665 Old South Head Rd Pty Ltd v Waverley Council [2026] NSWLEC 1009

Catchwords: DEVELOPMENT APPLICATION — shop top housing development — cl 4.6 written request — minimum site area — landscaped area — in-fill affordable housing — agreement between the parties — orders Land and Environment Court New South Wales Medium Neutral Citation: 665 Old South Head Rd Pty Ltd v Waverley Council [2026] NSWLEC 1009 Hearing dates: Conciliation conference on held 8 and 15 December 2025 Date of orders: 08 January 2026 Decision date: 08 January 2026 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA-317/2025 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent ’ s costs thrown away as a result of amending the Development Application in the agreed sum of $9,000 within 28 days of the date of these orders. (3) The appeal is upheld. (4) Consent is granted to Development Application DA-317/2025 (as amended) for the demolition of existing structures and construction of shop top housing with ground floor commercial at 665 Old South Head Road, Rose Bay, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION — shop top housing development — cl 4.6 written request — minimum site area — landscaped area — in-fill affordable housing — agreement between the parties — orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4. 15 , 4.16, 8.7, 8.15 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), ss 26, 27, 29, 37, 38 State Environmental Planning Policy (Housing) 2021, Chs 2, 4, Pt 2, Div 1, ss 3, 16, 18, 19, 20, 21, 145, 147, Sch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 Waverley Local Environmental Plan 2012, cll 2.1, 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.9, 6.14, 6.15, 6.16 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015) Waverley Council, Community Engagement Strategy (2023) Category: Principal judgment Parties: 665 Old South Head Rd Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) K Mortimer (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicants) Lindsay Taylor Lawyers (Respondent) File Number(s): 2025/320976 Publication restriction: Nil JUDGMENT COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by 665 Old South Head Rd Pty Ltd (the Applicant), against the deemed refusal of Development Application DA-317/2025 (the DA) by Waverley Council (the Respondent). At the date of its lodgement on 7 July 2025, the DA sought consent for the demolition of existing buildings and the construction of a new four-storey shop top housing development containing six residential units, one of which is to be provided as in-fill affordable housing, one commercial unit with two levels of basement parking and ancillary works at 665 Old South Head Road, Rose Bay (the site). The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 8 and 15 December 2025. I presided over the conciliation conference. During the conciliation conference, the parties reached agreement to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions raised by the Respondent. These contentions included issues of exceedance of the relevant floor space ratio (FSR) control and associated impacts of excessive building bulk and scale, impacts of overshadowing upon neighbouring properties, inadequate visual privacy and cross viewing, inadequate internal amenity available to certain apartments, inadequate landscaped area, and inappropriate aesthetics and streetscape character, amongst other contentions. Agreed design amendments have been made to improve the proposed building’s relationship to the site and its context. Changes have been made to reduce the overall bulk and scale of the proposed building form, particularly towards the rear of the site and its secondary frontage along Norton Avenue. Additional information has been provided to the satisfaction of the Respondent, including overshadowing diagrams, and other issues such as an agreed justification for the proposed landscaped area have been resolved. 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 amended DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. The DA was publicly notified in accordance with the Respondent’s Community Engagement Strategy 2023 for twenty-one days from 17 July 2025. A total of ten submissions were received by the Respondent raising concerns including : Non-compliance with minimum site area development standard. Exceedance of the relevant height of buildings and FSR development standards. Excessive building bulk and scale. Inconsistency with relevant setback and built form controls. Incompatibility with existing character of the local area. Excessive excavation and non-compliance with relevant excavation controls. Overshadowing, solar access and daylight impacts to immediate neighbouring properties. Visual and acoustic privacy impacts to immediate neighbouring properties. Visual bulk and scale impacts on neighbouring properties. Outlook and view impacts on neighbouring properties. Traffic and parking impacts arising from the proposed vehicle lift and parking provision. Acoustic impacts associated with car lift and plant equipment, including the location of rooftop plant equipment. The lack of landscaped and deep soil areas. Use of communal open space and associated acoustic and visual privacy impacts. Location of proposed balconies adjacent to power lines. Insufficient stormwater drainage provision. Potential impacts on Sydney Water assets within the public domain. The proposal does not genuinely qualify as affordable housing. Prior to the conciliation conference, during