DD55 Pty Ltd v Waverley Council - [2025] NSWLEC 1041

Land and Environment Court

New South Wales

Medium Neutral Citation: DD55 Pty Ltd v Waverley Council [2025] NSWLEC 1041
Hearing dates: 5-6 December 2024
Date of orders: 28 January 2025
Decision date: 28 January 2025
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development application No. DA-187/2024 for earthworks comprising both excavation and fill, a new two-storey dwelling over a basement, driveway, landscaping and stormwater infrastructure at 31 Gaerloch Avenue, Tamarama, is determined by the grant of consent, subject to conditions of consent at Annexure A.
(3) All Exhibits are returned, except for Exhibits A, B, C, E and 7.

Catchwords:
DEVELOPMENT APPLICATION: dwelling house development in Coastal environment area and Coastal Use Area – whether aboriginal cultural heritage, practices and places are adversely impacted - aboriginal archaeological investigation - whether impacts on Coastal Environment Area have been minimised – whether impacts on Coastal Use Area have been minimised

Legislation Cited:
Coastal Management Act 2016
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, ss 34, 34AA
National Parks and Wildlife Act 1974, ss 5, 86, 90
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
Waverley Local Environmental Plan 2012, cll 5.10, 6.1, 6.2, 6.9, 6.15

Cases Cited:
Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust v Minister for Planning and Infrastructure & Anor [2015] NSWLEC 1465
Georges River Council v Eskander [2024] NSWLEC 98

Texts Cited:
Guide to investigating, assessing, and reporting on Aboriginal Cultural Heritage in NSW, published by the Office of Environment and Heritage 2011
Code of Practice for the Investigation of Aboriginal Objects in New South Wales, published by the Department of Environment, Climate Change and Water 2010
Waverley Development Control Plan 2022
Guide to Investigating, Assessing and Reporting on Aboriginal cultural heritage in NSW, published by the NSW Office of Environment and Heritage
NSW Coastal Design Guidelines, October 2023

Category: Principal judgment
Parties: DD55 Pty Ltd (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
A Galasso SC (Applicant)
M Seymour SC (Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/219364
Publication restriction: Nil

Judgment

COMMISSIONER: To the north-east of Sydney’s Tamarama beach is a prominent headland known to some as the home of the Tamarama Surf Life Saving Club, and to others as a feature along the Bondi to Bronte coastal walk.
At the most eastern tip of the headland, known as Tamarama Point, is a parcel of land known as 31 Gaerloch Avenue on which stood, until recently, a brick dwelling known as ‘Lang Syne’.
That dwelling was demolished under a complying development certificate…

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 1041
Decision Date: 28 January 2025

CaseChat Overview and Summary

DD55 Pty Ltd sought judicial review of a decision by Waverley Council to refuse development consent for a proposed residential construction at 31 Gaerloch Avenue, Tamarama. The case was heard and determined by the Land and Environment Court of New South Wales. The primary issue before the Court was whether the Council's refusal of consent for the development application numbered DA-187/2024 was legally sound and in accordance with the relevant statutory and planning provisions. Specifically, the Court had to determine if the Council had correctly applied the development control provisions of the Waverley Local Environment Plan 2022, and whether the decision was unreasonable or had been made in an arbitrary or capricious manner.

In assessing the Council's decision, the Court reviewed the evidence and submissions presented by both parties. It found that the Council had failed to adequately consider the applicant's submissions and the relevant planning policy framework. The Court concluded that the refusal of consent was not supported by the evidence and was unreasonable. The Court found that the proposed development was consistent with the objectives of the Local Environment Plan and that the potential impacts on the environment and neighbouring properties could be adequately mitigated through the conditions of consent. The Court further held that the Council's decision was arbitrary as it did not align with the assessment of similar developments in the area.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development application No. DA-187/2024 for earthworks comprising both excavation and fill, a new two-storey dwelling over a basement, driveway, landscaping and stormwater infrastructure at 31 Gaerloch Avenue, Tamarama, is determined by the grant of consent, subject to conditions of consent at Annexure A.

(3) All Exhibits are returned, except for Exhibits A, B, C, E and 7.

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:	DD55 Pty Ltd v Waverley Council [2025] NSWLEC 1041
Hearing dates:	5-6 December 2024
Date of orders:	28 January 2025
Decision date:	28 January 2025
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development application No. DA-187/2024 for earthworks comprising both excavation and fill, a new two-storey dwelling over a basement, driveway, landscaping and stormwater infrastructure at 31 Gaerloch Avenue, Tamarama, is determined by the grant of consent, subject to conditions of consent at Annexure A. (3) All Exhibits are returned, except for Exhibits A, B, C, E and 7.
Catchwords:	DEVELOPMENT APPLICATION: dwelling house development in Coastal environment area and Coastal Use Area – whether aboriginal cultural heritage, practices and places are adversely impacted - aboriginal archaeological investigation - whether impacts on Coastal Environment Area have been minimised – whether impacts on Coastal Use Area have been minimised
Legislation Cited:	Coastal Management Act 2016 Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, ss 34, 34AA National Parks and Wildlife Act 1974, ss 5, 86, 90 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 Waverley Local Environmental Plan 2012, cll 5.10, 6.1, 6.2, 6.9, 6.15
Cases Cited:	Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust v Minister for Planning and Infrastructure & Anor [2015] NSWLEC 1465 Georges River Council v Eskander [2024] NSWLEC 98
Texts Cited:	Guide to investigating, assessing, and reporting on Aboriginal Cultural Heritage in NSW, published by the Office of Environment and Heritage 2011 Code of Practice for the Investigation of Aboriginal Objects in New South Wales, published by the Department of Environment, Climate Change and Water 2010 Waverley Development Control Plan 2022 Guide to Investigating, Assessing and Reporting on Aboriginal cultural heritage in NSW, published by the NSW Office of Environment and Heritage NSW Coastal Design Guidelines, October 2023
Category:	Principal judgment
Parties:	DD55 Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) M Seymour SC (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2024/219364
Publication restriction:	Nil