Kimberely Co Pty Ltd v Waverley Council

Cases Cited: Kimberley Co Pty Ltd v Waverley Council [2023] NSWLEC 1418

Texts Cited: NSW Planning and Environment, Apartment Design Guide 2015
Waverley Development Control Plan 2022

Category: Principal judgment

Parties: Kimberley Co Pty Ltd (First Applicant)
SRH Architecture Pty Ltd (Second Applicant)
Waverley Council (Respondent)

Representation: Counsel:
A Pickles SC (Applicants)
S Patterson (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/197474

Publication restriction: Nil

JUDGMENT

1. This is an appeal against the actual refusal by Waverley Council of the Applicant’s modification application (DA-291/2022/G). The Applicant filed a Class 1 Application, appealing the refusal, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).

2. The Applicant seeks to modify the development consent granted for a residential flat building with four apartments in an R3 Medium Density Residential zone in the local government area of Waverley. The site at 27-29 Kimberley St, Vaucluse, has a combined area of 945 sqm, sloping downwards to Diamond Bay Reserve; the Reserve ends at a high cliff, falling to the ocean below (the Site). The original combined site was 1,279.30 sqm, but a portion on the northern boundary of the original lots, zoned RE1 Public Recreation, was dedicated to the Council via a Planning Agreement.

3. The original development application has been subject to five successful modifications. The current modification proposes to reallocate all of the communal open space in the development, at the rear of the Site, to private open space for Unit 1, with a new rear gate to the space for access only from Unit 1. On 13 October 2025, the parties participated in conciliation conference in accordance with the s 34 of the Land and Environment Court Act 1979 (NSW), which was terminated that day.

Jurisdiction

4. The original consent for the development was granted by Commissioner Dickson in Kimberley Co Pty Ltd v Waverley Council [2023] NSWLEC 1418, and as a result, the application for modification of the consent was made under s 4.56 of the EPA Act, the provision dealing with modification of development consent granted by the Court.

5. Section 4.56(1)(a) requires the Court to be satisfied that “the development to which the consent as modified relates is the same or substantially the same development as the development for which the consent was originally granted”. Further, the Court must be satisfied of the matters in ss (1)(b)-(d), namely that that the modified application has been appropriately notified, each person who made a submission has been sent a written notice, and any submission in relation to the proposed modification has been considered.

6. The Respondent accepted that the development to which the modified consent relates is the same or substantially the same development as the development for which the consent was originally granted (Ex 2, p 308) and the Court is satisfied that s 4.56(1)(a) has been met. The Court is also satisfied that ss (1)(b)-(d) have been met as the Respondent filed a notice into evidence confirming that appropriate notification was given and that no submissions were received as a result (Ex 2, p 313).

7. This brings us to s 4.56(1A), which requires the Court “to take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application” and to “take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified”.

8. The latter can be dealt with first. As noted, the consent to the original development was granted by Commissioner Dickson in Kimberley Co Pty Ltd v Waverley Council [2023] NSWLEC 1418, in upholding an appeal against a deemed refusal of a development application by Waverley Council. The Commissioner said at [6] that notwithstanding the parties’ agreement that the appeal be resolved through consent orders, the Court was still required to carry out an assessment under s 4.15 of the EPA Act. The Commissioner did so, considering the Site and locality, the planning framework, and the issues in contention.

9. Most relevant to the current application was the Commissioner’s consideration of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2002 (SEPP 65), in force at the time, along with the Applicant’s SEPP 65 Report and Design Verification Report. The Commissioner stated at [36] that she was “satisfied that adequate regard has been given to (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria”. The Commissioner said no more about the ADG, and a consideration of the provision of communal open space did not form any express part of her reasoning in granting consent to the development.

10. However, it should be noted that the conditions of consent originally granted by the Court included 2(a) “COMMUNAL OPEN SPACE”, requiring that the upper level of communal open space at the basement level be accessible to mobility impaired people, and that the lower communal open space be accessible to able bodied people. As a result of the subsequent introduction of a wheelchair lift and stairs to the plans, this condition was modified to remove original references to a ramp and a minimal useable area of 172 sqm, but it is the consent as originally granted that s 4.56 requires the Court to consider.

