Bondi Road Development Pty Ltd v Waverley Council

[2025] NSWLEC 1586

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bondi Road Development Pty Ltd v Waverley Council [2025] NSWLEC 1586

Hearing dates:

Conciliation conference held 18 June, 24 and 31 July 2025

Date of orders:

19 August 2025

Decision date:

19 August 2025

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA-432/2024 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $9,500 within 28 days of the date of these orders.

(3) The Applicant’s written request, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012, seeking to vary the development standard for minimum landscaped area as set out at s 19(2)(b) of State Environmental Planning Policy (Housing) 2021, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application DA-432/2024 (as amended) for the demolition of existing structures and construction of an eleven-storey residential apartment building containing 47 apartments, including twelve affordable housing units and basement car parking with 56 parking spaces, and consolidation of lots at 7-19 Bondi Road, Bondi Junction, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment building development – in-fill affordable housing – cl 4.6 written request – minimum landscaped area – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15

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

Environmental Planning and Assessment Regulation 2021 (NSW), ss 26, 27, 29, 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Housing) 2021 Chs 2, 4, 6, Pt 2, Div 1, ss 16, 18, 19, 20, 21, ss 145, 147, 177, 180, Sch 9

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.112, 2.119, 2.120

Waverley Local Environmental Plan 2012, cll 2.3, 2.7, 4.1, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.14, 6.15

Texts Cited:

NSW Department of Planning, Apartment Design Guide, July 2015

Waverley Council, Community Engagement Strategy, 2023

Category:

Principal judgment

Parties:

Bondi Road Development Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor)(Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/470298

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by Bondi Road Development Pty Ltd (the Applicant), against the deemed refusal of Development Application DA-432/2024 (the DA) by Waverley Council (the Respondent).

2. At the date of its lodgement on 30 August 2024, the DA sought consent for the demolition of existing structures, the construction of an eleven-storey residential apartment building containing 46 apartments, including eleven affordable housing units and basement car parking with 55 parking spaces, and communal rooftop terrace, landscaping works, swimming pools and associated works at 7-19 Bondi Road, Bondi Junction (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 18 June, 24 and 31 July 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 raised by the Respondent. These contentions included issues of potential site isolation for a neighbouring property, inadequate setbacks to side and rear boundaries and a failure to exhibit design excellence more generally, the incorrect calculation of gross floor area (GFA), and a failure to identify a registered Community Housing Provider (CHP), amongst other contentions.

6. Agreed, design amendments have now been made to improve the proposed building’s relationship to the site and its context. Changes have been made to reduce the bulk of the proposal, particularly the geometry of the balconies as they present to the site’s southwestern side and rear boundaries. Other issues such as the proposed entry arrangement and landscape character have been refined. Additionally, the Applicant has provided further information to demonstrate that neighbouring properties are theoretically able to be redeveloped in isolation, to the scale anticipated by the relevant development controls.

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 in accordance with the Respondent’s Community Engagement Strategy 2023 between 11 September and 2 October 2024. A total of eighteen submissions were received by the Respondent raising concerns, including in summary:

1. Excessive proposed building bulk, scale, height and floor space ratio (FSR), and associated impacts arising from overshadowing, privacy, cross viewing and loss of views.

2. Traffic and parking impacts.

3. Excessive wall height and inadequate building separation and setbacks.

4. Excessive length and depth of the proposed building form.

5. Unacceptable tree loss.

6. Unacceptable streetscape impacts, inconsistent character and failure to exhibit design excellence.

7. Excessive excavation of the subject site and construction phase impacts of traffic, noise, vibration and dust.

8. Site isolation constraining the redevelopment potential of a neighbouring property.

9. Adverse wind effects.

10. Loss of general amenity and consequential loss of property values for neighbouring dwellings.

11. The proposed development would unreasonably affect heritage values of the local area.

11. At the site view on the morning of 18 June 2025, six affected local residents addressed the Court to restate many of these concerns, and the Court visited a number of adjacent properties to directly observe building separation, privacy and overshadowing relationships, along with potential view affection issues.

12. During the adjourned conciliation conference, with the agreement of the parties, amended plans were informally re-notified to resident objectors. Eight further submissions were received by the Respondent in response to this re-notification, again re-stating many of these same concerns - namely - loss of solar access, cross viewing, view loss, excessive bulk and scale, acoustic privacy, and traffic and parking.

