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[2025] NSWLEC 1880
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-11
Dixon SC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Nicholas Tang Holdings Pty Ltd v Waverley Council [2025] NSWLEC 1880
Hearing dates: Conciliation conference 12 September 2025; s 34 agreement received 19 November 2025
Date of orders: 11 December 2025
Decision date: 11 December 2025
Jurisdiction: Class 1
Before: Dixon SC
Decision: Proceeding 2025/116409:
The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to development application DA601/2024, as amended, for demolition of the existing structures on the properties and the construction of 3 storey semi-detached dwellings with swimming pools and boundary readjustment at 59 Wairoa Avenue North Bondi NSW 2026 legally identified as Lot 1 in Deposited Plan 503661, subject to the conditions in Annexure A.
(3) That the Applicant pays to the Respondent costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $6,000.00 within 28 days of these orders being made.
Proceeding 2025/116408:
The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to development application DA600/2024, as amended, for demolition of the existing structures on the properties and the construction of 3 storey semi-detached dwellings with swimming pools and boundary readjustment at 61 Wairoa Avenue North Bondi NSW 2026 legally identified as Lot 2 in Deposited Plan 503661, subject to the conditions in Annexure B.
(3) That the Applicant pays to the Respondent costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $6,000.00 within 28 days of these orders being made.
Catchwords: DEVELOPMENT APPLICATION – deemed refusal – demolition – construction of semi-detached dwellings – boundary readjustment – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Pt 4, ss 4.15, 4.16, 4.17, 8.7, 8.15
Land and Environment Court Act (1979) (NSW), s 34
Local Land Services Act 2013 (NSW), s 60O
Environmental Planning and Assessment Regulation 2021
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, cl 2.7
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, cl 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, cl 2.1
Waverley Local Environment Plan 2012, cll 2.7, 4.1, 4.3, 4.4, 4.4A, 4.6, 5.10, 5.21, 6.1, 6.2
Category: Principal judgment
Parties: Nicholas Tang Holdings Pty Ltd (Applicant)
Waverley Council (Respondent)
Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2025/116409
2025/116408
Publication restriction: Nil
This judgment deals with two Class 1 appeals made under ss 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the Council’s deemed refusal of the applicant’s development application numbers:
DA600/2024 (DA61) lodged with the respondent on 22 November 2024; and
DA601/2024 (DA59) lodged with the respondent on 22 November 2024.
DA61 and DA59 seek development consent for demolition of the existing structures and the construction of two 3 storey semi-detached dwellings with swimming pools with boundary readjustment (Proposal), at
59 Wairoa Avenue, North Bondi NSW 2026 (Site 59) being Lot 1 in Deposited Plan 503661; and
59 Wairoa Avenue, North Bondi NSW 2026 (Site 61) being Lot 2 in Deposited Plan 503661.
The appeals were commenced in separate Class 1 Proceedings on 26 March 2025 being proceedings number 2025/00116408 and 2025/00116409 (the Proceedings). The Registrar directed that the appeals be heard together.
The Council filed a Statement of Facts and Contentions on 12 May 2025 in each proceeding (the SOFC) setting out the facts and statutory framework for assessment. The SOFC is substantially the same in each case.
The parties participated in a s 34 conference as arranged by the Court before me on 7 November 2025 based on amended plans prepared by the Applicant for each DA. After discussion the applications were further amended to include:
amended architectural plans prepared by Nicholas Tang Architects for DA59 (59 Final Plans);
amended architectural plans prepared by Nicholas Tang Architects for DA61 (61 Final Plans);
amended landscape plan used for each DA (Landscape Plans);
amended BASIX Certificate #1762307S_03 dated 7 October 2025 for DA59 (the 59 BASIX Certificate);
amended BASIX Certificate #1762305S_03 dated 7 October 2025 for DA61 (the 61 BASIX Certificate); and
stormwater management plan prepared by E2 Civil and Structural Design, dated 21/10/2025
(the Amended Documents)
The Applicant now seeks leave to rely upon the amended DAs and accepts that it is appropriate for the Court to make an order for the payment of the Council’s costs pursuant to s 8.15(3) of the EPA Act.
The parties have now reached an agreement in each appeal under s 34(3) of the Land and Environment Court Act (1979) (NSW) (LEC Act) based on the final amended applications. I must dispose of the proceedings in accordance with the parties’ signed agreements if the Court could have made that decision in the proper exercise of its functions. The decisions involve the Court exercising the functions under s 4.16 of the EPA Act to grant consent to each DA.
