Onisforou Highlands Property Pty Ltd v Wingecarribee Shire Council [2026] NSWLEC 1557

Catchwords: APPEAL – development application – multi dwelling housing in mixed use zone – amenity of proposed dwellings – adequacy of solar access to private open space – whether dwellings have satisfactory amenity Land and Environment Court New South Wales Medium Neutral Citation: Onisforou Highlands Property Pty Ltd v Wingecarribee Shire Council [2026] NSWLEC 1557 Hearing dates: 27 and 28 May 2026 Date of orders: 28 August 2026 Decision date: 28 August 2026 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is dismissed. (2) The development application DA25/1661 for the construction of a multi dwelling housing development at 10 Illawarra Highway, Moss Vale is determined by refusal. (3) Exhibits B, C and 2 - 11 are returned, and Exhibits A, D and 1 are retained. Catchwords: APPEAL – development application – multi dwelling housing in mixed use zone – amenity of proposed dwellings – adequacy of solar access to private open space – whether dwellings have satisfactory amenity Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2021 (NSW), s 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.61, 6.63 State Environmental Planning Policy (Housing) 2021 Wingecarribee Local Environmental Plan 2010 Cases Cited: The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Texts Cited: Department of Planning, Industry and Environment, Low Rise Housing Diversity Design Guide for Development Applications (July 2020) NSW Department of Planning and Environment, Apartment Design Guide (July 2015) Wingecarribee Shire Council Moss Vale Town Plan Development Control Plan (January 2021) Category: Principal judgment Parties: Onisforou Highlands Property Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: D LeBreton (Solicitor) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2025/245906 Publication restriction: No Judgment COMMISSIONER : The area immediately to the west of the Moss Vale Showground, in Moss Vale, is zoned for mixed use development. Some of that area has been developed for commercial purposes, including a supermarket, a hire premises , a medical centre and motor dealerships. The site at 10 Illawarra Highway , however, contains a single cottage at the street frontage and otherwise remains undeveloped . Onisforou Highlands Property Pty Ltd ( OHP) seeks development consent to carry out development for the purpose of multi dwelling housing on the site, proposing to retain the existing cottage and construct seven new dwellings on the undeveloped, rear portion of the site. It lodged a development application with Wingecarribee Shire Council ( the Council) on 5 March 2025, which was subsequently refused by the Council on 20 June 2025. OHP appeals against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ( NSW) ( EPA Act). At the hearing, the Court approved two amendments to the development application, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 ( NSW) . These amendments responded to what was agreed by the various experts in their joint reports. The proposed development, as presently before the Court, is for the construction of 2 single storey buildings at the rear of the site, containing 7 dwellings comprising 6 two-bedroom dwellings and 1 one-bedroom dwelling. The dwellings are proposed to be accessed by a driveway along the north-western side boundary, with hardstand parking provided at-grade in the area between the existing cottage and the new buildings. The parking area contains parking for 11 cars , including 2 accessible spaces and 1 visitor parking space and a carport over 5 of the parking spaces . The Council remains opposed to the grant of development consent, largely on the basis that the design of the proposed development results in dwellings that have inadequate amenity. In particular, the Council ’ s position is that the site is of inadequate width to accommodate the dwellings, resulting in dwellings that are located too far from the road and from the car parking spaces, are undersized, have inadequate solar access to their private open space, that have a poor outlook onto the adjacent commercial area and poor privacy. The Council also raises an issue concerning stormwater drainage . For the reasons that are set out below, I find that the dwellings, and in particular Units 3 to 6, do not have satisfactory amenity . This is due to the inadequate solar access to the private open space and the undersized internal layout . I therefore conclude that development consent ought not be granted. The site and the locality T he site is known as 10 Illawarra Highway Moss Vale, and is legally identified as Lot 1 in Deposited Plan 14181. It is located on the north-eastern side of the Illawarra Highway ( also known as Robertson Road), approximately 90m south-east of the intersection between the Illawarra Highway and Argyle Street . It has an area of 1713m ² and a frontage of 20.115m to Illawarra Highway. It narrows to the rear, with