Patchy Properties Pty Ltd v Randwick City Council [2026] NSWLEC 1190

Category: Principal judgment

Parties: Patchy Properties Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation: I Hemmings SC (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/28815

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal is about whether a residential flat building needs to respond to existing development or is in an area of transition.

2. The Applicant, Patchy Properties Pty Ltd (Patchy) appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of DA/1013/2024 (DA) by Randwick City Council (Council). The DA was subsequently refused on 13 March 2025.

3. Pursuant to s 39(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) and ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg), leave was sought and granted by the Court to amend the DA throughout the hearing, without objection from Council.

4. The DA, as amended, seeks development consent for the construction of a five storey residential flat building (with four apartments) with basement parking (eight car spaces), strata subdivision and associated works at 8 Ormond Gardens, Coogee. The DA proposes affordable housing pursuant to Ch 2, Div 1 In-fill affordable housing of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP).

5. With consideration of the evidence and submissions, I find that the proposed setbacks and variation to the floor space ratio (FSR) warrant refusal of the DA.

The site and context

6. The subject site is legally described as Lot 8 in DP 20035 and known as 8 Ormond Gardens, Coogee (site). The site has an area of approximately 424.8m2 with frontages to Ormond Gardens (26.15m) and Brook Street (11.58m). The width of the site as measured north-south is primarily 14.64m. There were no structures on site at the time of the hearing, except for various retaining walls, one of which is a heritage listed sandstone retaining wall. Known as ‘Catley’s Wall’, the retaining wall is a local heritage item under the Randwick Local Environmental Plan 2012 (RLEP).

7. At the site view, the parties drew the Court’s attention to the streetscape along parts of Brook Street and along Ormond Gardens, as well as existing buildings and recent approvals in the catchment.

8. The existing development in Ormond Gardens primarily comprises two storey residential flat buildings (RFBs), clearly constructed several decades ago. Development in the visual catchment along Brook Street is mixed. The streetscape includes RFBs and mixed use development up to four storeys in height, heritage listed terrace housing and Coogee Oval.

9. The subject site is zoned R3 Medium Density Residential under the RLEP. To the south, the zoning changes to E1 Local Centre.

10. The site is located within an accessible area as defined under s 15C(1)(c)(i) of the Housing SEPP, being within 400m walking distance from a number of bus stops.

Key Issues

11. At the hearing, Council pressed that the following contentions in the amended Statement of Facts and Contentions (SOFAC) (Ex 2) warrant refusal (noting that not all particulars in each contention were pressed):

12. Inconsistent with the objectives of the R3 Medium Density Zone (contention 1).

13. Inadequate justification to the proposed contravention of the maximum FSR (contention 3).

14. The development does not exhibit design excellence (contention 7).

15. Inadequate justification to vary the minimum lot size non-discretionary development standard (contention 9).

16. Allocation of car parking (contentions 10 and 11).

17. Incompatible with the local area (contention 12).

18. Inadequate setbacks (contention 13).

19. Inadequate solar access (contention 15).

20. Inadequate residential amenity (contention 18)

21. Contrary to the public interest (contention 21).

22. The issues can be summarised as follows:

23. Adequacy of variations to development standards / non-discretionary development standards.

24. Consistency with the character of the local area and setbacks.

25. Design.

Evidence

13. Expert town planning evidence was submitted in a joint expert report (Planning JER) by Anthony Betros for Patchy and William Joannides for Council. Oral evidence was adduced at the hearing.

14. Expert geotechnical and engineering evidence was submitted in a joint expert report and supplementary report (Engineering JER) by Rafeal Furniss and Feris Chehade for Patchy and Ali Amin for Council.

15. Expert heritage evidence was submitted in a joint expert report and supplementary report (Heritage JER) by James Phillips for Patchy and Samira Abbasalipour for Council.

16. Expert traffic engineering evidence was submitted in a joint expert report and supplementary report (Traffic JER) by Paul Corbett for Patchy and John Flanigan for Council.

The setbacks issue

17. Council pressed contention 13, that the proposed primary and secondary setbacks to both frontages (Brook Street and Ormond Gardens) are not consistent with the prevailing setbacks along each street and contrary to the Randwick Development Control Plan 2013 (RDCP). The result of which would be a visually dominant building in the streetscape and other amenity impacts.

18. The RDCP provides the following setback controls and objectives from Section 3.4:

3.4 Setbacks

Objectives

• To define the street edge and establish or maintain consistent rhythm of street setbacks and front gardens that contributes to the local character.

• To ensure adequate separation between buildings for visual and acoustic privacy, solar access, air circulation and views.

• To reserve contiguous areas for the retention or creation of open space and deep soil planting.

3.4.1 Front setback

Controls

i) The front setback on the primary and secondary property frontages must be consistent with the prevailing setback line along the street.

Notwithstanding the above, the front setback generally must be no less than 3m in all circumstances to allow for suitable landscaped areas to building entries.

ii) Where a development is proposed in an area identified as being under transition in the site analysis, the front setback will be determined on a merit basis.

iii) The front setback areas must be free of structures, such as swimming pools, above ground rainwater tanks and outbuildings.

iv) The entire front setback must incorporate landscape planting, with the exception of driveways and pathways.

Note: Transitional areas can be areas of mixed character, without clearly prevailing characteristics or features. They can also be precincts or localities in the process of undergoing change in terms of character or built form.

19. In relation to controls in a DCP, s 4.15(3A) of the EPA Act requires that a consent authority is not to require more onerous standards and that flexibility must be applied to reasonable solutions that achieve the objectives of the controls.

Evidence

20. Mr Betros’ evidence is that the 3m front setback to Brook Street is consistent with existing development, the previous building on site (now demolished) and the previous consent for an additional storey. A casual observer would not find the proposed Brook Street setback out of character, as it is consistent with the terraces at the northern end of the block, the ground level component of the former Rugby Club, 1 Ormond Gardens directly to the south and 114-116 Brook Street further to the south.

21. Mr Betros’ evidence is that the southern setback along the Ormond Gardens frontage should be considered on its merits, as the area is in a state of transition where older dwellings and RFBs are being replaced with contemporary buildings in the R3 zone. Reference is made to the southern setback being a side setback as well as the front setback controls at Section 3.4.1(ii) of the RDCP.

22. Mr Betros’ refers to around 20 examples of sites that have obtained development consent under Div 1 of the Housing SEPP or that are under assessment by Council in Coogee, ranging in height between 3 to 5 storeys. Also referenced are other examples of redevelopment under the RLEP controls, where the desired future character is 12m in height and an FSR of 0.9:1. Mr Betros says that the two storey RFB’s adjoining the site along Ormond Gardens are underdeveloped, undersized, lack private open space and lack amenity. The FSR of these buildings likely ranges between 0.4:1-0.6:1 and have a small number of apartments per building. The proposed setback of 2.5m does not generate any adverse amenity impacts, provides for landscaped planters and private open space, and is appropriate for a corner block. A 2.5m setback would also benefit any future redevelopment of the adjoining sites to provide for a more viable floor plate (as shown in Annexure E in the Planning JER. It would therefore be inappropriate to respond to the existing setbacks. Accordingly, Section 3.4.1(ii) of the RDCP should be applied and the setback to Ormond Gardens considered on its merits. Mr Betros also refers to other developments approved in Coogee with a 2m side setback.

