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. DA 2023/315 (as amended) for the demolition of existing structures, tree removal and construction of a two-storey townhouse development comprising seven dwellings including basement parking on the land legally described as Lot 107 and Lot 108 DP2237 known as 129 - 131 Russell Avenue, Dolls Point NSW 2219, subject to the conditions set out in Annexure A.

3. The applicant is to pay the respondent's costs thrown away as a result of the amendment to the development application pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed amount of $2,000 within 28 days of these orders being made.

……………………….

A Thorpe

Acting Commissioner of the Court

Annexure A

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Decision last updated: 18 December 2024