Phillip House Nursing Home Pty Ltd v Waverley Council

Texts Cited: Waverley Development Control Plan 2022

Category: Principal judgment

Parties: Phillip House Nursing Home Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation: Counsel:
A Pickles SC (Applicant)
J Ede (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/213594

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: On 16 February 2022, the Waverley Local Planning Panel approved development application DA-94/2021 that sought consent for the demolition of 2 x two-storey buildings at 319-321 Bronte Road, Waverley that functions as an aged care facility in order to permit the construction of a three-storey boarding house (the Initial Consent).

2. The Initial Consent was the subject of an appeal filed with the Court by the applicant, Phillip House Nursing Home Pty Ltd (Phillip House). As such, the Initial Consent ceased to have effect: s 8.13(1) of the E**nvironmental P**lanning and Assessment Act 1979 (NSW) (EPA Act).

3. The appeal sought that two conditions of the consent be deleted or amended. The parties in those proceedings reached in-principle agreement, recorded in the Court’s decision Phillip House Nursing Home Pty Ltd v Waverley Council [2023] NSWLEC 1549, being development consent duly granted under Part 4: s 8.13(3) of the EPA Act (the Original Consent).

4. Phillip House now seeks to modify the Original Consent in two ways:

5. Firstly, by deleting Condition 2 which requires the boarding house to accommodate persons over the age of 55 only; and

6. Secondly, to reconfigure the wall of the waste and store rooms on the basement level to increase the area of the waste room and reduce the area of the store room, to install mail boxes at reception and to reconfigure the wall adjacent to the corridor of Suite 01 and add a new storage cupboard in the corridor adjacent to Suite 01.

7. To this end, modification application DA-94/2021/C was lodged by Phillip House with Waverley Council on 22 April 2025. As the modification application was not otherwise determined, Phillip House filed an appeal against its deemed refusal on 4 June 2025 under s 8.9 of EPA Act.

Whether substantially the same

6. Section 4.56 of the EPA Act deals with the modification of consents granted by the Court, as is the case in this matter.

7. Section 4.56(1) of the EPA Act provides, firstly, that a consent authority, or the Court exercising the functions and discretions of the consent authority on appeal, may modify the consent if:

(a) it is 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 and before that consent as originally granted was modified (if at all)

…

8. In the Statement of Facts and Contentions prepared by the Council and filed with the Court on 5 November 2025 (Exhibit 2), the Council contends that the development is not substantially the same as the development for which the Original Consent was granted for the reasons that follow:

9. The Initial Consent and the Original Consent both upheld the use of the proposed development by occupants aged 55 years and over, in 40 boarding rooms and one manager’s room, permitting a maximum of 77 occupants.

10. Removing the restrictions on the age of occupants contained in Condition 2 of the Original Consent results in a significant change in the operation of the boarding house.

11. Relatedly, in the Council’s written submissions in closing (CWS), the Council also contends that the modification extends to a change in the operation of the development from an aged care facility to a boarding house, absent the services for which consent was originally granted.

12. The Council also submits that the purpose of the development to which the Original Consent was granted can be derived, in part, by reference to extrinsic material (Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147) such as the Statement of Environmental Effects and Plan of Management incorporated into the consent, in circumstances similar to those in Interslice Pty Ltd v CCA Investments – Bass Hill Pty Ltd [2025] NSWCA 175 (Interslice) where the character of the use authorised by an earlier consent was at issue (at [11]).

13. To this end, numerous references in the Statement of Environmental Effects (Exhibit 1, Tab 16) variously refer to the proposed development as “a residential aged care hostel”, an “aged care facility”, or a boarding house “for over 55s” such that the Original Consent was sought, and was granted, on the basis that the development application was for an aged care facility.

14. The Council submits that the services proposed, and those references made by Phillip House to its purpose, were consistent with the use of the development as an aged care facility in four ways.

15. Firstly, because of those staffing requirements described in the Statement of Environmental Effects prepared in support of the Initial Consent dated January 2020 that are as follows:

…

“The Plan identifies that the proposed residential care hostel will be based on a low care model, where each care recipient is able to enter the service at the level appropriate to their care needs and remain with the service as their care needs increase. Additionally, a minimum of 20% of beds will be allocated to concessional, supported, assisted or low-means residents.