side boundaries of around 97.5m and a rear boundary of 15.1m. The site has a fall of around 5m from the front southern corner towards the rear northern corner. The existing cottage, which is to be retained, is located in the front southern corner of the site. The immediate locality contains varying land uses , generally reflective of the mixed use zoning. An ALDI supermarket is immediately adjacent to the site on its north -west, and a health services facility is immediately adjacent to the site on the south-east. To the rear is a car showroom and sales yard. T he south, on the other side of Illawarra Highway , is char acterised by dwelling houses. The Moss Vale Showground is further to the south - east, beyond the zone boundary for the mixed use zone. The planning framework The site is zone d MU1 Mixed Use pursuant to the Wingecarribee Local Environmental Plan 2010. Development for the purpose of multi dwelling housing is an innominate permissible use in the MU1 zone . The objectives of the MU1 zone are as follows: • To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities. • To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To encourage business, retail, community and other non-residential land uses on the ground floor of buildings. • To ensure new development has regard to the character and amenity of adjacent and nearby residential areas. Part B Section 11 of the Moss Vale Town Plan Development Control Plan ( MVDCP ) concerns residential development in business areas , and applies to residential development in the MU1 M ixed U se zone (formerly known as the B4 Mixed Use zone). The objectives are at B11.2 , and are as follows: “(a) To provide a range of housing types throughout Moss Vale. ( b) To provide a greater range of affordable housing options. ( c) To ensure the location of affordable accommodation is close to transport, shops and services. (d) To ensure that residential development within business precincts provides a satisfactory standard of residential amenity. (e) To stimulate and promote the orderly and economic use and development of land on appropriate sites within Moss Vale. ( f) To integrate new development into established areas by maintaining streetscape and building quality. ( g) To ensure new development preserves the quality of the built environment for all existing and future residents. ( h) To encourage development of a high standard of architectural merit and design. (i ) To ensure that new residential development provides appropriate private open space for residents.” The controls are then set out in B11.3 , and include a requirement, at ( a) for development to comply “ with the relevant design controls contained in Part C of this Plan ” . Th e controls in B11.3 are: “( a) The proposed development shall comply with the relevant design controls contained in Part C of this Plan. ( b) The proposed development shall comply with the height controls applicable in Part C of this Plan. ( c) Additional glazing and other design requirements shall be provided at Council’s direction to address potential noise issues associated with neighbouring commercial activity. ( d) The location of residential development shall ensure that there is no overshadowing from neighbouring commercial development. ( e) A Landscape Plan shall be provided for all development other than detached dwellings. ( f) On-site private open space shall be provided to improve the residential amenity of the development. ( g) Access to the subject site shall be located to ensure adequate vehicular and pedestrian safety.” Part C of the MVDCP concerns provisions applicable to residential zoned land , with separate sections relating to different forms of development. The Council relies on Section 3 of Part C, which concerns Medium Density Development , including multi dwelling housing. Within Part C Section 3 of the MVDCP , S ection C3.2 concerns site amalgamation and requires a minimum frontage of 25m ( C3.2.2 ( a)) . Section C3.3 concerns site planning and requires the configuration to be such that the number of dwellings facing the public street are maximised ( C3.3.2 ( a)) and long, u nbroken building forms greater than 25m are avoided ( C3.3.2 ( c)). It also requires that there is a limit on the proportion of dwellings located more than 50m from the street ( C3.3.2 ( d)) and that there is adequate privacy of dwellings within the proposed development ( C3.3.2 ( g)). Section C3.6 concerns dwelling orientation, and sets the control for solar access as “ a living area and 50% of the primary private open space of that dwelling must receive a minimum of 3 hours of direct sunlight on June 21 st ” . The objectives of Section C3.6 relate to receiving adequate sunlight, and maximising opportunities for passive heating and cooling. Section C3.7 of the MVDCP relates to Building Design. In its introduction, it stat es: “In preparing designs for medium density housing, including residential flat buildings, applicants are directed to design guidelines on the Department of Planning and Environment’s website.” The “ design guidelines ” are not defined, but the Council submits that the relevant design guidelines are the Low Rise Housing Diversity Design Guide for Development Applications ( Department of Planning , Industry and Environment, July 2020) ( LRHD Design Guide). Section C3.7.2 of the MVDCP then sets out the controls, including, at ( i ) , ( j) , ( m) and ( n) : “(i ) Windows of habitable rooms shall be screened or adequately separated from communal areas, windows of other dwellings and adjoining private open space within and outside the proposed development.