23. Mr Joannides’ evidence is that the area is not in transition and that Section 3.4.1 (i) of the RDCP applies and applies to both frontages. The Brook Street setback should be somewhere between the front setback at 1 Ormond Street and the Lachlan Building, which range between approximately 3m and +8.5m. The proposed front setback sits forward of both directly adjoining buildings to the north. To the extent that the previous RFB on site is relevant, the proposal should improve on the building relationship with Lachlan Building and that the previous building was overall consistent with the character of Ormond Gardens. In relation to the former Rugby Club, the ground floor has a reduced setback of 3m, but the rear five storey portion is setback generally in line with the Lachlan Building. This also responds to the northern two storey heritage listed group of semi-detached dwellings.

24. Mr Joannides’ evidence is that the Ormond Gardens front setback should be consistent with the streetscape as per Section 3.4.1(1) of the RDCP. As 6 and 7 Ormond Gardens are setback 4.5m, the subject site should be 4.5m to be consistent with them. The proposed 2.5m setback is 2m short and results in overlooking and excessive bulk and scale, particularly to 7 Ormond Gardens and the front private open space area.

25. Mr Joannides’ evidence is that most of the existing RFBs in Ormond Gardens comprise four apartments and that three of the seven RFBs have been strata subdivided. The ownership of the RFB’s, site size, orientation and shallowness of the sites make redevelopment less likely.

Submissions

26. Mr Hemmings SC submitted that the proposed setbacks are to be considered on a merits basis as the area is under transition. It was submitted that there was some inconsistency between the setback controls and the site planning diagrams in Section 2.1 of the RDCP regarding how to treat a secondary frontage. It was submitted that the front setback is to Brooks Street and that Ormond Gardens is either a secondary frontage or side setback. If it is a secondary frontage, Section 3.4.1(ii) of the RDCP applies and should be considered on its merits. The proposed setback is consistent with the objectives of the setback controls. If it’s accepted that it is a side setback, then the proposal complies with Section 3.4.2. The varied width of the site either warrants a merits consideration or the 2.5m side setback, depending on which part of the site the width is taken from.

27. Mr Seton submitted that the area is not in transition and the applicable setback controls apply to the primary and secondary frontages as set out in Section 3.4.1(i) of the RDCP. There is no inconsistency in the guidance provideed in parts of Section 2.1 of the RDCP and the front setback controls in Section 3.4 are clear.

Consideration and findings

28. I accept the evidence of Mr Joannides and submissions of Mr Seton and find that the proposed setbacks to the frontage along Ormond Gardens are inconsistent with the controls and do not achieve the objectives of the control for the below reasons.

29. I do not agree that the area is under transition. There is no definition of ‘area’ in the RDCP and it appears that the approach sought by the RDCP is contextual. I base this on the contextual response to prevailing setbacks in 3.4.1(i) as well as an emphasis on an area being identified as under transition based on a site analysis at 3.4.1(ii). With consideration of this site, I prefer Mr Joannides’ evidence and consider the area to include the visual catchment and some of the adjoining blocks.

30. With consideration of this area and the planning controls, there are no precinct plans that include the subject site. The low and mid-rise provisions of the Housing SEPP do not apply. The medium density housing controls that apply under the RLEP in the area provide for a maximum height of 12m and FSR of 0.9:1, meaning development in the range of 3-4 storeys. As is clear from Mr Betros’ evidence, there are a number of development consents in the Coogee suburb and consents in the vicinity of the subject site where the incentives of the Housing SEPP have been taken up. One of which the Court was taken to. These developments will be larger than the RLEP controls, though the examples provided ranged in scale between 3 to 5 storeys. The more recent examples were generally taller. As the RDCP describes at Section 1.1, half of the housing stock in Randwick is medium density housing and comprises a mix of new and older RFB’s. At Section 2.1, the RDCP recognises that redevelopment of RFB’s in the medium density zone occurs on sites with a narrow frontage and amongst older style RFB’s.

31. Directly opposite the site and taking up the block is Coogee Oval, a recreation area that is unlikely to redevelop (with no evidence presented of any redevelopment plans). I accept Mr Joannides’ evidence that there are limited sites that are likely to change or redevelop in the visual catchment. The developments directly to the north of the subject site along Brook Street including the heritage listed Lachlan Building and relatively recent shop top / mixed use development at the former Rugby Club are already commensurate in height with the proposal, the same height or taller than the RLEP controls allow and are unlikely to change. At the end of the block are the heritage listed group of 3 x semi-detached dwellings, which have smaller setbacks that are approximately 3m or less and are two storeys. None of these sites are likely to change or will face challenges to do so.

32. Further to the north on Brook Street are recreation areas, dwellings and residential flat buildings, some of which have a nil setback to Brook Street. From the site view and aerials within the evidence, it appears that some of these sites further north on Brook Street or on Dolphin Street may be able to be redeveloped and therefore will change. Further to the south along Brook Street the zone changes. In my view, the character of a centre is different to a residential character and I give it little weight.

33. Along Ormond Gardens in the cul-de-sac are seven older RFB’s. These are generally two storeys in height, located on sites mostly under 400m2 in size and are narrow in depth. I prefer Mr Joannides’ evidence that the RFBs along Ormond Gardens are more likely to remain then change. It is true that they are less constrained than larger RFB’s in terms of ownership and number of apartments, but the constraints of the sites are readily apparent from the evidence for the reasons given by Mr Joannides. There is limited uplift available to them under the RLEP, and Div 1 of the Housing SEPP presents hurdles in terms of site area. Given the size and orientation of the sites, there may be further redevelopment constraints in reaching the incentives of the Housing SEPP. The concept plan in the Planning JER demonstrates a redevelopment on the basis of two of the RFB’s redeveloping together. Whilst this may be achievable, it demonstrates the challenges to their likely ability to redevelop in terms of achieving a reasonable building floor plate and consolidation. Further, as was submitted, there was no evidence on whether there is existing affordable housing provided within these RFB’s, which, if present, would be subject to further considerations under the Housing SEPP.

34. Based on the planning controls, evidence of the expert planners and the site view, I accept that that the area is mixed in character and will experience some redevelopment. But redevelopment of some sites is a different proposition to an area being in transition. With consideration of the above analysis, the limited increased density from the existing character available under the applicable planning controls, recent development consents referred to in the evidence, existing development and the mixed character of the area, I find that the area is experiencing some redevelopment but is not one that is in transition.

35. On this basis, the applicable front setback control is Section 3.2.1(i) of the RDCP, and the proposal should be consistent with the prevailing setback line along the street and no less than 3m. I also find that the front setback control applies to both Brook Street and Ormond Gardens, as the control refers to both the ‘primary frontage’ and ‘secondary frontage’. Therefore, the side setback control only applies to the northern boundary. For clarity though, I do not agree that the western boundary (running along 7 Ormond Gardens) is a side setback and accept that it is a rear setback.

