Andsar Holdings Pty Ltd v Waverley Council

Texts Cited: Waverley Development Control Plan 2022
Apartment Design Guide

Category: Principal judgment

Parties: Andsar Holdings Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation: Counsel:
M Sonter (Solicitor)(Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/449616

Publication restriction: No

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-298/2024 (DA) by Waverley Council.

2. The DA, as amended, seeks consent for the demolition of existing structures, removal of 12 trees, and construction of a four-storey residential flat building containing 9 apartments, including 2 affordable housing units and basement car parking, at 121 - 123 Glenayr Avenue Bondi Beach, legally identified as Lots 11 and 12 in DP 2216 (site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (Court Act), at which I presided. The conference was held on 10 June 2025.

4. Through the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. Under s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a jurisdictional statement that sets out the matters the Court must consider prior to the grant of development consent. I have considered the contents of the statement together with the documents referred to therein, the Class 1 Application and its attachments (Class 1), the bundle of documents provided with the s 34 agreement (s 34 bundle) and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A and listed below:

| Dwg No. | Rev. | Drawing Title | Prepared By | Dated | | Amended Architectural Plans | | DA000 | [04] | Cover Page | Common Office | 03.06.2025 | | DA100 | [04] | Site Plan | Common Office | 03.06.2025 | | DA101 | [04] | Setback Analysis | Common Office | 03.06.2025 | | DA110 | [04] | Tree Management Plan | Common Office | 03.06.2025 | | DA200 | [04] | Basement Plan | Common Office | 03.06.2025 | | DA201 | [04] | Ground Plan | Common Office | 03.06.2025 | | DA202 | [04] | Level 1 Plan | Common Office | 03.06.2025 | | DA203 | [04] | Level 2 Plan | Common Office | 03.06.2025 | | DA204 | [04] | Level 3 Plan | Common Office | 03.06.2025 | | DA205 | [04] | Roof Plan | Common Office | 03.06.2025 | | DA250 | [04] | Detail Basement Plan | Common Office | 03.06.2025 | | DA251 | [04] | Detail Ground Plan | Common Office | 03.06.2025 | | DA252 | [04] | Detail Level 1 Plan | Common Office | 03.06.2025 | | DA253 | [04] | Detail Level 2 Plan | Common Office | 03.06.2025 | | DA254 | [04] | Detail Level 3 Plan | Common Office | 03.06.2025 | | DA255 | [04] | Detail Roof Plan | Common Office | 03.06.2025 | | DA300 | [04] | East & West Elevations | Common Office | 03.06.2025 | | DA301 | [04] | North & South Elevations | Common Office | 03.06.2025 | | DA350 | [04] | Detail East Elevation | Common Office | 03.06.2025 | | DA360 | [04] | Boundary Elevations | Common Office | 03.06.2025 | | DA361 | [04] | Boundary Sections | Common Office | 03.06.2025 | | DA400 | [04] | Long Section | Common Office | 03.06.2025 | | DA401 | [04] | Short Section | Common Office | 03.06.2025 | | DA500 | [04] | Areas - GFA | Common Office | 03.06.2025 | | DA501 | [04] | Areas - Landscape | Common Office | 03.06.2025 | | DA502 | [04] | Areas - Storage | Common Office | 03.06.2025 | | DA503 | [04] | Cross Vent | Common Office | 03.06.2025 | | DA504 | [04] | Natural Ventilation Calculations | Common Office | 03.06.2025 | | DA700 | [04] | Window Schedule – Ground | Common Office | 03.06.2025 | | DA701 | [04] | Window Schedule – Level 1 | Common Office | 03.06.2025 | | DA702 | [04] | Window Schedule – Level 2 | Common Office | 03.06.2025 | | DA703 | [04] | Window Schedule – Level 3 | Common Office | 03.06.2025 | | DA800 | [04] | Photomontage | Common Office | 03.06.2025 | | DA801 | [04] | Materials Schedule | Common Office | 03.06.2025 | | Amended Landscape Plans | | DA001-2324 | D | Cover Sheet | Dangar Barin Smith | 04.06.2025 | | DA002-2324 | D | Site Plan | Dangar Barin Smith | 04.06.2025 | | DA003-2324 | D | Ground Landscape Plan | Dangar Barin Smith | 04.06.2025 | | DA004-2324 | D | Level 1 & 2 Landscape Plan | Dangar Barin Smith | 04.06.2025 | | DA005-2324 | D | Level 3 Landscape Plan | Dangar Barin Smith | 04.06.2025 | | DA006-2324 | D | Canopy Coverage Plan | Dangar Barin Smith | 04.06.2025 | | DA007-2324 | D | Typical Details | Dangar Barin Smith | 04.06.2025 | | Amended Stormwater Plans | | SWDA 1.1 | 2 | Coversheet And Drawing List | Partridge Hydraulic | 05.06.25 | | SWDA 1.2 | 2 | Stormwater Management Plan & General Notes | Partridge Hydraulic | 05.06.25 | | SWDA 1.3 | 2 | Erosion & Sediment Control Plan And Details | Partridge Hydraulic | 05.06.25 | | SWDA 1.4 | 2 | Existing & Proposed Site Plan And Impervious Areas | Partridge Hydraulic | 05.06.25 | | SWDA 1.5 | 2 | Stormwater Drainage Layout - Basement & Ground Floor | Partridge Hydraulic | 05.06.25 | | SWDA 1.6 | 2 | Details Sheet | Partridge Hydraulic | 05.06.25 | | Amended Civil Plans | | CDA 1.1 | 2 | Cover Sheet & Drawing List | Partridge Hydraulic | 05.06.25 | | CDA 1.2 | 4 | Driveway Access Layout and General Notes | Partridge Hydraulic | 05.06.25 | | CDA 1.3 | 3 | Driveway Longitudinal Section 1 and B85 Vehicle Scape Analysis, 1 of 2 | Partridge Hydraulic | 05.06.25 | | CDA 1.4 | 3 | Driveway Longitudinal Section 1 and B85 Vehicle Scape Analysis, 2 of 2 | Partridge Hydraulic | 05.06.25 | | CDA 1.5 | 3 | Driveway Longitudinal Section 2 and B85 Vehicle Scape Analysis, 1 of 2 | Partridge Hydraulic | 05.06.25 | | CDA 1.6 | 3 | Driveway Longitudinal Section 2 and B85 Vehicle Scape Analysis, 2 of 2 | Partridge Hydraulic | 05.06.25 | | CDA 1.7 | 4 | Driveway Access Swept Path Analysis - Entering | Partridge Hydraulic | 05.06.25 | | CDA 1.8 | 4 | Driveway Access Swept Path Analysis - Exiting | Partridge Hydraulic | 05.06.25 | | CDA 1.9 | 2 | Waverley Council Standard Drawing and Specifications, 1 of 2 | Partridge Hydraulic | 05.06.25 | | CDA 1.10 | 2 | Waverley Council Standard Drawing and Specifications, 2 of 2 | Partridge Hydraulic | 05.06.25 | | Supporting Documentation | | Document Title | Prepared By | Dated | | Amended Clause 4.6 Variation Request – Clause 4.3 – Height of Buildings | LK Planning | 16.06.2025 | | Amended Letter of Offer to enter into Voluntary Planning Agreement | Andsar Holdings Pty Ltd | 02.06.2025 | | Amended Design Verification Statement | Common Office | 02.06.2025 | | Amended Geotechnical Investigation Report | JK Geotechnics | 30.05.2025 | | Geotechnical Support Letter | JK Geotechnics | 05.06.25 | | Amended Traffic Report | Wongala Consulting Engineers | 27.05.2025 | | Operational Waste Management Plan | Senica Consultancy Group | 03.06.2025 | | Amended BASIX Certificate 1750701M_02 | PEM Group Co Pty Ltd | 05.06.2025 | | Amended NatHERS Certificate No. 0011967486 | Partners Energy Management | 05.06.2025 | | Amended Shadow Diagrams A100 – A113 | Cad Draft P/L | 10.06.2025 | | Letter from HomeGround Real Estate Sydney | Bridge Housing | 26.06.2025 | | Letter addressing allocation of registered community housing provider | LK Planning | 25.06.2025 |

Jurisdictional considerations

7. As the presiding Commissioner I am satisfied that the decision to grant development consent to the DA, as amended and subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I am satisfied that each of the jurisdictional preconditions identified by the parties is met, as set out below.

