Network International Australia Pty Ltd v Bayside Council

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Network International Australia Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation: Counsel:
S Chand (Solicitor) (Applicant)
M Romanov (Solicitor) (Respondent)
Solicitors:
Project Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2024/437500

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 development appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application 2023/117. The development application sought consent for the change of use to a storage premises and construction of fencing and paving works (DA) at 40 Sir Joseph Banks Street, Botany (site).

2. On the request of the parties, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 28 November 2025. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending DA-2023/117 in accordance with the documents listed below:

| Plan Name | Drawing/ Sheet No. | Rev | Date | Prepared By | | Amended Architectural Plans | | Cover Sheet | 00 | I | 1 July 2025 | Lyle Marshall & Partners Pty Ltd | | Survey Plan – Ref: 73955 | 01 | B | 12 June 2025 | Lyle Marshall & Partners Pty Ltd | | GFA Calculation | 03 | F | 1 July 2025 | Lyle Marshall & Partners Pty Ltd | | Existing Ground Floor Plan | 04 | I | 1 July 2025 | Lyle Marshall & Partners Pty Ltd | | Existing First Floor Plan (Storage) | 05 | D | 1 July 2025 | Lyle Marshall & Partners Pty Ltd | | Existing North Elevation | 09 | B | 24 June 2025 | Lyle Marshall & Partners Pty Ltd | | Existing West Elevation | 12 | C | 18 June 2025 | Lyle Marshall & Partners Pty Ltd | | Proposed Signage Details | 13 | B | 1 July 2025 | Lyle Marshall & Partners Pty Ltd | | Proposed Ground Floor Plan | 14 | B | 15 August 2025 | Lyle Marshall & Partners Pty Ltd | | Proposed Northen Elevation and Fencing | 15 | B | 1 July 2025 | Lyle Marshall & Partners Pty Ltd | | Proposed Western Elevation | 16 | B | 1 July 2025 | Lyle Marshall & Partners Pty Ltd | | Amended Landscape Plans | | Hardscape Plan | 1 | E | 4 July 2025 | Conzept Landscape Architects | | Landscape Plan | 2 | E | 4 July 2025 | Conzept Landscape Architects | | Details and Specifications | 3 | E | 4 July 2025 | Conzept Landscape Architects | | Planting Matrix and Sample Images | 4 | E | 4 July 2025 | Conzept Landscape Architects | | Stormwater Plans | | General Notes | S0 | B | 3 July 2025 | Pyramid Engineering Consult | | Sediment and Erosion Control Plan | S1 | B | 3 July 2025 | Pyramid Engineering Consult | | Ground Floor Drainage Plans | S2 | B | 3 July 2025 | Pyramid Engineering Consult | | First Floor and Roof Drainage Plans | S3 | B | 3 July 2025 | Pyramid Engineering Consult | | Stormwater Sections and Details | S4 | B | 3 July 2025 | Pyramid Engineering Consult | | Survey Plan | | Survey Plan | 1 | B | 12 June 2025 | Real Serve Building and Land Surveys | | Reports and Advice | | Building Code of Australia Change of Use Report | - | 06 | 3 July 2025 | Incode Solutions Pty Ltd | | Traffic Advice (letter to Creative Resolution (Australia) Pty Ltd | - | - | 3 July 2025 | Varga Traffic Planning Pty Ltd | | Floor Risk Management Plan | - | 3.0 | 10 July 2025 | Pyramid Engineering Consult | | Preliminary Site Investigation Report | - | V6, Rev 1 | 14 July 2025 | Trinitas Group | | Other Documents | | Schedule of Amendments to Amended Architectural Plans | - | - | 4 July 2025 | HDC Planning | | Owners Consent | - | - | 13 August 2025 | Standard Knitting Mills (Holdings) Pty Ltd |

4. The parties reached 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 for the amended DA and granting development consent to the amended DA subject to conditions of consent.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that ‘there are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]). For the reasons set out below, 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.

Owner’s consent

9. I am satisfied that owner’s consent accompanied the development application. Owner’s consent for use of the shared access, driveway and pavement upgrade works on the adjoining property at Lot 1 DP 218889 has also been provided in the amended DA.

Community notification and objections

10. The Respondent notified the DA between 18 May 2023 to 1 June 2023. No submissions were received.

Bayside Local Environmental Plan 2021

11. I accept the parties’ agreement that the identified preconditions to grant consent are satisfied as detailed below.

12. The site is zoned E3 Productivity Support. The proposed development is permissible with consent in the zone. Pursuant to cl 2.3, the parties’ have had regard to the objectives of the zone as demonstrated in the jurisdictional statement.

13. There are no physical changes to the existing building and cl 4.3 height of buildings and cl 4.4 floor space ratio are not engaged.

14. Clause 5.21 flood planning and cl 6.3 stormwater and water sensitive urban design apply. The amended DA is accompanied by a Flood Risk Management Report prepared by Pyramid Engineering Consult dated 10 July 2025 (Flood Report). Given there are no changes to the built form, I accept that the existing building is and will continue to be compatible with the flood functions and behaviours of the site. The Flood Report details adequate emergency response and safe and efficient evacuation areas. I accept the parties’ agreement that adequate stormwater measures are detailed in the Stormwater Management Plans prepared by Pyramid Engineering Consult dated 3 July 2025 (Stormwater Plans).

15. To the extent that cl 6.2 earthworks applies, given the minor nature of paving and fencing works, I accept that the parties have adequately considered the provisions as shown on the Stormwater Plans.

16. To the extent that cll 6.7 and 6.8 apply in relation to aircraft noise, I accept that the parties are satisfied that these provisions are met.

17. Clause 6.11 essential services applies. The site is currently serviced by all the requisite services.

State Environmental Planning Policy (Resilience and Hazards) 2021

12. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 apply to the site. The amended DA is supported by an updated Preliminary Site Investigation Report prepared by Trinitas Group dated 14 July 2025 (PSI). The PSI found that there was no evidence of contamination and that the site is suitable for the proposed use. The parties submit that conditions have been included for any unexpected finds.

13. Accordingly, I accept the parties’ agreement that the provisions have been satisfied and that the site is suitable for the proposed use.

State Environmental Planning Policy (Industry and Employment) 2021

14. The proposal includes business identification signage. I accept the parties’ agreement that the relevant provisions have been satisfied in ss 3.1, 3.6 and Schedule 5.

Heads of consideration

15. On the basis of the material accompanying the Class 1 appeal and the jurisdictional statement, I accept that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act have been adequately considered.

Conclusion

16. 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.

17. 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.

Orders:

18. The Court orders:

19. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed amount of $15,000 within 28 days of these orders being made.

20. The appeal is upheld.

21. Development consent is granted to DA-2023/117, as amended, for the change of use to a storage premises at 40 Sir Joseph Banks Street, Botany, subject to conditions set out in Annexure A.

S Porter

Commissioner of the Court

Annexure A (302 KB, pdf)

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