The plan identifies that a maximum of 5 experienced staff will be on-site 24/7 at any one time, with peak nursing staff engaged between the hours of 7am and 9am. Staff will be trained to the highest standards in accordance with Summit Care’s processes and values.

A range of health services will be provided on site, including a general medical practitioner, pharmacist, podiatrist, music therapist, dentist, dietician, occupational therapist and optometrist.

Staff will be responsible for regular housekeeping, including infection control practices. They will also be responsible for handling complaints in accordance with the complaints procedure set out in the Plan of Management.” (p 19)

2. Secondly, according to the Plan of Management dated June 2023 cited in the Conditions of Consent accompanying the Original Consent (the PoM), food and dining services were originally proposed to involve food preparation in a nearby facility in order that:

“…All meals will be provided to residents who will be served in communal dining areas or in their rooms. Menus will be reviewed by nutritionists for appropriateness and will be created to address the cultural and ethnic preference of the residents.” (Exhibit 1, Tab 18, p 6)

The proposal is now for each boarding house room to include a kitchenette and for a communal kitchen to also be available to residents.

3. Thirdly, laundry services were described on p 7 of the PoM to be provided by, in summary, labelling all personal items owned by a resident, and to be collected and transported off site where infection control practices would be adopted in respect of contaminated linen, in contrast to that now proposed where laundry facilities are provided in each boarding house room.

4. Fourthly, while a 6-seater van was proposed for resident outings on p 8 of the PoM, no bus is now proposed.

5. The Council also submits that the Original Consent was granted on the basis of a written request prepared in accordance with cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP) that sought to justify the contravention of the height standard. In it, consistency with the relevant objectives for development was argued by reference, once again, to an intention for the development to “cater for the ageing population” by providing for a “growing demand for residential aged care facilities” that complied with the “minimum accommodation size development standards nominated by the ARH SEPP (State Environmental Planning Policy (Affordable Rental Housing) 2009)…” so as to “maintain the site’s historic use as a residential aged care facility…” and “to reinstate and revitalise the existing aged care facility contained within the site…”. (CWS, par 24)

6. The written request also initially argued that “the existing aged care facility is in need of upgrading” and that “improvement to the visual amenity of the streetscape by way of replacing the site’s existing aged care facility with a high quality development outcome” was a public benefit that derived from the proposal, consistent with cl 4.6(5)(b) of the WLEP.

7. Furthermore, the Council submits that its own Assessment Report only serves to give weight to the proposed development the subject of the Initial Consent being for “an aged care facility for persons aged over 55 years.” (Exhibit 1, Tab 11, p 53)

8. The Council argues that the Initial Consent was granted on the basis of a development application that sought “demolition of all the existing structures and construction of a single level basement and a three (3) storey boarding house containing 45 rooms (including the manager’s room) for the purpose of seniors housing.” (CWS, par 12)

9. Relevantly, the development application for which the Initial Consent was granted by the Council identified the use as a “boarding house…for the purpose of seniors housing”.

10. As such, the development application the subject of the Initial Consent, while not in evidence, appears to have nominated two uses identified in the Land Use Table at cl 2.3 of the WLEP to be permitted with consent, and uses that are defined in the Dictionary of the WLEP.

11. A boarding house is defined in the WLEP in the following terms:

boarding house means a building or place—

(a) that provides residents with a principal place of residence for at least 3 months, and

(b) that contains shared facilities, such as a communal living room, bathroom, kitchen or laundry, and

(c) that contains rooms, some or all of which may have private kitchen and bathroom facilities, and

(d) used to provide affordable housing, and

(e) if not carried out by or on behalf of the Land and Housing Corporation—managed by a registered community housing provider,

but does not include backpackers’ accommodation, co-living housing, a group home, hotel or motel accommodation, seniors housing or a serviced apartment.

20. Seniors housing is defined in the Dictionary of the WLEP as follows:

seniors housing means a building or place that is—

(a) a residential care facility, or

(b) a hostel within the meaning of State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 5, or

(c) a group of independent living units, or

(d) a combination of any of the buildings or places referred to in paragraphs (a)–(c),

and that is, or is intended to be, used permanently for—

(e) seniors or people who have a disability, or

(f) people who live in the same household with seniors or people who have a disability, or

(g) staff employed to assist in the administration of the building or place or in the provision of services to persons living in the building or place,

but does not include a hospital.

Note.

Seniors housing is a type of residential accommodation—see the definition of that term in this Dictionary.

