Perumal v Waverley Council

[2025] NSWLEC 1773

Land and Environment Court

New South Wales

Medium Neutral Citation:

Perumal v Waverley Council [2025] NSWLEC 1773

Hearing dates:

Conciliation conference held on 23 and 24 October 2025

Date of orders:

24 October 2025

Decision date:

24 October 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA-477/2024 for the demolition and construction of a new three-storey dwelling house, with partially enclosed roof terrace, basement, double car parking, swimming pool and associated landscaping including tree removal at 85 Fletcher Street, Tamarama (Lot 23 in DP 10118) is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Coastal Management Act 2016 (NSW), s 4

Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 4.53, 8.7

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

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

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

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Waverley Local Environmental Plan 2012, cll 2.7, 4.4A, 4.6, 5.10, 6.1, 6.2, 6.15

Cases Cited:

Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582

Texts Cited:

Waverley Development Control Plan 2022

Category:

Principal judgment

Parties:

Navesh Wolfram Perumal (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
R White (Applicant)
S Patterson (Solicitor)(Respondent)

Solicitors:
Hones Lawyers Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2025/207593

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the determination of Development Application No. DA-477/2024 (DA) seeking consent for the demolition of the existing building, and construction of a new three-storey dwelling with garage parking and services in the basement, two living levels, and an attic level meditation space (Proposed Development) at 85 Fletcher Street, Tamarama legally described as Lot 23 in DP 10118 (the Site).

2. On 12 December 2024, the Respondent issued a Notice of Determination of the DA, subject to a deferred commencement condition. On 30 May 2025, the Applicant filed the Class 1 Application, being dissatisfied with the determination of the Council on 12 December 2024 and sought to amend the following conditions of the DA:

1. Front Page – Lapsing of consent date to be amended to 5 years in accordance with s 4.53(1) of the EPA Act;

2. Deletion of the deferred commencement condition;

3. Condition 1 to be amended to refer to the architectural drawings originally submitted with the DA (dated 6 September 2024); and

4. Minor amendment to Condition 14 to refer to the Private Certifier in place of the Executive Manager, Infrastructure Services (or delegate).

3. A joint expert report (JER) prepared by Town Planners Olivia Navratil for the Respondent and George Karavanas for the Applicant and Urban Designer Rohan Dickson for the Applicant (limited to Contention 2 and Contention 3 insofar as they relate to impacts on views from adjoining properties). Council’s expert planner concludes at 24 and 25 as follows:

“24. It is my opinion that the deletion of deferred commencement conditions (a) and (b) will result in unacceptable view impacts. This is further detailed in response to Contention 2.

25. It is my opinion that the deletion of deferred commencement condition (a) will result in unacceptable privacy impacts. This is further detailed in response to Contention 3.”

4. At the beginning of the JER on p3, the Experts provide the following summary:

“The Planning and Urban Design Experts conferred on the basis of the Filed September 2024 plans which are the filed plans, and a View Impact Analysis prepared by AE Design Studio.

During the Joint Conference ON indicated that Contentions 4, 5, 6, 7 and 9 could be dealt with by conditions of consent.

Following the Joint Conference, GK agreed and accepted that Contentions 4, 5, 6, 7 and 9 could be dealt with by condition. In particular, GK advised ON of the following updates with a view to address/resolve the issues arising from Joint Conferencing:

• That the applicant seeks to maintain the de-classified flue (building design element) width and height as approved in accordance with the deferred commencement (Issue B plans);

• The applicant would amend the proposed architectural plans to indicate that ceiling fans will be provided throughout, and electric cooking appliances are provided (Issue E plans);

• The applicant would provide amended architectural plans amending the rear setback of the ground floor cane pergola to match the existing rear building line (Issue E plans);

• The applicant seeks to maintain the front fence and gate in accordance with the deferred commencement (Issue E plans); and

• The applicant will provide an amended landscape plan in accordance with the deferred commencement condition (Revision D).”

5. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 23 and 24 October 2025. I presided over the conciliation conference.

6. Following discussions between the parties, the Applicant prepared amended architectural plans and other supporting documents, to address the contentions raised by the Council in the Statement of Facts and Contentions in Reply filed on 13 August 2025, and issues raised by the objectors.

