Huang v Waverley Council

[2025] NSWLEC 1745

Land and Environment Court

New South Wales

Medium Neutral Citation:

Huang v Waverley Council [2025] NSWLEC 1745

Hearing dates:

Conciliation Conference on 4-5 September 2025

Date of orders:

15 October 2025

Decision date:

15 October 2025

Jurisdiction:

Class 1

Before:

Macken AC

Decision:

The Court orders that:

(1) The Second Applicant, being Xi Fu Huang, is removed as a party to the proceedings.

(2) Xi Fu is joined as the second applicant to the proceedings.

(3) The appeal is upheld.

(4) Development Application No. DA 46/2025, as amended, for construction of a new dwelling, swimming pool and associated site landscaping works at 205 Military Road, Dover Heights, NSW (Lot 8, DP 1290467) is determined by grant of consent, subject to the conditions of consent set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1, Sch 1

Waverley Local Environmental Plan 2012, cll 1.3, 2.3, 4.3, 4.4, 6.1, 6.2

Category:

Principal judgment

Parties:

Qiwei Huang (First Applicant)
Xi Fu (Second Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Madison Marcus Law Firm (Applicant)
Wiltshire Webb Staunton Beattie (Respondent)

File Number(s):

2025/188166

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application DA 46/2025 (DA), for construction of a new three storey dwelling and swimming pool on a vacant site at 205 Military Road, Dover Heights, (Lot 8, DP 1290467) by Waverley Council.

2. The DA was lodged with Waverley Council on 4 March 2025, and notified between 14 April and 30 April 2025; two public submissions were received.

3. The Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction on 16 May 2025.

4. At the Court-arranged conciliation conference between the parties, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), and on the basis of amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed agreement was submitted to the Court on 5 September 2025, in accordance with s 34(10) of the LEC Act. An amended agreement was submitted to the Court on 8 October 2025.

5. Generally, the agreement approves the development subject to amended plans and supporting documents that were prepared by the Applicant, along with the agreed conditions of consent annexed to the s 34 agreement.

6. Amendments made during the conciliation conference which resolved the Respondent’s contentions and gave rise to the agreement included:

1. Incorporation of on-site stormwater detention;

2. Reduction in the height of the proposed building;

3. Reduction in the FSR of the proposed building;

4. Amendments to the proposed rear setback; and

5. Incorporation of privacy screens.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if that decision is one that the Court could have made in the proper exercise of its functions.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

9. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent.

10. I have considered the Jurisdictional Statement and its referenced documents, the Class 1 Application and its attachments, and the documents referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

11. I formed an opinion of satisfaction, based on the above, that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Jurisdictional matters

Environmental Planning and Assessment Regulation 2021(NSW)

12. The DA was made with the consent of the owner of the subject site in compliance with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. Pursuant to Ch 2 (Vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the parties agree and I am satisfied that the development will not result in the clearing of any vegetation except that authorised by the consent, and that the development does not involve the removal of any significant or protected vegetation on the subject site.

14. Chapter 6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent Council or the Court on appeal has considered matters including:

whether the development will have a neutral or beneficial effect on the quality of water entering a waterway,

whether the development will have an adverse impact on water flow in a natural waterbody,

whether the development will increase the amount of stormwater run-off from a site,

whether the development will incorporate on-site stormwater retention, infiltration or reuse,

15. I am satisfied these matters have been considered and addressed through the Stormwater Plans (WKL & Associates, drawings SW03 revision C, dated 4 September 2025), along with the conditions of consent (Annexure A).

State Environmental Planning Policy (Resilience and Hazards) 2021

16. On the basis that the subject site has been used for residential purposes for a substantial period of time, with no known records of contaminating activity being conducted on the subject site, I accept that the subject site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy (SustainableBuildings) 2022

17. The proposed development is a BASIX development as defined in s 27 of the EPA Regulation and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) apply. The development application was accompanied by a BASIX certificate (certificate number 1782688S dated 7 February 2025).

18. On the basis that an embodied energy report forms part of the BASIX certificate, I am satisfied that the embodied emissions attributable to the development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Waverley Local Environmental Plan 2012

19. Waverley Local Environmental Plan 2012 (WLEP) applies to the subject site, which is within the Waverley Local Government Area (WLEP, cl 1.3).

20. The subject site is located within the R2 Low Density Residential zone. Development for the purposes of ‘dwelling houses’ is permissible with consent in the R2 Low Density Residential zone. Pursuant to cl 2.3 of the WLEP, regard has been had to the relevant objectives of the zone. The proposal is consistent with these objectives, which are:

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.

21. The DA as amended is within the height standard at cl 4.3 of WLEP. The maximum building height is 8.5 m; the parties agree, and I am satisfied that the proposed development does not exceed 8.5 m in height (indicated on Architectural Plan A701 Rev C, Tesserarch, dated 5 September 2025).

22. The DA as amended complies with the maximum floor space ratio (FSR) prescribed at cl 4.4 of WLEP. The subject site has a maximum permissible FSR of 0.59:1; the proposal has an FSR of 0.589:1, which complies with the maximum floor space ratio development standard (indicated on Architectural Plan A102 Rev F, Tesserarch, dated 5 September 2025).

