SK Group Properties Pty Ltd v Bayside Council - [2024] NSWLEC 1834

Land and Environment Court

New South Wales

Medium Neutral Citation: SK Group Properties Pty Ltd v Bayside Council [2024] NSWLEC 1834
Hearing dates: Conciliation conference held 19 July, 16 August, 10, 30 September, 18 October, 8 and 15 November 2024
Date of orders: 20 November 2024
Decision date: 20 November 2024
Jurisdiction: Class 1
Before: Pullinger AC
Decision:
The Court orders that:
(1) Leave is granted to the Applicant to amend Development Application DA-2023/225 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $35,000 within 28 days of the date of these orders.
(3) The Applicant’s written request, pursuant to cl 4.6 of the Bayside Local Environmental Plan 2021 (BLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the BLEP, is upheld.
(4) The Applicant’s written request, pursuant to cl 4.6 of the BLEP, seeking to vary the development standard for floor space ratio (FSR) as set out at cl 4.4 of the BLEP, is upheld.
(5) The appeal is upheld.
(6) Consent is granted to Development Application DA-2023/225 (as amended) for the demolition of existing structures and construction of a mixed-use (shop top housing) development including commercial premises on the ground level, infill affordable housing (Level 1), residential units (Levels 2-8) and two levels of basement parking, at 609 Gardeners Road, Mascot, subject to the conditions of consent at Annexure A.

Catchwords:
DEVELOPMENT APPLICATION – mixed use development – shop top housing – residential apartment building – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, ss 27, 29, 37, 38
State Environmental Planning Policy (Housing) 2021 Chs 2, 4, Pt 2, Div 1, Sch 7A, 9, ss 8, 18, 145, 147
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120
Bayside Local Environmental Plan 2021, cll 2.3, 2.7, 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.7, 6.8, 6.9, 6.10, 6.11

Cases Cited:
Barhom v Randwick City Council [2024] NSWLEC 1357.

Texts Cited:
Australian Standard AS 2021:2015 Acoustics - Aircraft Noise Intrusion - Building Siting and Construction
NSW Department of Planning, Apartment Design Guide (2015)
NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020

Category: Principal judgment
Parties: SK Group Properties Pty Ltd (Trustee of SK Group Property Trust) (Applicant)
Bayside Council (Respondent)
Representation: Counsel:
A Knox (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read SK Group Properties Pty Ltd v Bayside Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWLEC 1834
Decision Date: 20 November 2024

CaseChat Overview and Summary

The case before the Court involved SK Group Properties Pty Ltd as the Applicant and Bayside Council as the Respondent. The Applicant sought to amend a development application and make various requests to vary certain development standards as per the Bayside Local Environmental Plan 2021. The primary dispute centred around the procedural and substantive aspects of the Applicant’s requests for amendments and variations under the Environmental Planning and Assessment Act 1979 and the associated Local Environmental Plan. The Court was tasked with determining whether the Applicant had the right to amend the development application, whether the requests for variation were valid, and if the proposed development met the criteria set by the legislation and the plan.

The legal issues that the Court had to decide included whether the Applicant had the right to amend the development application under the Act, whether the requests to vary the development standards were valid, and if the proposed development complied with the relevant planning legislation and local plan. Additionally, the Court had to consider whether the Applicant’s requests for variations were within the scope of the Local Environmental Plan and whether the proposed development met the objectives and criteria of the plan. The Court also needed to address whether the Applicant should be required to pay costs incurred by the Respondent due to the amendment of the development application.

In its reasoning, the Court found that the Applicant had the right to amend the development application, and the requests for variation of the development standards were valid. The Court held that the proposed development was consistent with the objectives and criteria of the Bayside Local Environmental Plan 2021. The Court concluded that the Applicant’s requests to vary the height of buildings and the floor space ratio were justified under the relevant provisions of the Local Environmental Plan. Furthermore, the Court determined that the Applicant should bear the costs incurred by the Respondent due to the amendment of the development application. Consequently, the Court granted the Applicant's requests, allowed the appeal, and granted consent to the amended development application subject to specified conditions.

Orders

Orders of the court

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA-2023/225 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $35,000 within 28 days of the date of these orders.

(3) The Applicant’s written request, pursuant to cl 4.6 of the Bayside Local Environmental Plan 2021 (BLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the BLEP, is upheld.

(4) The Applicant’s written request, pursuant to cl 4.6 of the BLEP, seeking to vary the development standard for floor space ratio (FSR) as set out at cl 4.4 of the BLEP, is upheld.

(5) The appeal is upheld.

(6) Consent is granted to Development Application DA-2023/225 (as amended) for the demolition of existing structures and construction of a mixed-use (shop top housing) development including commercial premises on the ground level, infill affordable housing (Level 1), residential units (Levels 2-8) and two levels of basement parking, at 609 Gardeners Road, Mascot, subject to the conditions of consent at Annexure A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SK Group Properties Pty Ltd v Bayside Council [2024] NSWLEC 1834
Hearing dates:	Conciliation conference held 19 July, 16 August, 10, 30 September, 18 October, 8 and 15 November 2024
Date of orders:	20 November 2024
Decision date:	20 November 2024
Jurisdiction:	Class 1
Before:	Pullinger AC
Decision:	The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA-2023/225 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $35,000 within 28 days of the date of these orders. (3) The Applicant’s written request, pursuant to cl 4.6 of the Bayside Local Environmental Plan 2021 (BLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the BLEP, is upheld. (4) The Applicant’s written request, pursuant to cl 4.6 of the BLEP, seeking to vary the development standard for floor space ratio (FSR) as set out at cl 4.4 of the BLEP, is upheld. (5) The appeal is upheld. (6) Consent is granted to Development Application DA-2023/225 (as amended) for the demolition of existing structures and construction of a mixed-use (shop top housing) development including commercial premises on the ground level, infill affordable housing (Level 1), residential units (Levels 2-8) and two levels of basement parking, at 609 Gardeners Road, Mascot, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – mixed use development – shop top housing – residential apartment building – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 27, 29, 37, 38 State Environmental Planning Policy (Housing) 2021 Chs 2, 4, Pt 2, Div 1, Sch 7A, 9, ss 8, 18, 145, 147 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120 Bayside Local Environmental Plan 2021, cll 2.3, 2.7, 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.7, 6.8, 6.9, 6.10, 6.11
Cases Cited:	Barhom v Randwick City Council [2024] NSWLEC 1357.
Texts Cited:	Australian Standard AS 2021:2015 Acoustics - Aircraft Noise Intrusion - Building Siting and Construction NSW Department of Planning, Apartment Design Guide (2015) NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020
Category:	Principal judgment
Parties:	SK Group Properties Pty Ltd (Trustee of SK Group Property Trust) (Applicant) Bayside Council (Respondent)
Representation:	Counsel: A Knox (Solicitor) (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)