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NSWNSWLEC

The Trustee for 1449 Botany Unit Trust v Bayside Council

[2025] NSWLEC 1794

Land and Environment Court (NSW)|2025-11-11|Before: Kullen AC

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-11-11

Before

Kullen AC

Catchwords

DEVELOPMENT APPEAL – modification of consent – co-living
housing – conciliation conference – agreement between
the parties
– orders

Source

Original judgment source is linked above.

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Catchwords

DEVELOPMENT APPEAL – modification of consent – co-livinghousing – conciliation conference – agreement betweenthe parties– orders

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: The Trustee for 1449 Botany Unit Trust v Bayside Council [2025] NSWLEC 1794

Hearing dates: Conciliation Conference on 8 August 2025

Date of orders: 11 November 2025

Decision date: 11 November 2025

Jurisdiction: Class 1

Before: Kullen AC

Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Consent No. DA/2023/144 is modified in the terms in Annexure A.
(3) Development Consent No. DA/2023/144 as modified by the Court is Annexure B.

Catchwords: DEVELOPMENT APPEAL – modification of consent – co-living housing – conciliation conference – agreement between the parties – orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.17, 4.46, 4.55, 8.9, 8.11, Sch 1, Div 2, cl 7
Land and Environment Court Act 1979 (NSW), s 34
Water Management Act 2000 (NSW)
Bayside Local Environmental Plan 2021, cll 2.2, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.9
Environmental Planning and Assessment Regulation 2021 (NSW), s 113, Sch 7
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, Ch 2, Pt 3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2,119, 2,120

The Trustee for 1449 Botany Unit Trust v Bayside Council [2025] NSWLEC 1794 | Case summary | Zoe

The Court arranged a conciliation conference for the modification application under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 8 August 2025. I presided over the conciliation conference, which commenced on site. No submitters attended the on-site view.
Between 8 August and 18 September 2025, the matter was adjourned a number of times before an amended design was agreed and a s 34 agreement was reached by the parties.
The amendments to the proposed development agreed by the parties in the s 34 conciliation conference are summarised as follows:
South elevation (Ground floor/Hastings Street) – Ventilation louvres deleted and replaced with rendered wall;
Level 3 roof – Balcony deleted and roof design reverted back to approved non-trafficable layout;
Schedule of materials revised to ensure that the Louvered Material Gray Finish and the Rendered Gray have been correctly identified;
Minor revisions to address inconsistencies between the drawings;
Level 3 roof – Balcony deleted and roof design reverted back to approved non-trafficable layout;
Planting schedule updated;
Minor revisions to address inconsistencies between the drawings;
Minor changes to the Onsite Stormwater Detention design to facilitate an internal clearance height of 1 meter (m); and
Modify Condition 31 - Adaptable Units and Parking - to refer to four units instead of six.
A signed s 34 agreement with Annexures A and B was filed with the amended plans with the Court on 22 September 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.
The parties’ decision involves the Court exercising the function under s 4.55(8) of the EPA Act to grant consent to the modification application.
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.
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. Under the LEP provisions:
The site is zoned E1 – Local Centre pursuant to cl 2.2 of the LEP;
The proposed development continues to be permitted with consent in the E1 zone; and
I am satisfied that the proposed development continues to be consistent with the objectives for development within the zone in which the development is proposed to be carried out.
Clause 4.3 of the LEP provides that a maximum height of buildings (HoB) of 14m applies to the site. The parties advise that the height of the approved development varies from being largely compliant, at the mid-eastern parts of the building, to exceeding the standard by up to 2.2m at the western part of the building with respect to the roof-top open space, left overrun and associated structures. The parties submit that the proposed additional non-compliance to the height standard is justified on the basis of the consistency of this modified building element with the objectives of the height standard.
A written request in accordance with cl 4.6 of the LEP to vary the height is not required for a modification application.
Clause 4.4 of the LEP provides that the maximum Floor Space Ration (FSR) of 2:1 applies to the site. The parties advise that the approved development complies with an FSR of 1.9:1. No change is proposed to FSR or gross floor area under this modification application and cl 4.4 is satisfied.
Clause 5.10 of the LEP relates to heritage conservation. The parties advise that proposed modified development is not considered to introduce any significant adverse impacts on the heritage qualities of the Conservation Area or any listed items in proximity of the site, as addressed in the Heritage Assessment, prepared by Weir Phillips Heritage, dated 17 February 2025.
Clause 6.1 of the LEP relates to Acid sulfate soils. The parties advise that the Geotechnical Report prepared by Morrow, dated March 2023 accompanying the original development application concludes: “The SPOS result indicates that acidity (in the form of acid sulfate soil materials) is not present within soils at the site. An Acid Sulfate Soils Management Plan is not required for works at the site.” No additional groundworks are proposed and no further action is required in this respect, as addressed in the Statement of Environment Effects , prepared by Evolution Planning, dated February 2025.
Clause 6.2 of the LEP relates to earthworks. The parties advise that no additional groundworks are proposed, and the proposed modified development continues to satisfy cl 6.2 on the LEP, as addressed in the revised SEE.
Clause 6.9 of the LEP relates to active street frontages. The parties advise that:
No change is proposed to the Botany Road ground floor frontage except for a minor change to the fire egress, including an allowance for water meters;
The degree of activation along this street frontage does not change since fire egress stairs may be included as part of an “active street frontage”; and
The proposed development is considered to continue to satisfy the provisions of the LEP, as addressed in the revised SEE.