7. 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 based on the revised Architectural Drawings, the clause 4.6 written request and the conditions of consent agreed between the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. A condition of consent (1A(a)) is agreed to require the landscape drawings to be updated to reflect the approved architectural drawings and the following changes:

1. The bamboo on the western side boundary to be replaced with a species chosen from Annexure B3-1 Planting List of the Waverley Development Control Plan 2022; and

2. The Carissa (Bengal Current) to the roof to be replaced with a species chosen from Annexure B3-1 Planting List of the Waverley Development Control Plan 2022 and not to exceed 300mm in height.

8. The amendments proposed by the Revised Drawings primarily comprise:

1. The proposed rooftop terrace including walls and roof has been moved further north and the roof reconfigured so that the attic extends no further than the predominant rear building line at that level;

2. The de-classified flue width and height have been changed to match the approved design in accordance with the deferred commencement approval;

3. Ceiling fans have been provided to the bedrooms, dining, family room, and formal living throughout building;

4. Only electric cooking appliances to be provided in the kitchen, no gas cooking;

5. The ground flood cane pergola has been amended to match the existing building line (setback increased to 8.31m); and

6. The street fence and gates have been changed to match the approved deferred commencement approval design.

9. 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.

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

11. 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 cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note provided to the Court.

12. The Applicant is the owner of the land.

13. The Site and the land immediately surrounding the site are zoned medium density residential ‘R3’ under the WLEP where a dwelling house is permitted with consent. Demolition and earthworks are permissible with consent pursuant to cll 2.7 and 6.2 respectively of the WLEP.

14. In accordance with s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, the DA was referred to Ausgrid because the Proposed Development is located within 5m of overhead power lines. Ausgrid has provided a letter of consent, subject to conditions, in response to the DA.

15. For the purposes of cl 4.3 of the WLEP 2012, as a result of the revised architectural plans, part of the Proposed Development exceeds the maximum height of building (HOB) development standard of 9.5m that applies to the Site. Prior to these amendments, the Proposed Development included an attic design which sought to comply with the HOB development standard, however the parties agree that the compliant design would have resulted in a greater impact on the neighbours than the revised design which does contravene the HOB development standard.

16. The Applicant relies on a written variation request pursuant to cl 4.6 of the WLEP prepared by GSA Planning dated October 2025 (Written Request) to justify the contravention of the HOB development standard. The Written Request describes the HOB contravention as follows:

“The exception relates to the portion of the attic level that sits directly above the existing excavated garage (see Figure 1). The maximum building height is 12m measured from the roof ridge at RL 40.90 to the existing ground level immediately below. This is a proposed departure of 2.5m or 26.31%.

It must be noted that the height breach is considered a technical variation as it is a function of previous excavation for the garage on site (see Figure 1). The proposed height variation is reduced when the height is measured from what would be considered the natural ground line.”

17. The calculation of the HOB contravention was done consistently with the Court’s decision in Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582 (Merman). The Written Request explains as follows:

“In Merman, a portion of the site was excavated for the construction of the existing building and the ground level was lowered by excavation within the footprint of the existing building. While Merman deals with a built form slightly different to that on the subject site, if the excavated ground level was used as the reference point for the height, there would be a dip in that plane that does not reflect the overall topography of the site.

The Court [in Merman] accepted (at [74]) that there is an ‘environmental planning ground’ that may justify the contravention of the height standard under ‘clause 4.6’ when the prior excavation of the site (within the footprint of the existing building) distorts the maximum building height plane. The clause 4.6 request was upheld and development consent was granted. Again, while it is understood that Merman dealt with slightly different site characteristics when compared to the proposal, the assessment can still be applied.”

18. I accept that the revised architectural plans reflect a skillful design which seeks to preserve environmental amenity of neighbouring properties and promotes the sharing of views as articulated in the Written Request at pp 7-11. I reproduce Fig 2 from the Written Request below:

19. As required by cl 4.6(3) of the WLEP, the Written Request has demonstrated that compliance with the building height standard is unnecessary in this case because the objectives of the HOB development standard are achieved notwithstanding the contravention. The Written Request also demonstrates that there are sufficient environmental planning grounds to justify the contravention of the building height standard.

20. The parties agree, and the Court is satisfied, that the Written Request has demonstrated that compliance with the HOB development standard is unnecessary in this case and that there are sufficient environmental planning grounds to justify the contravention of the building height standard.

21. The Proposed Development complies precisely with the maximum floor space ratio development standard of 0.602:1 that applies to the Site pursuant to cl 4.4A of the WLEP.

22. The Site is not a heritage item, is not located within a heritage conservation area, but is within the vicinity of the Marks Park Reserve adjoining Marks Land (Landscape Conservation Area C44 and Item I94). The proposed development has no effect on any heritage item: cl 5.10, WLEP.

