BL2093 Pty Ltd v Northern Beaches Council

Judgment

1. COMMISSIONER: In a judgment given on 22 December 2021, BL2093 Pty Ltd v Northern Beaches Council [2021] NSWLEC 1784 (the initial judgment), I handed down my decision on the appeal by BL2093 Pty Ltd against the refusal by the Northern beaches Council of its development application no. DA2020/1597.
2. That application sought consent for the demolition of existing structures and construction of a part three (3), part four (4) storey boarding house with 26 boarding rooms over two levels of basement car parking for 13 cars with landscaping at 67 Pacific Parade, Dee Why.
3. At paragraph [103] of the initial judgment the Parties were directed as follows: 1. to confirm, by Friday 28 January 2022, the validity of the Applicant's BASIX certificate prior to the Court making final orders in this appeal or, if necessary, to file an updated BASIX certificate for the Proposed Development by that date; 2. to file with the Court final agreed conditions of consent, reflecting the conclusions of the judgment at [101], by no later than 3pm on Friday 28 January 2022.
4. The Parties have now complied with those directions and have: 1. confirmed that, following the conclusion of the hearing on 5 August 2021 at which time I reserved judgment in this matter: 1. on 26 November 2021, cl 3 of the Environmental Planning and Assessment Regulation 2000 was amended to exclude boarding houses from the definition of a 'BASIX affected building', provided it can accommodate more than 12 residents and has a gross floor area of more than 300m2; 2. the Applicant's development application no. DA2020/1597 proposes a boarding house that accommodates up to 52 residents and has a total gross floor area of 979.4m2; 3. as a consequence of the above ([(a)] and [(b)]) a further updated BASIX Certificate is no longer required and the boarding house will be assessed at a later stage against the Section J requirements of the National Construction Code; 1. provided final conditions of consent reflecting the conclusions in the Court's judgment, and agreed save for the imposition of a Condition 19(b), in relation to which: 1. the Respondent is of the view that the judgment does not specify whether this condition should be imposed; whereas 2. the Applicant is of the view that having regard to paragraphs [41] and [71]-[74], that condition 19(b) is not to be imposed; and 3. the parties invited me to clarify whether condition 19(b) should be imposed.