The Trustee for 1449 Botany Unit Trust v Bayside Council

[2025] NSWLEC 1794

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Trustee for 1449 Botany Unit Trust v Bayside Council [2025] NSWLEC 1794

Hearing dates:

Conciliation Conference on 8 August 2025

Date of orders:

11 November 2025

Decision date:

11 November 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No. DA/2023/144 is modified in the terms in Annexure A.

(3) Development Consent No. DA/2023/144 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification of consent – co-living housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.17, 4.46, 4.55, 8.9, 8.11, Sch 1, Div 2, cl 7

Land and Environment Court Act 1979 (NSW), s 34

Water Management Act 2000 (NSW)

Bayside Local Environmental Plan 2021, cll 2.2, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.9

Environmental Planning and Assessment Regulation 2021 (NSW), s 113, Sch 7

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

State Environmental Planning Policy (Housing) 2021, Ch 2, Pt 3

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:

The Trustee for 1449 Botany Unit Trust v Bayside Council [2024] NSWLEC 1511

Texts Cited:

Bayside Development Control Plan 2022

Category:

Principal judgment

Parties:

The Trustee for 1449 Botany Unit Trust (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2025/129760

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: These proceedings are a Class 1 development appeal pursuant to ss 8.9 and 8.11 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Modification Application MDA-2025/74 (the modification application) by the Bayside Council to modify Development Consent DA/2023/144 to change the design of a mixed use development at Lot 12 DP 666561 and Lot 1 DP 576678, known as 1449-1453 Botany Road, Botany, NSW 2019 (the site).

History of the Development Consent

2. Development Consent DA-2023/144 was granted by the Land and Environment Court on 23 August 2024 (The Trustee for 1449 Botany Unit Trust v Bayside Council [2024] NSWLEC 1511 (Proceedings No. 2023/263559)) approving the demolition of existing structures and construction of a part 4, part 5 storey mixed use development comprising ground floor commercial tenancies, 58 co-living rooms (including 48 single rooms and 10 double rooms), rooftop communal open space and basement car parking on the land at 1449-1453 Botany Road, Botany (the development consent).

3. The parties advise that the Modification Application MDA-2025/74 is submitted pursuant to the provisions of s 4.55(8) of the EPA Act, as the original development consent was granted by the Court.

4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(8) of the EPA Act. The final orders in this judgment are made as a result of an agreement between the parties that was reached following a conciliation conference.

Current Proceedings

5. The Applicant filed a Class 1 Appeal Application on 4 April 2025 under s 8.9 of the EPA Act seeking to modify the development consent. The Respondent filed a Statement of Facts and Contentions with the Court on 3 June 2025.

6. The parties advise that the modification application seeks consent to vary the approved substation chamber, pump room and basement, stairs, lift core and design of existing balconies and facades, and associated landscaping and stormwater works.

Section 34A conciliation conference

7. The Court arranged a conciliation conference for the modification application under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 8 August 2025. I presided over the conciliation conference, which commenced on site. No submitters attended the on-site view.

8. Between 8 August and 18 September 2025, the matter was adjourned a number of times before an amended design was agreed and a s 34 agreement was reached by the parties.

9. The amendments to the proposed development agreed by the parties in the s 34 conciliation conference are summarised as follows:

1. South elevation (Ground floor/Hastings Street) – Ventilation louvres deleted and replaced with rendered wall;

2. Level 3 roof – Balcony deleted and roof design reverted back to approved non-trafficable layout;

3. Schedule of materials revised to ensure that the Louvered Material Gray Finish and the Rendered Gray have been correctly identified;

4. Minor revisions to address inconsistencies between the drawings;

5. Level 3 roof – Balcony deleted and roof design reverted back to approved non-trafficable layout;

6. Planting schedule updated;

7. Minor revisions to address inconsistencies between the drawings;

8. Minor changes to the Onsite Stormwater Detention design to facilitate an internal clearance height of 1 meter (m); and

9. Modify Condition 31 - Adaptable Units and Parking - to refer to four units instead of six.

10. A signed s 34 agreement with Annexures A and B was filed with the amended plans with the Court on 22 September 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.

