CE Bondi Beach Pty Ltd v Waverley Council

[2025] NSWLEC 1365

Land and Environment Court

New South Wales

Medium Neutral Citation:

CE Bondi Beach Pty Ltd v Waverley Council [2025] NSWLEC 1365

Hearing dates:

Conciliation conference held 7 April 2025

Date of orders:

23 May 2025

Decision date:

23 May 2025

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA-69/2024 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, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $30,000 within 28 days of the date of these orders.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA-69/2024 (as amended) for the demolition of existing structures, Torrens title subdivision and construction of semi-detached dwellings and a new residential apartment building at 20-22 Sandridge Street and 21 Wilga Street, Bondi, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment building development – semi-detached residential dwellings – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6

State Environmental Planning Policy (Housing) 2021 Ch 4, Sch 9, s 147

State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, ss 2.10, 2.11, 2.12, 2.13, 4.6

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

Waverley Local Environmental Plan 2012, cll 2.3, 2.7, 4.1, 4.3, 4.4, 5.10, 6.1, 6.2, 6.9, 6.14, 6.15

Texts Cited:

NSW Department of Planning, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

CE Bondi Beach Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2024/165008

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by CE Bondi Beach Pty Ltd (the Applicant), against the deemed refusal of Development Application DA-69/2024 (the DA) by Waverley Council (the Respondent).

2. At the date of its lodgement on 6 March 2024, the DA sought consent for the demolition of existing structures, removal of five trees, Torrens title subdivision, and the construction of a pair of two-storey semi-detached dwellings and a new part two- part three-storey residential apartment building at 20-22 Sandridge Street and 21 Wilga Street, Bondi (the site).

3. The matter was listed for hearing before me over two days on 7 and 8 April 2025, however during the site view at the commencement of the hearing, the parties indicated to me the prospect of an agreement being reached. After the site view, I granted a short adjournment to allow the parties to finalise a formal agreement, which was then filed with the Court on the afternoon of 7 April 2025.

4. Under the Chief Judge’s delegation, the Registrar re-allocated the matter as a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) and listed the matter before me, again on the afternoon of 7 April 2025.

5. During the resumed 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.

6. 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 excessive building bulk, scale, failure to exhibit design excellence, avoidable and unacceptable view impacts upon neighbours, excessive excavation, an inadequate level of residential amenity available to some proposed bedrooms and inadequate vehicle access, amongst other contentions.

7. Agreed design amendments have now been made to improve the proposed buildings’ relationship to the site and its context. Changes have been made to reduce the overall bulk and scale of the proposal, particularly as it presents to the site’s side boundaries. Other issues such as privacy, cross viewing and vehicle access have been resolved. These agreed amendments also mitigate against earlier impacts of building scale and view affectation for a number of nearby neighbours.

8. 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.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

10. 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.

11. The DA was publicly notified in accordance with the Respondent’s Community Participation Plan from 20 March 2024. A total of 27 submissions were received by the Respondent raising concerns including:

1. Excessive built form.

2. Overlooking and cross viewing impacts created by north- and south-facing balconies and windows, and ineffective privacy mitigation measures.

3. Increased traffic congestion within the surrounding street network.

4. View loss impacts to properties situated to the south of the site, including dwellings located on Sandridge Street and Fletcher Street.

5. Overshadowing to neighbouring residential apartments at 24 Sandridge Street.

12. On 6 March 2025, by way of notice of motion, the Registrar of the Court granted leave to the Applicant to amend the DA. The amended DA was re-notified for a period of seven days to those objectors who had previously made submissions in response to the notification of the original DA.

13. The Respondent received eight further objections in response to this re-notification, restating earlier concerns and raising a number of additional concerns, including:

1. Insufficient time to review the amended DA.

2. The reflectivity of the proposed roof material.

3. The use of the neighbouring site to convey stormwater.

4. Excessive excavation.

5. Acoustic privacy impacts across side boundaries.

6. Exceedance of building height controls.

7. Inadequate rear setback.

8. Loss of affordable housing and social sustainability impacts.

9. Impacts on biodiversity and ecological values.

14. At the site view on the morning of 7 April 2025, some affected local residents addressed the Court to restate their 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.

15. Additionally, whilst at the site view, the parties informed these affected local residents of the prospect of the matter being resolved by agreement between the parties.

16. Residents who had been anticipating a contested hearing expressed concern for a perceived lack of transparency that might accompany the parties’ agreement and the re-allocation of the matter as a conciliation conference.

17. I sought to allay these concerns, as did the parties’ representatives, including with reference to the final amended DA drawings and various measures that mitigate against the issues raised in objections. Nonetheless, I expect there remains a degree of dissatisfaction amongst affected residents that the matter has settled by agreement.

18. Be that as it may, the parties agree, and I am satisfied, the final amended DA resolves a range of concerns raised by the objectors, primarily by further reducing the proposed building form, bulk and scale, and by ensuring improved privacy between neighbouring properties, which reduces opportunities for cross viewing.

