Kim v Bayside Council

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

Category: Principal judgment

Parties: Jong Kwang Kim (Applicant)
Bayside Council (Respondent)

Representation: Counsel:
M Mantei (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)
Solicitors:
Madison Marcus (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2024/414009

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for residential development at 24 Tunbridge Street, Mascot. As lodged, it sought the demolition of existing structures, Torrens title subdivision into two lots, and the construction of two 3-storey semi-detached dwellings. The development application was refused by the respondent on 18 October 2024. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the 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 [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 22 September 2025. I presided over the conciliation conference.

3. 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 reflects the signed agreement filed on 19 September 2025, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amended development application is for the demolition of existing structures and the construction of a dual occupancy, with strata title subdivision of the dual occupancy into two lots. The amended development application also includes an acoustic report and updated stormwater plans.

4. The decision agreed upon 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, the final version of which was provided on 22 September 2025, that sets out the jurisdictional prerequisites to the exercise of power to grant development consent. I have considered the contents of the Agreed 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 the conditions of consent. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. 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. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

6. The proposed development is for the purpose of a dual occupancy, which is permissible in the R3 Medium Density Residential zone in which the site is located, pursuant to the Bayside Local Environmental Plan 2021 (BLEP). The strata subdivision is also permissible pursuant to cl 2.6 of the BLEP.

7. The proposed development complies with the development standards for height and floor space ratio that apply pursuant to the BLEP, and there is no minimum lot size development standard that applies to the site for the strata subdivision.

8. The development application includes earthworks for the absorption trenches. Based on the Agreed Jurisdictional Statement, I have considered the matters set out in cl 6.2(3) of the BLEP.

9. Clause 6.3 of the BLEP concerns stormwater and applies to the site. Based on the stormwater plans dated August 2025 and the landscape plan dated 6 June 2025, I am satisfied of each of the matters in cl 6.3(2).

10. Clause 6.8 of the BLEP concerns development in areas subject to aircraft noise, and applies to the site pursuant to cl 6.8(2)(a). Based on the Acoustic Report dated 8 August 2025, I have considered the matters in cl 6.8(3)(a) and (b) and I am satisfied of the matters in cl 6.8(3)(c).

11. Clause 6.11 of the BLEP relates to essential services. In circumstances where there is already an existing dwelling for which each of the services in cl 6.11 are available, I am satisfied that those services are available.

12. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

13. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 15 August 2025. Based on the BASIX certificate, I am satisfied that the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022 has been met.

14. The proposed development could affect an electricity distribution pole, as a result of which s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Ausgrid was notified of the development application and I have considered their response.

15. The development application was notified between 11 and 29 January 2024, and again following an earlier amendment between 16 December 2024 and 27 January 2025. Two submissions were received in the first notification, and one received in the second period of notification. I have considered the issues raised by those written submissions.

16. 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)).

17. 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.

18. The Court notes:

19. The Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 an amendment to the description of the development for which consent is sought in development application DA-2023/371 to “demolition of an existing single storey dwelling, construction of an attached dual occupancy and strata title subdivision” and to incorporate the following plans and reports into:

(a) Architectural Plans (Rev F) prepared by KR Architecture & Design dated 4 August 2025. (b) Updated subdivision plan changing the form of title form Torrens to Strata title prepared by Rahma Khammari Revision G dated 12 August 2025. (c) Acoustic Report prepared by Anavs – Acoustic Noise and Vibration Solutions Pty Ltd Revision 2 dated 8 August 2025. (d) Stormwater Plans prepared by Stormwater Engineers Pty Ltd Revision E dated August 2025. (e) Updated statement of environmental effects dated 18 August 2025. (f) BASIX Certificate 1428635M_04 dated 15 August 2025.

2. The agreement of the parties that the applicant is to pay the respondent’s costs thrown away as a result of the amendments to the development application in the agreed amount of $13,500.00 within 28 days of these orders being made, which includes the costs ordered by the Court on 24 June 2025 by way of Order 2 made by the Court on that date.

Orders

9. The Court orders that:

10. The appeal is upheld.

11. Development Application DA-2023/371, as amended, for demolition of an existing single storey dwelling, construction of an attached dual occupancy and strata title subdivision at lot 28 DP 15353, commonly known as 24 Tunbridge Street Mascot NSW 2020, is determined by grant of consent, subject to the conditions in Annexure A to these orders.

J Gray

Commissioner of the Court

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Annexure A (340 KB, pdf)