( j) Buildings shall be sited to ensure that courtyard areas of the same and adjoining dwelling receive direct sunlight during the major part of daylight hours. … (m) Living areas and private open spaces shall be located towards the north and west to maximise solar access to these areas. ( n) Bedrooms, kitchens and utility rooms shall be located in those parts of a dwelling where solar access is reduced. ” Section C3.11 of the MVDCP concerns Landscaped Open Space, and the control s at C3.11.1 include the requirement for 50% of the site to be comprised of open space, and for each dwelling to have a minimum private open space area of 50m 2 . The controls at ( a), ( e) and ( h) are as follows: “ a) Fifty per cent (50%) of any site developed for multi dwelling housing, including residential flat buildings, shall comprise Open Space and be landscaped to the satisfaction of Council. … e) All dwellings, other than ground floor dwellings in a residential flat development, shall provide a minimum private open space area of 50 m² with a minimum length of 5 metres; … h) Private open space shall be located to maximise solar access” Section C3.15 concerns Adaptable Housing, and requires medium density developments to have “ not less than one for every three dwellings ” constructed to be adaptable housing. Part B of the MVDCP also defines local business precincts, and Section 18 identifies the site as falling within the Northern Entrance Precinct. Section B18.1 sets out the preferred development outcomes for the precinct, and, in relation to residential development, states as follows: “If the sites which comprise the Northern Corner were appropriately amalgamated and a medium density development designed to orient development into the centre and towards the east of the site across the showground, with adequate provision for private landscaped open space within the site, medium density housing would be an acceptable land use for this part of the Precinct.” The controls in B18.2 of the MVDCP then require, inter alia: “(a) All development shall comply with the relevant controls of Parts A, B and C of this Plan.(b) All development shall comply with the preferred development outcomes identified in this section of the Plan. (c) All car parking provided in conjunction with any development must be provided on-site.” The site is within the Sydney Drinking Water Catchment, such that s 6.61 of the State Environmental Planning Policy ( Biodiversity and Conservation) 2021 (SEPP BC) applies, which requires the Court, exercising the functions of the consent authority, to be satisfied that “ the carrying out of the development would have a neutral or beneficial effect on water quality ” . Section 6.63 also applies, and provides that development consent must not be granted “ unless the consent authority is satisfied the development is consistent with the NorBE Guideline ” . The Council’s contentions The Council ’ s position is that the proposed development is unacceptable, principally on the basis that its design does not afford adequate amenity to future residents. It contends that the site frontage is inadequate , which compromises the design and amenity of the proposed development ( C ontention 2 ), and that the proposed dwellings are undersized and have insufficient private open space with inadequate solar access ( Contention 3). It also contends that the proposed development does not have adequate adaptable housing units ( Contention 4), that there is inadequate information to support the adaptable units that are proposed ( Contention 11), and that the built form is contrary to the controls concerning building length , side setback variations, quantum of open space and materials and finishes ( Contention 5). The Council also contends that , because the legal point of discharge of the stormwater requires an easement over the adjacent land, the proposed stormwater management system does not meet the requirements of s 6.61 of the SEPP BC ( Contention 8). The Council therefore says that the proposed development is not consistent with the objectives of the zone ( Contention 6), and that it is not in the public interest ( Contention 10). The remaining contentions, concerning contamination ( Contention 1), traffic and parking ( Contention 7) and the works over the sewer ( Contention 9) have been resolved by the expert evidence