11. The parties’ decision involves the Court exercising the function under s 4.55(8) of the EPA Act to grant consent to the modification application.

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

13. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Substantially the Same Development

14. Pursuant to s 4.55(2) of the EPA Act, a consent authority may modify a development consent if:

(a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

15. In relation to s 4.55(2)(a) of the EPA Act being substantially the same development, the parties advise that:

1. The modification application seeks consent to vary the approved substation chamber, pump room and basement, stairs, lift core and design of existing balconies and facades, and associated landscaping and stormwater works;

2. The amendments to the modification application agreed by the parties as a result of the s 34 discussions do not substantially alter the proposed development in the modification application; and

3. The parties are satisfied that the modification application adequately meets the requirements of s 4.55(2)(a) of the EPA Act.

16. I am satisfied that the proposed development as modified is substantially the same development as the development for which consent was originally granted.

Owner’s consent

17. The Respondent advises that the modification application was submitted with the consent in writing of the owners of the site.

Community Participation (Sch 1, Div 2, cl 7(1) of the EPA Act)

18. The parties advise that the modification application was notified for a period of 14 days from 16 May 2025 to 29 May 2025 and no submissions were received.

Conditions

19. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act.

Integrated Development

20. The development consent being modified was integrated development within the meaning of s 4.46 of the EPA Act as a water supply work approval was required pursuant to the Water Management Act 2000 (NSW).

21. The parties advise that:

1. On 19 September 2023, the Respondent received correspondence from WaterNSW, who provided general terms of approval in relation to the development application subject to conditions of consent; and

2. The modification application did not propose to amend any conditions of consent or aspect of the development that related to the general terms of approval and a referral to WaterNSW was not required.

22. The parties advise that the original development application was also referred to Transport for NSW (TfNSW) and was assessed in accordance with ss 2.119 and 2.120 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport SEPP), however these are not provisions that require concurrence.

23. The Respondent advised that on 30 May 2025, the modification application was referred to the Civil Aviation Safety Authority for a response. No objection was raised.

State Environmental Planning Policies

24. The parties advise that a number of State Environmental Planning Policies apply to the site, as follows:

1. State Environmental Planning Policy (Housing) 2021:

1. Due to the limited nature of the changes, no further assessment is required with respect to the permissibility provisions or the “Non-discretionary development standards” at Ch 2, Pt 3 of the State Environmental Planning Policy (Housing) 2021 related to Co-Living Housing, as addressed in the Statement of Environmental Effects prepared by Evolution Planning, revision date 6 August 2025 (revised SEE);

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP):

1. In relation to s 4.6 of the Resilience SEPP, consent has been granted under the original development application for the residential use of the site. The recommendations provided in the Preliminary Environmental Site Investigation, prepared by Environmental Consulting Services, dated 8 July 2024, continue to apply to the approved development, and no additional ground works or any change of use is proposed, as addressed in the revised SEE.

3. The Transport SEPP:

1. The site has a frontage to a classified road. The original development application was referred to TfNSW for concurrence. The proposed modifications do not introduce any further assessment issues with respect to traffic generation, parking, or the operations of Botany Road, not do they hinder the ability of the development to satisfy the noise insulation criteria under s 2.120 of the Transport SEPP, as addressed in the revised SEE.

25. It is noted that a BASIX certificate is not required for the proposed development pursuant to State Environmental Planning Policy (Building Sustainability Index) 2004 for the erection of a new large boarding house, or alterations to an existing large boarding house. Specifically, the definition of a  BASIX building in the  Environmental Planning and Assessment Regulation 2021 (NSW) Dictionary (at Sch 7) excludes a boarding house, hostel or co-living housing that accommodates more than 12 residents, or has a gross floor area exceeding 300 square metres.

