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

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).
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…

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 1731
Decision Date: 09 October 2025

CaseChat Overview and Summary

The case of Whitworth v Waverley Council involved the Applicant, Whitworth, appealing against the Council's decision to refuse development consent for a proposed three-storey dwelling at 2 Dudley Street, Bondi. The Local Land Services determined the application to be non-compliant with the Coastal Protection Zone, prompting the Council to refuse consent. Whitworth subsequently amended the application, which was again refused by the Council. The Applicant sought review of this decision before the Land and Environment Court.

The court had to determine whether the amended development application was compliant with the Coastal Protection Zone, and if not, whether non-compliance could be justified under the statutory exceptions. Furthermore, the court had to consider if the refusal of consent was lawful and whether the Applicant had demonstrated a valid reason to depart from the Coastal Protection Zone's requirements.

The court found that while the amended application remained non-compliant with the Coastal Protection Zone, the statutory exceptions did not apply in this instance. However, the court noted that the Applicant had demonstrated significant public benefit and minimal harm to the coastal environment. Given these factors, the court determined that the refusal of consent was not justified and granted the amended application, subject to specified conditions. The court also ordered the Applicant to pay the Council's costs incurred due to the amended application.

Orders

Orders of the court

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.

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:	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

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…