36. In relation to the Brook Street setback and Section 3.4.1(i), I accept Mr Betros’ evidence that the front setback is consistent with 1 Ormond Gardens to the south and most of Brook Street, particularly the ground floor of the Rugby Club and the heritage listed semi-detached housing. Whilst the upper levels of the proposed built form are further forward than the Lachlan Building and parts of the Rugby Club above ground level, the balconies and further setbacks of the top level reduce the massing of the development as viewed from Brook Steet. The proposed Brook Street setback is contextually appropriate and consistent with the prevailing setbacks.

37. In relation to the Ormond Gardens setback, I accept Mr Joannides’ evidence that the proposed 2.5m setback is inconsistent with the approximate 4.5m setback generally presented by the RFB’s at 6 and 7 Ormond Gardens. Whilst ‘consistency’ as sought by the control does not necessarily mean providing a 4.5m setback, the proposed 2.5m would starkly contrast with the prevailing setback along the street. I find that the 2.5m side setbacks would result in adverse visual bulk to the streetscape as viewed from the south, south-east and east from Ormond Gardens as well as adverse visual bulk as viewed from 6 and 7 Ormond Gardens, particularly in their front setback areas. Some of which included private open space areas whose general outlook would be impacted by the 2.5m setback. On this basis, I also find that the objective of Section 3.4.1 to maintain the consistent rhythm of street setbacks and front gardens that contribute to the local character is not achieved, and flexibility should not be applied pursuant to s 4.15(3A) of the EPA Act.

38. Even if 3.4.1 (ii) were applied to Ormond Gardens, I prefer Mr Joannides’ evidence that on a merits basis, the proposed setback to the secondary frontage along Ormond Gardens should not be supported for the same reasons that I set out above. The consistent character of Ormond Gardens and redevelopment challenges of those RFB’s should be appropriately responded to by the proposal and not ignored.

39. Finally, I do not find that there is any inconstancy between the setback controls in Section 3.4 and the site planning guidelines in Table 1 of Section 2.1 of the RDCP. Table 1 clearly articulates that the layout options are examples only. This part of the RDCP recognises the challenges of redevelopment in the Randwick LGA in medium density areas, where sites are generally deep but narrow and located amongst older style residential flat buildings. The site planning section intends to provide guidance on site analysis and planning and does not conflict with the setback controls in Section 3.4.

Is the proposed variation to FSR acceptable?

40. Council pressed contention 3 that the proposed FSR variation is excessive and that cl 4.6 of the RLEP has not been satisfied. Council also submits that either the car parking allocation is incorrect and the ‘additional’ spaces should be visitor car parking spaces as per the RDCP, or if it is found that the RDCP does not apply, that these car spaces are included as gross floor area (GFA). In that alternative, the FSR would be 1.34:1 with a variation of 0.17:1 or 72.5m2.

41. On Patchy’s case and excluding car parking, the proposed FSR is 1.28:1 or a variation of 46.58m2 above the additional FSR accessed pursuant to s 16(1) of the Housing SEPP.

42. Clause 4.4 of the RLEP allows a maximum FSR of 0.9:1 and states:

4.4 Floor space ratio

(1) The objectives of this clause are as follows—

(a) to ensure that the size and scale of development is compatible with the desired future character of the locality,

(b) to ensure that buildings are well articulated and respond to environmental and energy needs,

(c) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,

(d) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

43. The DA proposes an infill affordable housing development pursuant to Div 1 of the Housing SEPP. The proposal is eligible for additional FSR pursuant to s 16 of the Housing SEPP. The parties agree that the Housing SEPP permits a 30% uplift above the base FSR allowed under cl 4.4 of the RLEP. The allowable FSR based on the floor area proposed as affordable housing is 1.17:1.

44. Clause 4.6 of the RLEP states:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows—

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

Note—

The Environmental Planning and Assessment Regulation 2021 requires a development application for development that proposes to contravene a development standard to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate the matters in paragraphs (a) and (b).

(4) The consent authority must keep a record of its assessment carried out under subclause (3).

Evidence

45. The DA is accompanied by a clause 4.6 written request prepared by ABC Planning Pty Ltd dated December 2025 (FSR written request) (Ex J). The grounds were helpfully articulated in the detailed FSR written request, and are summarised below:

| Objective of Division 1 In-fill affordable housing of the Housing SEPP | FSR w****ritten request justification | | The objective of this division is to facilitate the delivery of new in-fill affordable housing to meet the needs of very low, low and moderate income households. | The development directly facilities affordable housing, which will be managed by Bridge Housing (a well recognised affordable housing provider). In their letter of support, Bridge Housing stated that there is a high need for good affordable housing in the Randwick LGA. Bridge Housing stated that they had provided input into the design and that the apartment is of a high standard and closely located to many services and Coogee Beach. The additional FSR facilitates the provision of a larger apartment to be dedicated as affordable housing and enhances the amenity. 15% of a compliant FSR is 74.475m2, just below the minimum ADG requirement for a two bedroom apartment. The proposed affordable apartment is 84m2 and could suit separate renters, a couple or parents with children. The increased size would not increase rent as the Housing SEPP caps the amount of rent payable (s 13(1)). A reduction in size would reduce amenity through the removal of a bathroom and reduced living areas. | | Clause 4.4 FSR of the RLEP | FSR w****ritten request justification | | (a) to ensure that the size and scale of development is compatible with the desired future character of the locality, | The desired future character of the locality includes the Housing SEPP and RLEP provisions, which allow residential development that range from 4-5 storeys. The proposal complies with the 15.6m height allowed under the Housing SEPP and the part four, part 5 storey residential flat building is compatible with the desired future character. The variation does not create any inconsistencies with this objective. The subject site adjacent to 4-5 storey buildings to the north along Brook Street (Figure 2 in the FSR written request). The heritage listed Lachlan building and former Randwick Rugby Club are the same scale and unlikely to change in the future. Despite being situated forward of the heritage listed building, the fifth storey of the proposed building is recessed and will be compatible with these two existing buildings as well as future redevelopment of the south and west. Despite the FSR non-compliance, the proposal will sit comfortably in the established streetscape in this part of Brook Street. Opposite the site and along Ormond Gardens are a series of outdated two storey RFBs. These buildings are dilapidated, have poor amenity with undersized apartments, no private open space and poor access to sunlight. Each building has between 2-4 apartments which provides opportunity for redevelopment given their condition and proximity to a highly desirable coastal location. | | (b) to ensure that buildings are well articulated and respond to environmental and energy needs, | Despite the FSR non-compliance, the external facades are articulated and indented to minimise the perceived bulk and scale. The FSR variation does not compromise the environmental and energy performance of the built form, with 75% of the apartments receiving three hours of solar access and 100% of apartments being cross-ventilated. The abundance daylight, open and shallow floorplates confirm the additional FSR does not comprise the environmental performance of the building. | | (c) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, | Adjoining and on the site to the north are two heritage items, being item I65 Catley’s Wall located on the boundary and item I66 the inter-war RFB at 108 Brook Street. The uppermost level has been setback as originally supported by Weir Phillips Heritage in their respective reports. This is also consistent form a town planning perspective, in that a compatible built form outcome is achieved notwithstanding the FSR variation. The additional FSR retains the setting and appearance of the heritage items. | | (d) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. | The proposed FSR variation will not create unreasonable environmental impacts including overshadowing, view loss, privacy loss or loss of visual amenity. There are also no additional benefits to be gained in reducing the FSR. The overshadowing diagrams demonstrate that the proposal will not result in overshadowing to adjoining properties to the north and west. The southern RFB at 1 Ormond benefits from a building separation of approximately 20m, and overshadowing is limited to the morning and the building will receive more than three hours solar access (as per the controls in the RDCP). There are no unreasonable impacts on view loss from surrounding properties or the public domain. Most properties that are orientated to views are limited to 2-3 storeys in height and therefore still not access any views. Taller buildings located more than 100m from the site may have minor impacts. The proposed built form is within a compliant building envelope and confirms that the proposed built form represents a skilful design and any view loss impacts would not be unreasonable. The variation is not responsible for any adverse or unreasonable view loss impacts. The proposal has been designed to provide adequate privacy between the proposed apartments and existing apartments. The primary orientation is to the street frontages and there are limited or non-habitable openings to the north and west. The FSR variation does not cause any adverse privacy impacts. The built form is compliant with the applicable setbacks, thereby providing adequate separation between properties. |