19. The parties agree, and I am satisfied, that view affectation has been further reduced by the final amended DA to the point of acceptability, and I note that while some view loss will still occur for some neighbours, a number of other neighbours will benefit from improved views and outlook. I am satisfied this represents an acceptable view sharing outcome.

20. I am also satisfied that the final amended DA results in a net increase in solar access received by the southern neighbouring property relative to that established by the existing structures on the subject site today.

21. The parties agree, and I am satisfied, that the final amended DA and conditions of consent now satisfactorily address the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

22. 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 R3 Medium Density Residential. The final amended DA - characterised as semi-detached dwellings and residential apartment development - is permissible with consent within the R3 zone.

23. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the final amended DA is consistent with the R3 Medium Density Residential zone objectives.

24. 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 final amended DA proposes demolition of the existing structures occupying the site.

25. The parties agree, and I am satisfied, that all principal development standards of the WLEP have been met by the amended DA, in particular cl 4.1 (Minimum subdivision lot size), cl 4.3 (Height of buildings) and cl 4.4 (Floor space ratio).

26. 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 (HCA). I am further satisfied that the effect of the final amended DA on HCAs in the wider vicinity of the locality does not require assessment against cl 5.10.

27. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP (Acid sulfate soils), the site is mapped within a Class 5 acid sulfate soils area. However, the final amended DA involves works that are not likely to lower the water table below 1m AHD on any class of land within 500m of the site and therefore an acid sulfate soils management plan is not required to be prepared.

28. 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 Assessment prepared by JK Geotechnics and dated 15 December 2023. Accordingly, I am satisfied the matters set out at cl 6.2(3) have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works.

29. The parties agree, and I am satisfied, that pursuant to cl 6.9 of the WLEP (Design excellence), the final amended DA satisfactorily addresses those matters set out at cl 6.9(4) and that the proposal exhibits design excellence.

30. The parties agree, and I am satisfied, that pursuant to cl 6.14 of the WLEP (Waste minimisation and recycling), the final amended DA satisfactorily addresses those matters set out at cl 6.14(3) and that the proposal maximises opportunities for waste and recycling storage, and which are appropriately sized and accessible.

31. The parties agree, and I am satisfied, that pursuant to cl 6.15 of the WLEP (Stormwater management), the final amended DA satisfactorily addresses those matters set out at cl 6.15(3) and that 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.

32. 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.

33. Chapter 2 of SEPP Resilience deals with coastal management. Pursuant to s 2.10 of SEPP Resilience, the parties agree and I am satisfied, that the final amended DA has been designed to avoid the adverse impacts of those matters set out at s 2.10(1) of SEPP Resilience.

34. Pursuant to s 2.11 of SEPP Resilience, the parties agree and I am satisfied, that the final amended DA has been designed to avoid the adverse impacts of those matters set out at s 2.11(1)(a)-(c) of SEPP Resilience.

35. Pursuant to s 2.12 of SEPP Resilience, the parties agree and I am satisfied, that the final amended DA has been designed in a manner not likely to cause increased risk of coastal hazards.

36. Pursuant to s 2.13 of SEPP Resilience, the parties agree and I am satisfied, that consent must not be granted to development on land within the coastal zone unless the consent authority (the Court) has taken into consideration the relevant provisions of any certified coastal management program that applies to the land. In this instance, no such plan has been certified.

37. 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 JK Environments and dated 1 December 2023.

38. The PSI notes that investigations encountered fill soils impacted by asbestos, lead and contaminants at concentrations that pose an unacceptable risk to human health. The PSI confirms that the site can be made suitable for the proposed development subject to conditions, including the preparation of a Detailed Site Investigation and a Remediation Action Plan. Agreed conditions of consent are imposed to ensure the recommendations of the PSI are complied with.

39. 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.

40. Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree and I am satisfied, that the final amended DA seeks consent for the removal of vegetation and proposes appropriate replacement trees.

41. Chapter 6 of SEPP BC deals with water catchments. The parties agree, and I am satisfied, that the site is not situated within any relevant water catchment area.

42. 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 1731736M_02, dated 7 April 2025, has been provided with the final amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

43. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing).

44. Pursuant to the relevant provisions of SEPP Housing the EPA Reg, the Applicant's architect, MHN Design Union (and its nominated architect Mr Brian Meyerson - NSW registered architect 4907) has prepared a Design Verification Statement dated 4 April 2025, fulfilling the requirements of s 29 of the EPA Reg and confirming that the final 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. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.

45. 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.

46. 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.

47. The Court notes that:

1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, 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 7 April 2025.

Orders

48. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA-69/2024 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, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $30,000 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Consent is granted to Development Application DA-69/2024 (as amended) for the demolition of existing structures, Torrens title subdivision and construction of semi-detached dwellings and a new residential apartment building at 20-22 Sandridge Street and 21 Wilga Street, Bondi, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court 

Annexure A (724 KB, pdf)  165008.24 Pullinger AC

Architectural Plans 1_Part1 (29.5 MB, pdf) 

Architectural Plans 1_Part2 (28.8 MB, pdf) 

Architectural Plans 1_Part3 (16.2 MB, pdf)

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Decision last updated: 23 May 2025