Fenbury Living Pty Ltd v Waverley Council

[2025] NSWLEC 1055

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fenbury Living Pty Ltd v Waverley Council [2025] NSWLEC 1055

Hearing dates:

Conciliation Conference held 24 January 2025

Date of orders:

04 February 2025

Decision date:

04 February 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Consent No DA-246/2022 is modified in the terms in Annexure A.

(3)   Development Consent No DA-246/2022 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification of consent – residential flat building - conciliation conference – agreement between the parties - - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.56, 8.9

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 105, 113

Cases Cited:

MHN Design Union Pty Limited v Waverley Council [2023] NSWLEC 1272

Texts Cited:

Waverley Community Engagement Strategy 2023

Category:

Principal judgment

Parties:

Fenbury Living Pty Ltd ACN 658 631 531 (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A De Mattia (Solicitor)(Applicant)
D Taylor (Solicitor)(Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/281837

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Modification Application seeking to modify Development Consent DA-246/2022 for substantial alterations and additions to the approved residential flat building (Consent) at 58 Campbell Parade, Bondi Beach legally described as SP 2723 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 24 January 2025. I presided over the conciliation conference.

3. 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. This decision involved the Court upholding the appeal and modifying the Consent subject to conditions.

4. 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. 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.

5. The parties’ decision involves the Court exercising the function under s 4.56 of the EPA Act to modify a consent granted by the Court.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.56 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied.

7. To approve the Modification Application, the Court must be satisfied of the following jurisdictional matters:

1. the development as modified by the Modification Application is substantially the same as the development for which consent was originally granted before any modification: s 4.56(1)(a), EPA Act;

2. the Modification Application has been notified in accordance with regulations and a development control plan (as applicable): s 4.56(1)(b), EPA Act;

3. each person who made a submission in respect of the relevant development application has been notified, or reasonable attempt has been made to notify such person, of the Modification Application: s 4.56(1)(c), EPA Act;

4. any submission made concerning the Modification Application has been considered: s 4.56(1)(d), EPA Act.

8. On 2 June 2023 in the matter of MHN Design Union Pty Limited v Waverley Council [2023] NSWLEC 1272, Commissioner O’Neill upheld the appeal and made the following order:

“Development Application No. 246/2022 for the substantial demolition (retention of a portion of boundary walls and façade) and alterations and additions to the existing residential flat building, including construction of a basement and associated site and landscaping works, at 58 Campbell Parade, Bondi Beach, is determined by the grant of consent, subject to the conditions of consent at Annexure A.”

9. The conditions of consent annexed to the decision granting consent described the development as follows:

“Substantial demolition (retention to a portion of boundary walls and frontage) for alterations and additions to residential flat building (new building) comprising of 7 Units and integrated basement parking.”

10. The Site is currently under construction for the approved works under DA-246/2022 and a subsequent approved modification.

11. On 21 December 2023, Modification Application DA-246/2022/A (Mod A) was lodged seeking to modify the approved architectural plans and condition 3 of the consent to allow the dismantling and reconstruction of the heritage façade of the development. On 24 July 2024, Mod A was approved by the Respondent.

12. The development as proposed to be modified by the Modification Application (as amended) will remain substantially the same as the development originally granted by the development consent prior to any modification because of the following:

1. the development continues to relate to the redevelopment of the residential flat building, comprising 7 units and basement carparking as originally approved;

2. the Proposed Modification seeks approval for the reconfiguration of basement levels, internal reconfiguration of all apartments, amendments to the landscape design and building envelope and minor design amendments to the roof. The parties agree that these amount to minor physical changes to the internal and external design and configuration of the building;

3. the Proposed Modification application seeks consent for a number of minor ‘housekeeping’ design changes in order to provide a more resolved design response to the Site, its locality and to meet market requirements.

4. the proposed amendments will reduce the overall gross floor area and floor space ratio of the development and will not alter the approved maximum building height (see, drawing DA9101 Rev 17); and

5. the proposed modifications do not alter the approved and continued use as a residential flat building.

13. I have had regard to part 2, pages 3 to 8 of the Statement of Environmental Effect (SEE) dated 3 February 2023 prepared by Ethos Urban filed with the Class 1 Application at Tab 3. The SEE provides an overview of the proposed modifications followed by a detailed summary in table format including the reasoning for the modifications, or a qualitative analysis. The table at 2.2.1 of the SEE sets out a numerical overview, or quantitative analysis.

