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[2025] NSWLEC 1772
General information, not legal advice.
Land and Environment Court (NSW)
2025-10-27
Kullen 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: Fleek Constructions Pty Ltd v Bayside Council [2025] NSWLEC 1772
Hearing dates: Conciliation Conferences on 16 and 17 September 2025
Date of orders: 27 October 2025
Decision date: 27 October 2025
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application DA 2024/381 for the demolition of an existing single-storey dwelling house and garage, removal of trees, the construction of a dual occupancy with two two-storey dwellings with car parking, swimming pools and landscape works, and Strata title subdivision at 16 Walker Avenue, Mascot, 2020, legally known as Lot 1 DP 366308, subject to the conditions of consent at Annexure A.
Catchwords: DEVELOPMENT APPEAL — conciliation conference — cl 4.6 variation for a demonstrable public benefit — aircraft noise — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, cl 7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Bayside Local Environmental Plan 2021, cll 2.2, 2.3, 2.6, 2.7, 4.1, 4.3, 4.4, 4.4A, 4.6, 5.10, 5.21, 6.1, 6.2, 6.3, 6.8, 6.9, 6.11
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022
Cases Cited: Hansimikali v Bayside Council [2019] NSWLEC 1353
Texts Cited: Australian Standard AS 2021:2015 Acoustics – Aircraft Noise Intrusion – Building Siting and Construction, March 2015
Bayside Development Control Plan 2022
Category: Principal judgment
Parties: Fleek Constructions Pty Ltd (Applicant)
Bayside Council (Respondent)
Representation: Counsel:
A Knox (Solicitor) (Applicant)
John Cole (Solicitor) (Respondent)
Solicitor:
Pikes & Verekers Lawyers (Applicant)
Bayside Council (Respondent)
File Number(s): 2025/196147
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by the Bayside Council of development application DA 2024/381 (the DA). The DA seeks consent for the demolition of an existing single-storey dwelling house and garage, removal of trees, the construction of a dual occupancy with two (2) two- storey dwellings with car parking, swimming pools and landscape works, and Strata title subdivision on the land at 16 Walker Avenue, Mascot, 2020, legally known as Lot 1 DP 366308 (the site).
The DA was lodged with the Respondent on 24 December 2024. The DA was subsequently refused by the Respondent on 22 April 2025. On 22 May 2025, the Applicant filed Class 1 proceedings with the Court.
The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 20 June 2025.
The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 16 and 17 September 2025. I presided over the conciliation conference, which commenced with an on-site view. No submitters attended the on-site view.
Prior to the conciliation conference, the parties’ town planning, traffic, stormwater and landscape experts participated in joint conferencing and joint reports were prepared in their respective fields and filed with the Court between 2 September 2025 and 10 September 2025.
Over the course of the first day of the s 34 conciliation conference, the parties reached an in-principle s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. The parties finalised a s 34 agreement on 17 September 2025. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions, as agreed by the parties.
The signed s 34 agreement, Annexure A (Conditions of Consent) and the amended plans and documents were filed with the Court on 19 September 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.
In particular the amended DA includes the following amendments which were substantially addressed by the expert Town Planners in their final Joint Report:
Roof form designed as a pitched hipped roof form;
Dwelling A (northern dwelling) designed with carport;
Reorientation of stairs to the front entry porch to access from the driveway;
Masonry front fence 0.9m in height stepping up to 1.2m internal on the site;
Relocation of bin storage to internal within carport and garage of each dwelling;
Rear dividing fence between dwellings reduced in height to 1.8m;
Balconies on front elevation 1m in depth;
Blade wall between the balconies on the front elevation Rear bedroom windows with opaque glazing to 1.5m;
Redesign of windows on the side elevation and bathroom windows having opaque glazing;
Reduce floor to ceiling height – ground floor and first floor to 2.7m; and
Changes to front façade and upstairs elevations (as required under Condition 1A of the conditions of consent).
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.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.
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.
The Bayside Local Environmental Plan 2021 (the LEP) applies to the site and to the proposed development. The site is zoned R2 Low Density Residential (R2 zone) pursuant to cl 2.2 of the LEP; and
The proposed development for the purposes of strata title subdivision and dual occupancy is permissible with consent within the R2 Low Density Residential zone pursuant to cl 2.6 of the LEP;
I am satisfied that the proposed development is consistent with the objectives at cl 2.3 of the LEP for development within the zone in which the development is proposed to be carried out.
