Australia, June 20 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:

1. COMMISSIONER: This is an appeal direct to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for the approval of Modification Application No DA-285/2023/B (the MOD) to modify development consent No DA-285/2023 (approved development) granted by the Court on 29 October 2024.

2. The approved development involves the demolition of existing structures and the construction of a multi-level unit development and ancillary work on land at 1 to 7 Andrews Avenue and 26 Glen Street, Bondi, NSW 2026 being the current existing lots (the Site):

1) Lot 1 in DP 79716 (1 Andrews Ave)

2) Lot 1 in DP 1042187 (3 Andrews Ave)

3) Lot 1 in DP 216695 (5 Andrews Ave)

4) Lot 2 in DP 216695 (7 Andrews Ave)

5) Lot 1 in DP 552406 and Lot 1796 in DP 822255 (26 Glen St)

3. The modifications sought in the MOD are outlined comprehensively in the Statement of Environmental Effects prepared by GSA Planning dated 28 October 2024 and filed as part of the Class 1 Application.

4. The respondent filed a Statement of Facts and Contentions on 13 December 2024 (SOFC).

5. The Applicant provided the Respondent with amended plans which have subsequently been further amended resulting from discussions between the parties at the s 34 conciliation conference on 31 January 2025. The Final Plans and other documents now form part of an agreement under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act).

6. The Final Plans resolved Waverly Council's (Council) Contentions by:

1) providing an additional 1500mm setback within the eastern articulation zone including pulling back the roof above;

2) providing for additional space for vehicular movements within the Site on Glen Lane;

3) providing for additional privacy screening;

4) amending the solid to void ratio in respect of glazing on the upper level;

5) providing additional planting in the increased articulation area; and

6) provision of details relating to the air conditioning plant enclosure on the NW corner of the Site; and other consequential changes.

7. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on-site and at Council chambers.

8. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions. Council accordingly approved the amendment to the Applicant's modification application pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and approve the modification of the approved development.

9. Under s 34(3) of the LEC Act, I must dispose of the Class 1 proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions.

10. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant the modification to development consent No DA-285/2023.

11. There are jurisdictional pre-requisites which require my satisfaction before the power to grant consent under s 4.55(2) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement (the Statement).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196c32bcca6ab09c79b1c597)

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