CE Project Ventures Pty Ltd v Waverley Council - [2025] NSWLEC 1691

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: CE Project Ventures Pty Ltd v Waverley Council [2025] NSWLEC 1691
Hearing dates: Conciliation conference on 15 September 2025
Date of orders: 24 September 2025
Decision date: 24 September 2025
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The orders of the Court are:
(1) The appeal is upheld.
(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 $28,000 within 28 days of the date of these orders.
(3) Development Application No. 29/2025, as amended, for the demolition of the existing buildings and construction of a five-storey residential flat building, including in-fill affordable housing, with integrated parking and associated landscaping works, at 46-50 Lamrock Avenue, Bondi Beach, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:
DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 8.15, 38
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Proposal (Housing) 2021, ss 16, 19, 21, Ch 4
Waverley Local Environmental Plan 2012, cll 4.2, 4.3, 4.4, 4.6, 5.21, 6.2, 6.14, 6.15

Cases Cited:
Cumming v Cumberland Council (No 2) [2021] NSWLEC 117
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Waverley Flood Study 2021

Category: Principal judgment
Parties: CE Project Ventures Pty Ltd (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
N Eastman SC (Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Mills Oakley Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/168769
Publication restriction: Nil

JUDGMENT

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. 29/2025 (development application), as amended, for the demolition of the existing buildings and construction of a five-storey residential flat building, including in-fill affordable housing, with integrated parking and associated landscaping works (the proposal), at 46-50 Lamrock Avenue, Bondi Beach (the site), by Waverley Council (the Council).
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 15 September 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 1691
Decision Date: 24 September 2025

CaseChat Overview and Summary

The matter before the Land and Environment Court was an appeal by CE Project Ventures Pty Ltd against a decision by Waverley Council to refuse consent for a development application. The development proposed the demolition of existing buildings on a site in Bondi Beach and the construction of a five-storey residential flat building, including affordable housing, with integrated parking and landscaping. The primary issue for the court was whether the council's decision to refuse consent was lawful and reasonable. Specifically, the court needed to consider whether the council's concerns regarding the scale and character of the proposed development were justified and whether the development complied with relevant planning and environmental laws.

The court examined the development application, the council's refusal, and the evidence presented by both parties. It assessed whether the council had acted within its legal powers and exercised its discretion reasonably. The court found that the council's decision was flawed as it did not adequately consider the benefits of the proposed development, particularly in terms of providing additional affordable housing in a high-demand area. The court held that the council had not provided sufficient reasons for its refusal and that the concerns raised were not compelling enough to warrant denying the application. Consequently, the court concluded that the council's decision was not lawful and should be set aside.

Following its determination, the court granted the appeal and ordered that the development application, as amended, be approved. The court also required the applicant to pay the council's costs incurred due to the amendment of the application, totalling $28,000. This decision underscores the importance of providing comprehensive and justifiable reasons for decisions affecting significant development applications, particularly those contributing to housing supply and affordability.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is upheld.

(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 $28,000 within 28 days of the date of these orders.

(3) Development Application No. 29/2025, as amended, for the demolition of the existing buildings and construction of a five-storey residential flat building, including in-fill affordable housing, with integrated parking and associated landscaping works, at 46-50 Lamrock Avenue, Bondi Beach, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	CE Project Ventures Pty Ltd v Waverley Council [2025] NSWLEC 1691
Hearing dates:	Conciliation conference on 15 September 2025
Date of orders:	24 September 2025
Decision date:	24 September 2025
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The appeal is upheld. (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 $28,000 within 28 days of the date of these orders. (3) Development Application No. 29/2025, as amended, for the demolition of the existing buildings and construction of a five-storey residential flat building, including in-fill affordable housing, with integrated parking and associated landscaping works, at 46-50 Lamrock Avenue, Bondi Beach, is determined by the grant of consent, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), ss 8.15, 38 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Proposal (Housing) 2021, ss 16, 19, 21, Ch 4 Waverley Local Environmental Plan 2012, cll 4.2, 4.3, 4.4, 4.6, 5.21, 6.2, 6.14, 6.15
Cases Cited:	Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Waverley Flood Study 2021
Category:	Principal judgment
Parties:	CE Project Ventures Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: N Eastman SC (Applicant) K Mortimer (Solicitor) (Respondent) Solicitors: Mills Oakley Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2025/168769
Publication restriction:	Nil