8. The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions. Seven submissions were received. Council advises that these have been considered and are satisfactorily addressed in the DA and conditions of consent.

9. As the parties have reached agreement, the parties have considered the concerns raised in the submissions and not the Court. The parties advise that the submissions have been considered and the relevant matters addressed, noting that the amended DA includes privacy measures and a detailed shadow assessment.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

Chapter 2 – Affordable Housing

10. The DA is subject to the in-fill affordable housing provisions (Ch 2, Pt 2, Div 1). Pursuant to s 16(1), the DA is eligible for an increase in the maximum floor space ratio (FSR) permissible for the site. This results in a maximum FSR of 1.17:1 (0.9:1 pursuant to cl 4.4(2) of Waverley Local Environmental Plan 2012 (WLEP) plus 30%). The DA exceeds this control, proposing a gross floor area (GFA) of 686.088m2, equating to a variation of 103.012m2 or 15% above the GFA permissible under WLEP and the Housing SEPP.

11. The DA, as amended, is supported by a request under cl 4.6 prepared by LK Planning dated 16 June 2025 (written request) (tab 3, s 34 bundle). For an abundance of caution, the written request addresses both the development standards in WLEP and the Housing SEPP. Having read the written request I am satisfied that the requirements of cl 4.6 of WLEP and the Housing SEPP are met for the following reasons:

12. The site is an amalgamation of two properties, providing an increased footprint upon which a compliant building form can be provided.

13. The variation is almost entirely contained within the top (4th) floor (this accounts for all but 3m2 of the variation), which is permissible under both WLEP and the Housing SEPP. The Housing SEPP allows for an additional (5th) floor.

14. The top floor is recessed on all sides, in compliance with Waverley Development Control Plan 2022 (WDCP).

15. Site coverage is compliant with WDCP and the Apartment Design Guide, including landscaping (32%) and deep soil (15%).

16. The resultant building form, footprint and compliance with relevant controls, facilitates a variation to the FSR standards without any increase in adverse environmental planning impacts on the neighbouring buildings or locality.

17. The building presents to the street as a 3 storey flat building with a 4th storey above that is recessive and architecturally distinguished from the levels below. This is consistent with the emerging typology in the locality.

18. Therefore, for the reasons stated in the written request the height variation is upheld.

19. The parties advise and I am satisfied that the remaining identified preconditions to the grant of consent in Ch 2 of the Housing SEPP are met.

Chapter 4 – design of residential apartment development

14. Chapter 4 provides planning controls and mandatory considerations applicable to residential apartment development. Pursuant to s 144(2)(a), Ch 4 applies because the DA seeks consent for a residential flat building.

15. Pursuant to s 145(2), the Waverley Design Excellence Panel has previously considered the DA and provided advice on the quality of the design (page 6 of the statement of facts and contentions). The recommendations of the design review panel have been taken into consideration in the amended DA (s 147(1)(c)).

16. Pursuant to ss 147(1)(a) and (b), a statement addressing the design quality of the amended DA in accordance with the design quality principles and the consistency of the amended DA with the Apartment Design Guide has been provided (Tab 6, s 34 bundle). I am satisfied that adequate regard has been given to the design quality principles and the relevant objectives specified in the Apartment Design Guide, as required under s 147.

