Scahill v Waverley Council [2024] NSWLEC 1024

Land and Environment Court New South Wales

Medium Neutral Citation: Scahill v Waverley Council [2024] NSWLEC 1024 Hearing dates: 27, 28 November and 22 December 2023 Date of orders: 30 January 2024 Decision date: 30 January 2024 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs that have been thrown away in respect of the Amended Development Application (and the amendments for which leave was granted on 28 November 2023), as agreed or assessed. (2) The appeal is upheld. (3) Development consent is granted to DA-308/2022 for the demolition of two semi-detached dwellings and construction of a four-storey residential flat building containing four residential apartments and associated basement car parking, on land identified as Lots A and B in DP 444868, located at 8 - 10 Sir Thomas Mitchell Road, Bondi Beach, subject to the conditions set out in Annexure "A". (4) All exhibits except for A, H, J and 1 are returned. Catchwords: DEVELOPMENT APPLICATION – demolition and construction of new residential flat building – contentions resolved by joint conferencing of the experts and amendment to the development application – public submissions – appeal upheld Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 23, 29, 38 Land and Environment Court Act 1979, s 34 State Environment Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 4.6 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002, cll 4, 28, 30 Waverley Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.9, 6.15 Cases Cited: Tenacity v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, 2015 Waverley Development Control Plan 2012 Category: Principal judgment Parties: Phillip Scahill (Applicant) Waverley Council (Respondent) Representation: Counsel: A Pickles SC and J Farrell (Applicant) S Patterson (Solicitor) (Respondent)