The pre-conditions that must be satisfied before the Court can exercise its functions are identified in a written submission prepared by the parties.
After a consideration of that submission, I am satisfied based on the evidence before me that the agreement of the parties in respect of each appeal is a decision that the Court could have made in the proper exercise of its functions for the following reasons.
The Applicant is the architect for the owner of Site 59 and Site 61.
The registered proprietor of Site 59 and Site 61 changed on 7 October 2025.
An amended owner’s consent letter has been prepared by the new proprietor, Donald Hubert Legge.
DA59 and DA61 were notified from 24 December 2024 to 25 January 2025 in accordance with the Council’s Community Engagement Strategy notification policy.
Council received seven submissions during the notification period opposing the DAs and these objections are summarised at paragraph 30 of the SOFC.
The Court and the parties heard from four objectors on Site who raised issues including non-compliances with development standards and controls, impacts on privacy, impacts on solar access and associated bulk and scale issues. The Court and the parties inspected the neighbouring property at 57 Wairoa Avenue.
The Final DA 59 Plans and Final DA 61 Plans were informally notified to the neighbours on or about 30 September 2025 for a period of 7 days. Further submissions were received consistent with the original submissions and from the same people including those persons who made submissions at the s 34 conference.
The parties submit that the Court can be satisfied that consideration has been given to the objectors’ submissions and concerns and that there is now no planning ground raised by an objector to warrant a refusal of the amended applications.
Clause 4.6 of the RH SEPP requires the consent authority to consider whether the Site is contaminated before development consent can be granted. Clause 4.6(2) requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned, if:
the Proposal would involve a change of use; and
the land concerned is of a type set out in cl 4.6(4).
In the present case, the use of the Site is proposed to remain as residential use. Accordingly, cl 4.6(2) of the RH SEPP is not engaged and consideration of a report specifying the findings of a preliminary investigation of each site is not required.
Having regard to cl 4.6(1), the parties agree and I accept that the Court can be satisfied that each site has been used for residential purposes for a substantial number of years and on this basis is unlikely to be contaminated.
The Sustainable Buildings SEPP came into effect from 1 October 2023.
The 59 BASIX Certificate and 61 BASIX Certificate have been prepared in respect of the 59 Final Plans and 61 Final Plans together with a NatHERS Certificate as required by the Environmental Planning and Assessment Regulation 2021.
The updated BASIX Certificates include a Materials Index which quantifies and reports the embodied emissions attributable to the development, as required by cl 2.1.
The Site is zoned R3 Medium Density Residential pursuant to the WLEP.
Development for the purposes of semi-detached dwellings is permissible in Zone R3.
The Court must have regard to the objectives for development of Zone R3 when determining a DA. The objectives include:
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.
The Proposal includes a boundary readjustment.
Site 59 has a lot size of 195.5sqm and Site 61 has a lot size of 197.6sqm. The Proposal seeks to amend these as follows:
Site 59 to have a lot size of 196.7sqm
Site 61 to have a lot size of 196.4sqm
Clause 4.1 of the WLEP requires a minimum subdivision lot size of 325sqm.
The parties agree and I accept that the boundary adjustment is a subdivision and thus this clause applies.
The Applicant has submitted a written cl 4.6 request prepared by Nicholas Tang Architects dated December 2024 which the Council accepts deals with the objectives of the clause and provides various environmental planning grounds justifying the boundary adjustment in this case.
Relevantly, the Council supports the cl 4.6 request and after review I am satisfied that the request justifies the breach of the development standard and can be upheld.
Clause 4.3 of the WLEP and the Height of Buildings Map fixes a maximum building height of 12.5 metres for each site.
The Final Plans for each Site complied with the development standard.
Clauses 4.4 and 4.4A of the WLEP and the Floor Space Ratio Map fixes a maximum floor space ratio of 0.89:1 for the Site. This is derived from the Council formula at cl 4.4A of the WLEP which states that for semi-detached dwellings (amongst other uses) in a R2 or R3 zone the following formula applies for sites with areas of 100sqm to 550sqm: [(550 − lot area) × 0.0011] + 0.5]:1.
Site 59 has a proposed site area of 196.7sqm permitting a gross floor area of 175.06sqm.
Site 61 has a proposed site area of 196.4sqm permitting a gross floor area of 175.06sqm
Each of the sites seeks a GFA of 174.65sqm which complies with the maximum permissible floorspace ratio.
