Emag Apartments Pty Ltd v Bayside Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Bayside Development Control Plan 2022

Category: Principal judgment

Parties: Emag Apartments Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation: Counsel:
A Pickles SC (Applicant)
P Brown (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2025/94872

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application DA-2024/286 (DA) by Bayside Council (Council).

2. The site is at 465-469 Princes Highway and 5-7 Geeves Avenue, Rockdale, comprising: Lot A in DP 315664, Lot A in DP 306355, Lot B in DP 315664, Lot A in DP 402977, Lot 1 in DP 131822 and Lot B in DP 402977.

3. The DA seeks consent for demolition of the site’s existing structures and the construction of ground commercial floorspace with ten levels of co-living housing above. Basement parking is proposed.

Conciliation and agreement between the parties

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 16 December 2025 and at which I presided. The parties had filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the DA, as amended, in accordance with agreed conditions.

Jurisdiction

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties’ agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [62]-[65]).

6. Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties agreed jurisdictional statement (JS), as amended, and received by the Court on 16 December 2025.

Integrated development

7. The parties advise that, in order for it to be carried out, the proposal also requires approval under s 90(2) of the Water Management Act 2000 (NSW). In turn the proposal was referred to WaterNSW as integrated development. General terms of approval have subsequently been issued by WaterNSW and incorporated into agreed consent conditions.

State Environmental Planning Policy (Housing) 2021

8. Part 3 of Ch 3 (co-living housing) applies. The proposal is permissible under s 67(b) given the site zoning of E1 - Local Centre which, relevantly, permits shop top housing.

9. Section 69 outlines standards for co-living housing. Section 69(1) establishes certain development standards. Section 69(2) indicates various matters which otherwise must be considered by the consent authority. The parties work through these matters relevantly in their jurisdictional statement and advise that the DA, as amended, complies with each of the development standards nominated at s 69(1). I accept this advice and am satisfied with regard to the matters at s 69(1)(a)-(h). The parties also advise, in the JS, of their consideration of the matters at s 69(2). This is noted.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. Chapter 4 (Remediation of Land) applies with s 4.6 providing that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated or potentially contaminated land and, if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties indicate that a detailed site investigation and remediation action plan have been prepared to ensure the site will be suitable for the proposed development. Compliance with the remediation action plan is required under the agreed consent conditions. On the basis of the parties’ advice, I am satisfied with respect to s 4.6.

State Environmental Planning Policy (Transport and Infrastructure) 2021

11. Section 2.48 is triggered as a consequence of overhead power lines running adjacent to the site along Princes Highway. I am advised that Council gave the necessary notice to Ausgrid, which has nominated certain requirements which have been incorporated into agreed consent conditions.

12. Given the site’s proximity to the rail corridor, a referral notice was also issued to Transport for NSW (TfNSW), as the relevant rail authority, under s 2.99. The TfNSW response raised an issue relating to access along Geeves Avenue, which has been subsequently resolved to the satisfaction of the parties and TfNSW (JS par 34). The requirements of s 2.99 have been met.

13. Section 2.100(3) and 2.120(3) require findings of satisfaction in relation to acoustics in consideration of rail and road noise respectively. The parties agree that the noise assessment accompanying the amended DA notes the consideration of relevant guidelines and makes findings in regard to construction recommendations to ensure compliance with the specified standards. Compliance with the acoustic report is required under agreed Condition 1, 30 and 127. I accept this advice and am satisfied with respect to ss 2 .100(3) and 2.119(3).

14. Section 2.119 applies to development with frontage to a classified road and applies given the site’s frontage to Princes Highway. It requires certain findings of satisfaction before power is available for the granting of consent. With respect to s 2.119(2)(a), I am satisfied that the vehicular access to the site is provided by a road other than the classified road (ie vehicular access is via Geeves Lane). I am also satisfied with respect to s 2.119(2)(b). This is based on the parties’ advice, relying on relevant technical evaluation, on the net benefits of the proposal in terms of traffic generation compared to the existing setting. I am satisfied with respect to s 2.119(2)(c) given my earlier findings on acoustics and agreed consent conditions relating to construction.

Bayside Local Environmental Plan 2011

15. The parties advise that consideration has been given to the objectives of the relevant E1 Local Centre zone. The parties indicate their agreement that the proposal, as now further amended, is consistent with the objectives. I further note that demolition is permissible pursuant to cl 2.7.

