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[2025] NSWLEC 1827
General information, not legal advice.
Land and Environment Court (NSW)
2025-11-26
Pullinger AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: D. R. Simmons Family Pty Ltd v Waverley Council [2025] NSWLEC 1827
Hearing dates: Conciliation conference on held 21 August and 23 October 2025
Date of orders: 26 November 2025
Decision date: 26 November 2025
Jurisdiction: Class 1
Before: Pullinger AC
Decision: The Court orders that:
(1) Leave is granted to the Applicant to amend Development Application DA-666/2024 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 $14,000 within 30 days of the date of these orders.
(3) The appeal is upheld.
(4) Consent is granted to Development Application DA-666/2024 (as amended) for the partial demolition of the existing building, retention of the existing street facade, tree removal and construction of a five-storey shop top housing development with in-fill affordable housing at 27 Hall Street, Bondi Beach, subject to the conditions of consent at Annexure A.
Catchwords: DEVELOPMENT APPLICATION – shop top housing development – cl 4.6 written request – height of building – landscaped area – car parking – 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, Ch 2, Pt 2, Div 1, ss 3, 16, 19, 20, 21, Ch 4, ss 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, 6.17
Texts Cited: NSW Department of Planning, Apartment Design Guide (July 2015)
Waverley Community Participation Plan
Category: Principal judgment
Parties: D.R. Simmons Family Pty Ltd (First Applicant)
MHN Design Union Pty Ltd (Second Applicant)
Waverley Council (Respondent)
Representation: Counsel:
A Boskovitz (Solicitor) (Applicants)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicants)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2025/154249
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by D.R. Simmons Family Pty Ltd and MHN Design Union Pty Ltd (First and Second Applicant respectively, together the Applicant), against the deemed refusal of Development Application DA-666/2024 (the DA) by Waverley Council (the Respondent).
At the date of its lodgement on 12 January 2025, the DA sought consent for the partial demolition of the existing building, retention of the existing street facade, tree removal and construction of a five-storey mixed use residential apartment building development with retail/commercial uses at ground level and the provision of in-fill affordable housing at 27 Hall Street, Bondi Beach (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 21 August and 23 October 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 building height control, exceedance of the relevant floor space ratio (FSR) control, inadequate rear setback, inadequate internal amenity available to certain apartments, inadequate landscaped open space and deep soil, a failure to exhibit design excellence, and concerns for excavation, stormwater management and waste management, 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 scale of the proposed building form, to remove the provision of access to private roof terraces, to improve internal residential amenity to a number of apartments, to provide additional deep soil and landscaped area, and to increase the rear setback. Additional information has been provided to the satisfaction of the Respondent, and other issues such as conservation works to the retained facade, excavation, waste management and stormwater 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 Participation Plan for twenty-one days from 24 January and 19 February 2025. A total of six submissions were received by the Respondent, with four of these raising concerns including:
Excessive building height.
Overshadowing impacts and wind effects to neighbouring properties.
Building scale impacts and streetscape character.
Objection to proposed rooftop access and visual impacts of proposed spiral stairs.
The parties agree that the amended DA appropriately addresses and mitigates against a number of concerns raised by objectors, primarily by reducing the proposed building form and removing the proposed access to private roof terraces, which also reduces opportunities for cross viewing.
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 partial demolition of the existing structure occupying the site and the retention of the primary street facing facade.
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 17.15m, exceeding the development standard by 250mm, or approximately 1.5%.
Clause 4.6(3) of the WLEP 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 height of building development standard, prepared by GSA Planning and dated September 2025.
The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the building height development standard for the following reasons:
The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and anticipated future character of the immediate locality.
The amended DA seeks to access building height bonuses made available within Ch 2 of SEPP Housing in exchange for the provision of in-fill affordable housing for a period of fifteen years consistent with the policy objectives of the SEPP.
The amended DA generally presents to the primary street as a five-storey shop top housing development, with its upper floor levels set back from the site boundary and behind an existing retained facade.
The portion of the proposal exceeding the building height control is limited to screened rooftop plant containing air conditioning condenser units, set towards the centre of the site in a manner not discernible from vantage points in the public domain.
These condenser units are agreed to be appropriately sited away from more sensitive neighbouring residential properties to protect their acoustic privacy.
The height exceedance does not give rise to unreasonable adverse overshadowing impacts or view loss for neighbouring properties.
The relevant objectives of the WLEP E1 Local Centre land use zone include to provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area; to encourage investment in local commercial development that generates employment opportunities and economic growth; to enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area; to encourage business, retail, community and other non-residential land uses on the ground floor of buildings; to strengthen the viability of Waverley’s existing business centres as places of vitality for investment, employment and cultural activity; to maximise public transport patronage and encourage walking and cycling; to encourage the provision of affordable housing; to ensure development is of a height and scale that achieves the desired future character of the neighbourhood; to promote employment growth by giving preference to commercial development over residential development; and to provide active ground floor uses to create vibrant centres. I am satisfied the amended DA is consistent with these objectives.
The relevant objectives of cl 4.3 of the WLEP - Height of buildings - include to ensure building heights preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views; to maintain satisfactory solar access to existing buildings and public areas; and to establish building heights that are consistent with the desired future character of the locality. I am satisfied the amended DA is consistent with these objectives.
Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the building height development standard, and I find to uphold the written request.
Pursuant to cl 4.4 of the WLEP - FSR - the site benefits from a development standard for FSR of 2:1. 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 2.6:1, or equivalent to 1,516.6sqm of GFA.
The amended DA seeks consent for a total FSR of 2.6:1, 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. However, the site is within close proximity to a number of identified heritage items at 20, 31-33 and 43 Hall Street.
The Applicant has provided a Heritage Report, prepared by Weir Phillips and dated December 2024, which concludes that the significance of nearby heritage items will not be unreasonably impacted by the amended DA. Of further note, Weir Phillips has specified appropriate conservation works to the retained facade at the subject site to ensure its ongoing contribution to the character of the local streetscape.
The parties agree, and I am satisfied, that pursuant to cl 5.21 of the WLEP - Flood planning - the site is situated within a flood planning area. The Applicant has provided a Hydraulic Impact Assessment and Overland Flow Management Report, prepared by RTS Civil and dated 6 December 2024. I am satisfied that the amended DA satisfactorily addresses those matters of consideration set out at cl 5.21(2) and (3) of the WLEP. Agreed conditions of consent are imposed, reflecting the findings of the report.
The parties agree, and I am satisfied, that pursuant to cl 6.1 of the WLEP - Acid sulfate soils - the site is situated within a Class 5 area as mapped in the WLEP. The amended DA is agreed to be unlikely to lower the water table below 1.0m Australian Height Datum on any site within 500m of Class 1, 2 3 or 4 area classification, and hence a detailed acid sulfate soils management report is not required.
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 Morrow Geotechnics dated 1 August 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, is identified within the relevant WLEP Key Sites Map, 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 accordingly, 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 RTS and dated 15 August 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 pursuant to cl 6.17 of the WLEP - Affordable housing contributions - the Respondent may impose a condition of consent requiring an affordable housing contribution to be made. Accordingly, an agreed condition specifying a monetary contribution is included within the conditions of consent.
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.
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, No 1775745_02, dated 1 October 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 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 (2.0:1 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 2.6:1.
It is agreed that the amended DA complies with this maximum FSR and proposes a total of 1,516.6 sqm of GFA.
Consistent with s 16(2) of SEPP Housing, the amended DA is required to allocate a minimum of 15% of FSR (227.49 sqm of GFA) as in-fill affordable housing. The amended DA proposes that four units (Units N201, N202, N301 and N302) be provided as in-fill affordable housing for a period of at least 15 years, equivalent to 229.4 sqm of GFA, and exceeding 15% of the maximum FSR.
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)(b) - landscaped area - and s 19(2)(e) and (f) - parking spaces.
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 16 dwellings and the site area is 583.3 sqm. On this basis, the lesser requirement is for a minimum landscaped area of 30% of the site, equating to 175 sqm.
The amended DA is agreed to provide a landscaped area of 133.04 sqm (equivalent to 22.8% of the site area). This landscaped area represents a 41.96 sqm shortfall to the minimum landscaped area development standard and represents a variation of approximately 24%.
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 September 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 some of 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 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, 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 landscaped area development standard, and I find to uphold the written request.
Pursuant to s 19(2)(e) and (f) of SEPP Housing, the amended DA is subject to minimum car parking rates, which depend on the size of residential apartments and whether they are provided as affordable housing.
Based on these parking rates, a proposal of this nature would be expected to provide a total of ten car spaces. The amended DA proposes no car parking, however the SEPP Housing development standard for parking spaces may be varied by operation of cl 4.6(3) of the WLEP.
Accordingly, the Applicant has provided a written document seeking to vary the parking spaces development standard, prepared by GSA Planning and dated September 2025.
The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the parking spaces development standard for the following reasons:
The amended DA is agreed to provide an appropriate response to car parking because of the site’s compact footprint, lack of secondary frontages or rear lane access, and its location within an area with a well-defined village character.
The amended DA seeks to retain and incorporate an existing characterful facade as a positive streetscape element, which is otherwise incompatible with facilitating basement access for cars.
The location of an existing street tree and a pedestrian crossing along the site frontage make the provision of a basement parking entry impractical and detrimental to the public domain.
The site benefits from good access to public transport services.
But for the applicability of SEPP Housing, the Respondent’s suite of development controls identify no minimum car parking rates for the site given its location in a high amenity pedestrian area.
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 the policy as set out at s 3 of SEPP Housing.
Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the relevant parking spaces 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, MHND Union (and its nominated architect Mr Brian Meyerson - NSW registered architect 4907) has prepared a Design Verification Statement dated 1 September 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 12 March 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 24 October 2025.
The Court orders that:
Leave is granted to the Applicant to amend Development Application DA-666/2024 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 $14,000 within 30 days of the date of these orders.
The appeal is upheld.
Consent is granted to Development Application DA-666/2024 (as amended) for the partial demolition of the existing building, retention of the existing street facade, tree removal and construction of a five-storey shop top housing development with in-fill affordable housing at 27 Hall Street, Bondi Beach, subject to the conditions of consent at Annexure A.
Annexure A (773 KB, pdf)
Architecture Plans (36.8 MB, pdf)
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D. R. Simmons Family Pty Ltd
Waverley Council [2025] NSWLEC 1827