CE Project Ventures Pty Ltd v Waverley Council

Cases Cited: Cumming v Cumberland Council (No 2) [2021] NSWLEC 117
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited: Waverley Flood Study 2021

Category: Principal judgment

Parties: CE Project Ventures Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation: Counsel:
N Eastman SC (Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Mills Oakley Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/168769

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. 29/2025 (development application), as amended, for the demolition of the existing buildings and construction of a five-storey residential flat building, including in-fill affordable housing, with integrated parking and associated landscaping works (the proposal), at 46-50 Lamrock Avenue, Bondi Beach (the site), by Waverley Council (the Council).

2. 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 15 September 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. 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). The plans and documents comprising the amended application are:

| TAB | DOCUMENT | DATE | | 1 | Amended Architectural Plans (up to Rev D), prepared by MHNDUnion, including: • DA0000 – Coverpage (Rev B) • DA1000 – Site Context (Rev B) • DA1001 – Setback Analysis Plan (Rev B) • DA1002 – Site Analysis Plan (Rev B) • DA1003 – Demolition Plan (Rev B) • DA1004 – Site Plan (Rev B) • DA1005 – BASIX Commitments (Rev B) • DA2000 – Lower Ground Plan (Rev E) • DA2001 – Ground Floor Plan (Rev C) • DA2002 – Level 1 Floor Plan (Rev C) • DA2003 – Level 2 Floor Plan (Rev C) • DA2004 – Level 3 Floor Plan (Rev C) • DA2005 – Level 4 Floor Plan (Rev B) • DA2006 – Roof Plan (Rev D) • DA3000 – Elevation North-East (Rev C) • DA3001 – Elevation South-West (Rev C) • DA3002 – Elevation North-West (Rev C) • DA3003 – Elevation South-East (Rev C) • DA3004 – Streetscape Elevation (Rev B) • DA3100 – Section AA (Rev B) • DA3101 – Section BB (Rev C) • DA3102 – Section CC (Rev C) • DA6000 – Finishes Schedule (Rev B) • DA6100 – Door and Window Schedule (Rev B) • DA7000 – Photomontage (Rev B) • DA9000 – Design Verification Statement (Rev B) • DA9001 – Housing SEPP – Principle 1 & 2 (Rev B) • DA9002 – Housing SEPP – Principle 3 & 4 (Rev B) • DA9003 – Housing SEPP – Principle 5 & 6 (Rev B) • DA9004 – Housing SEPP – Principle 7 & 8 (Rev B) • DA9005 – Housing SEPP – Principle 9 & 10 (Rev B) • DA9100 – GFA Calculations (Rev B) • DA9101 – Landscape Areas (Rev C) • DA9102 – Deep Soil – DCP (Rev B) • DA9103 – Deep Soil – ADG (Rev B) • DA9104 – Excavation Diagram (Rev B) • DA9105 – Private Open Space (Rev B) • DA9106 – Storage (Rev B) • DA9107 – ADG Compliance Diagrams (Rev B) • DA9108 – Waste Management (Rev B) • DA9109 – Height Blanket Diagram (Rev D) • DA9110 – Landscape Areas – SEPP Housing (Rev A) • DA9200 – Views from the Sun 9am – 21 June (Rev B) • DA9201 – Views from the Sun 10am – 21 June (Rev B) • DA9202 – Views from The Sun 11am – 21 June (Rev B) • DA9203 – Views from the Sun 12pm – 21 June (Rev B) • DA9204 – Views from the Sun 1pm – 21 June (Rev B) • DA9205 – Views from the Sun 2pm – 21 June (Rev B) • DA9206 – Views from the Sun 3pm – 21 June (Rev B) • DA9300 – Notification Plan (Rev B) • DA9301 – Notification Elevations (Rev B) | 15 September 2025 | | 2 | Schedule of Amendments, prepared by MHNDUnion | 15 September 2025 | | 3 | Updated cl.4.6 re FSR prepared by GSA Planning | 11 September 2025 | | 4 | VPA Offer re FSR prepared by CE | 5 September 2025 | | 5 | Updated Design Verification Statement, prepared by MHNDUnion, including: • Housing SEPP & ADG Principles • ADG Compliance Table | 15 September 2025 | | 6 | Letter from registered community housing provider provided by Bridge Housing | 30 May 2025 | | 7 | Access Statement prepared by Inclusive Places | 5 September 2025 | | 8 | Arborist Statement in response to Contention 7 | 8 September 2025 | | 9 | Amended Arboricultural Impact Assessment | 9 September 2025 | | 10 | Social Impact Assessment prepared by GSA Planning | 8 September 2025 | | 11 | Updated OWMP prepared by Elephants Foot Consulting | 4 September 2025 | | 12 | Updated C&D WMP prepared by Elephants Foot Consulting | 4 September 2025 | | 13 | Detailed Site Investigation prepared by JK Environments | 28 March 2025 | | 14 | Amended Stormwater Plans, prepared by IGS, including: • SW-100, Lower Ground (Rev 1) • SW-300, OSD and Pit Details (Rev 3) | 25 July 2025 | | 15 | Flood Impact and Risk Management Report prepared by IGS | 27 August 2025 | | 16 | Amended Landscape Plans (Rev D) prepared by DBS, including: • DA01-D9224 – Cover Sheet • DA02-D9224 – Site Plan • DA03-D9224 – Ground (Front) Landscape Plan • DA04-D9224 – Ground (Rear) Landscape Plan • DA05-D9224 – First Floor Landscape Plan • DA06-D9224 – Second Floor Landscape Plan • DA07-D9224 – Third Floor Landscape Plan • DA08-D9224 – Fourth Floor Landscape Plan • DA09-D9224 – Canopy Coverage Plan | 10 September 2025 | | 17 | Updated Plan of Subdivision prepared by LTS | 9 September 2025 | | 18 | Updated BASIX Certificate BASIX Certificate No. 178169M_02 prepared by E-Lab Consulting | 19 September 2025 |

Pre-conditions to the grant of consent

5. I accept the Council’s assessment that the site is suitable for the development, having been historically used for a residential purpose, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed by the Preliminary Site Investigation and the Detailed Site Investigation both prepared by JK Geotechnics.