16. The proposal contravenes cl 4.3 which sets a maximum building height of 35m and relies on cl 4.6 (relating to exceptions to development standards). In accordance with the Environmental Planning and Assessment Regulation 2021 (NSW), the DA is accompanied by a document setting out the grounds upon which the applicant seeks to demonstrate the requirements of cl 4.6(3) have been met (prepared by Planning Ingenuity dated 24 October 2025 (Planning Ingenuity documentation)). The maximum contravention is 1.87m, comprising the lift overrun. The parties agree that, on the basis of the amendments to the DA, and referencing the Planning Ingenuity Documentation arguments, compliance with cl 4.3 is unreasonable and unnecessary and there are sufficient environmental planning grounds to justify the contravention of the development standard. I agree with the parties and find that the applicant, through the Planning Ingenuity documentation, has demonstrated that:

17. Compliance with the development standard is unreasonable or unnecessary in the circumstances. This is through the Planning Ingenuity documentation (Section 4) working through each of the objectives of cl 4.3 and demonstrating they are relevantly satisfied. It is my finding that the applicant has demonstrated that there is no need for strict compliance with the building height standard because it has demonstrated to my satisfaction that the objectives of the clause have been achieved in any event.

18. There are sufficient environmental planning grounds to justify the contravention. The Planning Ingenuity documentation works through a series of convincing points of justification in its Section 5. Of particular note for me is the relative minor scale of the contravention given the fact of the buildings design qualities and the permissibility of taller buildings in the nearby vicinity.

19. Clause 6.3 concerns stormwater and water sensitive urban design. Prior to the grant of development consent, the consent authority must be satisfied that the proposed development complies with a number of factors at cl 6.3(2). I note that Council is satisfied with respect to these technical matters (JS par 53). I accept this advice and am relevantly satisfied.

20. Clause 6.7 is concerned with airspace operations. The parties advise that an appropriate controlled activity approval has been issued by Sydney Airport. I am satisfied with respect to cl 6.7.

21. Clause 6.10 concerns design excellence and applies to the proposal. It provides that consent must not be granted for development to which this clause applies unless the consent authority considers that the development exhibits design excellence. Clause 6.10(4) lists a series of matters to have regard to in that respect. The parties advise that this consideration has occurred (JS par 57). Clause 6.10(5) requires jurisdictional findings of satisfaction. In respect to cl 6.10(5)(a), the parties advised that a design review panel has reviewed the development. Copies of the relevant report from the panel’s meeting of 5 December 2024 were provided to the Court for my own consideration. The parties advise that Council has taken into account these findings in coming to the position that the further amended proposal exhibits design excellence. In turn, with respect to cl 6.10(3), Council advises that it considers that the development exhibits design excellence. I accept this advice and find that I too am satisfied with respect to cl 6.10(3).

22. With respect to cl 6.11 and essential services, on the advice of the parties, I am satisfied that water, electricity, sewerage, stormwater and vehicular access services that are essential for the development are available or that adequate arrangements have been made to make them available when required.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

21. The parties advise that Bayside Development Control Plan 2022 has been taken into account in assessing the DA, as amended. The parties agree that the amended plans demonstrate a satisfactory planning outcome when measured against the relevant controls and objectives.

22. The parties have advised that one, in-part, objecting submission was received when the DA was notified and that it has been given consideration.

Conclusion

23. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

24. 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 requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notations

25. With respect to the amendments of the DA, the Court notes that:

26. Bayside Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant’s further amendment to Development Application DA-2024/286 to include the documents set out in Annexure B.

27. The Applicant provided the further amended Development Application to the Court on 10 December 2025.

28. The parties agree that:

(a) the $40,000 costs referred to in the Court orders (at Order (2) below) includes the costs ordered by the Court in Order 4 of the orders made on 15 October 2025; and (b) the $40,000 costs referred to in Order 3(b) below must be paid by the Applicant to the Council in the following manner:

(i) $10,000 payable on 30 January 2026 (ii) $10,000 payable on 27 February 2026 (iii) $10,000 payable on 30 March 2026 (iv) $10,000 payable on 30 April 2026.

Orders

26. The Court orders that:

27. The Applicant is granted leave to amend Development Application DA-2024/286 to include the documents set out in Annexure B.

28. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed amount of $40,000, by no later than 30 April 2026.

29. The appeal is upheld.

30. Integrated Development Application DA-2024/286, as amended, for the demolition of existing structures and construction of an eleven (11) storey shop-top housing development consisting of two (2) commercial tenancies at ground floor level with residential co-living above (131 rooms), basement car parking and landscaping at 465-469 Princes Highway and 5-7 Geeves Avenue, Rockdale, is determined by the grant of consent, subject to the conditions at Annexure A.

P Walsh

Commissioner of the Court

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Annexure A (714 KB, pdf)

Annexure B (115 KB, pdf)