and/or by the imposition of agreed conditions. The expert evidence Expert evidence on the civil engineering issues was given in a joint report by Mr Matthew Beament, an engineer engaged by OHP, and Mr Tula Bhattarai, an engineer employed by the Council. They agree that the amended development application , which includes updated architectural and engineering plans, addresses concerns regarding the protection of the Council ’ s sewage assets . They also agree that a redesign is required to ensure that the diverted sewer main can achieve a minimum longitudinal grade of 1%. OHP has provided an updated sewer diagram to address this ( Ex D). On the basis of their agreement and the updated diagram, the Council agrees that C ontention 9 is resolved. Expert evidence on the traffic and parking contention was given in a joint report by Mr Lachlan Ellson, a traffic engineer engaged by OHP, and Mr Thomas Ste a l, a traffic engineer engaged by the Council. They agree that , as a result of the amendments to the proposed development, the access and parking design issues are resolved. The only outstanding issue concerns whether a covered parking space should be provided for every resident, which is not within their area of expertise and is dealt with in the evidence of the town planners. Expert evidence on contamination was given in a joint report by Mr Rohan Last, a n environmental scientist engaged by OHP, and Mr Denis Boulavine, the Council ’ s employed environmental health officer. They agree that, as a result of the updated Preliminary Site Investigation dated 13 May 2026, the Detailed Site Investigation dated 25 May 2026, and the Remediation Action Plan dated 21 May 2026, the site can be made suitable for the proposed development. As a result of their agreed evidence, the Council agrees that C ontention 1 is resolved. Expert evidence on the town planning issues , including issues concerning the design of the built form and amenity of the dwellings , was given in a joint report and orally by Mr Jonathon Wood, a town planner engaged by OHP, and Ms Rebecca Engl u nd, a town planner engaged by the Council. They agree that the amended development application addresses the issues concerning solar access to living areas, such that the living rooms now receive adequate solar access. However, they disagree on the acceptability of the amenity of the dwellings and the built form design. Whereas Mr Wood considers both the amenity of the dwellings and the built form design to be acceptable, Ms Engl u nd opines that the amenity is inadequate and the built form design is not consistent with the applicable controls. Their evidence is considered below. Narrow site frontage and amenity of the dwellings (Contentions 2 and 3) The Council submits that the proposed dwellings have sub-standard amenity that is not satisfactory, and relies on the provisions of the MVDCP and the evidence of Ms Engl u nd. Whilst the Council acknowledges that there is some tension in the MVDCP concerning what is required of residential development in a business zone, there is nonetheless an objective, at Section B11.2 ( h) to “ encourage development of a high standard of architectural merit and design ” . In achieving this, the Council submits that Section B11.3 ( a) calls up the “ relevant design controls contained in Part C ” , which extends to the controls concerning site frontage width , the private open space areas , and the distance of the dwellings from the residential street. With respect to the site frontage, Part C of the MVDCP , at control C3.2.2 ( a), requires a width of 25m , whereas the site frontage is only 20.115m and narrows to 15.09m at the rear. The C ouncil says that this control is called up by Part B 11.3 ( a) and the narrow width of the site creates a constraint, which causes a problem with the layout of the proposed development , resulting in a number of unsatisfactory outcomes. The first unsatisfactory outcome relied upon by the Council is th e poor amenity of the bedrooms, which are adjacent to the pathway that provides access to each of the dwellings. The Council submits that this causes a privacy issue, with residents walking past the bedroom windows, and any window covering to protect privacy will cause issues with light and ventilation. The second unsatisfactory outcome advanced by the Council is the poor amenity of the private open space areas, which do not meet the MVDCP requirements for minimum area ( 50m 2 ) or for solar access ( 50% of the area in direct sunlight for 3 hours on 21 June). The agreed table on the private open space areas and extent of solar access is shown below in Figure 1 . The third outcome that the Council says is unsatisfactory is the internal size and layout of each of the dwellings, which does not meet any objective benchmark for room size or dwelling size. The Council relies on the evidence of Ms Engl u nd, who compares what is proposed to the minimum room sizes in the Apartment Design Guide and in the LRHD Design