Clause 2.7 of the LEP provides that demolition is permissible with consent.
Clause 4.1 Minimum subdivision lot size does not apply as the site is not identified on the Lot Size Map in the LEP.
The site is subject to cl 4.3 of the LEP in relation to a maximum height of 9m as shown in the Height of Buildings (HoB) Map in the LEP. The proposed development is below the maximum building height and complies with the development standard.
The parties advise that the pursuant to cl 4.4, the site is located in Area 2 on the FSR Map in the LEP. Clause 4.4A(2) of the LEP applies to the site and imposes a maximum FSR of 0.6:1 on sites with an area of between 351-450m2. The site has an area of 438m2 and therefore the applicable maximum FSR is 0.6:1. The proposed development has a Gross Floor Area (GFA) of 283m2 and an FSR of 0.64:1, representing a variation of the FSR development standard by 20.2m2 or 7.6%.
Clause 4.6 of the LEP permits the contravention of an applicable development standard. In order to grant consent for development which contravenes a development standard, cl 4.6(3) requires the Court to be satisfied that the applicant has demonstrated (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances and (b) that there are sufficient environmental planning grounds to justify the contravention of the development standard.
Clause 4.6(8)(bf) does not allow development consent to be granted for development that would contravene clause 4.4A unless the consent is for a demonstrable public benefit.
The Applicant has provided a written request to vary the FSR development standard (the Clause 4.6 Variation Request), prepared by Chapman Planning Pty Ltd dated 17 September 2025. The parties submit that the Court can be satisfied by reference to the Clause 4.6 Variation Request that the Applicant has sufficiently justified the proposed contravention of cl 4.4A(2) and that the contravention will result in a demonstrable public benefit.
The parties advise that the demonstrable public benefit is the provision of a landscape buffer between the rear of the site and the neighbouring site to the rear, 1027-1043 Botany Road, Mascot (neighbouring site) secured for the life of the development. The neighbouring site is located within a higher density zone with the potential for redevelopment up to five storeys. The site has a shorter length than adjoining sites and therefore an appropriate landscape buffer to the higher density zone to the rear is more crucial to ensure that redevelopment to the rear can occur without unreasonable privacy or amenity impacts on the lower density zone. Appropriate transition between these two zones is critical.
The neighbouring site has the benefit of development consent for a four and five storey mixed use development via court decision – Hansimikali v Bayside Council [2019] NSWLEC 1353. Commissioner O’Neill noted in that decision that:
“[52] …A transition in scale between zones should be achieved by the zoning and development standards in the LEP determined by the strategic planning exercise that informed the LEP and should not require an onerous transition in scale on an individual site that borders a different zone that significantly diminishes the development potential of that site.”
The demonstrable public benefit in this DA is the provision of landscaping within the rear setback to the site to provide screening and softening to enable transition to the B2 zone to the rear having regard to the Court decision. The parties advise that this is secured through conditions of consent which include requirements for by laws in the relevant strata plan for the proposed development.
I am satisfied that the Applicant’s cl 4.6 written variation request is well founded and that the variation to the FSR development standard is acceptable.
I consider that compliance with the FSR development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the FSR development standard notwithstanding the FSR exceedance for the reasons provided within the Applicant’s written request, which I adopt.
I am also satisfied that there are sufficient environmental planning grounds to justify contravening the FSR development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons as stated in the written variation request:
The provision of landscaping within the rear setback of the site to the land at the rear of the site will provide screening and softening to enable an effective transition to the B2 zone to the rear of the site, which I agree is a demonstrable public benefit; and
The proposed variation results in an environmental planning outcome for the site which would also be achievable without a cl 4.6 variation if the site was subdivided into 2 lots before the proposed dwellings were approved, as provided for in cl 4.4A(3) of the LEP (which enables the maximum FSR to be 0.8:1).
Approval of the proposed development will be in the public interest for the reasons provided above (at [29(1)]-[29(2)]), and because the proposed development is consistent with the objectives for the FSR development standard for the reasons provided within the Applicant’s written request, which I also adopt.
Clause 5.10 of the LEP relates to heritage conservation. The parties advise that the site is not identified as a heritage item, nor is it located within a Heritage Conservation Area. The site is within the vicinity of a heritage item - I332 - House 1 Walker Avenue, Mascot. The proposed development is not within the visual curtilage of the heritage item and will not adversely impact the heritage item, and therefore, cl 5.10 is satisfied.