14. Accordingly, I am satisfied that the development to which the consent as modified relates remains substantially the same development as the development for which consent was originally granted (and before that consent was subsequently modified by Mod A).

15. The requirements under subss 4.56(1)(b) and (c) of the EPA Act are satisfied because, in accordance with s 105(2) of the Environmental Planning and Assessment Regulation 2021 and s 4.56(1)(c) of the EPA Act, the Modification Application was notified in accordance with a community participation plan, namely the Waverley Community Engagement Strategy 2023, from 18 March 2024 to 8 April 2024 being for a period of 21 days.

16. As no submission was received from the public notification of the Modification Application, s 4.56(1)(d) of the EPA Act is also satisfied.

17. The parties agree that the development consent was granted by the Court pursuant to a s 34 agreement in MHN Design Union Pty Limited v Waverley Council [2023] NSWLEC 1272, and accordingly, there are no reasons for the grant of the original consent; s 4.56(1A), EPA Act.

18. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties in accordance with this judgment.

19. 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.

Notations:

20. The Court notes that:

1. the Respondent, Waverley Council, as the relevant consent authority, agrees, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending modification application DA-246/2022/B in accordance with the amended plans and additional information listed below:

TAB	DOCUMENT	DATE
1	Architectural Plans (Rev 17) prepared by MHN Design Union • DA0000: Cover page • DA1000: Site Context • DA1001: Site Analysis Plan • DA1002: Site & Roof Plan • DA1003: Existing Plan – Lower Ground • DA1004: Existing Plan –Ground • DA1005: Existing Plan – Level 1-3 • DA1006: Existing Elevation East • DA1007: Existing Elevation West • DA1008: Existing Elevation North • DA1009: Existing Elevation South • DA1010: Demolition Plan – Lower Ground • DA1011: Demolition Plan – Ground • DA1012: Demolition Plan – Level 1-3 • DA1013: Demolition Elevation East • DA1014: Demolition Elevation West • DA1015: Demolition Elevation North • DA1016: Demolition Elevation South • DA2001: Basement 02 Plan • DA2002: Basement 01 Plan • DA2003: Lower Ground Plan (Rev 17A) • DA2004: Ground Floor Plan • DA2005: Level 1 Floor Plan • DA2006: Level 2 Floor Plan • DA2007: Level 3 Floor Plan • DA2008: Level 4 Floor Plan • DA2009: Roof Plan • DA3000: Elevation East • DA3001: Elevation West • DA3002: Elevation North • DA3003: Elevation South • DA3100: Section A • DA3101: Section B • DA3102: Section C • DA3103: Sectional View Analysis – Campbell Parade • DA3104: Sectional View Analysis – Lamrock Place • DA3105: Driveway Ramp Section • DA6000: External Finishes • DA6003: Photomontage - Front • DA9100: GFA Calculation – Lower Ground & Ground • DA9101: GFA Calculation – Level 1 & 2 • DA9102: GFA Calculation – Level 3 & 4 • DA9108: Landscape Area Calculation • DA9200: View From Sun – June 21st • DA9300: Waste Mgt Plan – Basement 01 & Lower Ground • DA9301: Waste Mgt Plan – Ground, Level 1 • DA9302: Waste Mgt Plan – Level 2-4 • DA9304: Streetscape Analysis • DA9305: Streetscape Analysis	31 October 2024
2	Architectural Plans (Rev 18) prepared by MHN Design Union • DA9103: ADG Calculations – Basement 02 & 01 • DA9104: ADG Calculations – Lower Ground & Ground • DA9105: ADG Calculations – Level 1 & 2 • DA9106: ADG Calculations – Level 3 & 4	13 November 2024
3	Landscape Plan No. S.34 and documentation prepared by Volker Klemm Landscape Design	3 October 2024
4	Design Verification Statement by MHN Design Union	16 December 2024

2. The Applicant provided the Amended Application to the Court on 20 December 2024.

Orders:

21. The Court orders:

1. The appeal is upheld.

2. Development Consent No DA-246/2022 is modified in the terms in Annexure A.

3. Development Consent No DA-246/2022 as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

**********

Annexure A

Annexure B

Architectural Plans

Decision last updated: 04 February 2025