Cerise Investments Pty Ltd v Waverley Council

Category: Principal judgment

Parties: Cerise Investments Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation: Counsel:
M Le (with leave)(Applicant)
J Ede (Solicitor)(Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/204979

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the Development Control Order (DCO) NO-5593 in terms of Order No. 1 (stop use), 3 (demolish works) and 10 (restore works) (DCO) pursuant to s 9.34 and sch 5, Pt 1 of the EPA Act at 89-91 Ramsgate Avenue, North Bondi NSW 2026 legally described as Lot 10 in DP 343534 (the Site).

2. The DCO required the Applicant to comply with the following orders:

(a) Cease use of the non-trafficable area at rear unit;

(b) To demolish unauthorised works;

(c) To restore the premises to its original condition before the unauthorised buildings works were completed; and

(d) To notify Council when all things specified in the order are complete and premises is restored to the condition in which it was before the building works were unlawfully carried out.

3. The Site is occupied by an existing three storey residential flat building containing twelve apartments with at grade parking under the building. The applicant is the owner of the Site.

4. The SOFAC summarises the following unauthorised works that have allegedly been carried out at the Site, specifically at unit 6 (there may be additional unauthorised works):

(a) New pantry and laundry replacing existing kitchen.

(b) New kitchen built adjacent to pantry.

(c) Extension of the internal living replacing the roof terrace.

(d) Pergola has been installed at the rear of the top unit.

(e) Non-trafficable area of rooftop has been opened up increasing the size of the balcony.

5. The Court arranged a conciliation conference under subs 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 9 May 2025. I presided over the conciliation conference.

6. 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. This decision involved the Court upholding the appeal and modifying the DCO.

7. Under subs 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. 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.

8. The parties’ decision involves the Court exercising the function under s 8.18 of the EPA Act to modify a development control order.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised in the terms of s 8.18 of the EPA Act to modify a development control order.

10. The source of power to issue a DCO comes from s 9.34 of the EPA Act and in this case in accordance with the table to Pt 1 of sch 5: Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39 at [14] and [23]. The Modified DCO sought by the parties is “Pursuant to section 9.34 and Schedule 5, Part 1 of the Environmental Planning and Assessment Act 1979 (“the Act”), Waverley Council (“Council”) […] in terms of Order No. 1 (stop use), 3 (demolish works) and 10 (restore works) set out in Schedule 5 of the Act.”

11. The Modified Order sought by the parties is consistent with the powers of the Court set out in subs 8.18(4)(b) of the EPA Act.

12. 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 subs 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment.

13. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under subs 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders:

14. The Court orders:

15. The appeal is upheld.

16. Pursuant to subs 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the terms of the Development Control Order No.1 (Stop Use Order), No. 3 (Demolish Works Order) and No.10 (Restore Works Order) issued to the Applicant on 7 May 2024 by Waverley Council in relation to Lot 10 in DP 343534 commonly known as 89-91 Ramsgate Avenue, North Bondi, as shown in the modified Order in Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A Part1 (303 KB, pdf)

Annexure A Part2 (1.90 MB, pdf)

Annexure A Part3 (342 KB, pdf)