Tuan Nguyen v Bayside Council

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

Texts Cited: Bayside Development Control Plan 2022

Category: Principal judgment

Parties: Tuan Nguyen (First Applicant)
Le Ngoc Minh Dinh (Second Applicant)
Bayside Council (Respondent)

Representation: Counsel:
Tuan Nguyen (Self represented)
A Epstein (Solicitor) (Respondent)
Solicitors:
Self represented (First and Second Applicant)
Messenger Cole (Respondent)

File Number(s): 2025/369260

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This appeal concerns a development which seeks consent for the partial demolition of the existing garage and construction of a two storey outbuilding comprising a double garage with a first floor studio and fencing. The development is proposed at 10 Goddard Street, Turrella (Lot 1 DP 208153). The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

2. The matter was listed for a mandatory conciliation and hearing on 19 January 2026, under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) and commenced onsite with a view. I presided over the conciliation conference.

3. Prior to the conciliation conference, the Applicant’s amended their development application in an effort to resolve the outstanding contentions and issues raised by the Council and local objectors. As the Council accepted that the amendments to the development application have resolved the contentions, the parties were able to reach an agreement as to the terms of a decision in the proceedings that would be acceptable to them. The signed agreement was subsequently filed on 19 January 2026, and is supported by a Jurisdictional Statement. The decision agreed upon is for the grant of development consent to the amended development application subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The purpose of this test is to determine whether any jurisdictional impediments preclude the making of orders in accordance with the parties' agreed resolution (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:

5. The development application was lodged with the consent of the owners of the land, satisfying s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

6. The development application was publicly notified between 28 March 2025 and 22 April 2025. Objections from two neighbours were received. On 12 June 2025, amended plans were notified. At the conciliation conference the Court was also addressed by a member of the public who detailed concerns about the proposed development. The plans proposed for approval in this judgment have been amended and additional information provided, in part, in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: subs 4.15(1)(d) of the EPA Act.

7. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed residential use, and that the scope of excavation works for this development application are limited to foundations and footings, with no basement level works proposed. The development application does not propose a change of use. The parties agree and I accept, on the details in the SEE accompanying the development application, that s 4.6 of SEPP RH is satisfied.

8. As defined by the EPA Regulation, the proposed development is a BASIX development, and the development application is accompanied by a BASIX certificate. However, the development application is for development that does not require information regarding embodied emissions attributable to the development (under s 2.1(5)) because it is not development to which sub cll (a) or (b) apply in Schedule 1 of the State Environmental Planning Policy (Sustainable Buildings) 2022.

9. Pursuant to Bayside Local Environmental Plan 2021 (LEP 2021) the site is zoned R2 Low Density Residential. Development for the purpose of dwelling houses is permitted with consent in the zone. In determining the development application I have given consideration to the objectives of the zone, which are:

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.

To enable residential development in accessible locations to maximise public transport patronage and encourage walking and cycling.

6. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2021.

7. Pursuant to cl 4.3 ‘Height of Buildings’ and the Height of Buildings Map, the site has a maximum height development standard of 8.5m. The development application, as amended, complies with the 8.5m height control.

8. Pursuant to cl 4.4 ‘Floor Space Ratio’, the site has a maximum floor space ratio of 0.5:1. The development application, as amended, complies with the development standard.

9. Pursuant to cl 6.1 ‘Acid sulfate soils’ and the Acid Sulfate Soils Map the site is identified as Class 5 Acid sulphate soils. Development consent is not required under cl 6.1 as no excavation is proposed that is more than 2m in depth.

10. Bayside Development Control Plan 2022 (DCP 2022) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2022. In determining the development application, I have considered the provisions of the development control plan: subs 4.15(1) of the EPA Act.

11. Having reached the state of satisfaction that the decision is one that the Court could make 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)).

12. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders.

Notes

7. The Court notes that Bayside Council, as the relevant consent authority, has approved, under s 38(1) of the EPA Regulation, the Applicant further amending Development Application DA-25/0478 to include the documents set out below:

| Plan Name | Plan No. | Revision/ Issue No | Plan Date (as Amended) | Prepared by | | Cover Page | 1 | F | 4.12.25 | Beyond Vision Design | | BASIX Commitments | 2 | F | 19.1.26 | Beyond Vision Design | | Erosion & Sediment Control Plan | 3 | F | 4.12.25 | Beyond Vision Design | | Site Plan | 4 | F | 4.12.25 | Beyond Vision Design | | Site Analysis | 5 | F | 4.12.25 | Beyond Vision Design | | Existing Ground Floor Plan | 6 | F | 4.12.25 | Beyond Vision Design | | Existing Ground Floor Plan | 7 | F | 4.12.25 | Beyond Vision Design | | Proposed Ground Floor Plan | 8 | F | 4.12.25 | Beyond Vision Design | | Proposed First Floor Plan | 9 | F | 4.12.25 | Beyond Vision Design | | Roof Plan | 10 | F | 4.12.25 | Beyond Vision Design | | Elevations | 11 | F | 4.12.25 | Beyond Vision Design | | Sections & Material Finishes | 12 | F | 4.12.25 | Beyond Vision Design | | Shadow Diagrams | 13 | F | 4.12.25 | Beyond Vision Design | | Shadow Diagrams | 14 | F | 4.12.25 | Beyond Vision Design | | Landscape Calculation Plan | 16 | G | 5.12.25 | Beyond Vision Design | | BASIX Certificate | A1825543 | 8.12.25 | Mr Hanney Fayad |

Orders

8. The Court orders that:

9. The appeal is upheld.

10. Development Application DA-2025/67 for partial demolition of existing garage, construction of a two-storey outbuilding comprising a double garage with first floor studio and fencing at 10 Goddard Street, Turrella (Lot 1 DP 208153) is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

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Annexure A (434 KB, pdf)