Vishney v Waverley Council

Representation: Counsel:
V Vishney (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
C J Boyd Solicitors (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/329986

Publication restriction: Nil

Judgment

1. COMMISSIONER: The Applicants appeal against Waverley Council’s (Council) refusal of Modification Application DA-203/2021/E (MA) which seeks to delete two conditions of consent in DA-203/2021 (Original DA) for Lot 1 in Deposited Plan 1282486 known as 3 Military Road, North Bondi NSW (Site).

2. Council refused the Applicants’ MA on 26 August 2025, and the Applicants appealed on 28 August 2025 pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), and within the time provisions of s 8.10(1) of the EPA Act.

3. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

4. The statutory power or function to be exercised in determining the proceedings is s 4.55(1A) of the EPA Act.

5. Council approved the Original DA as a Deferred Commencement on 27 October 2021. The Deferred Commencement was satisfied on 24 January 2022. The approved works included “Alterations and additions to approved boarding house (DA-278/2020), including provision of neighbourhood shop on garage level”. The Site is currently under construction.

6. The MA has been submitted under s 4.55(1A) of the EPA act, and it seeks to:

7. Delete Condition 1E: Use of Gym, which restricts the use of the gym to tenants and employees of the boarding house:

“The basement gym is approved for the use of the boarding house tenants and employees only. Access is not permitted for the general public, including neighbourhood shop employees and customers. The gym is not to be used for any commercial activities, including but not limited to personal training sessions or exercise classes.

…”

2. Deletion of Condition 1F: Basement Storage Cages which requires additional storage to be provided within the basement level: “A minimum of 6m3 of storage space at basement floor level is to be allocated for each boarding house room…” This requirement is in accordance with the amended Architectural Plans referenced.

3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 15 December 2025. I presided over the conciliation conference.

4. 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 appeal being upheld and Condition 1E Use of Gym being modified by deleting the existing condition and inserting the condition as recommended in the Town Planning Joint Expert Report filed on 24 November 2025 (JER Town Planning). The town planners (Mr Betros for the Applicant, and Ms Englund for the Council) also agreed in their JER Town Planning Report. that it is not necessary to amend Condition 1F: Basement Storage Cages.

5. 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 4.55(1A) of the EPA Act to uphold the appeal and amend Condition 1E as set out below.

“1E. Use of Gym

Delete existing Condition and insert:

The gym is an ancillary component of the approved Boarding House, to be used by the tenants and employees of the boarding house.

The gym may also be used by employees of the ground floor neighbourhood shop and one guest/visitor of each boarding house tenant, but only in the presence of the respective boarding house tenant.

The information of the one guest/visitor of each boarding house tenant must be provided to the offsite manager in advance and recorded in a register of permitted guests/visitors.

Access to the gym is not permitted for the general public. The gym is not to be used for any commercial activities, including but not limited to personal training sessions (except one-on-one with boarding house lodgers) or exercise classes.”

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance and explained how they have been satisfied as set out below.

11. The MA is made pursuant to s 4.55(1A) of the EPA Act, and the parties agree that the following jurisdictional prerequisites have been met:

12. Section 4.55(1A)(a): the proposed modification is of no or minimal environmental impact. The MA simply clarifies the use of the gym to ensure that it remains an ancillary use to the approved boarding house.

13. Section 4.55(1A)(b): the development to which the consent as modified relates is the same or substantially the same development as that approved in the Original DA. No building works are required as a result of approving the MA. There is no change of use as a result of approving the MA. The use of the gym is clarified by the substituted condition 1E.

14. Sections 4.55(1A)(c) and (d): the MA was notified for fourteen days between 17 June 2025 and 3 July 2025, in accordance with Waverley Community Engagement Strategy 2023. No submissions were received and therefore no objections were required to be considered by Council under sub-section (d).

15. The MA was lodged on 6 June 2025. The Applicants are the owners of the Site and have power to lodge the MA in accordance with s 4.12 of the EPA Act.

16. Council is the consent authority to process the MA in accordance with s 4.5(d) of the EPA Act.

17. For the reasons set out above, 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 s 34(3) of the LEC Act.

18. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I shall uphold the appeal and amend the Original DA pursuant to s 4.55(1A) of the EPA Act.

19. I am not required to consider the merits of the MA, and I have not done so.

20. The Court notes that:

21. The Waverley Council, as the relevant consent authority, has approved, under s 113(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicants amending Modification Application DA-203/2021/E in accordance with the Further Amended Plan of Management, Boarding House, 3 Military Road, North Bondi prepared by Bondi North Beachfront Pty Ltd dated December 2025.

Orders

16. The Court orders that:

17. The appeal is upheld.

18. Pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (NSW) Modification Application No DA-203/2021/E relating to Lot 1 in Deposited Plan 1282486 known as 3 Military Road, North Bondi is approved.

19. Development Consent No DA-203/2021/E is modified in terms of Annexure A.

20. Development Consent No DA-203/2021/E as modified by the Court is Annexure B.

M Peatman

Acting Commissioner of the Court

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Annexure A (325 KB, pdf)

Annexure B (533 KB, pdf)