17. Section 148 identifies development standards that, if complied with, prevent the consent authority from requiring more onerous standards. The Amended Architectural Plans (Tab 2, s34 bundle) and Amended Design Verification Statement (Tab 5, s34 bundle) demonstrate the design meets the recommended minimum standards.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

18. Pursuant to s 4.6(1), a consent authority must be satisfied that appropriate consideration has been given as to whether the site is contaminated, the suitability of the site for the proposed development and whether satisfactory measures have been put into place to remediate the land should it be required to do so.

19. The site has been used for residential purposes for an extended period, with no known land uses or activities that may result in the contamination of land (page 13 of SEE, tab 3 of Class 1). The site is not identified as contaminated nor in the vicinity of any sites on the NSW Environmental Protection Agency's list of notified sites.

20. The parties are satisfied and I accept that the requirements of s 4.6 are met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP)

21. Chapter 2 contains provisions for the preservation and management of vegetation in non-rural areas. Pursuant to s 2.3(1)(a), Ch 2 applies to the DA.

22. Section 2.6(1) provides that a person must not clear vegetation in a non-rural area without approval. The development application seeks consent for the removal of 12 trees across the site. Based on the arboricultural impact assessment report prepared by Martin Peacock Tree Care (tab 5, Class 1), the tree management plan at Sheet DA110 of the amended architectural plans (Tab 2, s 34 bundle) and relevant conditions (6, 13, 42-45, 63-68), the parties agree and I am satisfied that the requirements of Ch 2 are met.

State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP)

23. A BASIX Certificate accompanies the amended DA as required by s 2.1 of the Sustainable Buildings SEPP and Sch 7 of the EPA Reg (tab 13, s 34 agreement bundle).

Waverley Local Environmental Plan 2012

24. The site is located within Zone R3 Medium Density Residential pursuant to WLEP. The parties agree and I accept that the proposed development is permissible with consent and consistent with the relevant zone objectives.

25. Demolition works are permissible with consent under cl 2.7.

26. The site is subject to a maximum building height control of 12.5 m pursuant to cl 4.3 of WLEP. The DA has a maximum height of 12.26 m, which is compliant.

27. As outlined above, the DA does not comply with FSR control under cl 4.4 but I am satisfied that the written request is adequate to justify the contravention.

28. I accept the advice of the parties that the DA complies with the other development standards under WLEP.

29. I have considered the matters at cl 6.2(3), including the Amended Geotechnical Report prepared by JK Geotechnics (Tab 7, s 34 bundle). The parties agree and I am satisfied that the DA meets the requirements of cl 6.2.

30. Clause 6.14 (waste minimisation recycling) applies because the DA proposes a residential flat building. Based on the amended waste management report prepared by Senica Consultancy Group (tab 8, s 34 bundle), I am satisfied of the requirements in cl 6.14.

31. Clause 6.15 (stormwater management) specifies matters of which the consent authority must be satisfied. Based on the amended stormwater engineering plans prepared by Partridge (tab 11, s 34 bundle), I am satisfied of the matters in cl 6.15.

32. Other considerations

33. Owner's consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the EPA Reg.

34. Pursuant to s 26(a) of the EPA Reg, the name of the registered community housing provider who will manage the affordable housing component is specified in the DA.

35. The parties have considered the likely impacts of the DA and the suitability of the site for the DA and agree that the proposal, as amended, is acceptable.

Conclusion

36. Based on the above details, 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 Court Act. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

37. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

38. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders:

39. The Court orders:

40. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application in the agreed amount of $9,094.75 payable within 14 days.

41. The appeal is upheld.

42. The request pursuant to clause 4.6 of the Waverley Local Environmental Plan 2012 to vary the development standard for floor space ratio of building control contained within clause 4.3 thereof and section 16 of the State Environmental Planning Policy (Housing) 2021, as prepared by LK Planning dated 16 June 2025, is upheld.

43. Development consent is granted to DA-298/2024 for the demolition of existing structures and construction of a residential flat building and basement level parking and associated landscaping at 121 and 123 Glenayr Avenue, Bondi Beach, subject to the conditions of consent annexed and marked Annexure 'A'.

A Thorpe

Acting Commissioner of the Court

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Annexure A (488 KB, pdf)