Guide , as shown in Figure 2. Ms Englund ’ s evidence is that, even on reviewing the floor plans of each dwelling, the small areas are not workable or adequate for contemporary standards. The fourth outcome that the Council says is unsatisfactory is the distance of the dwellings from the residential street. Whereas the MVDCP requires that the proportion of dwellings located more than 50m from the street be limited, the proposed development has a dwelling that requires walking 70m from the car parking space to the dwelling entrance, along the communal pathway. The applicant’s position on the site frontage and the amenity of the dwellings OHP ’ s position is instead that the minimum site frontage control does not apply to the proposed development, and that the dwellings have adequate amenity. OHP relies on the controls in Part B Section 11 of the MVDCP , which con fine the applicable Part C controls to those that are “ relevant design controls ” . For those design controls that do apply and with which there is a non-compliance , OHP says that the proposed development meets the objectives of the controls , consistent with what is required to be considered by s 4.15 ( 3A) ( b) of the EPA Act. Specifically, OHP submits that the requirement for a minimum frontage of 25m in Part C of the MVDCP is not a “ relevant design control ” called up by the controls at Section B11.3 of the MVDCP , and does not apply to the mixed use zone. OHP relies on the evidence of Mr Wood, who considers that the site frontage width control relates to residential area s, where the subdivision layout is designed for residential development, and not to a mixed use zone , which has a different subdivision pattern. Further, OHP submits that, even if the control does apply, the proposed development is not inconsistent with the objective s of that control, which largely do not apply to residential development in a mixed use zone. The objectives of the controls in Section C3.2.2 are: “(a) Encourage the efficient use of existing residential land in urban areas.(b) Provide a high level of amenity for dwellings in medium density development. (c) Design the position and orientation of dwellings to maximise the integration of the higher density development into the existing neighbourhood character. (d) Minimise the loss of mid-block tree canopy and other vegetation on site.” OHP submits that the objectives ( a) and ( c) are not relevant to the mixed use zone in which the site is located, and that ( b) goes beyond what is required by the objective in Part B Section 11 of the MVDCP , at ( d) , for residential development within business precincts to have “ a satisfactory standard of residential amenity ” . OHP therefore submits that objective ( b) of Section C3.2. 1 does not apply to the proposed development. OHP further submits that objective ( d) is achieved in circumstances where the proposed development will increase the vegetation on the site. In relation to the amenity of the dwellings, OHP relies on the agreement of Mr Wood and Ms Engl u nd that the design of the built form, with the private open space and living space oriented to the north, is the best design outcome. OHP relies on Mr Wood ’ s evidence that the design deliberately retains the existing cottage at the street frontage, so as to maintain the current street presentation and present a domestic street address rather than one that is dominated by a driveway area . Mr Wood also opines that the built form is not properly described as a single unbroken building form, but that it instead is broken into three built form elements, two of which are at the rear and together are of comparable length to the adjacent Aldi building. Mr Wood ’ s evidence is that the communal path going past the bedroom windows is not unusual and is an acceptable consequence of multi dwelling housing , and there is nothing unacceptable about the distance of the dwellings from the street. Further, OHP points out that only two of the private open space areas do not meet the minimum area requirement for 50m 2 , and they are 45m 2 and 46m 2 . This, it submits, is only a minor shortfall , with no discernible impact where the areas are appropriately designed with decks that flow from the internal living areas. Whilst OHP agrees that the private open space does not meet the solar access requirements, it submits that this is a product of the location of the ALDI building immediately to the north, and relies on Mr Wood ’ s assessment of solar access at 1m above the ground level to conclude that the solar access i s acceptable . Mr Wood opines that the solar access is “ more than adequate ” based on this assessment, as well as on the basis that the courtyards have a northern orientation and are highly useable adjacent to living areas . His evidence is that, on that basis, the objectives of the numerical standard, set out at C3.6.1 of the MVDCP , are met. Mr Wood goes on to consider each of the objectives in Section B11.2 as they relate