23. The Site is identified as Class 5 on the Acid Sulfate Soils Map. The proposed works, are not likely to lower the water table, the development is unlikely to encounter acid sulfate soils in this location, and therefore an acid sulfate soils management plan is not required: cl 6.1, WLEP.

24. For the purposes of cl 6.15 of the WLEP, a stormwater management plan was submitted as part of the DA (Tab 15 of the Class 1 Application filed with the Court). The Council is satisfied that subcll 3(a)-(c) of cl 6.15 of the WLEP are met, subject to the imposition of conditions of consent.

25. The Site is not within a water catchment: Ch 6, State Environmental Planning Policy (Biodiversity and Conservation) 2021.

26. For the purposes of s 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the Site is located within the Coastal Use Area. For the purposes of s 2.11(b), the consent authority can be satisfied pursuant to s 2.11(b) of the Resilience and Hazards SEPP that the Proposed Development has been designed, sited and will be managed to avoid any adverse effects on the coastal use area. The Proposed Development takes into account the compliant bulk, scale and size of the proposal, in relation to the surrounding coastal and built environment.

27. For the purposes of s 2.12 of the Resilience and Hazards SEPP, the Site is within the coastal zone as defined under the Coastal Management Act 2016 (NSW) and the Proposed Development is not likely to cause increased risk of coastal hazards on the Site or on other land. A coastal hazard is defined in s 4 of the Coastal Management Act 2016 as:

(a)  beach erosion,

(b)  shoreline recession,

(c)  coastal lake or watercourse entrance instability,

(d)  coastal inundation,

(e)  coastal cliff or slope instability,

(f)  tidal inundation,

(g)  erosion and inundation of foreshores caused by tidal waters and the action of waves, including the interaction of those waters with catchment floodwaters.

28. The closest cliff is located over 100m away from the Site, and the closest beaches (Bondi and Tamarama) are located some 400m away from the Site.

29. Given the satisfaction set out above in relation to cl 6.15 of the WLEP relating to stormwater drainage, and the proximity of the Site to shoreline and coastal cliffs (with numerous buildings intervening between the Site and those coastal cliffs or beaches), I am satisfied that it is self-evident that the Proposed Development will not cause increased risk of coastal hazards.

30. For the purposes of s 4.6 of the Resilience and Hazards SEPP, the Statement of Environmental Effects advises that the long term use of the Site has been residential, and the Site is unlikely to be contaminated. Therefore, further investigation is not necessary.

31. The State Environmental Planning Policy (Sustainable Buildings) 2022 came into effect on 1 October 2023, and I am satisfied that the updated BASIX Certificate, prepared in relation to the revised architectural plans, and that the embodied emissions attributable to the development have been quantified: s 2.1(5).

32. 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 as set out in this judgment.

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.

Notations:

34. The Court notes:

1. Waverley Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending Development Application No. DA-477/2024 to rely on the following amended materials:

1. Architectural Drawings prepared by Luigi Rosselli Architects as follows:

Drawing No.	Revision	Drawing Title	Date
DA02	Revision F	Site & Roof Plan	23 October 2025
DA03	Revision F	Lower Ground Floor Plan	23 October 2025
DA04	Revision F	Ground Floor Plan	23 October 2025
DA05	Revision F	First Floor Plan	23 October 2025
DA06	Revision F	Attic Plan	23 October 2025
DA07	Revision F	North Elevations	23 October 2025
DA08	Revision F	East Elevation	23 October 2025
DA09	Revision F	South Elevation	23 October 2025
DA10	Revision F	West Elevation	23 October 2025
DA11	Revision F	Section a-a	23 October 2025
DA12	Revision F	Section b-b	23 October 2025
DA21	Revision F	External Sections and Finishes	23 October 2025

2. Clause 4.6 Written Variation Request – Building Height prepared by GSA Planning dated October 2025.

3. BASIX Certificate No 1760995S_02 prepared by Taylor Smith Consulting dated 23 October 2025.

Orders:

35. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA-477/2024 for the demolition and construction of a new three-storey dwelling house, with partially enclosed roof terrace, basement, double car parking, swimming pool and associated landscaping including tree removal at 85 Fletcher Street, Tamarama (Lot 23 in DP 10118) is determined by the grant of consent subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (536 KB, pdf)

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Decision last updated: 27 October 2025