Airth v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Airth v Waverley Council [2025] NSWLEC 1755

Hearing dates:

Conciliation conference on 16 October 2025

Date of orders:

22 October 2025

Decision date:

22 October 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the Modification Application to Development Consent No. DA-278/2023 to rely on the additional documents in Annexure A.

(2) The Modification Application to Development Consent No. DA-278/2023 made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW), as amended, is determined by way of approval.

(3) Development Consent No. DA-278/2023 is modified in the terms in Annexure B.

(4) Development Consent No. DA-278/2023 as modified by the Court is Annexure C.

Catchwords:

MODIFICATION APPLICATION – dwelling house development in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulation 2021, ss 100, 113

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.9, 2.10, 2.11

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Waverley Local Environmental Plan 2012, cll 4.4, 5.10 

Cases Cited:

Airth v Waverley Council [2024] NSWLEC 1750

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Category:

Principal judgment

Parties:

Hannah Airth (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
C Morton (Solicitor) (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Sparke Helmore (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2025/281851

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) following the deemed refusal of modification application DA-278/2023/C that seeks to modify development consent DA-278/2023 for alterations and additions to 411 Bronte Road, Bronte (the Original Consent), granted by the Court on 22 November 2024.

2. The modification application seeks to modify the Original Consent under s 4.55(8) of the EPA Act in the following ways:

1. Changes to the internal layout in the basement, lower ground, and ground floor resulting in additional gross floor area (GFA).

2. Modification of conditions 1(a) and 43(a) to reflect the proposed changes and effect on the GFA and floor space ratio (FSR).

3. The modification application was lodged with the Court on 23 July 2025, and was publicly notified from 8 August to 26 August 2025.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, on 16 October 2025. I presided over the conciliation conference, at which the parties agreed to certain amendments that would resolve the contentions, subject to amendment of the modification application by additional documents.

5. A signed agreement was submitted to the Court on 16 October 2025, in accordance with s 34(10) of the LEC Act. The agreement records the approval of the Council, as the relevant consent authority, to…