Whitworth v Waverley Council

[2025] NSWLEC 1731

Land and Environment Court

New South Wales

Medium Neutral Citation:

Whitworth v Waverley Council [2025] NSWLEC 1731

Hearing dates:

Conciliation conference 29 September 2025

Date of orders:

09 October 2025

Decision date:

09 October 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amended development application, in the agreed sum of $30,000.00 within 30 days of the date of this order.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA-644/2024, as amended, for the partial demolition of the existing semi-detached dwelling and construction of a three storey dwelling at 2 Dudley Street, Bondi, subject to conditions in Annexure A.

(4) All exhibits except 1 and A are returned.

Catchwords:

DEVELOPMENT APPEAL — semi-detached dwelling — conciliation conference — agreement between the parties — orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 8.7, 8.15

Land and Environment Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.1

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

Waverley Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.6, 6.2, 6.15

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

Emily Jane Whitworth (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
M Staunton (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2025/00034386

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW), (EPA Act) against the deemed refusal of development application DA-644/2024. The development application seeks development consent for the partial demolition of the existing semi detached dwelling (except for the common wall) and construction of a new semi detached dwelling with swimming pool and ancillary structures (DA) at 2 Dudley Street, Bondi (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg), to the Applicant amending development application DA-644/2024 in accordance with the documents listed below (amended DA):

No	Document	Ref No.	Prepared by	Rev	Date
1.	Architectural plans
	Drawing Register + Calculations	A00	Sofia Husni	11	29.09.25
	Site analysis plan + Environmental site management	A02	Sofia Husni	11	29.09.25
	Predominant setback plan	A03	Sofia Husni	11	29.09.25
	Proposed site plan	A04	Sofia Husni	11	29.09.25
	Demolition plans	A05	Sofia Husni	11	29.09.25
	Proposed concept landscape plans	A06	Sofia Husni	11	29.09.25
	Area Diagram	A07	Sofia Husni	11	29.09.25
	Proposed Sub Floor Plan	D00	Sofia Husni	11	29.09.25
	Proposed Ground Floor (Street Floor)	D01	Sofia Husni	11	29.09.25
	Proposed First Floor Plan	D02	Sofia Husni	11	29.09.25
Upper Level Plan	D03	Sofia Husni	11	29.09.25
Proposed Roof Plan	D04	Sofia Husni	11	29.09.25
Proposed West Elev	E01	Sofia Husni	11	29.09.25
Proposed East Elev	E02	Sofia Husni	11	29.09.25
Proposed North Elev	E03	Sofia Husni	11	29.09.25
Proposed South Elev	E04	Sofia Husni	11	29.09.25
Proposed Section	F01	Sofia Husni	11	29.09.25
Cross Section	F03	Sofia Husni	11	29.09.25
Detail Sheet 1:50	G01	Sofia Husni	11	29.09.25
12.	Clause 4.6 Request	GSA Planning	29.09.25
13.	Proposed Stormwater Drainage plans	Drawings 1-3	Clapham Design Services	D	26.09.25
14.	BASIX Certificate	1771976S_04	Deneb Design	4	29.09.25
15.	NatHERS® Certificate	#HR-YNXTWC-02	Deneb Design	2	29.09.25

3. The proceedings commenced on site as a hearing on 25 September 2025. On the basis of the joint expert reporting of the planners and urban designers, as well as amendments made to the development application, the parties advised that the contentions had been resolved and requested a conciliation conference. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), (LEC Act) between the parties, which was held on 29 September 2025. I have presided over the conciliation conference.

4. 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 for the amended DA and granting development consent to the amended DA subject to conditions.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]). For the reasons set out below, 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.

Owner’s consent

9. I am satisfied that owner’s consent has been provided for the DA as the Applicant is the sole registered proprietor of the site.

Community notification and objections

10. The Respondent notified the DA between 13 December 2024 to 30 January 2025. Eight submissions objecting to the proposal were received. At the commencement of the hearing, four objectors expressed their concerns orally and one objector allowed the Court and the parties into their home to understand the concerns raised.

11. As the parties have reached agreement, the Court is not able to consider the merits of the proposal. The parties have addressed the Court and have considered concerns raised by objectors in the amended DA.

Waverley Local Environmental Plan 2012

12. The site is zoned R3 Medium Density Residential under the Waverley Local Environmental Plan 2012 (WLEP). The proposed development for a semi-detached dwelling is permitted with consent and the parties’ have had regard to the objectives of the zone.

13. The parties agree and I accept that the following applicable WLEP provisions are met:

1. Clause 2.7 allows demolition with consent, as proposed within the amended DA.

2. Clause 4.3 height of buildings applies to the site and prescribes a maximum building height of 9.5m. The amended DA, at 8.65m, seeks a variation of 1.1m in the eastern portion of the building. The amended DA is accompanied by a written request prepared by GSA Planning dated 29 September 2025 (written request). I accept the parties’ agreement that the written request adequately addresses the requirements of cl 4.6(3). I accept that the Applicant has demonstrated compliance with the development standard is unreasonable or unnecessary in the circumstances and has demonstrated sufficient environmental planning grounds.

3. Clause 4.4 floor space ratio (FSR) applies and prescribes a maximum of 0.9:1. The proposed FSR is 0.78:1.

4. Clause 6.2 earthworks applies to the amended DA. I accept the parties’ agreement that the amended DA meets the provisions as detailed in the jurisdictional statement and conditions of consent.

5. Clause 6.15 stormwater management applies. The amended DA is accompanied by stormwater plans that avoids adverse impacts from stormwater to adjoining properties through use of a pump out system and on-site stormwater retention through two 2500L rainwater tanks.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The parties agree that the proposal does not change the use of the site, the site has a long history of residential use and there is no reason to suspect the site is contaminated. Accordingly, the parties agree and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

State Environmental Planning Policy (Sustainable Buildings) 2022

15. The parties agree and I accept that the amended DA is accompanied by an amended BASIX Certificate that meets the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (including s 2.1 embodied emissions), and s 27 of the EPA Reg.

Conclusion

16. 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.

17. 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.

18. I have considered the jurisdictional prerequisites and 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.

Orders

19. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amended development application, in the agreed sum of $30,000.00 within 30 days of the date of this order.

2. The appeal is upheld.

3. Development consent is granted to development application DA-644/2024, as amended, for the partial demolition of the existing semi-detached dwelling and construction of a three storey dwelling at 2 Dudley Street, Bondi, subject to conditions in Annexure A.

4. All exhibits except 1 and A are returned.

……………………….

S Porter

Commissioner of the Court

Annexure A (411 KB, pdf)

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Decision last updated: 09 October 2025