Australia, July 28 -- New South Wales Land and Environment Court issued text of the following judgement on June 27:

1. These judicial review proceedings (2023/323047) were commenced by summons filed on 12 October 2023 (the summons) in which the applicants sought declarations that conditions imposed on two development consents, DA-80/2023 granted 27 September 2023 (the rear DA) and DA-223/2021 granted 27 October 2021 (the front DA) by Waverley Council (Council) (the first respondent) requiring contributions for affordable housing (the affordable housing contribution conditions) were invalid in circumstances where they were not authorised to be imposed under the Waverley Local Environmental Plan 2012 (NSW) (WLEP), as required by ss 4.17(1)(h) and 7.32 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

2. Hanave Pty Ltd (the first applicant) and Cadele Pty Ltd (the second applicant) (together, the applicants) are the joint registered proprietors of land at 241 Bondi Road, Bondi located within the Waverley local government area (the property) to which the two development consents relate.

3. By their summons filed on 12 October 2024, the applicants sought the following orders:

1. An order pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 that the time to commence these judicial review proceedings relating to condition 11 of the development consent granted by the Second Respondent on 27 October 2021 in respect of development application no. DA-223/2021 (Front DA Consent) lodged on behalf of the First and Second Applicants is extended to the date of the commencement of these proceedings.

2. A declaration that condition 11 of the Front DA Consent is invalid and of no force or effect.

3. A declaration that condition 10 of the development consent granted by the Second Respondent on 27 September 2023 in respect of development application no. DA-80/2023 lodged on behalf of the First and Second Applicant (Rear DA Consent) is invalid and of no force or effect.

4. An order that the Respondents pay the Applicants' costs of these proceedings.

5. Such further or other orders as the Court thinks fit.

4. The substantive issues for determination in relation to the rear DA, which were agreed to by the parties at the hearing on 12 June 2024 also pertain to the front DA were:

1) whether the second respondent was authorised to impose an affordable housing contribution condition in the rear DA consent in circumstances where the WLEP did not, at any relevant time, contain any provision authorising the imposition of such a condition; and

2) whether, if the affordable housing contribution condition in the rear DA consent is invalid, it can be severed from the rear DA consent.

5. I heard the proceedings on 12 June 2024, and on 13 March 2025 I delivered judgment, [1] making the following orders (the 13 March 2025 orders) in respect of the rear DA:

The Court:

(1) Declares that condition 10 of the development consent granted by the second respondent on 27 September 2023 in respect of development application no. DA-80/2023 lodged on behalf of the first and second applicant is invalid and of no force or effect.

(2) Orders the respondents to pay the applicants' costs of these proceedings.

(3) Orders the parties to seek to have the proceedings relisted on a business date by no later than 14 days from the making of these orders for any further directions. Otherwise, the proceedings brought by the applicants are dismissed in their entirety.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197a543fb8abf4e8ef9ae2d5)

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