34 Military Road Pty Ltd v Waverley Council

Category: Principal judgment

Parties: 34 Military Road Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/283816

Publication restriction: No

Judgment

1. COMMISSIONER: This is an application to modify a Court granted consent for the demolition of existing structures and the construction of a residential flat building containing 4 dwellings and basement parking at 34 Military Road, North Bondi. The original consent was granted by the Court in Bondi Heights Pty Ltd v Waverley Council [2022] NSWLEC 1303 (Proceedings 2021/293527) as a result of a conciliated agreement on 9 June 2022. The application is lodged pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), and seeks internal and external changes to the approved building to improve amenity for the residents. This includes modifications to the balconies and introduction of a roof terrace, a communal ground floor pool, and an additional bedroom to the upper level unit. The Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders on the application, outlined in [12] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. Following an adjournment of the hearing, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 July 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed the same date, following the Council’s approval of an application for an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021). The amendments to the modification application include restoring side setbacks to facilitate deep soil planting, and reducing the bulk of the roof terrace and upper storey area to reduce their impact on views and overshadowing. The roof terrace is now proposed to form part of the upper level apartment, as private open space.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites. Based on the Agreed Statement, the Statement of Environmental Effects dated July 2024, the documents referred to in [11] below and the documents referred to in condition 1 of Annexure A, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.55(3) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the following reasons:

6. Qualitatively, the proposal results in a residential flat building consistent with the building approved by the development consent. Both the approved development and the proposed modified development are designed to respond to the steep topography of the site, contain similar layouts, and are designed to minimise overshadowing and view loss impacts.

7. Quantitatively, the proposed residential flat building as modified does not alter the number of dwellings and contains only a marginal increase in floor area. The overall height of the development is reduced by the modification.

8. The modification application was notified by the respondent between 22 August 2024 and 13 September 2024, and again following an earlier amendment, between 27 May 2025 and 11 June 2025, in accordance with s 4.55(2)(c) of the EPA Act. In response to each period of notification, a number of submissions were received. I have considered the issues raised in those submissions.

9. Consistent with the requirements of s 100(3)(a) of the EPA Regulation 2021, the modification application is accompanied by the BASIX certificate dated 26 June 2025.

10. As required by s 102(2) of the EPA Regulation 2021, the amended modification application is accompanied by a design verification statement dated 7 July 2025, which verifies that the modification does not diminish or detract from the design quality of the original development, or compromise the design intent of the original development.

11. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

12. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

13. The Court notes that Waverley Council, as the relevant consent authority, has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending its modification application in accordance with the documents below:

14. Architectural Plans prepared by CHD Design:

| Plan Number and Revision | Plan description | Plan Date | | DA0002 Rev S | Demolition Plan | undated | | DA 1000 Rev U | Basement Plan | 10/06/2025 | | DA1001 Rev U | Ground Floor Plan | 10/06/2025 | | DA1002 Rev U | Level 1 Plan | 10/06/2025 | | DA1003 Rev U | Level 2 Plan | 10/06/2025 | | DA1004 Rev U | Level 3 Plan | 10/06/2025 | | DA1005 Rev U | Roof/Site Plan | 10/06/2025 | | DA2000 Rev U | Front & Rear Elevations | 10/06/2025 | | DA2001 Rev V | Side Elevations | 26/06/2025 | | DA2002 Rev V | Side Elevations | 26/06/2025 | | DA3000 Rev U | Sections – Long & Short | 10/06/2025 | | DA4001 Rev U | Front Fence | 10/06/2025 | | DA6000 Rev U | Materials Finish | 10/06/2025 |

2. Other Plans and Documents:

(a) Landscape Plan prepared by Taylor Brammer (LA00 – LA04, LA11 – LA13, LA21) and received by Council 16/05/2025. (b) Basix Certificate No.1801532M_02 prepared by Angela Georges dated 26 June 2025. (c) Design Verification Statement prepared by By Soma dated 4 July 2025.

12. The Court orders that:

13. The modification application pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979 is approved.

14. Development consent DA5/2021 granted by the Land and Environment Court on 9 June 2022 is modified in the terms in Annexure A to this agreement.

15. Development consent DA5/2021 as modified by the Court is Annexure B to this agreement.

J Gray

Commissioner of the Court

283816.24 Amended Annexure A (423 KB, pdf)

283816.24 Amended Annexure B (540 KB, pdf)

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Amendments

24 July 2025

By consent the Court orders that, pursuant to UCPR r 36.17, the reference to "MHNDUNION" in condition 1 (a)(i) of Annexures A and B to the orders made 22 July 2025 be amended to "CHD DESIGN".