Mosman Finance Bexley North Pty Ltd v Bayside Council

Category: Principal judgment

Parties: Mosman Finance Bexley North Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation: Counsel:
T Sattler (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)
Solicitors:
Sattler and Associates (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/266317

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Mosman Finance Bexley North Pty Ltd (the Applicant), against the deemed refusal of Development Application DA-2024/93 (the DA), by Bayside Council (the Respondent).

2. At the date of its lodgement on 23 April 2024, the DA sought consent for the consolidation of two existing lots, retention of two existing heritage buildings, demolition of existing one and two storey buildings, dwellings and structures, removal of trees, and the subdivision of the consolidated lot into 40 lots with construction of new roads, infrastructure and drainage works at 120 Kingsland Road North, Bexley North (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 December 2024, 17 February, 10 March, 27 March, 11 April, 5 May, 22 May and 30 May 2025. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent. Those contentions included issues of contamination, impacts upon existing trees, potential terrestrial biodiversity impacts, heritage impacts, loss of low rental housing, impacts of residential intensification, traffic, parking and access, stormwater management, and landscaping - amongst other contentions.

6. Agreed design amendments have been made to reduce the extent of tree loss, retaining a number of significant trees previously proposed to be removed. The subdivision pattern has been refined to improve its relationship to the site, its topography and to neighbouring properties, including the interface with retained heritage items. Changes have been made to improve the arrangement and character of the proposed street and open space. The proposal has also been amended to satisfactorily resolve stormwater detention and conveyance. These agreed amendments also have the effect of reducing the number of lots created from 40 to 32.

7. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The DA was publicly notified between 13 and 27 May 2024. Seventy two submissions were received by the Respondent raising concerns including:

11. Uncertainty of the future operation of the existing childcare centre on the site.

12. Adverse impacts upon the childcare centre, including encroachment on play space, loss of car parking, overshadowing and constrained access.

13. Overland flow and off site stormwater impacts.

14. Traffic access, safety and parking impacts associated with residential intensification.

15. Tree loss, loss of biodiversity and loss of habitat.

16. Inaccuracies contained within the arborist report.

17. The proposed scale, form, setbacks and siting of future dwellings and the associated impacts of overshadowing and privacy.

18. Lack of community and recreational open space.

19. Loss of existing affordable and low cost housing on the site.

20. Potential flooding impacts.

21. Loss of de-facto public open space provided by the site in its current form.

22. Unsuitability of foundation material given uncontrolled fill on the site.

23. Unsuitability of the site for residential intensification given air pollution from nearby M5 vent stack.

24. The amended DA was re-notified between 23 April and 6 May 2025. The Respondent received a further 21 submissions raising concerns noted below:

25. Proposed amendments do not satisfactorily address residents’ original concerns.

26. Lack of detail accompanying the amended DA and difficulty understanding the amended material.

27. A short re-notification period and limited community consultation.

28. Density of dwellings resulting in increased traffic and parking congestion, particularly impacting school drop-off and pick-up, and noise arising from traffic and construction.

29. Concerns regarding the number of lots and dwellings, seeking for the resultant number of dwellings to be further reduced and seeking for no residential buildings to face Kingsland Road North.

30. Removal of over one hundred trees and inadequacies of the arboricultural report including concern further trees will be removed within future development applications, significant loss of tree canopy, and impacts to biodiversity and existing wildlife corridor.

31. Geotechnical concerns including hazardous materials and their proximity to the school, poorly compacted fill, air quality impacts arising from construction affecting residents and school children.

32. Privacy and overshadowing impacts of increased height of ground level.

33. Competing use of open space and conflicts between drainage and recreational purposes.

34. Drainage, stormwater and flooding and including potential damage to root systems for retained trees.

35. Social impacts including the loss of social housing, potential closure of the childcare centre and increased crime risk.

36. Reduced green space, urban heat island effect, increased hard surfaces, water run-off and associated flooding impacts.

37. Proposed housing orientation not suited to energy efficiency.

38. Impacts concerning the relocation of the substation.

39. Financial feasibility concerns.

40. Omission of setback details on a number of lots.

41. The parties agree, and I am satisfied, that the matters raised in these public submissions have been considered, and where relevant, the amended DA and conditions of consent satisfactorily address a number of those matters raised. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

42. The parties agree, and I am satisfied, that the Bayside Local Environmental Plan 2021 (BLEP) is the relevant local environmental planning instrument. The site is zoned R2 Low Density Residential. The amended DA — characterised as residential subdivision — is permissible with consent within the R2 zone.

43. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the BLEP, the amended DA is consistent with the R2 Low Density Residential zone objectives, which include to provide for the housing needs of the community within a low density residential environment; to enable other land uses that provide facilities or services to meet the day to day needs of residents; to ensure land uses are carried out in a context and setting that minimises impact on the character and amenity of the area; and to enable residential development in accessible locations to maximise public transport patronage and encourage walking and cycling.

44. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the BLEP, demolition of existing structures is permissible with consent. The amended DA proposes demolition of the existing structures occupying the site.

