CADBUILD Pty Ltd v Waverley Council

[2025] NSWLEC 1616

Land and Environment Court

New South Wales

Medium Neutral Citation:

CADBUILD Pty Ltd v Waverley Council [2025] NSWLEC 1616

Hearing dates:

Conciliation conference 18 August 2025

Date of orders:

28 August 2025

Decision date:

28 August 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW), Modification Application DA-170/2023/B for the modification of development application DA-170/2023 at 22-26 Edward Street, Bondi is approved.

(2) Development consent DA-170/2023 granted by the Land and Environment Court on 5 September 2024 is modified in the terms in Annexure A.

(3) Development consent DA-170/2023 for the construction of a new residential flat building with integrated parking, associated landscaping and consolidation of lots at 22-26 Edward Street, Bondi is subject to the consolidated, modified conditions of consent at Annexure B.

Catchwords:

MODIFICATION APPLICATION — s 4.55(8) application to the Court to modify a development consent granted by the Court — conciliation conference — agreement between the parties — orders

Legislation Cited:

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

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

Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 27, 113

State Environmental Planning Policy (Housing) 2021, Ch 4, Sch 7A, ss 8, 147, 148

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

Waverley Local Environmental Plan 2012, Part 6, cll 5.10, 6.3

Cases Cited:

Wainidiva Pty Limited v Waverley Council [2024] NSWLEC 1544

Category:

Principal judgment

Parties:

CADBUILD Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
S Paterson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2025/118137

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: These proceedings arise following an application to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to modify development consent DA-170/2023 (the Consent) granted in Wainidiva Pty Limited v Waverley Council [2024] NSWLEC 1544 (Wainidiva v Waverley). That decision granted approval for the construction of a new residential flat building with integrated parking, associated landscaping and consolidation of lots at 22, 24 and 26 Edward Street, Bondi.

2. Application DA-170/2023/B (the Modification Application) proposed to amend the approved development application by increasing the boundary setback of the proposed garage excavation, redesign of the internal layout of the ground floor parking, waste storage, store and service spaces, fenestration sizes, internal residential units, addition of photovoltaic panels and roof design.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 18 August 2025. I presided over the conciliation conference. At the conciliation conference agreement was reached between the parties to approve the modification application. The terms of the parties’ agreement are outlined in in their executed written agreement.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters:

Substantially the same: s 4.55(8) of the EPA Act.

5. The Modification Application was made pursuant to s 4.55(8) of the EPA Act. The jurisdictional requirements for the Modification Application are contained in s 4.55(2) of the EPA Act.

6. The parties submit, and I accept, that the development to which the consent as proposed to be modified relates, is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). In forming that view, I have had regard to the Statement of Environmental Effects (SEE) which details the scope of the amendments and that the remainder (the majority) of the development remains unchanged. Further, the modification application does not propose any change to the use, overall appearance, scale or form of the proposed development.

7. I am satisfied that on the basis of the amendments made by the applicant, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified).

Consultation: s 4.55(2)(b) of the EPA Act

8. The second jurisdictional requirement under s 4.55(2)(b) of the EPA Act relates to consultation with relevant approval bodies.

9. The Modification Application is not integrated or designated development and there are no applicable requirements to consult external authorities. 

10. The requirements of s 4.55(2)(b) of the EPA Act are met.

Notification and consideration of submissions: ss 4.55(2)(c) and (d) of the EPA Act

11. The Modification Application was notified between 6 May 2025 and 22 May 2025 in accordance with the requirements of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) and the requirements of the Respondent’s Community Participation Plan. No submissions were received.

12. The requirements of ss 4.55(2) (c) and (d) of the EPA Act are met.

Relevant matters in s 4.15(1) of the EPA Act: s 4.55(3) of the EPA Act.

13. The Development Application was submitted with the consent, in writing, of the owners of the subject land as required by s 23(1) of the EPA Regulation.

14. The parties agree, and I accept, the Modification Application does not affect the finding of Court in Wainidiva v Waverley that:

1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 are met.

2. The development remains permissible with consent and does not change the reliance of the development on the satisfaction of the variation sought by the development standards in Pt 4 held at [5] of Wainidiva v Waverley.

3. The local provisions in Pt 6 of the Waverley Local Environmental Plan 2012 (LEP 2012) are satisfied.

4. In relation to cl 5.10(4) Heritage Significance, the Modification Application does not affect the appearance of the building or how it relates to the Imperial Avenue Heritage Conservation Area. The determination at [5] of Wainidiva v Waverley is maintained.

5. In relation to cl 6.15 ‘Stormwater’ in LEP 2012 I am satisfied, based on the SEE and stormwater plans accompanying the Modification Application, that there will not be an adverse impact from stormwater runoff to adjoining properties and other areas. Clause 6.15(3) of LEP 2012 is satisfied.

15. Consistent with the requirements of s 27 of EPA Regulation, the amended development application is accompanied by an updated BASIX certificate.

16. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the proposed development, pursuant to s 8(2A) of Sch 7A. Based on the design statement by Woods Bagot dated 12 August 2025, I have considered the matters required to be considered by s 147(1) of the SEPP Housing. The proposed development meets the recommended minimum standards for ss 148 (2)(a)-(c) of SEPP Housing. I accept the agreement of the parties that the Modification Application demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the Apartment Design Guide as required by Ch 4 of SEPP Housing.

Consideration of reasons given for the grant of consent: s 4.55(3) of the EPA Act.

17. The reasons for granting consent are detailed in the judgment of Wainidiva v Waverley. The parties agree, and I accept, that the Modification Application does not seek to vary any of the reasons for the grant of the original development consent.

18. In determining the modification application, I have taken into consideration the reasons given by the consent authority for the grant of consent.

19. 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)).

20. 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:

21. The Court notes that:

1. Waverley Council, as the relevant consent authority, has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending its modification application in accordance with the documents below:

Architectural Plans

(a) Architectural Plans prepared by Woods Bagot of Project No. 121330, including the following:

Plan Number and Revision	Plan description	Plan Date	Date received by Council
DA-0000 Ref J	Cover Sheet	12/08/2025	12/08/2025
DA-2200 Rev. G	Ground Floor Plan	13/06/2025	23/06/2025
DA-3201 Rev. F	Elevations – 01	12/08/2025	12/08/2025
DA-3222 Rev. F	Sections – 02	13/06/2025	12/08/2025

Other Plans and Documents

• Design Verification Statement prepared by Woods Bagot dated 12 August 2025

Orders

22. The Court orders that:

(1) Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW), Modification Application DA-170/2023/B for the modification of development application DA-170/2023 at 22-26 Edward Street, Bondi is approved.

(2) Development consent DA-170/2023 granted by the Land and Environment Court on 5 September 2024 is modified in the terms in Annexure A.

(3) Development consent DA-170/2023 for the construction of a new residential flat building with integrated parking, associated landscaping and consolidation of lots at 22-26 Edward Street, Bondi is subject to the consolidated, modified conditions of consent at Annexure B.

C Dickson

Commissioner of the Court

Annexure A (363 KB, pdf)

Annexure B (723 KB, pdf)

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Decision last updated: 28 August 2025