26. The parties confirm that the original development consent has been previously assessed as complying with the requirements of these policies.

Bayside Local Environmental Plan 2021

27. The Bayside Local Environmental Plan 2021 (the LEP) applies to the site and to the proposed development. Under the LEP provisions:

1. The site is zoned E1 – Local Centre pursuant to cl 2.2 of the LEP;

2. The proposed development continues to be permitted with consent in the E1 zone; and

3. I am satisfied that the proposed development continues to be consistent with the objectives for development within the zone in which the development is proposed to be carried out.

28. Clause 4.3 of the LEP provides that a maximum height of buildings (HoB) of 14m applies to the site. The parties advise that the height of the approved development varies from being largely compliant, at the mid-eastern parts of the building, to exceeding the standard by up to 2.2m at the western part of the building with respect to the roof-top open space, left overrun and associated structures. The parties submit that the proposed additional non-compliance to the height standard is justified on the basis of the consistency of this modified building element with the objectives of the height standard.

29. A written request in accordance with cl 4.6 of the LEP to vary the height is not required for a modification application.

30. Clause 4.4 of the LEP provides that the maximum Floor Space Ration (FSR) of 2:1 applies to the site. The parties advise that the approved development complies with an FSR of 1.9:1. No change is proposed to FSR or gross floor area under this modification application and cl 4.4 is satisfied.

31. Clause 5.10 of the LEP relates to heritage conservation. The parties advise that proposed modified development is not considered to introduce any significant adverse impacts on the heritage qualities of the Conservation Area or any listed items in proximity of the site, as addressed in the Heritage Assessment, prepared by Weir Phillips Heritage, dated 17 February 2025.

32. Clause 6.1 of the LEP relates to Acid sulfate soils. The parties advise that the Geotechnical Report prepared by Morrow, dated March 2023 accompanying the original development application concludes: “The SPOS result indicates that acidity (in the form of acid sulfate soil materials) is not present within soils at the site. An Acid Sulfate Soils Management Plan is not required for works at the site.” No additional groundworks are proposed and no further action is required in this respect, as addressed in the Statement of Environment Effects , prepared by Evolution Planning, dated February 2025.

33. Clause 6.2 of the LEP relates to earthworks. The parties advise that no additional groundworks are proposed, and the proposed modified development continues to satisfy cl 6.2 on the LEP, as addressed in the revised SEE.

34. Clause 6.9 of the LEP relates to active street frontages. The parties advise that:

1. No change is proposed to the Botany Road ground floor frontage except for a minor change to the fire egress, including an allowance for water meters;

2. The degree of activation along this street frontage does not change since fire egress stairs may be included as part of an “active street frontage”; and

3. The proposed development is considered to continue to satisfy the provisions of the LEP, as addressed in the revised SEE.

Bayside Development Control Plan 2022

35. The parties advise that the provisions of Bayside Development Control Plan 2022 (the DCP) have been considered in the Respondent’s assessment of the development application (as amended) and the proposed development is generally considered to be acceptable.

Consideration of matters under s 4.15(1) of the EPA Act

36. In determining an application for modification of a consent, a consent authority must take into consideration matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application.

37. The EPA Act requires the assessment of modification applications against the relevant matters (‘matters for consideration’) set out in s 4.15(1) of the EPA Act.

38. The parties advise that the Court can be satisfied that the proposed development in the modification application as amended is suitable for approval, when assessed against the relevant ‘matters for consideration’ in s 4.15(1) of the EPA Act.

Conclusion

39. Having considered the advice of the parties provided above at [14]-[38], I am satisfied that:

1. the Applicant’s amended modification application can be approved having regard to the matters in subs 4.15(1)(b)-(e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(8) of the EPA Act have been satisfied;

3. approval of the proposed development is in the public interest.

40. Further, 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.

41. 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.