13. Noting the concerns of affected residents, the parties agree, and I am satisfied, the amended DA mitigates against a number (but not necessarily all) of the concerns raised by the objectors, primarily by reducing the proposed building form, bulk and scale, improving solar access for some neighbouring dwellings, and by ensuring improved privacy between neighbouring properties.

14. The parties agree, and I am satisfied, that the amended DA and conditions of consent have been finalised with appropriate consideration given to matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

15. The parties agree, and I am satisfied, that the Waverley Local Environmental Plan 2012 (WLEP) is the relevant local environmental planning instrument. The site is zoned R4 High Density Residential. The amended DA - characterised as residential apartment development - is permissible with consent within the R4 zone.

16. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the R4 High Density Residential zone objectives.

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

18. Pursuant to cl 4.1 of the WLEP - Minimum subdivision lot size - the site area is consistent with requirements for minimum lot size, and by virtue of cl 4.1(4)(a), the proposed strata subdivision does not enliven this clause.

19. Pursuant to cl 4.3 of the WLEP - Height of buildings - the site has a development standard for building height of 28 m. However, certain clauses of Ch 2 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) dealing with affordable housing, make an additional 30% building height available for the provision of in-fill affordable housing.

20. The amended DA seeks to rely upon this additional building height, taking the total cumulative development standard to 34.6 m. The amended DA proposes a maximum building height of 34.6 m, which complies with the development standard.

21. Pursuant to cl 4.4 of the WLEP - FSR - the site has a FSR development standard of 2:1.

22. Certain provisions of Ch 6 of SEPP Housing, which deal with low and mid rise housing, apply a FSR development standard of 2.2:1 to the site given its location within 400m of a defined commercial centre. Additionally, and similar to the height of building development standard, Ch 2 of SEPP Housing also makes an additional 30% FSR available for the provision of in-fill affordable housing.

23. The amended DA seeks to rely upon this additional FSR, taking the total cumulative development standard to 2.86:1. The amended DA proposes a FSR of 2.86:1, which complies with the development standard.

24. The parties agree, and I am satisfied, that all remaining principal development standards of the WLEP have been met by the amended DA.

25. Notwithstanding this, the parties agree, and I am satisfied that the relevant development standard for minimum landscaped area, which arises by the operation of Ch 2 of SEPP Housing, is sought to be varied by the amended DA.

26. In such an instance, cl 4.6(3) of the WLEP requires the consent authority (the Court in this instance) to be satisfied that the Applicant has demonstrated compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

27. Accordingly, the Applicant has provided a written document seeking to vary the relevant development standard for minimum landscaped area, prepared by GSA Planning and dated June 2025.

28. Pursuant to s 19(2)(b) of SEPP Housing the amended DA is subject to a minimum landscaped area development standard equal to the lesser of either 35 sqm per dwelling or 30% of the site area.

29. The amended DA comprises 47 dwellings and the site area is 2,152.5 sqm. On this basis, the lesser requirement is for a minimum landscaped area of 30% of the site, equating to 645.75 sqm.

30. The Applicant states that the amended DA provides a total ‘gross’ landscaped area of 801.2 sqm (equivalent to 37% of the site area). However, there is some disagreement between the parties on the appropriate method of measurement, which is now agreed to be resolved by calculating a ‘net’ landscaped area excluding any areas of landscape situated above a basement structure. This more conservative landscaped area is measured at 524.5 sqm and is equivalent to 24% of the site area.

31. This figure is also equivalent to the measurement of deep soil within the amended DA, which complies with the Respondent’s relevant control.

32. The agreed ‘net’ landscaped area of 524.5 sqm represents a 121.25 sqm shortfall to the minimum landscaped area development standard set out at s 19(2)(b) of SEPP Housing and represents a variation of approximately 18.8%.

33. The parties agree, and I am satisfied, that the written document adequately justifies the proposed variance to the minimum landscaped area development standard for the following reasons:

1. The amended DA is agreed to provide an acceptable quantity and quality of landscaped area suited to the nature and scale of the proposed development.

2. The shortfall is agreed to result from the calculation of landscaped area excluding landscaped and planted areas above basement structures. Given the basement is located substantively below ground, with adequate soil volume above the basement structures, it will generally not be perceptible from the public domain or within the site.

3. The landscaped area, inclusive of areas above basement structures, is greater than the 30% of the site area, and will contain new landscaping at ground level presenting in a manner consistent with the relevant development standard.

4. The amended DA and its landscape setting are compatible with the desired future character established by the WLEP together with relevant building height and density bonus provisions of SEPP Housing.