Clause 5.21 of the LEP is concerned with flood planning. The parties advise that the site is identified on Council’s Flood Map as being within a Probable Maximum Flood (PMF) flood affected Lot but is not affected by the 1% Annual Exceedance Probability (AEP) Flood. The Applicant has provided a Flood Evacuation Management Plan prepared by ING Consulting Engineers and dated 29 November 2024 (the Flood Evacuation Management Plan), and the parties submit that the Court can be satisfied that cl 5.21 of the LEP is thereby sufficiently addressed.
Clause 6.1 of the LEP relates to Acid sulfate soils. The parties advise that the site is identified as Class 4 Acid Sulfate Soils. Pursuant to the architectural plans provided by the Applicant, prepared by Codex Projects Pty Ltd and dated 16 September 2025, the DA does not propose works more than two (2) metres below the natural ground surface. The DA proposes a pool excavation depth of 1.465m and is not anticipated to have any impact on the water table. Therefore, cl 6.1 of the LEP is satisfied.
Clause 6.2 of the LEP relates to Earthworks and sets out matters that the Court must consider in deciding whether to grant development consent for earthworks. The DA includes minor ancillary earthworks to accommodate the proposed building footings and swimming pools. The parties advise that the Court can be satisfied by reference to the Statement of Environmental Effects (the SEE), the amended stormwater plans prepared by ING Consulting Engineers Pty Ltd and dated 24 August 2025 and the geotechnical investigation report prepared by Green Geotechnics Pty Ltd dated 19 August 2025 that the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land and that the proposed development thereby satisfies the requirements of Cl 6.2 of the LEP.
Clause 6.3 of the LEP relates to Stormwater management. The parties advise that in addition to the Flood Evacuation Management Plan, the Applicant has provided the Stormwater Joint Expert Report filed on 1 September 2025, the geotechnical investigation report prepared by Green Geotechnics Pty Ltd dated 19 August 2025, the amended stormwater engineering plans prepared by ING Consulting Engineers Pty Ltd and dated 24 August 2025, and the amended architectural plans prepared by Codex Projects Pty Ltd dated 16 September 2025 to satisfy the requirements of cl 6.3 of the LEP.
Clause 6.8 of the LEP relates to Development in areas subject to aircraft noise. The proposed development is located within the ANEF contour of 20-25. The parties advise that this provision requires the Court to consider whether the development will result in an increase in the number of dwellings or people affected by aircraft noise and the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in Australian Standard AS 2021:2015 Acoustics – Aircraft Noise Intrusion – Building Siting and Construction (AS 2021:2015), and be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015.
Conditions 67 and 68 of the agreed conditions of consent relate to acoustic measures. In addition, an acoustic assessment is contained within the Class 1 application and the Applicant has provided an additional acoustic letter prepared by Acoustic Logic Pty Ltd dated 17 September 2025. By reference to the Conditions of Consent, the acoustic assessment and the acoustic letter, the parties submit that the Court can be satisfied that the requirements of the clause will be addressed by the proposed development.
Clause 6.9 of the LEP relates to Design excellence. The parties advise that cl 6.9 of the LEP does not apply to the site because the proposed development is less than 14m in height.
Clause 6.11 of the LEP requires that the Court be satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required – the supply of water, the supply of electricity, the disposal and management of sewage, stormwater drainage or on-site conservation, suitable vehicular access. By reference to the amended stormwater engineering plans prepared by ING Consulting Engineers Pty Ltd and dated 24 August 2025, and the amended architectural plans prepared by Codex Projects Pty Ltd dated 16 September 2025, the parties submit that the Court can be satisfied that the requirements of cl 6.11 of the LEP are satisfied.
Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) is concerned with the protection of the biodiversity values, and the preservation of amenity, provided by trees and other vegetation in non-rural areas of NSW. The DA includes the removal of two (2) street trees and four (4) trees at the rear of the site.
The parties advise that the Applicant has provided amended landscape plans prepared by Conzept Landscape Architects Pty Ltd dated 1 September 2025 which include canopy tree replenishment, screen planting and acceptable species mix. The Applicant has also provided an Arboricultural Impact Appraisal and Method Statement in the SEE which considers the trees proposed for removal to be of low significance and the DA to have no adverse impact on the contribution of trees to local amenity or character.
The parties submit that the Court can be satisfied that the requirements of Ch 2 of the Biodiversity SEPP are satisfied.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.
