Damianos v Waverley Council

[2025] NSWLEC 1560

Land and Environment Court

New South Wales

Medium Neutral Citation:

Damianos v Waverley Council [2025] NSWLEC 1560

Hearing dates:

Conciliation Conference 30 July 2025

Date of orders:

13 August 2025

Decision date:

13 August 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA-269/2023, as amended, for the demolition of existing semi-detached dwellings and construction of two new two-storey semi-detached dwellings with integrated garage parking and swimming pool at the rear, on land identified as Lot 2 in Deposited Plan 545659 and Lot 1 in Deposited Plan 545659, known as 9 and 11 Chambers Avenue, Bondi, respectively, is determined by the grant of consent subject to the conditions in Annexure A.

(3) The applicant is to pay the costs of the respondent thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $8,000.00 to be paid within 30 days of the date of these orders.

Catchwords:

APPEAL – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.10

Land and Environment Court Act 1979 (NSW), ss 17, 34

Environmental Planning and Assessment Regulation 2021 (NSW), s 27, Sch 1

State Environmental Planning Policy (Resilience and Hazards) 2021 cll 2.11, 4.6

Waverley Local Environmental Plan 2012 cll 2.7, 4.3, 4.4, 4.4A, 6.1, 6.2, 6.15

Texts Cited:

Waverley Development Control Plan 2022

Category:

Principal judgment

Parties:

Tsampikos Damianos (First Applicant)
Christopher Kokkinis (Second 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):

2024/391057

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application (DA-269/2023) (Development Application) seeking consent for the demolition of a semi-detached dwelling pair, construction of two new dwellings forming a semi-detached dwelling pair, and external works including a new driveway, front landscaping and rear pools on land identified as Lot 2 in Deposited Plan 545659 (Lot 2) and Lot 1 in Deposited Plan 545659 (Lot 1), known as 9 and 11 Chambers Avenue, Bondi, respectively (collectively, the Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 29 September 2023.

4. The Development Application was notified between 19 October and 6 November 2023. Four submissions were received raising issues including:

1. exceedance of floor space ratio (FSR) development standard;

2. amount and proximity of excavation to neighbours;

3. excessive bulk and scale;

4. number of proposed storeys and building height;

5. overshadowing and privacy;

6. loss of on-street parking;

7. inaccurate deep soil zone calculations;

8. loss of tree canopy cover;

9. noise and vibration from proposed car stackers; and

10. concerns regarding potential future use as bed and breakfast accommodation.

5. The Development Application was refused by the Waverley Local Planning Panel on 24 April 2024.

6. The proceedings were commenced on 22 October 2024, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act between the parties on 11 March 2025, the matter was listed for hearing on 31 July and 1 August 2025.

8. Prior to the hearing, the parties reached agreement and requested that the matter be listed for a s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 30 July 2025, following which the hearing was vacated. I presided over this conciliation conference.

9. The decision agreed upon is for the grant of consent to the Development Application in an amended form, subject to conditions of consent. The signed s 34 agreement is supported by an agreed jurisdictional statement.

10. The amendments to the Development Application relevantly include:

1. reducing the bulk and scale of the built form; and

2. amending the form and location of parking,

3. (collectively, the Amended Development Application).

11. 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.

Jurisdictional considerations

12. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners consent

13. The first applicant is one of the registered proprietors of the Subject Land (see Class 1 Application, tab 1). For completeness, I note that the Development Application Form in tab 1 of the Class 1 Application states that Mr Chris Kokkinis is the applicant in respect of the Development Application. Mr Kokkinis is relevantly the second applicant in these proceedings.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

it has considered whether the land is contaminated; and

if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

15. I accept the parties’ submission that the requirements of s 4.6 of the RH SEPP have been considered and that the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. In determining the Amended Development Application, I have considered the matters set out in s 4.6(1) of the RH SEPP, and have had regard to the fact that the Subject Land has a longstanding history of residential use and is unlikely to be contaminated.

Environmental Planning and Assessment Regulation 2021

16. The Amended Development Application is accompanied by a BASIX certificate (Cert 1410222M_02, dated 26 June 2025 prepared by AENEC) in accordance with s 27 of the Environmental Planning and Assessment Regulation 2021.

Waverley Local Environmental Plan 2012

17. The Subject Land is zoned R2 Low Density Residential under the Waverley Local Environmental Plan 2012 (WLEP). Accordingly, dwelling houses and semi-detached dwellings houses are permitted with consent in the R2 zone. I have had regard to the zone objectives which are extracted below:

•  To provide for the housing needs of the community within a low 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 ensure dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time.

•  To encourage the supply of housing that meets the needs of the population, particularly housing for older people and people with disability.

•  To promote development that incorporates planning and design measures that reduce the urban heat island effect.

•  To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.

18. The parties agree that the proposal meets the objectives of the R2 zone.

19. Pursuant to cl 4.3 of the WLEP relating to “Height of buildings”, a maximum height development standard of 8.5m applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.

20. Pursuant to cl 4.4(2) and 4.4A of the WLEP relating to “Floor space ratio” and “Exceptions to floor space ratio” respectively, the parties agree, and I accept, that a maximum FSR development standard of 0.8619:1 applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.