11. In accordance with s 4.56(1A), the Court has considered “the reasons given by the consent authority for the grant of the consent that is sought to be modified” and concluded that the provision of communal open space at the rear of the Site did not form a significant part of the Commissioner’s reasoning.

12. Turning then to the first part of s 4.56(1A), we are required to “take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application”. Section 4.15 requires, inter alia, consideration of any environmental planning instrument, any development control plan and the public interest. The bulk of the parties’ arguments at the hearing focussed on the relevant planning instrument, being the State Environmental Planning Policy (Housing) 2021 (SEPP (Housing) 2021), which in s 147(1) requires consent authorities, including the Court in modifying a consent, to consider:

13. the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Sch 9 of the SEPP, and

14. the Apartment Design Guide (ADG).

15. We note that s 147(3) states that consideration of the ADG “does not require a consent authority to require compliance with design criteria specified in the Apartment Design Guide”.

16. The Respondent also cited the Waverley Local Environmental Plan 2012 and the Waverley Development Control Plan 2022 (WDCP 2022) but acknowledged that SEPP (Housing) 2021*,* s 149, states that a “requirement, standard or control for residential apartment development that is specified in a development control plan and relates to the following matters has no effect if the Apartment Design Guide also specifies a requirement, standard or control in relation to the same matter”. The “same matter” relevant to the application is s 149(1)(c) “common circulation and spaces”. As a result of the subservience of the WDCP 2022, both parties sought to primarily rely on the principles in the ADG and Sch 9 of the SEPP (Housing) 2021.

The Issues

15. The modification sought the reallocation of the only communal open space in the development to private open space for (Ex A S4.56 100, Revision 10); in other words, the redesignation of the outdoor open space to within the boundaries of Lot 1, rather than as part of the common property in the proposed strata scheme (Ex E, Draft Strata Plan, Sheet 2).

16. The approved communal open space included two levels at the rear of the Site; an upper level accessible to all via stairs or a wheelchair lift from the car park, and a lower level accessible only by the able bodied persons via stairs (Ex 2, Tab 5, S4.56 312, Revision 05). Each level comprises roughly 50% of the communal open space.

17. The modification was refused by the Respondent on the grounds that the loss of all communal open space was inconsistent with Design Principles 6 and 8 of Sch 9 of SEPP (Housing) 2021 and with the Design Criteria 3D ‘Communal and Public Open Space’, Objectives 3D-1, 3D-2 and 3D-3 in the ADG. Further, it would have been detrimental to the public interest (Ex 2, Council Report, pp 306-315).

18. The Respondent maintained this position in Contentions 1 and 2 at the hearing (Ex 1). Contention 1 being that:

19. The proposal did not afford optimal and adequate residential amenity for future occupants as the removal of the communal open space would not contribute to a positive living environment for residents’ wellbeing and would limit residents’ access to outdoor space on the Site, contrary to Design Principle 6 ‘Amenity’, Sch 9, SEPP (Housing) 2021;

20. The proposal would result in a development which does not provide for different types of communal open space for a broad range of people or opportunities for social interaction between residents, contrary to Design Principle 8 ‘Housing Diversity and Social Interaction’, Sch 9, SEPP (Housing) 2021; and

21. The proposal would not provide an area of communal open space which offered a high level of amenity for all residents, in accordance with ADG objectives 3D-2 and 3D-3, and it would fail to meet the minimum 25% of the total site requirement for communal open space in ADG objective 3D-1.

22. And Contention 2, that:

23. The proposal was not in the public interest of providing development that is compliant with relevant controls, provides adequate residential amenity, and is compatible with the existing and future character of the locality and broader local government area. The proposed development would also establish an undesirable precedent for future development.

