Henderson v Waverley Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Benjamin Henderson (First Applicant)
Carina Henderson (Second Applicant)
Waverley Council (Respondent)

Representation: Counsel:
L Nurpuri (Applicant)
C Patterson (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/306808

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing 3 storey dwelling house at 2-4 Sandridge Street, Bondi. The proposed development is for the replacement of the existing pitched roof of the dwelling with a third habitable floor comprising two bedrooms and an ensuite. The development application was refused by the respondent, through the local planning panel, on 26 February 2025. The applicant appeals against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference commenced on 4 December 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 reflects that which was filed on 2 December 2025, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021). The amendments include a re-design of the proposed stormwater drainage, as well as the provision of additional information concerning the solar, streetscape and visual impacts, and the provision of an amended written document concerning the height development standard.

4. 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 facts and matters as to how the decision agreed upon is one that the Court could have made in the proper exercise of its functions. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

6. The development works are for the purposes of a dwelling house, which is an innominate permissible use in the R3 Medium Density Residential zone in which the site is located, pursuant to the Waverley Local Environmental Plan 2012 (WLEP).

7. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 9.5m, pursuant to cl 4.3 of the WLEP. The proposed maximum height of 10.73m represents a contravention of 1.23m above the numerical standard. The contravention extends the full length of the proposed 3rd floor addition, but varies from 0.15m above the height development standard at the west elevation, to 1.23m at the rear. The development application is accompanied by a written document concerning this contravention, as required by s 35B of the EPA Regulation 2021. Consistent with the requirements of cl 4.6(3) of the WLEP, and based on the written document dated October 2025, I am satisfied that the applicant has demonstrated that:

(a) Compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and; (b) There are sufficient environmental planning grounds that justify the breach, as the exceedance is only marginally greater than the existing built form, with the additional height contravention arising as a consequence of the site’s topography, and resulting in a height and scale that achieves consistency with the established 2-4 storey building scale along Sandridge Street.

1. The proposed development complies with the floor space ratio development standard.

2. Whilst the site is identified as being affected by Class 5 acid sulfate soils, the proposed development is unlikely to lower the water table, as no excavation is required. As such, cl 6.1 of the WLEP does not apply.

3. The site is within the coastal use area, pursuant to the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). Based on the nature of the proposed development, the extent of works, the information in the Jurisdictional Statement and the documents referred to therein, I have considered the matters in s 2.11(1)(a), and, consistent with s 2.11(1)(b) I am satisfied that the development will not have any adverse impacts on the matters set out s 2.11(1)(a) or cause increased risk of coastal hazards as per s 2.12 of the SEPP RH.

4. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the SEPP RH. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

5. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 20 August 2024. Based on the BASIX Materials Report and the Energy Score Breakdown dated 27 November 2025, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

6. The development application was notified between 20 September and 4 October 2024, and two written submissions were received. I have considered the issues raised in those two submissions. I have also considered the issues raised in a further written submission dated 1 December 2025.

7. Having reached the state of satisfaction that the decision is one that the Court could have made 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)).

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The Court notes:

10. Waverley Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant’s amendment to Development Application DA-460/2024, in accordance with the documents set out in Annexure B.

11. The Applicant provided the documents set out in Annexure B to the Court on 2 December 2025.

Orders

9. The Court orders that:

10. The appeal is upheld.

11. Development Application DA-460/2024, as amended, for alterations and additions to a dwelling house including the construction of an additional storey at 2-4 Sandridge Street, Bondi, is determined by the grant of consent subject to the conditions at Annexure A.

J Gray

Commissioner of the Court

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Annexure A (274 KB, pdf)

Annexure B (130 KB, pdf)