21. Pursuant to cl 6.1 of the WLEP relating to “Acid sulfate soils”, development consent is required for the carrying out of specified works on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. The parties agree that although the Subject Land is identified as being within a Class 5 Area for the purposes of the Acid Sulfate Soils Map, the Amended Development Application does not involve works by which the water table is likely to be lowered below 1 metre Australian Height Datum on adjacent Class, 1, 2, 3 or 4 land. The parties therefore agree that cl 6.1 of the WLEP is not enlivened in respect of the Amended Development Application.

22. Pursuant to cl 6.2(3) of the WLEP relating to “Earthworks”, the consent authority must consider various matters before granting development consent for earthworks or development involving ancillary earthworks. The Amended Development Application proposes excavation for the proposed swimming pools and therefore seeks consent for excavation and earthworks. The parties agree that the matters listed in cl 6.2(3) of the WLEP are addressed in the Geotechnical Investigation Report prepared by Green Geotechnics dated 4 August 2023 (Geotech Report).

23. Having regard to the Geotech Report and Agreed Conditions including conditions 11, 12, 14, 16, 19, 30 and 31, I confirm that I have considered the matters listed in cl 6.2(3) of the WLEP.

24. Pursuant to cl 6.15 of the WLEP relating to “Stormwater management”, the consent authority must be satisfied of the matters listed in cl 6.15(3) prior to granting development consent. The parties agree, and I accept, that the Assessment Report prepared by the respondent (see section 3) and condition 14 of the Agreed Conditions, demonstrate that the matters listed in cl 6.15(3) are satisfied by this proposal.

Waverley Development Control Plan 2012

25. The parties agree, and I accept, that all development control plans have been considered (see pp 15 – 19 of the Statement of Environmental Effects prepared by GSA Planning dated May 2025 (SEE)) and the Amended Development Application is acceptable and can be granted subject to conditions.

Remaining matters under s 4.15(1) of the EPA Act

26. The parties agree that the Amended Development Application can be approved taking into consideration the matters listed in s 4.15(1) of the EPA Act.

27. Matters relevant to s 4.15(1)(a) have been generally considered above and in the SEE.

28. In relation to s 4.15(1)(b), the parties agree that the proposed development will not have a significant impact on the natural or built environment (see pp 20-22 of the SEE).

29. In relation to s 4.15(1)(c), the parties agree that the Subject Land is suitable for the proposed development (see p 22 of the SEE).

30. In relation to s 4.15(d), as noted at [4] above, the Development Application was notified between 19 October and 6 November 2023 with four objections received.  Further, the final plans for which development consent is sought were informally notified to resident objectors with no submissions received. The parties agree that the Amended Development Application addresses the resident objections and concerns. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

31. In relation to s 4.15(1)(e), the parties agree that consideration has been given to the public interest (see p 22 of the SEE).

32. In determining the Amended Development Application, I confirm that I have taken into consideration such of the matters that are of relevance to the proposal listed in s 4.15(1) of the EPA Act.

Conclusion

33. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

34. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

35. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 37(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending its development application so as to rely on the following documents:

Plan Number and Revision	Plan description	Plan Date	Date received by Council
Architectural Plans
DA-010 Rev A	Site Plan	10/06/2025	26/06/2025
DA-011 Rev A	Site Analysis Plan	10/06/2025	26/06/2025
DA-100 Rev H	Ground Floor Plan - Proposed	27/05/2025	26/06/2025
DA-101 Rev H	First Floor Plan	27/05/2025	26/06/2025
DA-103 Rev G	Roof Plan	27/05/2025	26/06/2025
DA-300 Rev E	North West Elevation and South East Elevation	21/05/2025	26/06/2025
DA-301 Rev E	South West Elevation and North East Elevation	21/05/2025	26/06/2025
DA-400 Rev F	Section AA – Proposed and BB - Proposed	21/05/2025	26/06/2025
DA-500 Rev F	FSR Calculations	21/05/2025	26/06/2025
DA-501 Rev C	Open space and landscaping calculations	21/05/2025	26/06/2025
DA-502 Rev C	Ground Floor Plan – Excavated Area and BASIX Commitments	21/05/2025	26/06/2025
DA-800 Rev B	Door and Window Schedule No 9	23/06/2025	26/06/2025
DA-801 Rev A	Door and Window Schedule No 11	10/06/2025	26/06/2025

1. BASIX and NatHERs Certificate/s No.1410222M_02 prepared by AENEC dated 26 June 2025.

2. Amended Statement of Environmental Effects prepared by GSA Planning dated May 2025.

2. The above documents were provided to the Court on 30 July 2025.

Orders

36. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-269/2023, as amended, for the demolition of existing semi-detached dwellings and construction of two new two-storey semi-detached dwellings with integrated garage parking and swimming pool at the rear, on land identified as Lot 2 in Deposited Plan 545659 and Lot 1 in Deposited Plan 545659, known as 9 and 11 Chambers Avenue, Bondi, respectively, is determined by the grant of consent subject to the conditions in Annexure A.

3. The applicant is to pay the costs of the respondent thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $8,000.00 to be paid within 30 days of the date of these orders.

N Targett

Commissioner of the Court

Annexure A (471 KB, pdf)

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Decision last updated: 13 August 2025