Machkevitch and Corona Projects v Waverley Council [2025] NSWLEC 1182 | Case summary | Zoe

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Machkevitch and Corona Projects v Waverley Council [2025] NSWLEC 1182 | Case summary | Zoe

COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Waverley Council (the Council) of development application DA-175/2024 seeking consent for the conversion of a residential flat building into a dual occupancy development, with alterations and additions at 247 Military Road, Dover Heights.
The development application was lodged with the Council by the Applicant on 6 May 2024, and was notified between 24 May – 7 June 2024 in accordance with the Waverley Community Engagement Strategy 2023.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 February 2025. I presided at the conciliation conference.
Prior to the conciliation conference, the parties reached agreement as to the terms of decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application, subject to an adjournment to prepare amended plans consistent with the in-principle agreement.
A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 20 February 2025.
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.
In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.
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. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised.
For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.
The site is located in the R2 Low Density Residential zone, according to the Waverley Local Environmental Plan 2012 (WLEP), in which dual occupancy development is permitted with consent, where consistent with the following objectives of the R2 zone:

In summary, the written request argues the objectives are achieved because the development will appear as two storeys in the Military Rd streetscape, consistent with the scale of development anticipated by the height controls in the WLEP and the 7m wall height control in the Waverley Development Control Plan 2022. The sunken topography of the site and integration with the existing built form, when considered in its streetscape, results in appropriate view sharing with surrounding neighbours and so preserves environmental amenity of neighbouring properties and public spaces. Next, an assertion that the proposal maintains satisfactory solar access to existing buildings and public areas is supported by sun eye diagrams that depict minor obstruction to north facing openings in the adjoining property to the south. Finally, as the proposal will present as two storeys from the street, it is consistent with the desired future character of the R2 zone. For the reasons set out above, I am satisfied of those matters at cl 4.6(3) of the WLEP.
A floor space ratio of 0.5:1 applies to the site by virtue of the relevant map at cl 4.4(2) of the WLEP. However, an exception applies at cl 4.4A(b) of the WLEP to derive a permissible FSR of 0.548:1, with which the proposal is consistent.
The site is located in an area identified with Class 5 Acid Sulfate Soils at cl 6.1(2) of the WLEP, however as there is negligible excavation proposed, the watertable will not be affected and so an acid sulfate soils management plan is not required.
Likewise, given the negligible excavation proposed, I am of the view that the matters for consideration at cl 6.2(3) of the WLEP are adequately addressed in the documents on which Applicant relies.
On the basis of the proposed stormwater plan prepared by DT Civil, and the agreed conditions of consent requiring 50% of the front setback area to be soft landscaping, I am satisfied that water permeable surfaces have been maximised on the land, that no additional impervious surfaces result, and that adverse impacts of stormwater runoff are avoided, in accordance with cl 6.15 of the WLEP.