DD55 Pty Ltd v Waverley Council [2025] NSWLEC 1041

Land and Environment Court New South Wales

Medium Neutral Citation: DD55 Pty Ltd v Waverley Council [2025] NSWLEC 1041 Hearing dates: 5-6 December 2024 Date of orders: 28 January 2025 Decision date: 28 January 2025 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development application No. DA-187/2024 for earthworks comprising both excavation and fill, a new two-storey dwelling over a basement, driveway, landscaping and stormwater infrastructure at 31 Gaerloch Avenue, Tamarama, is determined by the grant of consent, subject to conditions of consent at Annexure A. (3) All Exhibits are returned, except for Exhibits A, B, C, E and 7. Catchwords: DEVELOPMENT APPLICATION: dwelling house development in Coastal environment area and Coastal Use Area – whether aboriginal cultural heritage, practices and places are adversely impacted - aboriginal archaeological investigation - whether impacts on Coastal Environment Area have been minimised – whether impacts on Coastal Use Area have been minimised Legislation Cited: Coastal Management Act 2016 Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, ss 34, 34AA National Parks and Wildlife Act 1974, ss 5, 86, 90 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 Waverley Local Environmental Plan 2012, cll 5.10, 6.1, 6.2, 6.9, 6.15 Cases Cited: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust v Minister for Planning and Infrastructure & Anor [2015] NSWLEC 1465 Georges River Council v Eskander [2024] NSWLEC 98 Texts Cited: Guide to investigating, assessing, and reporting on Aboriginal Cultural Heritage in NSW, published by the Office of Environment and Heritage 2011 Code of Practice for the Investigation of Aboriginal Objects in New South Wales, published by the Department of Environment, Climate Change and Water 2010 Waverley Development Control Plan 2022 Guide to Investigating, Assessing and Reporting on Aboriginal cultural heritage in NSW, published by the NSW Office of Environment and Heritage NSW Coastal Design Guidelines, October 2023 Category: Principal judgment Parties: DD55 Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) M Seymour SC (Respondent)