45. Pursuant to cl 5.10 of the BLEP — Heritage conservation — the site accommodates two listed heritage items including the Glendalough McIlveen Museum and Research Centre. The amended DA retains the heritage listed buildings and provides adequate curtilage around them to the satisfaction of the parties’ heritage experts. Accordingly, the parties agree, and I am satisfied that the amended DA is consistent with cl 5.10 of the BLEP and serves to conserve the environmental heritage evident on the site.

46. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the BLEP —Stormwater and water sensitive urban design — the amended DA includes agreed measures to avoid or minimise the adverse impacts of urban stormwater, including the incorporation of water sensitive urban design principles.

47. The parties agree, and I am satisfied, that pursuant to cl 6.11 of the BLEP —Essential services — services (such as sewer, power and water) which are essential for the development are available, or that adequate arrangements exist to make them available when required. Agreed conditions of consent reflect the provision of all essential services.

48. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, the Applicant has provided a Detailed Site Investigation (DSI), which concludes that the site can be made suitable for the proposed low density residential use.

49. The DSI identified an underground storage tank (UST), localised soils impacted by petroleum hydrocarbons and some lead and asbestos contamination, which all require remediation. The Applicant has also prepared a Remedial Action Plan that sets out processes to be undertaken to make the site suitable for the proposed land use. These steps will be certified by a validation process. Accordingly, the parties agree and I am satisfied that the site can be made suitable for the proposed development. Agreed conditions of consent reflect the recommendations of the DSI.

50. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

51. Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree and I am satisfied, that the amended DA seeks consent for the removal of trees and vegetation, and proposes appropriate replacement trees.

52. Approximately 120 existing trees within the site have been assessed by an expert arborist. These trees have been mapped and the Applicant has provided an amended Arboricultural Impact Assessment Report, prepared by Jacksons Nature Works and dated 10 April 2025, along with detailed root mapping of a lesser number of significant trees, also prepared by Jacksons Nature Works and dated 21 March 2025.

53. The Applicant has provided amended landscape plans prepared by LandFX and dated 21 March 2025, which indicates the agreed extent of tree retention, removal and replacement.

54. The parties agree, and I am satisfied, the above tree removal assessment is consistent with SEPP BC. I am further satisfied that a permit or approval to clear vegetation is not required under ch 2 of SEPP BC since it is clearing of a kind that is granted consent within the amended DA.

55. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of the Biodiversity Conservation Act 2016 (BC Act). Division 3 of the BC Act deals with Biodiversity assessment reports.

56. Pursuant to s 6.15 of the BC Act the Applicant has provided a Biodiversity Development Assessment Report (BDAR), prepared by Land Eco Consulting Pty Limited and dated 25 March 2025.

57. The BDAR is required since the amended DA proposes the removal of approximately 1.83 hectares of native vegetation, which exceeds the threshold for vegetation clearing of 0.5 hectares, above which a biodiversity offsets scheme applies.

58. The BDAR addresses the relevant requirements of the NSW Biodiversity Offset Scheme. The BDAR assesses the impact of the proposal upon biodiversity including native vegetation, threatened species and habitats. The BDAR finds that 1 Ecosystem Credit is required to be retired to offset the residual biodiversity impact of the proposal. The BDAR finds that no Species Credits are required to be retired to offset the biodiversity impacts of the proposal. The BDAR finds that only 0.18 ha of vegetation clearing will require offsetting.

59. Impacts to threatened species are assessed as being limited to minor impacts to Ecosystem Credit species. It is considered unlikely that the amended DA will cause serious and irreversible impact. The majority of the site comprises hardstand surfaces, planted vegetation and managed grassland of limited biodiversity value. The amended DA has been designed to retain mature existing trees where possible.

60. The retention of existing trees in the northwest and northeast corners of the site help to maintain a wider habitat corridor along Bardwell Creek and Wolli Creek. The parties agree, and I am satisfied, that this aspect of the amended DA represents a reasonable effort to avoid and minimise potential impacts upon local biodiversity values. Further, a series of mitigation and management measures are to be implemented as part of any construction management plan produced for the site.

61. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.

62. Chapter 2 and s 2.48 of SEPP Infrastructure deal with electricity infrastructure. Prior to the grant of consent, the consent authority must give written notice to the electricity supply authority inviting comment on potential safety risks, and to take into consideration any response received within 21 days.

63. The Respondent referred the DA to Ausgrid since overhead powerlines are located along the Barnsbury Grove frontage and an electricity substation is located in the site near to the Barnsbury Grove frontage.

64. Ausgrid provided recommended conditions of consent in response to the referral. These conditions of consent are agreed and imposed.

65. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.

66. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

67. The Court notes that:

68. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

69. The Applicant has lodged the amended DA with the Court on 30 May 2025.

Orders

39. The Court orders that:

40. Leave is granted to the Applicant to amend Development Application DA-2024/93 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

41. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application as agreed or assessed.

42. The appeal is upheld.

43. Consent is granted to Development Application DA-2024/93 (as amended) for the consolidation of two existing lots, retention of two existing heritage buildings, demolition of existing one- and two-storey buildings, dwellings and structures, removal of trees and subdivision of the consolidated lot into thirty-two lots, with construction of new roads, car parking, infrastructure and drainage works at 120 Kingsland Road North, Bexley North, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A (535 KB, pdf)

Architectural Plans (8.00 MB, pdf)

**********