23. The subject site is identified as being in an area of Class 5 Acid Sulfate Soils (ASS) on the Acid Sulfate Soils Map at cl 6.1 of the WLEP. I accept the advice of the parties that, as the subject works are not within 500 metres of adjacent Class 1, 2, 3, or 4 land that is below 5m Australian Height Datum (AHD), and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3, or 4 land, an Acid Sulfate Soils management plan is not required, and that the proposed development is consistent with cl 6.1 of the WLEP.

24. Clause 6.2 (Earthworks) of the WLEP applies to the subject site. The parties agree, and I am satisfied, that the matters to be considered at cl 6.2(3) have been given appropriate consideration, and that the conditions of consent regulate associated works.

Conclusion

25. I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

26. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

27. 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.

1. The Court notes that the Respondent, Waverley Council, as the relevant consent authority, approves pursuant to s 38(1) of the EPA Regulation the Applicant amending development application No. DA 46/2025 in accordance with the documents listed below:

Drawing / Plan	Revision	Date Accepted by Council	Prepared or Drawn By
A010 Façade Concept	E	3 September 2025	Tesserarch
A020 Neighbourhood Setback Analysis	E	3 September 2025	Tesserarch
A100 Site Analysis	E	3 September 2025	Tesserarch
A102 Site Plan	F	5 September 2025	Tesserarch
A103 Ground Floor	F	5 September 2025	Tesserarch
A104 First Floor	F	5 September 2025	Tesserarch
A105 Second Floor	F	5 September 2025	Tesserarch
A106 Roof Plan	F	5 September 2025	Tesserarch
A107 Area Calculation	F	5 September 2025	Tesserarch
A300 Front and Rear Elevation	F	5 September 2025	Tesserarch
A301 Side Elevation	F	5 September 2025	Tesserarch
A302 Front Fence Elevation	F	5 September 2025	Tesserarch
A310 Neighbour Comparison Elevation	E	3 September 2025	Tesserarch
A311 Neighbour Comparison Elevation	D	3 September 2025	Tesserarch
A400 Sections	F	5 September 2025	Tesserarch
A603 Shadow Diagram – Jun 21 9AM	D	3 September 2025	Tesserarch
A604 Shadow Diagram – Jun 21 10AM	D	3 September 2025	Tesserarch
A605 Shadow Diagram – Jun 21 11AM	D	3 September 2025	Tesserarch
A606 Shadow Diagram – Jun 21 12PM	D	3 September 2025	Tesserarch
A607 Shadow Diagram – Jun 21 1PM	D	3 September 2025	Tesserarch
A608 Shadow Diagram – Jun 21 2PM	D	3 September 2025	Tesserarch
A609 Shadow Diagram – Jun 21 3PM	D	3 September 2025	Tesserarch
A610 Rear Elevation Shadow Diagram – Jun 21 9AM-12PM	C	3 September 2025	Tesserarch
A611 Rear Elevation Shadow Diagram – Jun 21 1-3PM	C	3 September 2025	Tesserarch
A612 Neighbour Elevation Shadow Diagram – Jun 21 9AM-12PM	B	3 September 2025	Tesserarch
A613 Neighbour Elevation Shadow Diagram – Jun 21 1PM-3PM	B	3 September 2025	Tesserarch
A701 3D Height Plane	C	5 September 2025	Tesserarch
A800 External Materials and Finishes	F	5 September 2025	Tesserarch
A910 View Analysis – 8 Myuna Road	B	3 September 2025	Tesserarch
A911 View Analysis – 4 Myuna Road	B	3 September 2025	Tesserarch
Document	Date	Prepared by
Job No. 2216 Drawing SW01 Cover Sheet and Drawing Legend	C	4 September 2025	WKL & Associates
Job No. 2216 Drawing SW02 Site Layout	B	4 September 2025	WKL & Associates
Job No. 2216 Drawing SW03 Site/Ground Floor Layout	C	4 September 2025	WKL & Associates
Job No. 2216 Drawing SW07 Details Sheet 1	C	4 September 2025	WKL & Associates
Job No. 2216 Drawing SW08 Details Sheet 2	C	4 September 2025	WKL & Associates
Job No. 2216 Drawing SW09 Details Sheet 2	A	28 August 2025	WKL & Associates

2. The Court notes that the parties identified an error in the name of the second applicant in the Class 1 application, and that the orders correct this error to match the second applicant’s name with that set out on the Development Application.

Orders

28. The Court orders that:

1. The Second Applicant, being Xi Fu Huang, is removed as a party to the proceedings.

2. Xi Fu is joined as the second applicant to the proceedings.

3. The appeal is upheld.

4. Development Application No. DA 46/2025 as amended, for the construction of a new dwelling, swimming pool and associated site landscaping works at 205 Military Road, Dover Heights (Lot 8 DP 1290467) is determined by grant of consent, subject to the conditions of consent set out in Annexure A.

N Macken

Acting Commissioner of the Court

**********

Annexure A (268 KB, pdf)

Decision last updated: 15 October 2025