Apostolov v Bayside Council

Category: Principal judgment

Parties: Tony Aco Apostolov (Applicant)
Bayside Council (Respondent)

Representation: Counsel:
J Smith (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Swaab (Applicants)
Marsdens Law Group (Respondent)

File Number(s): 2023/353378

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought by the applicant under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA-2022/218 (DA) by Bayside Council (Council). The DA seeks consent for a childcare facility and associated development at Lot A and Lot B in Deposited Plan 398234, being 21 & 23 Sanoni Avenue, Sandringham (site). The facility would be two storeys in height and have capacity for 38 children. It would operate from 7:00am to 6:00pm Monday to Friday. Associated development includes demolition of existing structures, certain nominated tree removal, nominated fencing, landscaping, car parking and signage.

2. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 20 May 2025. I presided over the conciliation conference. At the conference, the parties detailed the particulars of their agreement in relation to the proceedings, which involved certain amendments to the original application filed with the Court.

3. The parties' decision would have the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA, as amended, and subject to agreed conditions. Under subs 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.

4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined matters of relevance through an agreed submission on jurisdictional prerequisites (SJP) dated 20 May 2025. The SJP explained how the parties believed various matters requiring a positive finding on the part of the Court have, or could be, satisfied. Below, I attend to required considerations mindful of this advice from the parties.

Jurisdiction

State Environmental Planning Policy (Transport and Infrastructure) 2021

5. Chapter 3 deals with childcare facilities. In relation to s 3.22, I accept the advice of the parties that the DA, as amended, complies with reg 107 (indoor unencumbered space requirements) and reg 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations. Therefore, the parties agree, and I accept, that no concurrence from the relevant regulatory authority is required. I further note that, relevant to s 3.25, the floor space ratio (FSR) for the building on the site of the facility does not exceed 0.5:1 (the parties advise the proposed FSR is 0.38:1).

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, whether it is satisfied that the land is, or can be made, suitable for the purpose proposed. Firstly, the parties advise of the history of the site as residential premises, and the general unlikelihood of contamination. The parties have also advised that the application is accompanied by a Preliminary Site Investigation prepared by Martens and Associates dated March 2022. The results of the investigation did not identify any contamination exceeding relevant criteria. I accept the parties’ advice that the Court can be relevantly satisfied with respect to s 4.6.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

7. Chapter 6 applies as the site falls within the Georges River Catchment. This brings a requirement for findings of satisfaction under subss 6.6(2), 6.7(2), 6.8(2), 6.9(2) and 6.10 relating, respectively, to water quality and quantity; aquatic ecology; flooding; recreation and public access; and total catchment management. The parties submit that the proposed development will have no significant adverse impact on the environment and satisfies each of the above controls under Ch 6. In relation to this position the parties advise of their reliance on technical findings in the Flood Risk Management Plan, Stormwater Drainage Plans prepared by engineers Telford Consulting Pty Ltd and the Geotechnical, Hydrogeological and Acid Sulfate Soils Assessment prepared by engineers Martens and Associates Pty Ltd, each submitted as part of the application. In the SJP the parties work through relevant provisions, directly responding to points requiring findings of satisfaction. The parties rely on nominated technical advice to advise that the relevant findings of satisfaction can be made in their opinion. In the parties’ view the proposal would provide a net positive outcome in terms of water management. I accept the advice of the parties and am satisfied, relevantly, with respect to the matters at subss 6.6(2), 6.7(2), 6.8(2), 6.9(2) and 6.10.

Bayside Local Environmental Plan 2021

8. The site is zoned R2 Low Density Residential and the proposed development is permissible with consent under that zone. The application proposes demolition works and this is permissible with consent under cl 2.7.

9. I accept the advice of the parties that the proposed development would not breach the building height or floor space ratio controls (under cll 4.3 and 4.4 respectively) or any other development standards under this instrument.

10. Clause 6.1 relates to acid sulfate soils and the site lies within a Class 3 acid sulfate soils area. An Acid Sulfate Soils Assessment prepared by engineers Martens and Associates Pty Ltd accompanied the DA. This assessment found that the findings from soils testing did not exceed the action criteria. The parties accepted the conclusions in this report that an Acid Sulfate Soils Management Plan is not required. The Court accepts this position of the parties.

11. Clause 6.3 relates to stormwater management. The parties submit that the stormwater plans prepared by engineers Telford Consulting Pty Ltd, relevantly satisfy each of the requirements of subcl 6.3(2) of BLEP. I accept this technical advice from the parties.

12. Clause 6.11 is concerned with essential services. The parties advise that all are available or can be made available when required in this established urban area. I accept this advice.

Other matters for consideration under section 4.15(1) of the EPA Act

13. The parties advised of the notification of the proposal and that 33 objecting submissions were received along with a petition with 125 objecting signatures. In addition, during a site inspection on 19 May 2025, I heard directly from five persons, each of whom objected to the proposal. The concerns ranged across a number of topics, including: noise, road safety - especially having regard to the children attending the site (noting the intersection of Clareville Avenue and Sanoni Avenue), design of the facility, loss of on-street parking, privacy, operations, complaints handling, and that there was already a surplus of child care spots in the vicinity. The parties advised that consideration has been given to objecting submissions. I particularly note the parties’ explanation of expert evidence in response to the objecting submissions (across a range of topics including in relation to road safety) and how amendments to the proposal address particular concerns. The test under subs 4.15(1)(d) of the EPA Act is that consideration be given to objecting submissions. This test has been met.

Conclusion

14. Based on the above details, I am satisfied that there is no jurisdictional bar and the parties’ decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under subs 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

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

Notation

16. The Court notes the advice of the parties that:

17. Bayside Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA2022/218 in accordance with the Plans and documents listed below:

| Reference | Title | Prepared By | Date | | Architectural and Landscape Plan****s | | Rev E | Architectural Plans | Creative Drafting Solutions | 19/05/2025 | | Rev E | Landscape Plan | Monaco Designs | 19/05/2025 |

| Title | Prepared By | Date | | Documents | | Plan of Management | – | 16/05/2025 | | Acoustic Report | Renzo Tonin & Associates | 16/05/2025 |

Orders

17. The Court orders that:

18. The appeal is upheld.

19. Development Application No. DA2022/218, for the demolition of structures, tree removal and construction of a two-storey childcare facility with capacity for 38 children at 21 & 23 Sanoni Avenue, Sandringham NSW 2219, being Lot B and Lot A in DP 398234, respectively, is approved subject to the conditions at Annexure A.

20. The Applicant pay the Respondent's costs thrown away pursuant to subs 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed.

Peter Walsh

Commissioner of the Court

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Annexure A (459 KB, pdf)