preliminary without prejudice discussions between the parties, amended plans were informally re-notified to resident objectors for a period of fourteen days from 26 November to 10 December 2025. Four further submissions were received by the Respondent in response to this re-notification, re-stating many of the previous concerns, specifically loss of solar access, cross viewing, view loss, excessive bulk and scale, acoustic privacy, and traffic and parking. At the site view on the morning of 8 December 2025, a number of affected local residents and their representatives addressed the Court to again highlight these concerns, and the Court visited a number of adjacent properties to directly observe building separation, privacy and overshadowing relationships, along with potential view affection issues. Noting the concerns of affected residents, the parties agree, and I am satisfied, the amended DA mitigates against a number (but not necessarily all) of the concerns raised by the objectors, primarily by redistributing and reducing the proposed building form, bulk and scale, improving to some extent the solar access available for neighbouring dwellings, and by ensuring improved privacy between neighbouring properties. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent have now satisfactorily considered the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed. The parties agree, and I am satisfied, that the Waverley Local Environmental Plan 2012 (WLEP) is the relevant local environmental planning instrument. Pursuant to cl 2.1 of the WLEP, the site is zoned E1 Local Centre. The amended DA - characterised as shop top housing development - is permissible with consent within the E1 zone. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the E1 Local Centre zone objectives. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the WLEP - Demolition requires development consent - the amended DA proposes demolition of the existing structures occupying the site. Pursuant to cl 4.3 of the WLEP - Height of buildings - the site benefits from a development standard for building height of 13m. However, provisions set out within Ch 2 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing), dealing with affordable housing, make up to an additional 30% building height available in exchange for the provision of 15% of the proposed gross floor area (GFA) as in-fill affordable housing. The amended DA seeks to rely upon this 30% additional building height, taking the resultant building height development standard to 16.9m. The amended DA proposes a maximum building height of less than 16.9m complying with the relevant development standard. Pursuant to cl 4.4 of the WLEP - FSR - the site benefits from a development standard for FSR of 1.5:1. Again, provisions set out within Ch 2 of SEPP Housing, make up to an additional 30% FSR available in exchange for the provision of 15% of the resultant GFA as in-fill affordable housing for a period of fifteen years. The amended DA seeks to rely upon this 30% additional FSR (in exchange for the provision of 15% of the proposed GFA as in-fill affordable housing) taking the resultant maximum FSR development standard to 1.95:1, or equivalent to 834.99sqm of GFA. The amended DA seeks consent for a total FSR of 1.948:1, complying with the relevant FSR control. The parties agree, and I am satisfied, that all remaining principal development standards of the WLEP have been met by the amended DA. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the site is not an identified heritage item, nor is it situated within a Heritage Conservation Area or in close proximity to any listed heritage item. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the WLEP - Flood planning - the site is not situated within a flood planning area. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulfate soils - the site is not mapped within an area affected by acid sulfate soils. The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. The Applicant has provided a Geotechnical Investigation Report prepared by JK Geotechnics dated 10 June 2025 addressing the matters set out at cl 6.2(3), which the parties agree, and I am satisfied, have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works. The parties agree, and I am satisfied, that pursuant to cl 6.9 of the WLEP - Design excellence - the site is situated within an E1 land use zone and the amended DA proposes a building greater in height than 15m. Accordingly, the amended DA must exhibit design excellence in the terms set out at cl 6.9(4) of the WLEP. The parties agree, and I am satisfied, that the amended DA exhibits design excellence at an appropriate threshold to warrant the grant of consent. The parties agree, and I am satisfied, that pursuant to cl 6.14 of the WLEP - Waste minimisation and recycling - the amended DA proposes the erection of a building for the purpose of shop top housing and a ccordingly, must reflect a high standard of waste and recycling management in the terms set out at cl 6.14(3). The parties agree, and I am satisfied, that the amended DA provides a high standard of measures and provisions for waste minimisation and recycling. The parties agree, and I am satisfied, that pursuant to cl 6.15 of the WLEP - Stormwater management - the Applicant has provided amended Stormwater Plans, prepared by Smart Structures Australia and dated 1 December 2025. The amended DA satisfactorily addresses those matters set out at cl 6.15(3) and the proposal is designed to maximise water-permeable surfaces on the site, including on-site stormwater retention, and avoids significant adverse impacts of stormwater runoff on adjoining properties. The parties agree, and I am satisfied, that pursuant to cl 6.16 of the WLEP - Development in Zone E1 - the assessment of the amended DA has appropriately considered its impacts on the amenity of surrounding residential areas and the desired future character of the area, and that the proposal is consistent with the hierarchy of centres in Waverley. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the parties agree, and I am satisfied, that the long-term pre-existing use of the site has been for shop top housing development purposes unlikely to be contaminated, and that the proposed use of the land is to remain mixed use in nature. In any event, the Applicant has provided a Preliminary Site Investigation, prepared by Environmental Consulting Services and dated 24 August 2024, which concludes the site is suitable for the proposed development. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg), a BASIX certificate, 1761769M_03, dated 25 November 2025, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate. The parties agree, and I am satisfied, that SEPP Housing is an additional relevant environmental planning instrument. Chapter 2 of SEPP Housing deals with Affordable Housing, and the amended DA is subject to the relevant provisions for in-fill affordable housing set out at Pt 2, Div 1. Relevantly, I am satisfied that development for the purposes of shop top housing is permitted with consent in the E1 Local Centre Zone. The affordable housing component proposed within the amended DA is equivalent to at least 15% of the maximum FSR. Pursuant to s 16(1) of SEPP Housing, the relevant FSR development standard is calculated by adding the base FSR for the land (1.5:1 determined by the WLEP) to an additional 30% of FSR, given the proposed affordable housing component. For the subject site and amended DA, this equates to a total maximum FSR of 1.95:1. It is agreed that the amended DA complies with this maximum FSR and proposes a total of 834.99 sqm of GFA, or 1.948:1. Consistent with s 16(2) of SEPP Housing, the amended DA is required to allocate a minimum of 15% of FSR (125.25 sqm of GFA) as in-fill affordable housing. The amended DA proposes that one unit (Unit 1.01) be provided as in-fill affordable housing for a period of at least 15 years, equivalent to 125.78 sqm of GFA, and exceeding 15% of the maximum FSR. Similar to the matter of FSR, s 18 of SEPP Housing makes up to an additional 30% of building height available in exchange for the provision of 15% of the proposed GFA as in-fill affordable housing. As addressed earlier in this judgment, the site benefits from a development standard for building height of 13m (as set out in the WLEP), and the amended DA seeks to rely upon the 30% additional building height provided by SEPP Housing, taking the resultant building height development standard to 16.9m. The amended DA proposes a maximum building height of less than 16.9m, complying with the development standard. Section 19(2) of SEPP Housing provides a number of relevant non-discretionary development standards. The amended DA complies with all relevant non-discretionary development standards with the exception of s 19(2)(a) - minimum site area - and s 19(2)(b) - landscaped area. Pursuant to s 19(2)(a) of SEPP Housing, the minimum site area development standard is 450 sqm. The site area is approximately 428.2 sqm representing a variation of approximately 4.8%. The SEPP Housing minimum site area development standard may be varied by operation of cl 4.6(3) of the WLEP, which requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. Accordingly, the Applicant has provided a written document seeking to vary the development standard for minimum site area, prepared by GSA Planning and dated June 2025. The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the minimum site area development standard for the following reasons : The proposed variation will permit the provision of diverse housing types on the site. The amended DA comprises six apartments of varying configurations. One unit (Unit 3.01) is to be allocated as in-fill affordable housing for a period of fifteen years. Strict compliance with the minimum site area development standard would not achieve these policy objectives of Ch 2 of SEPP Housing. The proposal increases the overall dwelling density of the site. Currently, the property comprises one residential dwelling with a relatively low level of amenity. The amended DA increases housing supply by providing six new dwellings, which meet contemporary living standards. The amended DA has been designed in a way that is contextually sensitive and contributes positively to its locality. Development in the area comprises a mix of buildings ranging in height from one to four storeys. The degree of non-compliance is relatively minor, representing a 4.8% shortfall from the development standard. The shortfall does not create non-compliances with other planning controls. The site can reasonably accommodate the proposed four-storey development. I am satisfied the amended DA is consistent with the objectives of the WLEP E1 Local Centre land use zone. I am satisfied the amended DA is consistent with relevant principles of SEPP Housing as set out at s 3, which include enabling the development of diverse housing types, including purpose-built rental housing; encouraging the development of housing that will meet the needs of more vulnerable members of the community, including very low to moderate income households, seniors and people with a disability; ensuring new housing development provides residents with a reasonable level of amenity; promoting the planning and delivery of housing in locations where it will make good use of existing and planned infrastructure and services; minimising adverse climate and environmental impacts of new housing development; and reinforcing the importance of designing housing in a way that reflects and enhances its locality. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the relevant minimum site area development standard, and I find to uphold the written request. Pursuant to s 19(2)(b) of SEPP Housing, the amended DA is subject to a minimum landscaped area development standard equal to the lesser of either 35 sqm per dwelling or 30% of the site area. The amended DA comprises 6 dwellings and the site area is 428.2 sqm. On this basis, the lesser requirement is for a minimum landscaped area of 30% of the site, equating to 128.46 sqm. The amended DA is agreed to provide a landscaped area of 128.96 sqm (equivalent to 30.1% of the site area). However, this landscaped area is provided entirely over basement structures and does not meet the definition of landscaped area set out in SEPP Housing, technically representing a 128.46 sqm shortfall to the minimum landscaped area development standard or a variation of 100%. The SEPP Housing minimum landscaped area development standard may be varied by operation of cl 4.6(3) of the WLEP, which requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. Accordingly, the Applicant has provided a written document seeking to vary the development standard for minimum landscaped area, prepared by GSA Planning and dated November 2025. The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the minimum landscaped area development standard for the following reasons : The amended DA is agreed to provide an acceptable quantity and quality of landscaped area suited to the nature and scale of the proposed development. The shortfall is agreed to result in part from the SEPP Housing definition of landscaped area excluding landscaped and planted areas over structures. Given that the provided landscaped area is situated above the ground floor retail tenancy (with adequate soil volume), it still provides the ameliorative benefits of landscaped area despite being excluded from the relevant calculations. The landscaped area inclusive of areas above structures, is greater than 30% of the site area. The amended DA and its landscape setting are compatible with the desired future character established by the WLEP together with the relevant building height and density bonus provisions of SEPP Housing. I am satisfied the amended DA is consistent with the objectives of the WLEP E1 Local Centre land use zone. I am satisfied the amended DA is consistent with relevant principles of SEPP Housing as set out at s 3. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the relevant minimum landscaped area development standard, and I find to uphold the written request. Section 20 of SEPP Housing sets out certain design requirements. The parties agree, and I am satisfied, that the amended DA is compatible with the desired character of the local area, noting that the operation of SEPP Housing means the local area is a precinct undergoing transition. Section 21(1)(a) of SEPP Housing requires that, commencing at occupation certificate stage, the development will provide the in-fill affordable housing component for a period of fifteen years. Further, s 21(1)(b) requires the consent authority (the Court in this instance) to be satisfied that the affordable housing component will be managed by a registered Community Housing Provider (CHP). Accordingly, and consistent with s 26 of the EPA Reg, the amended DA specifies HomeGround Sydney as the CHP. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of SEPP Housing. Pursuant to the relevant provisions of SEPP Housing and the EPA Reg, the Applicant's architect, Mark Shapiro Architects (nominated architect Mr Mark Shapiro - NSW registered architect 9789) has prepared a Design Verification Statement dated 1 December 2025, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA. Additionally, and pursuant to s 145 of SEPP Housing, I am satisfied the DA was referred to the Respondent’s Design Review Panel on 13 August 2025, and its advice considered in the assessment of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. The Court notes that: Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent. The Applicant has lodged the final amended DA with the Court on 15 December 2025. Orders The Court orders that: Leave is granted to the Applicant to amend Development Application DA-317/2025 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent ’ s costs thrown away as a result of amending the Development Application in the agreed sum of $9,000 within 28 days of the date of these orders. The appeal is upheld. Consent is granted to Development Application DA-317/2025 (as amended) for the demolition of existing structures and construction of shop top housing with ground floor commercial at 665 Old South Head Road, Rose Bay, subject to the conditions of consent at Annexure A. M Pullinger Acting Commissioner of the Court ********** Annexure A (612 KB, pdf) Architectural Plans (21.6 MB, 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: 08 January 2026