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[2025] NSWLEC 1363
General information, not legal advice.
Land and Environment Court (NSW)
2025-05-23
Miller AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Archispectrum Pty Ltd v Bayside Council [2025] NSWLEC 1363
Hearing dates: Conciliation conference on 11 February, 26 February, 13 March and 1 April 2025
Date of orders: 23 May 2025
Decision date: 23 May 2025
Jurisdiction: Class 1
Before: Miller AC
Decision: The Court orders that:
(1) The Appeal is upheld.
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent costs thrown away in the agreed sum of $15,000.00 within 14 days of the date of this decision.
(3) Development consent is granted to Development Application DA-2023/89 as amended for the demolition of existing structures and construction of a four (4) storey shop top housing development containing two (2) commercial units, nine (9) apartments and at grade parking at 1025 Botany Road, Mascot (Lots 2 and 3 in Section 2 DP 4089), subject to the conditions in the annexure marked "A”.
Catchwords: APPEAL – shop top housing – conciliation conference – agreement reached – orders made
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.15
Land and Environment Court Act 1979, s34
Water Management Act 2000
Environmental Planning and Assessment Regulation 2021, ss 23, 27, 37, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 2.120
Bayside Local Environmental Plan 2021, cll 2.3, 2.7, 4.3, 4.4, 6.1, 6.2, 6.3, 6.9, 6.11
Category: Principal judgment
Parties: Archispectrum Pty Ltd (First Applicant)
Richard Solomon (Second Applicant)
Bayside Council (Respondent)
Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Messenger Cole Solicitors (Respondent)
File Number(s): 2024/299349
Publication restriction: Nil
COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a five (5) storey shop top housing development containing two (2) commercial units, thirteen (13) apartments and basement parking at 1025 Botany Road, Mascot (Lots 2 and 3 in Section 2 DP 4089). The applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of the subject development application on 15 August 2024. In exercising the functions of the consent authority on appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [28] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
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 11 February, 26 February, 13 March and 1 April 2025. I presided over the conciliation conference.
At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was recorded in a signed agreement filed on 29 April 2025.
The agreement follows the Council’s approval of an application for an amendment to the development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). Amendments to the plans were made and additional documentation submitted to address the contentions identified by the Respondent. In particular the proposal was amended to remove one level and the proposed basement car parking. This resulted in an amended proposal comprising the construction of a four (4) storey shop top housing development containing two (2) commercial units, nine (9) apartments and at grade parking.
The original proposal was integrated development in accordance with s 4.46 of the EPA Act as it required an approval under the Water Management Act 2000. The deletion of the proposed basement means that the proposal is no longer integrated development and an approval under the Water Management Act 2000 is no longer required.
The decision agreed upon in the parties’ agreement is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed Jurisdictional Statement, which sets out the jurisdictional requirements for the making of orders in accordance with the agreement. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons outlined below.
Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies to the proposed development as it is within proximity of electricity infrastructure. I note that Ausgrid has been notified of the proposal as required and has advised that it does not object to the proposal subject to recommended conditions of consent. Accordingly, I am satisfied in respect of s 2.48.
Section 2.119 also applies to the development as it has frontage to a classified road (Botany Road) and provides that consent must not be granted to the development unless the consent authority is satisfied of the matters listed at subs (2) including matters is relation to access, safety and efficiency and the sensitivity of the proposed use to traffic noise and vehicle emissions. Based on the parties’ agreement, the letter prepared by PDC Consultants (17 March 2025) and the traffic impact assessment prepared by PDC Consultants (20 February 2023) I am satisfied of the relevant matters.
The development involves residential accommodation on land that is adjacent to a road with an annual average daily traffic volume of more than 20,000 vehicles therefore s 2.120 also applies. The provision requires the consent authority to be satisfied in respect of noise impacts prior to the granting of consent. On the basis of the parties’ agreement and the acoustic reports prepared by Koikas Acoustics (6 February 2023 and 29 January 2025) I am satisfied of the relevant matters.
The site is zoned E1 Local Centre under Bayside Local Environmental Plan 2021 (BLEP). Development for the purposes of shop top housing is permissible with consent in the E1 zone under the BLEP. Further, regard has been had to the zone objectives and the parties agree that the proposal is consistent with those objectives in accordance with cl 2.3.
In accordance with cl 2.7 of BLEP, consent is sought for the demolition of the existing building on site.
The amended proposal complies with the height of building development standard (14m) in accordance with cl 4.3 of BLEP.
Further the amended proposal complies with the maximum floor space ratio development standard (FSR of 1.95:1 is proposed where a maximum FSR of 2:1 is allowed) in accordance with cl 4.4 of BLEP.
In respect of cl 6.1 of BLEP I note that the site is mapped as having Class 4 Acid Sulfate Soils. On the basis of the parties’ agreement, the Geotechnical Investigation prepared by Rapid Geo (20 March 2023) and the recommended conditions of consent, I am satisfied that an acid sulfate soils management plan is not required in this instance.
I am satisfied based on the parties’ agreement, the Geotechnical Investigation prepared by Rapid Geo (20 March 2023) and the recommended conditions of consent, that consideration has been given to the matters required to be considered prior to the granting of development consent to earthworks under cl 6.2 of BLEP.
I am further satisfied that the proposal complies with cl 6.3 of BLEP in respect of stormwater management and water sensitive urban design having regard to the proposed plans, the Stormwater Plans (prepared by Telford Civil, 8 April 2025) and recommended condition of consent.
The acoustic reports prepared by Koikas Acoustics (6 February 2023 and 29 January 2025), also provide the required satisfaction that issues associated with acoustic impacts from aircraft noise have been considered.
The site is mapped on the active street frontage map to which cl 6.9 applies. On the basis of the amended plans, I am satisfied that the proposal provides an active frontage to Botany Road as required.
Finally in regard to BLEP, on the basis of the existing use of the site I am satisfied that essential services are available to the proposed development as required in accordance with cl 6.11.
An updated BASIX Certificate has been submitted for the amended proposal (Certificate No. 1374750M_02) prepared by Greenworld Architectural Drafting in accordance with the requirements of s 27 of the EPA Reg.
The development application was notified between 19 April and 22 May 2023, and seven (7) submissions were received. The parties have advised that regard has been had to the matters raised in submissions in the amendment proposal and that renotification is not warranted.
Owner’s consent has been submitted with the Class 1 Application as required in accordance with s 23 of the EPA Reg.
Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The orders of the Court are:
The Appeal is upheld.
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent costs thrown away in the agreed sum of $15,000.00 within 14 days of the date of this decision.
Development consent is granted to Development Application DA-2023/89 as amended for the demolition of existing structures and construction of a four (4) storey shop top housing development containing two (2) commercial units, nine (9) apartments and at grade parking at 1025 Botany Road, Mascot (Lots 2 and 3 in Section 2 DP 4089), subject to the conditions in the annexure marked "A”.
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(Annexure A) (448 KB, pdf)
Archispectrum Pty Ltd
Bayside Council [2025] NSWLEC 1363