Notes

42. The Court notes:

1. that Bayside Council, as the relevant consent authority, under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) has approved the application for an amendment to Modification Application MDA-2025/74 made on 22 September 2025 to rely on the documents specified below:

1. Architectural plans

Plan	Drawn by	Dated
A01, Issue O, Title Sheet.	Meta-Arc	6 August 2025
A02, Issue O, Site Analysis.	Meta-Arc	6 August 2025
A03, Issue O, Area Analysis – GFA.	Meta-Arc	6 August 2025
A04, Issue O, Area Analysis – Rooms & Common Areas.	Meta-Arc	6 August 2025
A05, Issue O, Basement Level.	Meta-Arc	6 August 2025
A06, Issue O, Ground Level.	Meta-Arc	6 August 2025
A07, Issue O, First Level.	Meta-Arc	6 August 2025
A08, Issue O, Second Level.	Meta-Arc	6 August 2025
A09, Issue O, Third Level.	Meta-Arc	6 August 2025
A10, Issue O, Roof Level.	Meta-Arc	6 August 2025
A10a, Issue O, Parapet Level.	Meta-Arc	6 August 2025
A11, Issue O, West Elevation.	Meta-Arc	6 August 2025
A12, Issue O, South Elevation.	Meta-Arc	6 August 2025
A13, Issue O, East Elevation.	Meta-Arc	6 August 2025
A14, Issue O, North Elevation.	Meta-Arc	6 August 2025
A15, Issue O, Section A-A.	Meta-Arc	6 August 2025
A16, Issue O, Section B-B.	Meta-Arc	6 August 2025
A17, Issue O, Finishes Schedule.	Meta-Arc	6 August 2025
A18, Issue O, Perspective Views.	Meta-Arc	6 August 2025
A19, Issue O, Shadow-June.	Meta-Arc	6 August 2025
A20, Issue O, Shadow March.	Meta-Arc	6 August 2025
A21, Issue O, Solar Access on 1455 Botany Road, 1 & 3 Hasting Street.	Meta-Arc	6 August 2025
A22, Issue O, Solar Access on 1455 Botany Road, 1 & 3 Hasting Street.	Meta-Arc	6 August 2025
A23, Issue O, Solar Access on 1455 Botany Road, 1 & 3 Hasting Street.	Meta-Arc	6 August 2025

2. Landscape Plans

Plan	Drawn by	Dated
L/00, Cover Sheet	Aspect Designs	22 July 2025
L/01, Revision H, Ground Floor – Landscape	Aspect Designs	22 July 2025
L/02, Revision H, Level 1 – Landscape	Aspect Designs	22 July 2025
L/03, Revision H, Level 3 – Landscape	Aspect Designs	22 July 2025
L/04, Revision H, Roof – Landscape	Aspect Designs	22 July 2025
L/05, Revision H, Landscape Frontage Plan	Aspect Designs	22 July 2025
L/06, Revision H, Landscape Details	Aspect Designs	22 July 2025

3. Stormwater Plans

S0, General Notes, Revision 4.	Pyramid Engineering Consult	4 August 2025
S1, Sediment and Erosion Control Plan, Revision 4.	Pyramid Engineering Consult	4 August 2025
S2, Basement Floor Drainage Plan, Revision 4.	Pyramid Engineering Consult	4 August 2025
S3, Ground Floor Drainage Plan, Revision 4.	Pyramid Engineering Consult	4 August 2025
S4, Stormwater Sections & Details, Revision 4.	Pyramid Engineering Consult	4 August 2025
S5, Water Quality Report, Revision 4.	Pyramid Engineering Consult	4 August 2025

4. Other Documents

Updated Statement of Environmental Effects Evolution Planning Pty Limited 6 August 2025

Orders

43. The Court orders that:

1. The appeal is upheld.

2. Development Consent No. DA/2023/144 is modified in the terms in Annexure A.

3. Development Consent No. DA/2023/144 as modified by the Court is Annexure B.

G Kullen

Acting Commissioner of the Court

Annexure A (213 KB, pdf)

Annexure B (739 KB, pdf)

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Decision last updated: 11 November 2025