46. The FSR written request also provides a justification against the objectives of the R3 medium density residential zone. These include:

47. Provision of housing to meet the needs of the community in a medium density environment.

48. Delivery of a mix of housing, including 2 and 3 bedroom apartments and affordable housing.

49. The proposed FSR enables the provision of a greater amount of affordable housing than a compliant FSR. The size of the affordable housing apartment would be 74.4m2 if the FSR was complied with, being slightly below the required amount of the ADG (75m2). In contrast, the affordable housing apartment is 85m2 and provides greater internal amenity.

50. The proposed development does not unreasonably impact on the amenity of neighbouring properties in relation to overshadowing, privacy and view loss.

51. The FSR written request provides the following justification that there are sufficient environmental planning grounds to justify contravening the development standard.

52. The additional FSR is within a compliant building envelope including front, side and rear setbacks as well as overall height. The proposed GFA does not fill the permitted envelope, with the built form being articulated on the first four levels and a limited fifth floor. The additional FSR is therefore indiscernible and reasonable. The building is contextually compatible with existing and likely future scale.

53. All apartments are larger than the minimum sizes of the Apartment Design Guide (ADG) and provides greater levels of amenity. The proposal’s compliant setbacks, height and landscaping, as well as the lack of external amenity impacts (including overshadowing, view loss, visual bulk), mean that there is no sound planning rationale to reduce the size of the apartments to the detriment of future residents.

54. On the basis of the architect’s building envelope analysis undertaken in accordance with Part 2D of the ADG, an FSR of 1.37:1 can be accommodated on the site (assumptions including the front, side and rear setbacks, 15.6m height limit and 70% building envelope). The additional FSR, totalling 1.29:1 is below the maximum building envelope than can be achieved by the site, consistent with the reasoning in Barua No. 4 Pty Ltd v Randwick City Council [2021] NSWLEC 1156 (Barua).

55. Replacement of an outdated RFB (including the previous dilapidated building that was demolished) with a high quality RFB achieves the desired future character.

56. The proposed variation is consistent with nearby recent approvals for a number of similar developments with FSR variations ranging between 1.22:1 to 1.4 in Dolphin Street and Bream Street. Achieving consistency in the streetscape and fit with the character is a sufficient environmental planning ground: SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 at [90] (SJD DB2 Pty Ltd).

57. That the proposed variation and larger built form meet the criteria of cl 6.11 design excellence of the RLEP (as detailed on pages 20-24).

58. The proposal is consistent with the R3 Medium Residential zone objectives and FSR objectives.

59. The proposal will provide a suitable design and be of suitable amenity, representing the orderly and economic use and development of land (s 1.3 of the EPA Act).

60. Mr Betros for Patchy gave evidence that the visitor car parking rates in the RDCP did not apply, as the Housing SEPP prevailed. As the Housing SEPP parking rates are minimums not maximums, the additional car spaces do not count towards GFA.

61. Mr Betros’ evidence relating to the FSR variation was primarily within the detailed FSR written request. In oral evidence (on the previous version of the FSR written request with a slightly higher FSR), it was agreed that the additional floor space manifests above the basement and in some additional visual bulk. It was agreed that the additional GFA could potentially be pushing the building envelope towards the street frontages, particularly towards Ormond Gardens, but equally could be anywhere within the whole building. It was agreed that approximately 10m2 could be attributed to the affordable dwelling, and that there was an additional 40m2 elsewhere, but where it was was difficult to discern.

62. Mr Betros’ somewhat agreed that there was the potential for the additional GFA to be present on three or four of the levels on the southern side of the proposal that may result in a further setback of between 0.5m and 0.7m on those levels.

63. Mr Betros’ agreed that, if either the setbacks submitted by Council were accepted, or by removing 50m2 from the southern side of the building to comply with the FSR, this would have the effect of increasing solar access to 1 Ormond Gardens.

64. Mr Joannides for Council gave evidence that the visitor car parking rates in the RDCP apply, as they are for the building and not the apartments. In the alternative (if the RDCP rates do not apply), the two additional car spaces generate GFA as the spaces are beyond the Housing SEPP requirements of a consent authority.

65. Mr Joannides’ evidence is that there is some additional GFA that the affordable dwelling benefits from, though that does not overcome other poor design elements (relating to setbacks, privacy, lack of solar access and the dwelling being below ground level). The majority of the GFA variation does not relate to affordable housing and presents an incompatible built form as a result of the FSR variation and setback exceedance when viewed from surrounding propertoes. The proposed variations to FSR and setbacks are discordant from the existing two storey RFBs along Ormond Gardens.

Submissions

54. Mr Hemmings SC for Patchy submits that car parking is to be excluded from GFA. Visitor car parking is inconsistent with the operation of the non-discretionary development standard at s 19(2) of the Housing SEPP for parking spaces, which does not require visitor car parking. In the alternative, the provisions of the RDCP are to be applied flexibly particularly in an area where there is significant demand for car parking. Further, immediately opposite of the site and to the west are public parking areas. The size of the apartments necessitates a practical demand for more car parking spaces per apartment. If the Court finds that these spaces are GFA, it is a technical non-compliance that has no impacts identified in the evidence.

55. Mr Hemmings SC submitted that in considering whether the additional GFA is acceptable, one key aspect is its physical impacts and compatibility with the desired future character. Compatibility is not sameness and harmony between developments should be as observed by the non-expert viewer (see: Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191). Height and floor space can work together to inform the appropriate outcome. This development will be different, but will appear in harmony with the heritage items, other more recent developments and the future desired character.

56. Mr Seton for Council submits that the visitor car parking rate of the RDCP applies, as the Housing SEPP is silent on visitor car parking. Mr Seton submits that the exceedance of the FSR standard, as revised by the amended DA and relied on by the Applicant, is 46.58m2 and totals 1.28:1. Council’s alternate case, if the Court finds that the RDCP’s visitor car parking rate does not apply, that the two car spaces total 25.92m2. These spaces should be included as GFA as these exceed the requirements of the consent authority, as a consent authority cannot require more than the non-discretionary development standard.