The DAs as amended by the Final Plans only propose minimal excavation for foundations. There is no proposed basement or subterranean areas.
Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters listed at clause 6.2(3) of the WLEP. These include:
(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,
(b) the effect of the development on the likely future use or redevelopment of the land,
(c) the quality of the fill or the soil to be excavated, or both,
(d) the effect of the development on the existing and likely amenity and structural integrity of adjoining properties,
(e) the source of any fill material and the destination of any excavated material,
(f) the likelihood of disturbing relics,
(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,
(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
(3) In deciding whether to grant development consent for development to which this clause applies, the consent authority must be satisfied the development—
(a) is designed to maximise the use of water permeable surfaces on the land, considering the soil characteristics affecting on-site infiltration of water, and
(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and
(c) avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or, if the impact cannot be reasonably avoided, minimises or mitigates the impact.
The Stormwater Plans relate to the Final architectural Plans.
The Proposal complies with the Council’s deep soil landscape controls.
The Proposal includes on-site stormwater retention for re-use by installation of rainwater tanks for landscape and pool top up use.
The Stormwater Plan provides for the management of stormwater on the Site which mitigates the impacts associated with the flow of stormwater.
Chapter 2 of the BC SEPP relates to vegetation in non-rural areas and applies to the DA.
The aims of Chapter 2 of the BC SEPP, are:
to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and
to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.
Whilst Chapter 2 of the BC SEPP provides a general requirement to obtain a permit to clear vegetation in a non rural area of the State, clause 2.7(1) of the BC SEPP provides: “(1) A permit or approval to clear vegetation is not required under this Chapter if it is clearing of a kind that is authorised under the Local Land Services Act 2013, section 60O or Part 5B”. Section 60O of the Local Land Services Act 2013 (NSW) authorises clearing of vegetation by a development consent under Part 4 of the EPA Act.
Accordingly, the need for a permit pursuant to Chapter 2 of the BC SEPP is not required where development consent under Part 4 of the EPA Act is obtained.
The matters in section 4.15(1)(b)-(e) of the EPA Act have been considered by the parties.
In respect of 4.15 the parties agree:
s 4.15(1)(a)(i) – all relevant environmental planning instruments have been taken into consideration.
s 4.15(1)(a)(ii) – there are no relevant draft instruments.
s 4.15(1)(a)(iii) – all relevant development control plans have been taken into consideration.
s 4.15(1)(a)(iv) – all relevant regulations have been considered.
s 4.15(1)(b) – the impacts of the development in respect of environmental impacts on both the natural and built environment and the social and economic impacts of the locality have been considered and are acceptable.
s 4.15(1)(c) – the Site is suitable for the development taking into consideration the relevant environmental planning instruments and permissible uses in the zone.
s 4.15(1) (d) – The DA was notified and submissions have been considered and dealt with where appropriate. In part, the Final Plans are a response to matters raised in the submissions.
s 4.15(1)(e) – it is in the public interest to approve the DA.
The parties have agreed on conditions of consent in each appeal. The conditions of consent are lawful having regard to the provisions of sections 4.16 and 4.17 of the EPA Act and relevant legal principles.
As the terms of the decision set out in the parties’ section 34 agreement is a decision the Court could have made in the proper exercise of its functions, this being the test applied by section 34(3) of LEC Act and s 4.16(1) of the EPA Act, I now make the following orders:
The Court orders:
The appeal is upheld.
Development consent is granted to development application DA601/2024, as amended, for demolition of the existing structures on the properties and the construction of 3 storey semi-detached dwellings with swimming pools and boundary readjustment at 59 Wairoa Avenue North Bondi NSW 2026 legally identified as Lot 1 in Deposited Plan 503661, subject to the conditions in Annexure A.
That the Applicant pays to the Respondent costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $6,000.00 within 28 days of these orders being made.
The Court orders:
The appeal is upheld.
Development consent is granted to development application DA600/2024, as amended, for demolition of the existing structures on the properties and the construction of 3 storey semi-detached dwellings with swimming pools and boundary readjustment at 61 Wairoa Avenue North Bondi NSW 2026 legally identified as Lot 2 in Deposited Plan 503661, subject to the conditions in Annexure B.
That the Applicant pays to the Respondent costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $6,000.00 within 28 days of these orders being made.
116409.25 Annexure A
116408.25 Annexure B
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Nicholas Tang Holdings Pty Ltd
Waverley Council [2025] NSWLEC 1880