6. The application is made pursuant to the provisions of Pt 2, Div 1 In-fill affordable housing of State Environmental Planning Proposal (Housing) 2021 (SEPP Housing). The proposal includes 16.3% of the total gross floor area (GFA) as affordable housing and relies on s 16(1) of SEPP Housing which provides a 30% FSR bonus and s 16(3) which provides a 30% height of buildings bonus.

7. The proposal includes a letter from Bridge Housing Pty Ltd confirming that Bridge Housing agrees to manage the affordable housing properties for at least 15 years to fulfil the requirements of s 21 of SEPP Housing (condition 6 of the conditions of consent at Annexure A).

8. I accept the Council’s submission that the proposal complies with the applicable non-discretionary development standards under s 19(2) of SEPP Housing.

9. I am satisfied that the proposal is consistent with Ch 4 to SEPP Housing, on the basis of the Design Verification Statement by MHN Design Union.

10. The site is zoned R3 Medium Density Residential pursuant to Waverley Local Environmental Plan 2012 (LEP 2012). The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maximise public transport patronage and encourage walking and cycling.

• To increase or preserve residential dwelling density.

• To encourage the supply of housing, including affordable housing, that meets the needs of the population, particularly housing for older people and people with disability.

• To provide development that is compatible with the desired future character and amenity of the surrounding neighbourhood.

• To promote development that incorporates planning and design measures that reduce the urban heat island effect.

• To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.

11. The proposal complies with the height of buildings development standard of 16.25m (cl 4.3 of LEP 2012 of 12.5m and s 16(3) of SEPP Housing 30% bonus).

12. The floor space ratio (FSR) development standard for the site is 0.9:1 under cl 4.4 of LEP 2012. The objectives of the FSR development standard are:

(a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs,

(b) to provide an appropriate correlation between maximum building heights and density controls,

(c) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality,

(d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality.

13. The site is identified as flood affected under the Waverley Flood Study 2021. I accept the Council’s submission that the Flood Risk Management Plan, prepared by IGS, satisfies the matters under cl 5.21(2) of LEP 2012.

14. The acceptability of the excavation of the site is addressed by the Geotechnical Report prepared by JK Geotechnics. I am satisfied that the matters under cl 6.2(3) of LEP 2012 have been considered and that the proposal will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

15. I am satisfied that the objective of the waste minimisation clause, cl 6.14 of LEP 2012, is met by the proposal on the basis of the (amended) Operational Waste Management Plan prepared by Elephants Foot Group.

16. I am satisfied that the objectives of cl 6.15 of LEP 2012, regarding stormwater management, are achieved, and the matters under cl 6.15(3) are satisfied, by the amended Stormwater Management Plans and the OSD Calculation and Water Sensitive Urban Design (WSUD) Report prepared by IGS.

Contravention of the FSR development standard

17. The FSR development standard for the proposal is 1.17:1 (cl 4.4 of LEP 2012 0.9:1 and s 16(1) SEPP Housing 30% bonus). The proposal has a FSR of 1.2:1.

18. The applicant provided a written request seeking to justify the contravention of the FSR development standard prepared by GSA Planning and dated 11 September 2025.

19. Clause 4.6(3) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (Initial Action)). The consent authority must form two positive opinions of satisfaction under cl 4.6(3). The consent authority, or the Court on appeal, must be satisfied that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

The applicant’s written request to contravene the FSR development standard

20. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.

21. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe) and repeated in Initial Action [17]-[21]:

22. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

23. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

24. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

25. the development standard has been abandoned by the council;

26. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

27. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

28. The applicant’s written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

29. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

30. I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the FSR development standard as justified for the following reasons:

31. The proposal is consistent with the context;

32. Strict compliance would significantly impact the functionality of the proposal and the internal amenity for the future occupants; and

33. The exceedance of the FSR development standard does not result in any adverse amenity impacts on adjoining development.

34. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as environmental planning grounds within the meaning identified by his Honour in Initial Action at [23].

Conclusion

27. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 15 September 2025 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

28. The orders of the Court are:

29. The appeal is upheld.

30. Pursuant to s 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 amending the Development Application in the agreed sum of $28,000 within 28 days of the date of these orders.

31. Development Application No. 29/2025, as amended, for the demolition of the existing buildings and construction of a five-storey residential flat building, including in-fill affordable housing, with integrated parking and associated landscaping works, at 46-50 Lamrock Avenue, Bondi Beach, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

S O’Neill

Commissioner of the Court

Final Annexure A (768 KB, pdf)

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Amendments

26 September 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), correction is made to the Order 3, Judgment body [1] and [28] in regards of a typographical error, corrected from ‘demotion’ to ‘demolition’.

14 October 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), correction is made to Condition 1 – Approved Plans and Documents in the Annexure B, corrected from ’10.09.2025’ to ‘5.09.2025’.

15 October 2025

The correct version of Annexure B is uploaded.

17 October 2025

Consolidated the Annexures to align with the judgment.