21. So while both a boarding house and seniors housing are forms of residential accommodation, according to the WLEP, a boarding house is distinct from seniors housing.

22. Also distinct from those descriptions cited at [11], it may be relevant to note the Dictionary of the WLEP defines a residential care facility, being a type of seniors housing, as follows:

residential care facility means accommodation for seniors or people with a disability that includes—

(a) meals and cleaning services, and

(b) personal care or nursing care, or both, and

(c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care,

but does not include a dwelling, hostel, hospital or psychiatric facility.

Note.

Residential care facilities are a type of seniors housing—see the definition of that term in this Dictionary.

23. Whether or not the development application sought consent for “use as a boarding house…for the purpose of seniors housing”, the Notice of Determination issued by the Council with the Initial Consent was worded differently, and as follows:

“Demolition of existing structures; and construction of a three-storey boarding house for persons aged over 55, containing 40 rooms plus a manager’s unit and basement parking.” (Exhibit 1, Tab 13)

24. The Original Consent granted by the Court was likewise expressed differently to the description of the development application as characterised by the Council at [16]. Relevantly, order (4) of the Original Consent also omitted reference to seniors housing by describing the development for which development consent was granted in the following terms:

“(4) Development Consent is granted to Development Application DA-94/2021/A for demolition of existing structures; and construction of a 3-storey boarding house for persons aged over 55, containing 40 rooms plus a managers unit and basement carparking at 391-321 Bronte Road, Waverley, subject to conditions of consent at Annexure A.” (Exhibit 1, Tab 14)

25. The Land Use Table at cl 2.3(3) of the WLEP relevantly provides that:

(3) In the Land Use Table at the end of this Part—

(a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and

(b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

26. As the Court’s description of the development for which consent was granted did not make a reference to seniors housing, the Court did not make a reference to a type of building that was referred to separately in the Land Use Table. The Original Consent was clearly for a boarding house, and not for seniors housing.

27. Neither did the Original Consent, nor the reasons set out for the grant of the Original Consent, make reference to seniors housing. Instead, the Original Consent described the development as a “3-storey boarding house for persons aged over 55”. That said, reference is made at [13] in the Original Consent to agreement between the parties that “the retention of condition 2 and the amendment to condition 5(b) is consistent with the Proposed Development as sought originally and that the court has the power to uphold the appeal subject to the conditions in Annexure A.”

28. The Original Consent granted by the Court identified certain jurisdictional preconditions to the grant of consent by reference to a “joint jurisdictional statement” (at [8]). The jurisdictional preconditions are those set out in State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP).

29. Division 3 of the Affordable Housing SEPP, applicable at the time of lodgement of the development application, deals with Boarding Houses, but contains no provisions in respect of seniors housing. Instead, I note that was, at the time, a matter for State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors Housing SEPP), later repealed on 25 November 2021.

30. Whether or not the development application lodged with the Council on 16 March 2021 sought consent for seniors housing, for the reasons shown in Lahoud v Willoughby City Council (2024) 259 LGERA 419; [2024] NSWCA 163 at [35], development consent granted in accordance with s 4.16 of the EPA Act is consent for the development as proposed, embracing of amendments and conditions of consent imposed under s 4.17 of the EPA Act.

31. The Initial Consent sought to impose a condition addressing the age and total number of occupants of the proposed development. Condition 2 was worded as follows:

“The boarding house is to be operated to accommodate persons over 55 only and consist of single occupants in self-contained rooms.”

32. The Original Consent granted by the Court amended the terms of Condition 2 in the following manner:

“The boarding house is to be operated to accommodate persons over 55 only.”

33. The Council argues the age of the occupants is a material or essential feature of the development as understood by a long line of authorities, including Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto Projects) at [55], [56] and [58].

34. Whether the age of the occupants of the development the subject of the Original Consent is a material or essential feature is to be identified from the originally approved and modified developments, and not from the circumstances in which the Original Consent was granted: Arrage v Inner West Council [2019] NSWLEC 85 (Arrage) at [29].

35. In any event, an interpretation of the statutory test such as that in Moto Projects does no more than support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry: A**rrage, at [27].

36. Where such a comparison is made, that comparison may be undertaken by comparing the consequences of the originally approved and modified developments, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: Arrage at [28].

37. That comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified in a sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts. (Moto Projects at [56])

38. The parties agree that any comparison must be focused on the whole of the development for which the Original Consent was granted, and not just that part now proposed to be modified.

