Airth v Waverley Council

Cases Cited: Airth v Waverley Council [2024] NSWLEC 1750
SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Category: Principal judgment

Parties: Hannah Airth (Applicant)
Waverley Council (Respondent)

Representation: Counsel:
C Morton (Solicitor) (Applicant)
J Ede (Solicitor) (Respondent)
Solicitors:
Sparke Helmore (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/281851

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) following the deemed refusal of modification application DA-278/2023/C that seeks to modify development consent DA-278/2023 for alterations and additions to 411 Bronte Road, Bronte (the Original Consent), granted by the Court on 22 November 2024.

2. The modification application seeks to modify the Original Consent under s 4.55(8) of the EPA Act in the following ways:

3. Changes to the internal layout in the basement, lower ground, and ground floor resulting in additional gross floor area (GFA).

4. Modification of conditions 1(a) and 43(a) to reflect the proposed changes and effect on the GFA and floor space ratio (FSR).

5. The modification application was lodged with the Court on 23 July 2025, and was publicly notified from 8 August to 26 August 2025.

6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, on 16 October 2025. I presided over the conciliation conference, at which the parties agreed to certain amendments that would resolve the contentions, subject to amendment of the modification application by additional documents.

7. A signed agreement was submitted to the Court on 16 October 2025, in accordance with s 34(10) of the LEC Act. The agreement records the approval of the Council, as the relevant consent authority, to the amending of the application in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

8. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

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

10. The parties have identified the jurisdictional pre-conditions that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act to dispose of these proceedings and grant the orders sought. In that regard, I note the jurisdictional preconditions that follow.

Environmental Planning and Assessment Act 1979 (NSW)

9. Section 4.55(2)(a) of the EPA Act enables the Court, as the consent authority, to modify a development consent upon application by the Applicant (or any person entitled to act on the consent) provided the Court is satisfied that the subject development consent, as modified, is substantially the same as the originally approved development.

10. The proposal as now amended maintains the external envelope, form, and materials evident in the Original Consent, but for two amendments:

11. The enclosing of two openings to the side boundary to the east at the lower ground floor level; and

12. New infill to the side of the proposed dwelling towards the rear of the lower ground floor to the west.

13. I am satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. The scope of the proposed modifications increase the gross floor area of the dwelling. However, this is achieved within the overall envelope of the dwelling that is subject to the Original Consent. When the amendments proposed by the modification application are considered in both qualitative and quantitative terms, the development is substantially the same as the development for which consent was originally granted.

Environmental Planning and Assessment Regulation 2021 (NSW)

12. The Modification Application has been made by the owner of the site, who provides written consent.

13. I also note that no submissions arose from the notification of the Modification Application at [(3)] in accordance with s 4.55(2)(d) of the EPA Act.

14. In respect of the requirement for a BASIX Certificate under s 100(3) of the EPA Regulation, the parties note the Modification Application is accompanied by an amended BASIX Certificate No 1390534S_02 dated 1 November 2024, which has been provided to the Council as part of the Modification Application.

15. The amended BASIX Certificate confirms that the requirements under the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) are satisfied, including the quantifying of embodied emissions attributable to the development, in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

16. The parties agree that the site does not fall within a coastal vulnerability area, coastal environmental area, or coastal use area pursuant to ss 2.9, 2.10, and 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

17. Section 4.55(3) of the EPA Act requires the consent authority to consider those matters in s 4.15(1) of the EPA Act that are of relevance; and the reasons given by the consent authority for the grant of the original consent that is sought to be modified.

18. Waverley Local Environmental Plan 2012 (WLEP) designates the site is zoned R2 Low Density Residential, in which development for the purposes of dwelling houses is permitted with consent in the zone, subject to certain objectives that I have considered.

19. The FSR resulting from the modification now proposed exceeds the FSR permitted by the relevant development standard at cl 4.4 of the WLEP. However, the Court has held that s 4.55 is a complete source of power (SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 at [31])

20. The parties agree that given the minor nature of the modification proposed, the Court should exercise the discretion set out at cl 5.10(5) of the WLEP such that a heritage management document is not required to assess the effect of the development on heritage items in the vicinity of the site.

21. The parties agree that the reasons for the granting of development consent are set out in the judgment of Airth v Waverley Council [2024] NSWLEC 1750*.*

22. Accordingly, I am satisfied that the relevant matters specified in s 4.15(1) of the EPA Act have been considered and addressed by the Modification Application.

Conclusion

19. 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.

20. 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.

21. The Court notes that Waverley Council, as the relevant consent authority, under s 113 of the EPA Regulation, approves the amending of modification application DA-278/2023/C by the amended plans listed in Annexure A.

Orders

22. The Court orders that:

23. The Applicant is granted leave to amend the Modification Application to Development Consent No. DA-278/2023 to rely on the additional documents in Annexure A.

24. The Modification Application to Development Consent No. DA-278/2023 made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW), as amended, is determined by way of approval.

25. Development Consent No. DA-278/2023 is modified in the terms in Annexure B.

26. Development Consent No. DA-278/2023 as modified by the Court is Annexure C.

T Horton

Commissioner of the Court

**********

Annexure A.119 KB.pdf

Annexure B.40.4 KB.docx

Annexure C.421 KB.pdf