24. The Respondent relied on the evidence of Consultant Planner, Ms Englund, who stated in the Joint Expert Report (Ex B) that:

25. The approved development has a useable and functional communal open space that offered a high level of amenity [36];

26. The connectivity between each unit and the communal open space was good, whether via the basement car park or via the side stairs; the maximum distance necessary to travel to reach the space was 26m, significantly less than the 130 m to the public reserve [37]-[39];

27. The communal open space would allow recreational activity not permitted in a public reserve, such as fires and the consumption of alcohol, it would give Units 2 and 4 their only access to lawn and landscaped areas [40]-[42], and it would allow access to “home comforts” such as bathrooms and cooking facilities [48];

28. While the ADG and WDCP 2022 both provide variations relating to communal open space where developments were “unable to achieve the design criteria, such as on small lots, sites within business zones, or in a dense urban area” (Objective 3D-1 ADG) or were “unable to achieve the recommended communal open space, such as small developments (5 or less dwellings)” (WDCP 2022), these are expressly limited to circumstances where a development is unable to achieve the design criteria. The approved development demonstrates that a functional area of communal space could be provided [45]-[46];

29. The removal of the communal open space was contrary to Design Principle 6 ‘Amenity’ and Design Principle 8 ‘Housing Diversity and Social Interaction’ in the SEPP (Housing) 2021 [54]; and

30. The approval of a modification to remove the communal open space would establish an undesirable precedent and would compromise future enforcement of the ADG and WDCP 2022, [59]-[61].

31. The Applicant countered that nothing in Design Principle 6 “Amenity” in Sch 9 of the SEPP (Housing) 2021 requires communal open space to be provided. Rather, the Principle requires that good amenity is achieved through a combination of factors, including “outlook” and “indoor and outdoor space”. The Applicant posited that the proposed apartments all had excellent indoor and outdoor amenity without communal open space. Each apartment was large, with a north facing balcony and ocean views. The Applicant’s expert Consultant Planner, Mr Karavanas, emphasised that three of the four apartments had private open space well in excess of the ADG minimum of 12 sqm, at 41 sqm, 89 sqm and 180 sqm (now proposed to be 301 sqm) respectively. Unit 2, with the smallest open space at 18 sqm (or 14 sqm on Ms Englund’s calculations, Ex B [43]-[44]), exceeded the ADG minimum (Ex B [15]). Mr Karavanas also noted that the indoor space of each apartment greatly exceeded the ADG minimum of 90 sqm.

32. The Applicant conceded that Design Principle 8 refers to different types of communal open space for “a broad range of people” and opportunities for social interaction among residents, but that in a small development for the luxury end of the market, there is unlikely to be a ‘broad range of people’. Further, the car park and the foyer offered opportunities for social interaction, along with the large apartments themselves, by invitation.

33. The Applicant focused some argument on the poor connectivity between three of the units and the approved communal open space, in particular the need to access the space either via a lift to the car park or via multiple sets of stairs on the eastern side of the Site. The Applicant claimed that in this regard the communal open space failed to meet the ADG Design Objective 3D-1, that “direct, equitable access should be provided to communal open space areas from common circulation areas, entries and lobbies”. The Applicant suggested that access was neither direct, nor equitable. In contrast, if converted to lot property, Unit 1 would have direct access to the open space via proposed steps linking its upper and lower terrace (Ex B [11]-[14]).

34. The Applicant highlighted the statement in ADG 3D ‘Communal and public open space’ that, “high quality open space is particularly important and beneficial in higher density developments”. The Applicant’s expert, Mr Karavanas, explained that a small development of four units would not need communal open space in the same way as a development with 20 units (Ex B [22]). Further, Mr Karavanas noted that there were a number of public parks and open spaces within a 500m and 1000m radius of the Site. At the onsite portion of the hearing, the Court was taken by foot to two open spaces on either side of the Site.

35. Mr Karavanas compiled a table (Ex F) that showed a number of developments, previously approved by Waverley Council, with no communal open space. Most developments were small, with three to four units, and the Council’s comments on the absence of communal open space, in the Assessment Reports for the DAs, focused on two factors: sufficient private open space and proximity to public open space.

36. The Applicant noted that ADG Objectives 3D-2 and 3-D3 were only relevant if communal open space were provided.

37. Finally, in relation to Contention 2 and the public interest, the Applicant argued that the public interest does not require all developments to comply with every standard or control; rather, both the WDCP 2022 and the ADG are standards that provide flexible guidance: EPA Act, s 4.15(3A) and SEPP (Housing) 2021, s 147(3). Further, if approved, the modification would not establish an undesirable precedent as there were several small developments in the area, with no communal open space, but rather good private open space and access to public open space nearby.