39. In an explanatory addendum to the Modification Application prepared by GSA planning, on behalf of Phillip House (The GSA Addendum) (Exhibit B, Tab B), a quantitative and qualitative assessment of the proposed modifications may be summarised as follows:

40. In quantitative terms, the proposed modifications will retain the number of suites, levels, storeys and car spaces. The building height, floor space ratio (FSR), setbacks, landscaping and open space will also be retained consistent with the approved proposal.

41. In qualitative terms, the proposed modifications will not increase the bulk and scale, alter the overall building type, increase overshadowing or reduce solar access to neighbouring properties. The modification will not result in any view impacts, nor will it lead to any additional privacy impacts.

42. Phillip House also submits that the deletion of Condition 2 does not give rise to an environmental impact, and it is notable that no such impacts are contended for by the Council.

43. To this end, a Traffic Impact Assessment, prepared by TTPP dated 6 August 2025 (TIA) (Exhibit B, Tab E) concludes traffic generated as a result of the development as proposed to be modified is less than the development for which the Original Consent was granted. This is explained by a comparison of traffic generated by development characterised as a Residential Care Facility, Housing for Seniors and a Boarding House that appears in Table 5.1 of the TIA, resulting in a reduction of 2 trips during the PM peak hour from the traffic generated by development the subject of the Original Consent.

44. The Council’s own internal referral concurs that a boarding house generates less traffic than an aged care facility (Exhibit 1, Tab 5, p37) and so states that the proposed development raises no matter of objection in terms of Traffic and Transport.

45. In terms of car parking provision, the Waverley Development Control Plan 2022 (WDCP) does not stipulate car parking rates for boarding house development, and the 23 car parking spaces approved by the Original Consent exceed the relevant rates when assessed against the must not refuse provisions contained in the Housing SEPP, and which also includes parking for nine motorcycles and a shared loading bay.

46. The amended Plan of Management prepared by GSA Planning dated August 2025 (Exhibit B, Tab D, p 9) refers to a condition of consent excluding occupants from the Council’s residential parking permits scheme.

47. Phillip House submits that the modification now sought is of a kind to which s 4.56(1B) of the EPA Act refers, being:

(1B) To avoid doubt, a consent authority is not prevented from modifying a consent under this section merely because the modification only modifies a condition of consent and would not result in a change to the development the subject of the consent.

46. Phillip House also submits the circumstances are similar to those in Micro Nest No 1 Pty Ltd on behalf of Micro Nest Ashfield Trust v Inner West Council [2019] NSWLEC 1320 (Micro Nest), where the Court found, at [51], that the removal of a condition seeking to impose a covenant limiting the income of, and rent charged to, occupants did not alter the nature of the use or the characteristics of the residential accommodation provided in the boarding house.

47. In considering the relevance of Micro Nest, three things must be said.

48. Firstly, the nature of the condition in dispute in this case goes to eligibility on the basis of age and not to affordability.

49. Secondly, while the effect of the proposed modification in Micro Nest likely applied to all occupants, the proposed modification of Condition 2 in this case does not. Instead, the proposed deletion of Condition 2 would only serve to make eligible those occupants who are not over 55, because that is the age group to which eligibility is directed by the terms of the condition imposed by the Original Consent. I note there is nothing that would preclude all of the occupants of the development as now proposed to be modified from being aged over 55.

50. Thirdly, the view expressed by the Commissioner in Micro Nest at [53] appears apt to invoke here to the extent that Division 3 of the Affordable Housing SEPP, in accordance with which the Original Consent was granted, does not require the imposition of a condition to regulate the age of occupants. Nor is there anything in the definition of “boarding house” or in the development standards required of boarding houses in Part 2 Division 3 of the Affordable Housing SEPP that requires the boarding house to provide housing on the basis of age.

51. It also appears relevant to observe, although nothing turns on it, that the modification proposed in Micro Nest was subject to the same Plan of Management (at [50]) unlike in this case where a revised PoM omits those services summarised at [12].

52. In considering the qualitative difference in the operation of the development by the deletion of the Condition 2, I note the conditions of consent that give effect to the Original Consent appear to make no provision for the services described at [12(1)] such as the management of medical waste associated with general medical practice, dental and pharmacy services. Indeed, Condition 27 deals with residential waste only identified as general waste, paper and cardboard recycling and container recycling, and bulky waste, including 1m2 for problem waste streams identified as electronic waste or textile waste. Condition 54A likewise deals with the different kinds of waste; its storage and collection. It too is silent on waste other than those kinds at Condition 27.