The parties have advised that the site has historically been used for residential purposes, the land use has remained unchanged and there is a low likelihood of contamination on the site. The requirements of s 4.6(1) of the Resilience SEPP are addressed by Conditions 47, 58 and 59 of the agreed conditions of consent.
The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.
Having considered the advice of the parties provided above at [13]-[47], I am satisfied that:
the Applicant’s amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act;
the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and
approval of the proposed development is in the public interest.
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.
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.
The Court notes:
That Bayside Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to development application DA 2024/381 made on 17 September 2025 to rely on the amended plans and documents specified below:
(a) Architectural drawings as follows:
| Plan | Drawn by | Dated | Received by Council | | DA004 – Site Plan – Rev 5 | Codex Projects Pty Ltd | 16 September 2025 | 17 September 2025 | | DA006 – Demolition Plan – Rev 3 | Codex Projects Pty Ltd | 4 August 2025 | 17 September 2025 | | DA007 – Ground Floor Plan– Rev 4 | Codex Projects Pty Ltd | 28 August 2025 | 17 September 2025 | | DA008 – First Floor Plan – Rev 5 | Codex Projects Pty Ltd | 16 September 2025 | 17 September 2025 | | DA009 – Roof Plan – Rev 5 | Codex Projects Pty Ltd | 16 September 2025 | 17 September 2025 | | DA010 – Elevations – Rev 5 | Codex Projects Pty Ltd | 16 September 2025 | 17 September 2025 | | DA011 – Elevations – Rev 5 | Codex Projects Pty Ltd | 16 September 2025 | 17 September 2025 | | DA012 – Sections – Rev 5 | Codex Projects Pty Ltd | 16 September 2025 | 17 September 2025 |
(b) Stormwater engineering drawings as follows:
| Plan | Drawn by | Dated | Received by Council | | 54909-01/6 – Site Analysis and Design Calculations for On-Site Detention – Rev B | ING Consulting Engineers Pty Ltd | 24 August 2025 | 1 September 2025 | | 54909-02/6 – Site/Roof, Ground and First Floor Plan – Rev B | ING Consulting Engineers Pty Ltd | 24 August 2025 | 1 September 2025 | | 54909-03/6– Site Plan (Civil) & Vehicular Crossing Long. Sections 1-1 & 2-2 – Rev B | ING Consulting Engineers Pty Ltd | 24 August 2025 | 1 September 2025 |
| 54909-04/6 – Erosion & Sediment Control Plan, Notes & Details – Rev B | ING Consulting Engineers Pty Ltd | 24 August 2025 | 1 September 2025 | | 54909-05/6– Notes & Details 2– Rev B | ING Consulting Engineers Pty Ltd | 24 August 2025 | 1 September 2025 | | 54909-06/6 – Notes & Details 3 – Rev B | ING Consulting Engineers Pty Ltd | 24 August 2025 | 1 September 2025 |
(c) Landscape plans (LPS34 25 -109) as follows:
| Plan | Drawn by | Dated | Received by Council | | Sheet 1 - Hardscape Plan – Rev B | Conzept Landscape Architects Pty Ltd | 1 September 2025 | 3 September 2025 | | Sheet 2 - Landscape Plan – Rev B | Conzept Landscape Architects Pty Ltd | 1 September 2025 | 3 September 2025 | | Sheet 3 – Details – Rev B | Conzept Landscape Architects Pty Ltd | 1 September 2025 | 3 September 2025 | | Sheet 4 – Specifications – Rev B | Conzept Landscape Architects Pty Ltd | 1 September 2025 | 3 September 2025 |
(d) BASIX Certificate 1776332M_02 dated 18 September 2025; (e) Clause 4.6 Variation Request relating to Floor Space Ratio prepared by Chapman Planning Pty Ltd dated 17 September 2025; (f) Geotechnical Investigation Report prepared by Green Geotechnics Pty Ltd dated 19 August 2025; (g) Acoustic Letter prepared by Acoustic Logics Pty Ltd dated 17 September 2025.
The Court orders that:
The appeal is upheld.
Development consent is granted to Development Application DA 2024/381 for the demolition of an existing single-storey dwelling house and garage, removal of trees, the construction of a dual occupancy with two two-storey dwellings with car parking, swimming pools and landscape works, and Strata title subdivision at 16 Walker Avenue, Mascot, 2020, legally known as Lot 1 DP 366308, subject to the conditions of consent at Annexure A.
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Fleek Constructions Pty Ltd
Bayside Council [2025] NSWLEC 1772