to solar access , and concludes that they are met. OHP submits that no evidence to the contrary has been given by Ms Engl u nd. Whilst Section B11.3 ( d ) of the MVDCP applies to the site and requires the location of residential development to “ ensure that there is no overshadowing from neighbouring commercial development ” , OHP relies on the evidence of Mr Wood that this control ought not be read literally and instead ought to be considered in the context of ensuring that there is adequate sunlight. Finally, in relation to the size of the dwellings and the internal rooms, OHP submits that there is no control that requires a minimum dimension to be met, and the LRHD Design Guide is not applicable as it is not specifically called up by the provisions of the MVDCP . Instead, OHP relies on the evidence of Mr Wood that the application of the Apartment Design Guide is not appropriate, and that the dwelling layouts are functional for future residents. Further , OHP submits that the size of the dwellings is appropriate in a context in which it is seeking to use the dwellings for low cost rental housing . The dwellings do not have satisfactory amenity Whilst I accept the position of OHP that the minimum site frontage control in the MVDCP does not apply to the proposed development , I consider that the proposed dwellings do not have a satisfactory standard of amenity because the private open space is sub-standard and the internal dwelling sizes are inadequate. I reach this conclusion for the following reasons. With respect to the site frontage control, at C3.2.2, I accept the position of OHP that it is not a “ relevant design control ” called up by the controls at Section B11.3 of the MVDCP . In my view, a control with respect to the area and configuration of a site in a residential zone cannot be a control with respect to the “ design ” of the development. In that respect, I accept the evidence of Mr Wood that it is a control concerning the residential zone and its application is not appropriate in the context of the MU1 zone. Nevertheless, I consider that the dwellings, and in particular U nits 3 to 6, d o not have satisfactory amenity by virtue of the combination of the inadequate solar access to the private open space with the undersized internal layout. For Units 3 and 6, this is compounded by the deficient private open space areas. Part B Section 11 of the MVDCP , in Section B11.2, contains the objective to “ ensure that residential development within business precincts provides a satisfactory standard of residential amenity ” . There is also the focus, at objective ( i ), on providing “ appropriate private open space for residents ” . The objectives make it clear that despite the location of residential development in business zones ( including mixed use zones) , both residential amenity and private open space are important. The controls, in B11.3, then put those objectives into effect by requiring the “ design controls ” for residential development to apply ( control ( a)) , by making it clear that the residential development ought not be overshadowed by commercial development ( control ( d)) , and by requiring private open space to be provided ( control ( f)) . Whilst I accept Mr Wood ’ s evidence that absolute compliance with a control that there be “ no overshadowing from ne ighbouring commercial development ” cannot be achieved, the appropriate measure for assessing the acceptable overshadowing are those solar access controls in Section C3.6. Section C3.6 concerns dwelling orientation, which is a relevant design control, and requires 3 hours of direct sunlight to 50% of the private open space on 21 June. None of the dwellings have private open space that meets this requirement . Units 1 and 2 are close to achieving 25m 2 of direct sunlight across 3 hours, and Unit 7 does achieve at least 25m 2 across 3 hours, which in my view is acceptable in light of the exceedance of the minimum area of private open space of 50m 2 for those three units. However, with respect to Units 3 to 6 , the private open space of these units achieves neither 3 hours of direct sunlight to 50% of the area, nor 3 hours of direct sunlight to an area of 25m 2 . Consistent with the evidence of Ms Engl u nd, I do not accept that it is appropriate to measure the area of private open space in sunlight at a point 1m above the ground level in the circumstances . As agreed by the parties, the ADG does not apply and , as set out by Ms Engl u nd, the planning principle in The Benevolent Society v Waverley Council [2010] NSWLEC 1082 support it being measured at ground level . I note, however, that had the only is sue relevant to residential amenity been the inadequate solar access to the private open space , it may have been that the objective of the control s concerning both overshadowing and amenity could have been met with 3 hours of direct sunlight to 25m 2 of the private open space measured at 1m above the ground level. However, this is not the only