5. The objectives of the WLEP R4 High Density Residential land use zone include to provide for the housing needs of the community within a high density residential environment; to provide a variety of housing types within a high density residential environment; to enable other land uses that provide facilities or services to meet the day to day needs of residents; to maximise public transport patronage and encourage walking and cycling; to increase or preserve residential dwelling density; to encourage the supply of housing, including affordable housing, that meets the needs of the population, particularly housing for older people and people with disability; to provide development that is compatible with the desired future character and amenity of the surrounding neighbourhood; to promote development that incorporates planning and design measures that reduce the urban heat island effect; and to improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping. I am satisfied the amended DA is consistent with these objectives.

6. The relevant objectives of Ch 2 of SEPP Housing - in-fill affordable housing - is to facilitate the delivery of new in-fill affordable housing to meet the needs of very low, low and moderate income households. I am satisfied the amended DA is consistent with these objectives.

34. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the relevant minimum landscaped area development standard, and I find to uphold the written request.

35. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the site is not an identified heritage item, nor is it situated within a Heritage Conservation Area. Accordingly, the parties agree, and I am satisfied that the amended DA is consistent with cl 5.10 of the WLEP.

36. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the WLEP - Flood planning - the site is not identified within a flood planning area. Accordingly, the parties agree, and I am satisfied that the amended DA is consistent with cl 5.21 of the WLEP.

37. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulfate soils - the site is not identified within any mapped class of land area. Accordingly, the parties agree, and I am satisfied that the amended DA is consistent with cl 6.1 of the WLEP.

38. The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. The Applicant has provided a Geotechnical Report prepared by Morrow Geotechnics and dated 25 July 2024 addressing the matters set out at cl 6.2(3), which the parties agree, and I am satisfied, have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works.

39. The parties agree, and I am satisfied, that pursuant to cl 6.14 of the WLEP - Waste minimisation and recycling - the Applicant has provided an Operational Waste Management Report, prepared by Elephants Foot and dated 6 June 2025. The amended DA satisfactorily addresses those matters set out at cl 6.14(3) and the proposal maximises opportunities for waste and recycling storage, which are appropriately sized and accessible.

40. The parties agree, and I am satisfied, that pursuant to cl 6.15 of the WLEP - Stormwater management - the Applicant has provided amended Stormwater Plans prepared by Rebal Engineering. The amended DA satisfactorily addresses those matters set out at cl 6.15(3) and the proposal is designed to maximise water-permeable surfaces on the site, including on-site stormwater retention, and avoids significant adverse impacts of stormwater runoff on adjoining properties.

41. 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.

42. Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the Applicant has provided a Preliminary Site Investigation (PSI) prepared by Environmental Consulting Services and dated 18 July 2024, which concludes that the site can be made suitable for the proposed use subject to certain recommendations. Agreed conditions of consent are imposed requiring compliance with the recommendations in the PSI.

43. 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.

44. 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 vegetation (and proposes appropriate replacement trees) and satisfies the requirement for a permit for vegetation removal pursuant to Ch 2 of SEPP BC.

45. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), a BASIX certificate, No 1757678M_02, dated 13 June 2025, has been provided with the amended DA.

46. Further to s 2.1(5) SEPP Sustainable Buildings, the parties agree and I am satisfied the BASIX certificate quantifies the embodied emissions attributable to the proposed development have been quantified. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

47. 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.

48. Pursuant to s 2.112 of SEPP Infrastructure, the site addresses Bondi Road, defined as a classified road. Transport for NSW has provided its concurrence to the amended DA (on 26 September 2024), subject to conditions, permitting a stormwater connection being made along the Bondi Road frontage.

34. Pursuant to s 2.119 of SEPP Infrastructure, the site has access to Bondi Road, a classified road. The amended DA provides vehicular access to the site away from Bondi Road, from Waverley Crescent, thereby not adversely affecting the safety, efficiency and ongoing operation of the classified road.

35. Pursuant to s 2.120 of SEPP Infrastructure, the site’s proposed residential use and proximity to Bondi Road, with an average daily traffic volume of more than 20,000 vehicles, triggers certain requirements to mitigate against road noise and vibration. Accordingly, the Applicant has provided an Acoustic Report prepared by GHD and dated 31 July 2024 addressing the requirements of s 2.120 and setting out recommendations to ensure appropriate mitigation against acoustic impacts within the proposed residential apartments. Agreed conditions of consent are imposed to ensure implementation of the recommendations in the Acoustic Report.