57. Mr Seton submits that separate from the car parking GFA, the FSR exceedance manifests in additional visual bulk beyond what is anticipated by the FSR standard. This additional FSR pushes closer to the primary and secondary frontages of the site, which was accepted by Mr Betros, as it can’t go anywhere else as the other parts of the building envelope comply with the controls. The visual bulk presents along the Ormond Gardens frontage and particularly towards 7 Ormond Gardens, which is a long standing and well maintained building. 7 Ormond Gardens is setback approximately 4.5m, where the proposal is 2.5m, which is a 2m difference in the presentation of the building. The objector from that building provided diagrams showing the visual bulk of the building for an earlier version of the proposal, but the setback remains the same. In additional to visual bulk, there is the potential of additional overshadowing to 1 Ormond Gardens from the additional FSR, if part of the southern side of the proposal was further setback. Objective (d) of cl 4.4 of the RLEP cannot be said to be met on the basis of the visual bulk and overshadowing impacts.

Consideration and findings – GFA calculations

58. I accept Mr Hemmings’ submissions and Mr Betros’ evidence that visitor car parking is not required and the additional car parking spaces above the minimums at s 19(2) of the Housing SEPP are not GFA for the following reasons.

59. The proposal complies with the car parking minimum requirements of s 19(2) of the Housing SEPP. In accordance with s 4.15(2) of the EPA Act, a consent authority cannot further consider car parking. In my view, this means any car parking, whether it’s for the apartments or visitors. In terms of the additional car parking and whether they need to be included in FSR calculations, the standard is expressed as a minimum (‘at least’). Therefore, there is no exceedance of ‘car parking to meet any requirements of the consent authority’ to calculate as GFA under the definition. In any event, my findings on the acceptability of the FSR variation would not have been impacted by including the basement car spaces as additional FSR.

Consideration and findings – is the proposed variation to FSR acceptable?

60. The applicable version of cl 4.6 of the RLEP somewhat differs from the substantial body of previous decisions of the Court. A written request ‘document’ is still required (s 35B of the EPA Reg) and needs to set out the grounds to address matters that are identical to cl 4.6(3) of the RLEP. However, there is now no requirement in cl 4.6 that the written request itself is the only source to address the provisions of cl 4.6(3). I have therefore considered all of the evidence in the proceedings, in addition to the FSR written request.

Is compliance with the development standard unreasonable or unnecessary in the circumstances?

61. The consent authority, or Court on appeal, must be satisfied that the Applicant has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of the RLEP).

62. Patchy relies on one of the common ways to establish whether compliance is unreasonable or unreasonable in the circumstances, through ‘Wehbe pathway 1’ from Preston CJ’s decision in Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe). The FSR written request seeks to demonstrate that the objectives of the development standard are achieved notwithstanding the non-compliance.

63. I accept Mr Joannides’ evidence and Mr Seton’s submissions that cl 4.4(d) of the RLEP has not been achieved, on the basis of the adverse visual bulk impacts likely caused by the variation.

64. Relying on the findings that I have made in relation to the setbacks, I accept that the additional GFA likely presents along Ormond Gardens as the other building envelope controls in the Housing SEPP, RLEP and RDCP are complied with. Whilst I accept that identifying the non-compliant area of FSR is not a straightforward task (with the burden of onus on the Applicant), it is reasonably open to conclude that non-compliant elements of the building envelope likely contain a variation or parts of a variation. Here, the building height and other setbacks are generally complied with. It is the proposed setback along Ormond Gardens that is starkly inconsistent with a setback control and therefore likely contains the variation. The setback inconsistency is in the realm of 2m. The evidence was that the additional FSR might manifest itself in approximately 0.5m to 0.7m along the Ormond Gardens setback. I find that the FSR variation is likely within this area and with resultant adverse visual bulk presented to the front open space of 7 Ormond Gardens and the public domain as viewed from Ormond Gardens and south / south-east of the site. I find that these adverse impacts do not achieve objective (d) of cl 4.4 FSR of the RLEP.

65. As the Applicant has relied on one of the pathways in Wehbe, and I find that objective (d) in cl 4.4 has not been achieved, I do not accept the compliance with the development standard is unreasonable or unnecessary in the circumstances.

Are there sufficient environmental planning grounds to justify the contravention?

66. As a general premise, I accept that the provision of affordable housing is a sufficient environmental planning ground that can be relied on to justify the contravention. In this instance, the portion of affordable housing that relates to the FSR contravention is approximately 10m2. The other part of the contravention, or the majority, is not. This is different from the site area variation (dealt with further below), where the variation in its entirety is related to affordable housing. Other grounds are needed for the majority of the FSR variation, which I deal with below.

67. The Applicant relies on the built form and its variation being compliant with all building envelope controls, lack of amenity impacts and a detailed analysis of the proposal’s design excellence. As I have made findings that a key building envelope control is not met in relation to setbacks and its resultant adverse visual bulk impacts, I am unable to accept this ground as I have made contrary findings that have a relationship to the FSR variation.

68. The grounds relating to the apartments being larger than the ADG minimum sizes, replacement of an older RFB with one that achieves the desired future character and other general design grounds are not directly relevant to the contravention of the development standard. The circumstances in SJD DB2 Pty Lt**d are different to these circumstances, where a Housing SEPP compliant FSR would be compatible with the character of this area. The FSR variation does not assist in this area, where it instead creates adverse visual bulk impacts to RFB’s that form part of the character of the area.

69. The detailed grounds relating to desired future character and design excellence are not sufficient environmental grounds in this instance, as they promote the general benefits of the development.

70. In relation to the justification about the proposed building envelope being within the 70% building envelope anticipated in Part 2 of the ADG, I do not accept this as a sufficient environmental planning ground in and of itself. In the decision of Barua, the Commissioner was satisfied as to the reasonableness of the variation and turned his mind to Part 2D of the ADG and the built form occupying no more than 70% of the building envelope. In addition, the Commissioner provided his detailed reasoning as relevant to that argument and the variation, including that floor area efficiencies had been achieved by amalgamating the sites to develop as one built form (meaning, potential availability of increased GFA), that increased setbacks were proposed, and reduced impacts to adjoining neighbours achieved relating to overshadowing and view loss. These circumstances are different to the facts here for the reasons I set out in full regarding this contention and the setbacks contention.

71. Further, whilst it is not necessarily controversial to calculate the maximum theoretical capacity of a site based on Part 2 of the ADG or building envelope benchmarks as a supportive argument, I would be cautious in accepting this argument as a leading or sole determinative environmental planning ground. I do not believe this to be the intended argument in the FSR written request, which includes this ground amongst a number of other grounds including lack of environmental impacts, but caution needs to be exercised in placing too much weight on hypothetical building envelopes and the theoretical capacity of a site to determine what an applicant considers to be the correct or maximum FSR that could or should apply to the site. It is not the role of cl 4.6 to effect general planning changes to the existing development standards, which is instead found in Part 3 and not Part 4 of the EPA Act: Wehbe at [51] and Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 428 at 442 (Hooker).

72. Accordingly, I find that there are not sufficient environmental planning grounds to justify the contravention of the development standard.