Consideration

28. The Court finds merit in aspects of both the Applicant’s and Respondent’s submissions. The SEPP (Housing) 2021, Sch 9, Principle 8 states that well designed residential apartment development provides housing and facilities to suit the “existing and future social mix”, including “different types of communal spaces for a broad range of people”. We do not accept the Applicant’s argument that as a luxury development there is unlikely to be a “broad range of people” resident in the apartments; that would only be true if we define people solely by reference to their economic status. As the Respondent rightly argued, residents might include those who host gatherings of family and friends, care for grandchildren regularly or share their homes with companion animals. We would add that it is not inconceivable that the “future social mix” of the development may include families with children. Even within a small, luxury development, there will still be a range of people with differing “living needs” (Principle 8(1)).

29. We note also that the default assumption of the ADG Objective 3D-1 is that “adequate” communal open space should be provided with “a minimum area equal to 25% of the site”, and that it should function to allow opportunities for “group and individual recreation”, as well as social interaction.

30. However, Sch 9 of the SEPP (Housing) 2021 and the ADG are standards only, which we are required to “consider”: SEPP (Housing) 2021, s 147(1). There are no non-discretionary development standards in issue in the proceedings (s 148(2)), and the Court is not required to require compliance with the design criteria in the ADG: SEPP (Housing) 2021, s 147(3).

31. On balance, we are persuaded by the Applicant’s argument that Principle 6 of Sch 9 does not stipulate communal open space, but rather ‘good amenity’ in the form of access to appropriate room dimensions and shapes, sunlight, natural ventilation, outlook, indoor and outdoor space, and ease of access for all age groups and degrees of mobility. With large apartments, all with balconies facing north, with views and ample light, we are satisfied that the development has excellent amenity. With reference to Principle 8 “Housing diversity and social interaction”, while all apartments will be expensive, the smaller balcony size of Unit 2 will provide a mix of apartment sizes and some housing choice within an admittedly high range of household budgets. We accept that the communal foyer and car park will provide some opportunity for ‘social interaction among residents’, as will the generously sized apartments, by invitation.

32. We note that the ADG emphasises that high-quality open space is particularly important in high density developments, which this is not. It is a small development with generous private indoor and outdoor space. The development also has good proximity to public open space and facilities and has made a significant contribution to public open space by dedicating part of the Site to the local Council. Proximity to public open space, and contribution to it, are offered by the ADG Objective 3D-1 as alternatives when a Site may not be able to achieve the design criteria for private communal open space.

33. The ADG also recommends that communal open space should have direct, equitable access from common circulation areas, entries and lobbies. We accept the Applicant’s expert evidence that there is a relatively poor degree of connectivity between the communal open space at the rear of the Site and the apartments. This may impair the capacity of the space to function as a “useable area” in accordance with ADG Objective 3D-1. Further, only the upper level of the communal open space is accessible to the mobility impaired, while the lower level is not.

34. Finally, we do not accept that the modification application is not in the public interest. The relevant controls and standards are not mandatory criteria, rather, they are principles and guides that must be applied flexibly and thoughtfully with reference to the unique nature of each Site. This is a small development, on a sloping Site. The individual apartments have excellent private amenity, as well as access to public open space. Owing to the nature of the Site, the approved communal open space is at the rear of the Site with relatively poor connectivity to the apartments which may compromise its use by some residents. Those matters are all specific to this Site and this development. If approved, the modification will not establish a precedent for future development in the locality.

35. The parties have agreed amendments to the conditions of consent, and they are incorporated in the Court’s orders.

Orders

36. The Court orders that:

37. The modification application pursuant to section 4.56(1) of the Environmental Planning and Assessment Act 1979 (NSW) for the demolition of the existing structures and the construction of a four-storey residential flat building at 27-29 Kimberley St, Vaucluse (Lot 1 in DP 560890 and Lot 2 in DP1056298) is approved.

38. Development Consent No. DA-291/2022 is modified in the terms in Annexure A.

39. Development Consent No. DA-291/2022/G as modified by the Court is Annexure B.

40. The exhibits are returned, except for Ex C.

S Dixon

Senior Commissioner of the Court

C Sherry

Acting Commissioner of the Court

197474.25 Annexure A

197474.25 Annexure B

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