36. The parties agree, and I am satisfied, that SEPP Housing is an additional relevant environmental planning instrument.

37. Chapter 2 of SEPP Housing deals with Affordable Housing and, as noted earlier in this judgment, the amended DA is subject to relevant provisions for in-fill affordable housing set out at Pt 2, Div 1.

38. Relevantly, I am satisfied that development for the purposes of residential apartment buildings is permitted with consent in the R4 High Density zone pursuant to the WLEP. The affordable housing component proposed within the amended DA is equivalent to at least 10% of the total Gross Floor Area (GFA) provided by the amended DA.

39. Pursuant to s 16(1) of SEPP Housing, the relevant FSR development standard is calculated by aggregating the base FSR for the site (2.2:1 as established by provisions of Ch 6 of SEPP Housing) with an additional FSR of up to 30%, determined by the proportion of affordable housing provided.

40. For the subject site and amended DA, this equates to a maximum permissible FSR of 2.86:1 and a maximum permissible GFA of 6,156.15 sqm.

41. Consistent with s 16(2) of SEPP Housing, the amended DA allocates 926.8 sqm of GFA as the affordable housing component, in the form of twelve apartments located at the ground floor, and Levels 1, 2 and 3, and representing 15.05% of the total GFA.

42. Pursuant to s 18(2) of SEPP Housing, the relevant height of building development standard is calculated by aggregating the base building height for the site (28m as established by cl 4.3 of the WLEP) with additional building height of up to 30%, determined by the proportion of affordable housing provided.

43. For the subject site, this equates to a maximum permissible building height of 34.6m. The amended DA proposes to meet and not exceed this building height.

44. Section 19(2) of SEPP Housing provides a number of relevant non-discretionary development standards. The amended DA complies with all relevant non-discretionary development standards with the exception of minimum landscaped area as set out at 19(2)(b). The Applicant’s request to vary the minimum landscaped area has been addressed earlier in this judgment.

45. Section 20 of SEPP Housing sets out certain design requirements. The parties agree, and I am satisfied, that the amended DA is compatible with the desired character of the local area.

46. Section 21(1)(a) of SEPP Housing requires that, commencing at occupation certificate, the development will provide the affordable housing component for a period of 15 years. Further, s 21(1)(b) requires the consent authority (the Court in this instance) to be satisfied that the affordable housing component will be managed by a registered Community Housing Provider (CHP). Accordingly, and consistent with s 26(a) of the EPA Reg, the CHP is identified as HomeGround Sydney.

47. Chapter 4 of SEPP Housing deals with the design of residential apartment development.

48. Pursuant to the relevant provisions set out at Ch 4 of SEPP Housing and the EPA Reg, the Applicant's architect, MHND Union (and its nominated architect Mr Brian Meyerson - NSW registered architect 4907) has prepared a Design Verification Statement dated 27 June 2025, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the final amended DA.

49. Additionally, on 9 October 2024, the Waverley Design Excellence Advisory Panel considered the DA and provided comments on the design, including suggested amendments to improve the proposed ground level presentation and building entry. Accordingly, I am satisfied the amended DA meets the requirements of ss 145 and 147 of SEPP Housing.

50. Chapter 6 of SEPP Housing deals with low and mid rise housing.

51. Pursuant to s 177 of SEPP Housing, the parties agree, and I am satisfied, that the amended DA has appropriately considered the Tree Canopy Guide for Low and Mid Rise Housing.

52. Pursuant to s 180(2)(a) of SEPP Housing and for the purpose of determining the base FSR, given the site is zoned R4 high density residential and is situated within 400m of an identified town centre, the relevant FSR development standard is 2.2:1.

53. 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.

54. 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.

55. The Court notes that:

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

2. The Applicant has lodged the final amended DA with the Court on 31 July 2025.

Orders

71. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA-432/2024 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $9,500 within 28 days of the date of these orders.

3. The Applicant’s written request, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012, seeking to vary the development standard for minimum landscaped area as set out at s 19(2)(b) of State Environmental Planning Policy (Housing) 2021, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA-432/2024 (as amended) for the demolition of existing structures and construction of an eleven-storey residential apartment building containing 47 apartments, including twelve affordable housing units and basement car parking with 56 parking spaces, and consolidation of lots at 7-19 Bondi Road, Bondi Junction, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A (1.12 MB, pdf)

Architectural Plans) (44.3 MB, pdf)

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Amendments

30 September 2025 - Removed underlining

Decision last updated: 30 September 2025