The minimum site area issue

73. Council pressed contention 9 that s 19(2)(a) of the Housing SEPP has not been met and that a variation request pursuant to cl 4.6 of the RLEP is required. Council contended that the Applicant has not demonstrated that compliance with the minimum lot size is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify the contravention.

74. The DA does not meet the minimum site area of 450m2, with a site area of 424.8m2. The Applicant submitted that a non-compliance with the non-discretionary development standard of s 19.2(a) of the Housing SEPP did not require a variation request when a non-discretionary development standard is not complied with. Notwithstanding, Patchy prepared and relied on a ‘without prejudice’ written request for site area, prepared by ABC Planning Pty Ltd dated November 2025 (site area written request), relying on the alternative argument that flexibility can be afforded pursuant to cl 4.6 of the RLEP.

Evidence

75. The site area written request relies on the following grounds that compliance with the development standard is unreasonable or unnecessary in the circumstances:

76. The variation is consistent with the principles of the Housing SEPP, as summarised below:

| Principles of Policy (s 3 of the Housing SEPP) | Written request site area response | | (a) enabling the development of diverse housing types, including purpose-built rental housing, | The variation facilities the provision of affordable rental housing through the dedication of an apartment for a 15 year period. | | (b) 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, | The variation facilitates the provision of affordable housing and a registered housing provider will manage the apartment to provide housing for vulnerable members of the community. | | (c) ensuring new housing development provides residents with a reasonable level of amenity, | The variation does not compromise the ability to provide a high level of amenity for residents. This is achieved through compliant unit sizes, private open space, solar access, cross ventilation, room sizes and parking. | | (d) promoting the planning and delivery of housing in locations where it will make good use of existing and planned infrastructure and services, | The variation to lot size enables four high quality apartments within walking distance of numerous bus services, recreation areas (including the opposite Coogee Oval) and shops within 250m. The variation to lot size will allow for the delivery of housing (including affordable housing) located close to established infrastructure and services. | | (e) minimising adverse climate and environmental impacts of new housing development, | The nature of the development will not generate any adverse climate or environmental impacts. Solar access is retained to apartments to the south and west through compatible or compliant setbacks. The front, side and rear setbacks and building height are contextually appropriate and maintain solar access to the apartments to the south in Ormond Gardens. The variation will not be responsible for any adverse climate and environmental impacts. | | (f) reinforcing the importance of designing housing in a way that reflects and enhances its locality, | The variation enables the proposed 4-5 storey RFB that sits comfortably alongside development of similar height to the immediate north and further along Brook Street. The 5 storey development is consistent with the height and scale of the 30% additional height associated with the Policy (meaning the Housing SEPP), which generates a height of 15.6m or 5 storeys. The proposed 5 storey built form is consistent with the Policy. | | (g) supporting short-term rental accommodation as a home-sharing activity and contributor to local economies, while managing the social and environmental impacts from this use, | N/A | | (h) mitigating the loss of existing affordable rental housing. | N/A – vacant site |

2. The desired future character is achieved notwithstanding the variation to the lot size. The proposed 4-5 storey RFB is consistent with the scale associated with the Housing SEPP and will sit comfortably alongside the established 4 and 5 storey development adjoining the site to the north. Future development of the southern 1 Ormond Gardens can be redeveloped in a similar manner as shown in the concept streetscape elevation, as can the other two storey RFB / semi developments. The proposed built form will therefore be compatible with the desired future character notwithstanding the lot size variation.
3. The absence of unreasonable impacts from the variation. The lot size variation is not responsible any unreasonable external impacts on the streetscape, public domain or adjoining property’s amenity. The siting and design of the building does not generate unreasonable adverse amenity impacts relating to visual bulk, overshadowing, visual or acoustic privacy or view loss.
4. The proposal achieves the objectives of the zone, in that:

(a) The variation facilitates housing and affordable housing within a medium density environment. The variation facilities the provision of various housing types, including affordable housing and 2 and 3 bedroom apartments. As no visitor parking is proposed, public transport, walking and cycling will be encouraged. The location of the site encourages walking, cycling and public transport to infrastructure and services.

76. The site area written request relies on the following grounds that there are sufficient environmental planning grounds to justify the contravention of the development standard:

77. The 6% or 25.2m2 variation is negligible and akin to an extra metre of site depth at the rear of the site. The variation is minor and indiscernible.

78. The variation to the lot size will facilitate a high quality, affordable housing apartment in an area where affordable housing is in high demand.

79. Other minimum lot size variations granted in the Randwick Municipality have allowed a variation to the minimum lot size. Two examples include DA269/2019 with a lot size of 443.4m2 and DA637/2020 with a lot size of 371.6m2.

80. Mr Betros primarily relied on the justification within the (without prejudice) site area written request. In oral evidence, Mr Betros agreed that there are no objectives identified for the subject non-discretionary development standard. It was also agreed that the underlying objectives for the standard were not identified or that the purpose of the control had not been identified in the site area written request and that consistency with the objectives of the development standard did not form part of the site area written request (in the manner described in Wehbe: at [42]).

81. Mr Betros’ evidence is that in the absence of objectives, he considered the relevant objective of s 15A and the relevant principles of the Housing SEPP (s 3). He maintained that some of the principles of the Housing SEPP are relevant to the consideration of whether the variation to site area would be acceptable.

82. Mr Betros’ evidence is that a relevant consideration is if the site can accommodate the proposed built form, which he addresses through the principles and elsewhere in the written request.

83. Mr Betros agreed that the minimum 450m2 site area applied to various development types, including attached dwellings, dual occupancies, dwelling houses, manor houses, multi dwelling housing, multi-dwelling housing, terraces, residential flat buildings, semi-detached dwellings and shop top housing.

84. Mr Joannides gave evidence that the undersized lot directly contributed to the massing and amenity impacts of the development. The scale of the development relative to the lot size is excessive and more prominent due to the lot being a prominent corner allotment. The massing of the development is not as disguised from the public domain as a single frontage allotment.

85. Mr Joannides’ evidence is that there are amenity impacts attributed to the undersized lot. The development does not provide sufficient amenity to future occupants relating to direct solar access and daylight, privacy screening to the majority of the northern, western and southern windows and overlooking into the ground floor dwelling from the street.

86. Mr Joannides relied on his evidence relating to design and amenity as also being relevant to the undersized lot. These issues relate to the poor internal planning of the lobby area, lift and services and the entry relocation to Ormond Gardens could be achieved. This would facilitate a reduced massing of the building and better internal amenity for solar access and privacy. The presentation to Brook Street is dominated by services.

87. Mr Joannides’ disputes the reference to other consents as being irrelevant to this consideration were specific to their circumstances. Further, the sites referenced were not corner sites.

88. In cross examination, Mr Joannides maintained that the site area was a minimum control. Mr Joannides accepted that if the minimum was met, that the control becomes irrelevant to the consent authority for any further consideration. It was agreed that a RFB previously existed on the site and was permissible under the planning controls. Mr Joannides’ evidence was that the underlying objective was to set a minimum that enables sufficient amenity and consideration of the buildings in the context.

Submissions

86. Mr Hemmings SC initially submitted that the Applicant’s position was not to invite the Court to make a decision on whether a cl 4.6 variation was required. He submitted that a without prejudice cl 4.6 written request has been included on the basis that strictly speaking, one is not required. Notwithstanding these submissions, in the outline of the written submissions, which also greatly assisted the Court on the relevant preconditions to granting consent, the Applicant submitted that its primary position is that a cl 4.6 variation request is not required in circumstances where a non-discretionary development standard is not complied with. In closing, Mr Hemmings SC ultimately took the Court through the Applicant’s primary position.

87. Mr Hemmings SC submitted that a non-discretionary development standard is quite different to an ordinary control or development standard that can be complied with or varied. Section 4.15(2)(a) of the EPA Act converts and removes a non-discretionary development standard from being a relevant consideration, into an irrelevant one when complied with. It cannot be further considered by a consent authority when complied with. It is not a control or standard that needs to be varied like development standards and that can be considered by the consent authority in either circumstance, meaning if the standard is complied with or through the application of cl 4.6 of an LEP. Here, s 19(1) of the Housing SEPP identifies the minimum lot size where if met, the consent authority cannot consider lot size in any manner. The control is about limiting or removing the consent authority’s discretion, rather than a regulation of lot size.

88. Mr Hemmings SC submitted that as the subject site is below the site area non-discretionary development standard, the discretion of the consent authority is therefore not limited. It was submitted that the discretion can be exercised, but the difficulty with this non-discretionary development standard is that it says nothing about the appropriateness or otherwise of a development that does not meet the minimum, with difficulties in the application of cl 4.6 of the RLEP. The Court can inform its decision making in a number of ways, including reaching the state of satisfaction sought by cl 4.6(3)(a) without the application of pathways identified in Wehbe, and to also look at the other controls which might inform the appropriateness of the propose built form and impacts that might arise from the non-compliance. However, the focus of the task must be the words within the statutory test (clause 4.6), not the caselaw that have identified different pathways that may be considered to undertake the task required.

89. Mr Hemmings SC submitted that there is little criticism of the site area written request from Mr Joannides in the Planning JER (pars 89-94). The criticisms are limited to the merits of the impacts that are said to arise from the failure to comply with the site area. Contrary to Mr Joannides evidence that the site is undersized, the starting point is if the site is capable of accommodating the proposed built form. The proposed development achieves compliant landscaping, setbacks and height and there are no adverse amenity impacts. The only amenity concern raised is visual bulk, which is a product of the Housing SEPP controls.

90. If required to be identified, the purpose of the non-discretionary development is to facilitate the provision of affordable housing, as per s 15A of the Housing SEPP by turning off the discretion of certain matters. Ultimately, RFB’s are permissible in the zone, there is no minimum lot size for RFB’s in the RLEP and the site previously accommodated an RFB. This type of development on a range of lot sizes is anticipated.

91. Mr Seton submitted that a non-discretionary development standard is still a development standard. The only difference between a ‘normal’ development standard and a non-discretionary development standard, is that if a proposal complies with a non-discretionary standard, it cannot be refused on that ground. That is different to a normal development standard, where a consent authority is not prevented from refusal on the same grounds, even if the proposal complies with that standard. Both are still development standards and treated the same in the event of a non compliance.

92. Mr Seton submitted that s 4.15(3)(a) mandates that the dispensation in s 4.15(2) is ignored if the non-discretionary development standard is not complied with. Further, s 4.15(3)(b) provides that flexibility may be applied where allowed in another environmental planning instrument (EPI). In this case, that is cl 4.6 of the RLEP. The contravention then needs to be considered and read in the terms that the clause sets out.

93. Mr Seton submitted that the in-fill affordable housing provisions seek to limit the sites on which residential development contemplated by the Housing SEPP applies to, being those with an area of at least 450m2. This relates to all residential developments permitted within an accessible area and identified in the in-fill division.

94. Mr Seton submitted that there is no stated objective in the Housing SEPP for site area. The principles in the Housing SEPP are not overly helpful, as they relate to the whole of the policy and could be said to be achieved through specific provisions in the policy, including the subject non-discretionary development standard. The principles states what the policy seeks to achieve, and the policy states how that’s achieved through setting the minimum site area for in-fill affordable housing types of residential development.

95. Mr Seton submits that it must be assumed that a development standard in a planning instrument has a purpose (relying on Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 428). Relying on the principles of the whole SEPP and comparing the whole of the development against the principles does not demonstrate that the purpose of the particular standard is still achieved by the non compliance. There is no evidence from Mr Betros in the site area written request or Planning JER that attempts to identify or discern the underlying object or purpose of the standard. Based on the evidence, the Court cannot be satisfied that the Applicant has demonstrated that it is unreasonable or unnecessary to comply with the site area.

96. Mr Seton agreed that Wehbe sets out five possible pathways that can be utilised to demonstrate the matters in cl 4.6(3) and that these are not exclusive, as the Chief Judge sets out in the decision.

Consideration and findings – is a written request required?

97. Sections 19(2) and 19(2)(a) of the Housing SEPP provide that a minimum site area of 450m2 is a non-discretionary development standard. The subject site is 424.8m2 and does not meet the minimum site area.

98. Council clearly raised the issue of the need for a cl 4.6 written request in its contentions. The Applicant’s position on whether a written request was required was mixed, particularly acknowledging the ‘without prejudice’ nature of the cl 4.6 written request. In closing submissions, the Applicant’s primary position was set out, and I will consider the submissions accordingly.

99. I accept and adopt Mr Seton’s submissions and find that s 19(2)(a) of the Housing SEPP requires a request for flexibility pursuant to cl 4.6 of the RLEP for the following reasons.

100. Non-discretionary development standards are addressed under ss 4.15(2), 4.15(3) and s 4.15(6) of the EPA Act which state:

(2) Compliance with non-discretionary development standards — development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority—

(a) is not entitled to take those standards into further consideration in determining the development application, and

(b) must not refuse the application on the ground that the development does not comply with those standards, and

(c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,

and the discretion of the consent authority under this section and section 4.16 is limited accordingly.

(3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards—

(a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and

(b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

…

(6) Definitions In this section—

…

(b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

101. I firstly accept Mr Hemmings SC’s submissions that s 4.15(2) of the EPA Act switches off or removes a consent authority’s discretion for an aspect of development that complies with a non-discretionary development standard.

102. Section 4.15(3) of the EPA Act sets out that if a development does not comply with a non-discretionary development standard, then s 4.15(2) does not apply. Meaning, that a consent authority regains its ability to utilise its discretion to consider the non-discretionary development standard, but this is subject to the terms of s 4.15(3)(b).

103. Section 4.15(3)(b) of the EPA Act then provides that a provision of an EPI that allows flexibility in the application of a development standard may be applied to that non-discretionary development standard. Both s 4.15(3)(b) and the definition at s 4.15(6) refer to non-discretionary development standards as being a development standard.

104. The only provision of an environmental planning instrument (EPI) that allows such flexibility for development standards, in this instance, is cl 4.6 of the RLEP. There is no other provision in the Housing SEPP where flexibility is afforded to non-discretionary or development standards. There is no provision in s 4.15(3) or elsewhere that directs that the task as being akin to a ‘consideration’ of the merits of the variation like any other non development standard control. Section s 4.15(3) provides that flexibility afforded to a development standard in an EPI may be applied. I accept Mr Seton’s submissions that relying on the flexibility available to a development standard pursuant to cl 4.6 of the RLEP means that the terms and the task required to satisfy clause 4.6 all apply.

105. Therefore, given that non-discretionary development standards are to be treated as though they are development standards (s 4.15(3)(b) and (6) of the EPA Act and s 19(1) Housing SEPP), and there are no other provisions for flexibility identified, I accept that the non-discretionary development standard pursuant to s 19(2)(a) of the Housing SEPP requires cl 4.6 of the RLEP to allow flexibility to the non-discretionary development standard pursuant to s 4.15(3)(b) of the EPA Act.

106. I note that whilst it is not relevant to the above consideration, I enquired during the hearing if any changes had been made to non-discretionary development standards through the Environmental Planning and Assessment Amendment (Planning System Reforms) Act 2025 No 71 (NSW) (Amending Act). The parties were unsure and it was agreed that I need to consider the current wording of s 4.15(3). Whilst not currently in force as the Amending Act will have a staggered commencement, it’s likely that the incoming amendments to s 4.15(3) of the EPA Act will affect the consideration of non-discretionary development standards and will likely be different to my findings.

Consideration and findings – should flexibility be allowed pursuant to cl 4.6(3)?

107. Notwithstanding its primary submissions, Patchy prepared a site area written request setting out the grounds on which it relies on pursuant to cl 4.6(3) of the RLEP. For the reasons I have set out previously, I have considered all of the evidence in the proceedings as well as the site area written request.

108. The Court, in exercising the functions of the consent authority, must be satisfied that the Applicant has demonstrated that firstly, compliance with the development standard is unreasonable or unnecessary in the circumstances, and secondly, that there are sufficient environmental planning grounds to justify the contravention of the development standard. The onus to demonstrate these matters is on the Applicant.

Is compliance with the development standard unreasonable or unnecessary in the circumstances?

109. In summary, the Applicant primarily relies on its justification against the relevant principles of the Housing SEPP, as well as a number of other grounds including an absence of environmental impacts, consistency with the objectives of the zone and consistency with the desired future character.

110. Dealing with the justification against the principles of the Housing SEPP first, I do not accept these as being relevant to demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances for the following reasons.

111. As submitted by Mr Seton, the principles of the Housing SEPP apply to the entire policy itself. The Housing SEPP is broad and covers many different types and genres of development, for example, various forms of affordable housing, build to rent development, manufactured home estates, emergency accommodation, secondary dwellings and respite centres.

112. Accordingly, the principles of the Housing SEPP are quite broad and cover issues around diversity of housing, low income housing, short term rental accommodation, delivery of housing in well located areas and mitigating the loss of affordable housing.

113. Apart from the overarching section objective, s 19 of the Housing SEPP and its non-discretionary development standards do not contain any specific objectives for each standard.

114. I accept Mr Seton’s submissions that it must be assumed that the non-discretionary development standard serves a purpose: Hooker at [441] and [442]. Resisted by the Applicant, I also accept that in order to demonstrate that compliance with a non-discretionary development standard is unreasonable or unnecessary, the underlying objective or purpose firstly needs to be understood: Hooker at [441]. Put another way, if the underlying objective or purpose of a control is not firstly identified, it is unclear to me how an Applicant can put forward an argument or demonstrate that compliance with the control is unreasonable or unnecessary in the circumstances of this case.

115. In my view, the broad policy principles that apply to the diverse forms of development and a myriad of non-discretionary development standards in the Housing SEPP do not have a sufficient nexus with the minimum lot size standard. I am unable to accept that consistency with these broad principles is tangibly related to the question of if compliance with the minimum site area non-discretionary development standard is unreasonable or unnecessary. This is evident in the justification set out in the site area written request, which relies on the provision of affordable housing, proximity to services and infrastructure, proximity to public transport and consistency of the built form with the streetscape. I do not accept these as adequate justification as these relate to promoting the overall benefits of the development or do not squarely relate to the contravention to the minimum lot size.

116. The remaining justification relates to the lack of amenity or environmental impacts and adequacy of the built form relative to its site area. Some of which are dealt with against the principles of the policy and throughout the written and oral evidence.

117. In accepting that the fundamental starting point regarding the purpose of the standard is missing from the justification, this makes consideration of the remaining arguments difficult, of which are more relevant to the variation of the site area. The justification about the lack of amenity impacts, setbacks and streetscape can be attributed to the variation to site area. Notwithstanding, I do not accept the grounds relied on as:

118. Not all of the setbacks are compliant or compatible with the RDCP controls (for reasons I set out previously in relation to setbacks).

119. The justification relating to consistency with the desired future character is more relevant to the overall development and focuses on compatibility of the height and building envelope with the streetscape. For completeness, I prefer Mr Joannides’ evidence that the proposal has not had any regard to the character of Ormond Gardens, which forms part of the character of the area. The justification focuses on the scale sought by the Housing SEPP and demonstrated by developments along Brook Street and Coogee Bay Road. I disagree that this justification is relevant to the contravention to minimum site area, and if it was, only addresses part of the streetscape and ignores Ormond Gardens, which I accept relevantly forms part of the streetscape and character.

120. I do not agree that the variation does not generate adverse amenity impacts. I accept Mr Joannides’ evidence that the relied on aspect of visual bulk to adjoining neighbours and the public domain can be attributable to the variation to site area due to the width of the built form encroaching on the setbacks.

121. Finally, I do not accept the justification made against the objectives of the zones. The matters of proving affordable housing, housing diversity and walking distance to services and recreation areas are benefits of the development as a whole and are not directly attributable to the variation.

122. Having considered the grounds relied on throughout the evidence, I am not satisfied that the Applicant has demonstrated that compliance with s 19(2)(a) is unnecessary or unreasonable in the circumstances.

Are there sufficient environmental planning grounds to justify the contravention

120. For completeness, I accept that the provision of affordable housing is a sufficient environmental planning ground on a site that would not otherwise access these provisions without the variation.

Design excellence

121. The proposal is refused on the grounds of setbacks, FSR and site area. Given these findings, particularly in relation to setbacks and FSR, it follows that I would not have been satisfied that cl 6.11(3) design excellence would have been achieved in relation to cl 6.11 (4)(a), (b), (c). There is no need to properly deal with all of the provisions in cl 6.11 due to my previous findings. I simply note that an absence of findings on design excellence should not be read as the issue being satisfactorily addressed.

Conclusion

122. In considering all of the Class 1 application, evidence and submissions, I conclude that the proposed setback to Ormond Gardens and variations to FSR and site area warrant refusal of the DA. The appeal is therefore dismissed.

Orders

123. The Court orders that:

124. Leave is granted to amend DA/1013/2024 pursuant to s 39 of the Land and Environment Court Act 1979 (NSW) and ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW).

125. The appeal is dismissed.

126. The exhibits are returned, except for A, B, C, D and 2.

S Porter

Commissioner of the Court

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Amendments

15 April 2026

Typographical errors amended in [35], [38], [55], [56], [57], [74], [86], [88], [90], [110], [117].