Perumal v Waverley Council [2025] NSWLEC 1773 | Case summary | Zoe

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Perumal v Waverley Council [2025] NSWLEC 1773 | Case summary | Zoe

The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 23 and 24 October 2025. I presided over the conciliation conference.
Following discussions between the parties, the Applicant prepared amended architectural plans and other supporting documents, to address the contentions raised by the Council in the Statement of Facts and Contentions in Reply filed on 13 August 2025, and issues raised by the objectors.
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 based on the revised Architectural Drawings, the clause 4.6 written request and the conditions of consent agreed between the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. A condition of consent (1A(a)) is agreed to require the landscape drawings to be updated to reflect the approved architectural drawings and the following changes:
The bamboo on the western side boundary to be replaced with a species chosen from Annexure B3-1 Planting List of the Waverley Development Control Plan 2022; and
The Carissa (Bengal Current) to the roof to be replaced with a species chosen from Annexure B3-1 Planting List of the Waverley Development Control Plan 2022 and not to exceed 300mm in height.
The amendments proposed by the Revised Drawings primarily comprise:
The proposed rooftop terrace including walls and roof has been moved further north and the roof reconfigured so that the attic extends no further than the predominant rear building line at that level;
The de-classified flue width and height have been changed to match the approved design in accordance with the deferred commencement approval;
Ceiling fans have been provided to the bedrooms, dining, family room, and formal living throughout building;
Only electric cooking appliances to be provided in the kitchen, no gas cooking;
The ground flood cane pergola has been amended to match the existing building line (setback increased to 8.31m); and
The street fence and gates have been changed to match the approved deferred commencement approval design.
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. 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.
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. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note provided to the Court.
The Applicant is the owner of the land.
The Site and the land immediately surrounding the site are zoned medium density residential ‘R3’ under the WLEP where a dwelling house is permitted with consent. Demolition and earthworks are permissible with consent pursuant to cll 2.7 and 6.2 respectively of the WLEP.
In accordance with s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, the DA was referred to Ausgrid because the Proposed Development is located within 5m of overhead power lines. Ausgrid has provided a letter of consent, subject to conditions, in response to the DA.
For the purposes of cl 4.3 of the WLEP 2012, as a result of the revised architectural plans, part of the Proposed Development exceeds the maximum height of building (HOB) development standard of 9.5m that applies to the Site. Prior to these amendments, the Proposed Development included an attic design which sought to comply with the HOB development standard, however the parties agree that the compliant design would have resulted in a greater impact on the neighbours than the revised design which does contravene the HOB development standard.
The Applicant relies on a written variation request pursuant to cl 4.6 of the WLEP prepared by GSA Planning dated October 2025 (Written Request) to justify the contravention of the HOB development standard. The Written Request describes the HOB contravention as follows:

I accept that the revised architectural plans reflect a skillful design which seeks to preserve environmental amenity of neighbouring properties and promotes the sharing of views as articulated in the Written Request at pp 7-11. I reproduce Fig 2 from the Written Request below:
As required by cl 4.6(3) of the WLEP, the Written Request has demonstrated that compliance with the building height standard is unnecessary in this case because the objectives of the HOB development standard are achieved notwithstanding the contravention. The Written Request also demonstrates that there are sufficient environmental planning grounds to justify the contravention of the building height standard.
The parties agree, and the Court is satisfied, that the Written Request has demonstrated that compliance with the HOB development standard is unnecessary in this case and that there are sufficient environmental planning grounds to justify the contravention of the building height standard.
The Proposed Development complies precisely with the maximum floor space ratio development standard of 0.602:1 that applies to the Site pursuant to cl 4.4A of the WLEP.
The Site is not a heritage item, is not located within a heritage conservation area, but is within the vicinity of the Marks Park Reserve adjoining Marks Land (Landscape Conservation Area C44 and Item I94). The proposed development has no effect on any heritage item: cl 5.10, WLEP.
The Site is identified as Class 5 on the Acid Sulfate Soils Map. The proposed works, are not likely to lower the water table, the development is unlikely to encounter acid sulfate soils in this location, and therefore an acid sulfate soils management plan is not required: cl 6.1, WLEP.
For the purposes of cl 6.15 of the WLEP, a stormwater management plan was submitted as part of the DA (Tab 15 of the Class 1 Application filed with the Court). The Council is satisfied that subcll 3(a)-(c) of cl 6.15 of the WLEP are met, subject to the imposition of conditions of consent.
The Site is not within a water catchment: Ch 6, State Environmental Planning Policy (Biodiversity and Conservation) 2021.
For the purposes of s 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the Site is located within the Coastal Use Area. For the purposes of s 2.11(b), the consent authority can be satisfied pursuant to s 2.11(b) of the Resilience and Hazards SEPP that the Proposed Development has been designed, sited and will be managed to avoid any adverse effects on the coastal use area. The Proposed Development takes into account the compliant bulk, scale and size of the proposal, in relation to the surrounding coastal and built environment.
For the purposes of s 2.12 of the Resilience and Hazards SEPP, the Site is within the coastal zone as defined under the Coastal Management Act 2016 (NSW) and the Proposed Development is not likely to cause increased risk of coastal hazards on the Site or on other land. A coastal hazard is defined in s 4 of the Coastal Management Act 2016 as: