5 Tamarama Street Pty Ltd and MHN Design Union Pty Ltd v Waverley Council [2026] NSWLEC 1281

Catchwords: DEVELOPMENT APPLICATION: semi-detached dwelling development in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders Land and Environment Court New South Wales Medium Neutral Citation: 5 Tamarama Street Pty Ltd and MHN Design Union Pty Ltd v Waverley Council [2026] NSWLEC 1281 Hearing dates: Conciliation conference on 7 May 2026 Date of orders: 19 May 2026 Decision date: 19 May 2026 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application DA-311/2025 for the construction of two semi-detached dwellings with basement parking, car stackers, a swimming pool and associated landscape works at 5 and 5A Tamarama Street, Tamarama NSW 2026 is determined by the grant of consent subject to the conditions contained in Annexure ‘A’. Catchwords: DEVELOPMENT APPLICATION: semi-detached dwelling development in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) , ss 4.16, 8.7 Land and Environment Court Act 1979 (NSW) , s 34 Environmental Planning and Assessment Regulation 2021 (NSW), s 38 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Waverley Local Environmental Plan 2012, cll 4.3, 4.4, 4.4A, 5.21, 6.1, 6.2, 6.15 Category: Principal judgment Parties: 5 Tamarama Street Pty Ltd (First Applicant) MHN Design Union Pty Ltd (Second Applicant) Waverley Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Finn Roache as Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2026/19264 Publication restriction: Nil JUDGMENT COMMISSIONER : This appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) following the deemed refusal by Waverley Council of development application No DA-311/2025 seeking consent for two-semi detached dwelling s with basement parking, car stackers, a swimming pool associated with landscape works at 5 and 5A Tamarama Street, Tamarama. On 7 May 2026, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), at which I presided. At the conciliation conference, the parties reached in-principle agreement on the matters in contention, subject to a short adjournment that would permit the parties to settle the agreed form of conditions of consent. I granted the adjournment. A signed agreement was filed with the Court on 11 May 2026 , in accordance with s 34(10) of the LEC Act. 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 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites, with respect to the following environmental planning instruments that are satisfied for the reasons that follow. The site is located in an area designated by the land use table at cl 2.2 of the Waverley Local Environmental Plan 2012 (WLEP) as R2 Low Density Residential where development for the purpose proposed is permitted with consent where consistent with the objectives of the R2 zone that are in the following terms: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maximise public transport patronage and encourage walking and cycling. • To ensure dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time. • To encourage the supply of housing that meets the needs of the population, particularly housing for older people and people with disability. • To promote development that incorporates planning and design measures that reduce the urban heat island effect. • To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping. The relevant height of buildings standard applicable to the site at cl 4.3 of the WLEP is 8.5m, and the parties agree the amended plans show the height of the development to be 8.48m. The relevant floor space ratio (FSR) applicable to the site by operation of cll 44 and 4.4A , when applied in accordance with the equation at cl 4.4A of the WLEP, complies with the relevant standard and is expressed as follows: No 5 Tamarama Street: 0.89754:1 No 5A Tamarama Street: 0.90293:1 The parties agree the site is flood affected with a moderate flood hazard during the 1% Annual Exceedance Probability ( AEP ) event , such that the terms of cl 5.21 of the WLEP apply to the site . The DA is accompanied by a Hydraulic Impact Assessment and Management Report prepared by RTS Civil Consulting Engineers that demonstrates the following: An increase in the 1% AEP flood level of 138mm is considered reasonable given the conveyance of overland flow is maintained through the side setbacks proposed, fencing designed to permit the flow of water and a freeboard of 300mm is achieved at all entry doors. The flood gate system proposed will protect the basement of the development in the event of flood . Building materials below a flood level of RL 57.70m are flood compatible, and structures are to be certified by a structural engineer. Emergency management procedures are recommended, including a permanent plaque in each laundry or garage area advising of flood risk. On the basis of the above, I am satisfied that the development is compatible with the flood function and behaviour on the land , will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood . Furthermore, I am satisfied that the agreed conditions of consent incorporate further measures to manage risk to life in the event of a flood, and will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. The site is located in an area identified with Class 5 Acid Sulfate Soils, and is shown on the relevant map at cl 6.1(2) of the WLEP to be likely within 500m of class 4 soils. However, the elevation of the site above the water table is such that I am satisfied the development will not lower the water table. I a lso accept that the parties have adequately addressed those matters for consideration at cl 6.2(3) of the WLEP in the documents on which Applicant relies, including: Geotechnical Investigation prepare by JK Geotechnics dated 13 December 2023 Landscape plans, prepared by Site Design Stormwater Plans prepared by RTS Civil Consulting Engineers On the basis of the landscape calculations depicted in the table on architectural plans DA 600, I am satisfied that the control for deep soil of 50% and landscaped area of 20% of the site is exceeded, and that permeable surfaces have been maximised on the land, that no additional impervious surfaces result, and that adverse impacts of stormwater run off are avoided, in accordance with cl 6.15 of the WLEP. In particular, I accept that stormwater runoff is appropriately managed by the collection of stormwater into 5,000L rainwater tanks that is proposed as an alternative supply to mains water. State Environmental Planning Policy (Resilience and Hazards) 2021 I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 . On the basis of the statement made in the Statement of Environmental Effects, and the agreed position of the parties stated in the jurisdictional statement prepared to assist the Court, I am satisfied the site is suitable for the purpose for which development is proposed to be carried out. State Environmental Planning Policy (Transport and Infrastructure) 2021 As the development is within 5m of overhead electricity cables, the provisions of s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 apply to require written notice to be provided to the relevant electricity supply authority. On 13 July 2025, Ausgrid provided written response confirming no objection, subject to conditions incorporated in the agreed conditions of consent. State Environmental Planning Policy (Sustainable Buildings) 2022 The application is accompanied by a BASIX certificate ( Cert No. 1744785M_03 , prepared by PEM Group Pty Ltd and dated 6 May 2026 ) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) . The Court notes t he terms at s 4.2(1)(c) of Sustainable Buildings SEPP save the development application from the need to comply with the requirement at s 2.1(5) because the original BASIX Certificate was lodged on 10 August 2023 , and so was prepared prior to the commencement of Sustainable Buildings SEPP, and prior to the introduction of requirements for quantification of embodied emissions attributable to the development by s 2.1(5). Conclusion 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. The Court notes that : The Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) , to the Applicants amending Development Application No DA-311/2025 in accordance with the documents listed below: Architectural Plans prepared by MHN Design Union Pty Ltd of Project No: 22-039 including the following: Plan Number and Rev ision Plan description Plan Date DA102, Rev F Site plan 04/05/2026 DA200, Rev F Basement floor plan 04/05/2026 DA201, Rev F Ground floor plan 04/05/2026 DA202, Rev F First floor plan 04/05/2026 DA203, Rev F Roof plan 04/05/2026 DA300, Rev F Section A 04/05/2026 DA301, Rev F Section B 04/05/2026 DA302, Rev F Section C 04/05/2026 DA303, Rev F Section D 04/05/2026 DA400, Rev F West and east elevation 04/05/2026 DA401, Rev F North and south elevation 04/05/2026 DA-501, Rev F External finishes schedule 04/05/2026 Photomontage dated 24 April 2026 prepared by MHN Design Union Pty Ltd Shadow Diagrams Revision C dated 20 April 2026 prepared by CAD Draft P/L Shadow Analysis Consultants Hydraulic Impact Assessment and Management Report Issue 03 dated 20 April 2026 prepared by RTS Civil Consulting Engineers Pty Ltd Stormwater Plans Revision 03 dated 20 April 2026 prepared by RTS Civil Consulting Engineers Pty Ltd Engineering Response to Statement of Facts and Contentions dated 20 April 2026 prepared by RTS Civil Consulting Engineers Pty Ltd Addendum Traffic and Parking Statement dated 19 April 2026 prepared by Hemanote Consultants Pty Ltd Statement of Environmental Effects Revision D prepared by GSA Planning dated April 2026 Landscape Plans Revision F dated 4 May 2026 prepared by Site Design Studios BASIX Certificate 1744785M_03 dated 6 May 2026 Nathers Certificates 0009401860, 0012009494-01 and 0012009486-01 dated 6 May 2026 Geotechnical Letter prepared by JK Geotechnics dated 7 May 2026 The Amended Application was filed on 7 May 2026. The Court also notes the amended plans and other documents cited above were filed with the Court on 7 May 2026. Orders The Court orders that: The appeal is upheld. Development Application DA-311/2025 for the c onstruction of two semi-detached dwellings with basement parking, car stackers, a swimming pool and associated landscape works at 5 and 5A Tamarama Street, Tamarama NSW 2026 is determined by the grant of consent subject to the conditions contained in Annexure ‘ A ’ . T Horton Commissioner of the Court Annexure A (420 KB, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2026