issue relevant to residential amenity . The amenity of Units 3 to 6 is further eroded by the ir undersized internal areas . This also extends to U nit 7. Whilst I acknowledge that the MVDCP does not set minimum sizes for the dwellings or room sizes, I accept the Council ’ s position that the dwelling sizes do not meet any objective measure of acceptability . The LRHD Design Guide is one such objective measure of acceptability, notwithstanding that it is not specifically called up by the MVDCP . The combined living/dining areas of U nits 3 to 7 are around 14m 2 , whereas the LRHD Design Guide provides for a minimum 24m 2 . The living/dining area is therefore 10m 2 , or 42% less than what the LRHD Design Guide suggests. The internal area of the 1 - bedroom dwelling ( U nit 3) is 40m 2 , whereas the LRHD Design Guide provides for a minimum of 65m 2 and the ADG 50m 2 . Similarly, the internal area of the 2-bedroom dwellings ( U nits 4 to 7) is 51.5m 2 , whereas the LRHD Design Guide provides for a minimum of 90m 2 and the ADG 70m 2 . These dwellings are therefore significantly smaller than the minimum set by the LRHD Design Guide , and smaller than what is required by the ADG for dwellings in residential flat buildings. The dwellings are too compact to be described as having “ satisfactory amenity ” . Whilst Mr Wood suggests that, in the absence of a strict numeric control, a merit assessment of the internal dwelling size and layout ought to be considered, I find that U nits 3 to 7 fail on that assessment in any event. On that point, I accept the evidence of Ms Englund that the kitchens are extremely small, akin to a kitchenette, each of the dwellings can only accommodate a 2-seater lounge, there is no space for additional furniture typical of a living area , and the re is insufficient space between the dining table and fridge. Mr Wood ’ s reliance on a “ feeling of spaciousness ” from the external courtyard and high ceilings is not enough to satisfy me that the constraints of the small internal living /dining and kitchen areas can be overcome in some way. The desire of this particular applicant to use the dwellings to provide low cost rental housing is not a basis to deprive future occupants of amenity that is reasonably anticipated under the statutory planning framework . Even under the State Environmental Planning Policy ( Housing) 2021 , in - fill affordable housing has non-discretionary standards for dwelling sizes , and the ADG applies to build-to-rent housing in residential flat buildings . It is not the role of the Court , in deciding on the amenity of this proposed development, to compromise on the standards of amenity for the sake of affordable rental housing delivery unless to do so is supported by the statutory planning framework. Additionally , f or this proposed development, there is no condition of consent that is proposed to maintain the dwellings as rental properties or to charge reduced rents, and I accept the Council ’ s submission that there is nothing that would prevent the proposal from being subdivided post-consent . For those reasons, I find that the proposed development does not comply with the relevant design controls or the control to “ ensure that there is no overshadowing from neighbouring commercial development ” . Whilst s 4.15 ( 3A) ( b) of the EPA Act requires me to be flexible in applying the standards in the MVDCP and “ allow reasonable solutions that achieve the objects of those standards ” , I am not satisfied that the proposed development offers reasonable solutions that achieve the objects. D ue to both the inadequate solar access to the private open space of U nits 3 to 6 and the small living/dining areas and dwelling sizes of U nits 3 to 7, the proposed development does not meet the objective in B11.2 of the MVDCP to “ ensure that residential development within business precincts provides a satisfactory standard of residential amenity ” . The development application should be refused on that basis. The remaining contentions As set out above at [ 20 ] to [ 22 ], the Council raised a number of additional contentions concerning the adaptable housing units ( Contentions 4 and 11), and the built form controls ( Contention 5), as well as a contention concerning whether the stormwater management system is capable of satisfying the consent authority of the requirements of s 6.61 of the SEPP BC. Given my finding above that the development application should be refused on the basis that the dwellings do not have satisfactory amenity, I need not consider those contentions. The outcome of the appeal The Court orders that: The appeal is dismissed. The development application DA25/1661 for the construction of a multi dwelling housing development at 10 Illawarra Highway , Moss Vale is determined by refusal. Exhibits B, C and 2-11 are returned, and E xhibit s A, D and 1 are retained. J Gray Commissioner of the Court ********** 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: 28 August 2026