53. Neither do the architectural plans indicate a dedicated space in which dental consultations or procedures might take place. These are matters on which the Council’s Assessment Report is also silent, however I note Council’s written submissions accept that rooms are of sufficient size for medical care to occur within the confines of occupant rooms (CWS, par 34).

54. Likewise, the Council’s own Assessment Report appears silent on those meals and laundry services summarised at [12]. In assessing the proposal against the provisions of the WDCP:

55. The combined kitchen and dining room is deemed acceptable as it is “substantially greater than the minimum requirement and will provide satisfactorily [sic] amenity for future residents” (p 82), and because “each boarding room has a kitchenette area of approximately 1.4m2” (p 83). No mention is made of the proposal at [12(2)] for “[a]ll meals will be provided to residents who will be served in communal dining areas or in their rooms.”

56. Laundry facilities are deemed acceptable given “[a]dequate laundry facilities are contained within each boarding room”, subject to a communal outdoor drying facility being imposed as a condition of consent (pp 81-82). No mention is made of the proposal at [12(3)] for the labelling of all personal items owned by a resident, for collection and transport off site where infection control practices would be adopted in respect of contaminated linen.

57. Once again, the upshot of this is that as the terms of the Original Consent appear to have made little or no provision for the services at [12], no change to the development is occasioned by the proposal proceeding without those services.

58. Absent reference to seniors housing in the description of the development consent, the consent does not encompass a residential care facility, defined above at [20] to be a kind of seniors housing and to include services of a kind summarised at [12]. Nor is the development to be used permanently for seniors or people who have a disability, whether or not such references are made in the Statement of Environmental Effects or PoM.

59. Instead, the description of the development consent is limited to development that is to be occupied by persons aged 55 or over.

60. As stated at [47(2)], the proposed deletion of Condition 2 would only serve to make eligible those occupants who are not over 55, because that is the age group to which eligibility is directed by the terms of the condition imposed by the Original Consent. I note there is nothing that would preclude all of the occupants of the development as now proposed to be modified from being aged over 55, and so cause the development to have identical age-related characteristics as the development the subject of the Original Consent.

61. The deletion of Condition 2 limiting the age of occupants of the development does not alter the physical presentation of the development when viewed from the public domain, that was found to be “compatible and generally harmonious with the local character of the immediate surrounds of the site” on p 68 of the Council’s Assessment Report. The internal alterations also proposed are wholly within the envelope of the development, and no aspect of what is proposed alters the environmental impacts of the development of surrounding properties or the locality.

62. It may also be said the proposal remains to revitalise, but not reinstate, the existing aged care facility. Where the application giving rise to the Original Consent argued that an ‘aged care facility’ provided for the housing needs of the community within a medium density residential environment, being the first objective for development in the R3 zone, a boarding house absent the function of an aged care facility is not inconsistent with this objective. Development comprising accommodation for occupants of all ages is now argued on the basis of an oversupply of aged care facilities in the area, a shift in government support to home-based ageing-in-place and provision of accommodation better suited to key workers such as teachers at the adjoining St Catherine’s School (Exhibit B, Tab B, pp 4-5).

63. A Social Impact Assessment prepared by The Planning Studio dated 16 July 2024 describes the proposed modification in similar terms, stating the removal of an age restriction “will have positive social impacts by enabling access to low cost housing options for all people, no matter their age”…that will “contribute to the provision of affordable housing within the Waverley LGA and provides access to diverse housing options in the area for a greater proportion of people” (Exhibit A, Tab 3, p 5).

64. The age of the occupants of the development the subject of the Original Consent is not a material or essential feature of the development. There is no provision within the Affordable Housing SEPP that contemplates age to be a qualifying or material factor in the development.

65. For the reasons set out above, I am satisfied that the development as now proposed to be modified is substantially the same development as the development the subject of the Original Consent, pursuant to s 4.56(1) of the EPA Act.

66. The Court is also required by s 4.56(1A) of the EPA Act to take into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

67. I have considered those reasons for the Original Consent at [27] and [28], in accordance with s 4.56(1A) of the EPA Act.

68. I now turn to those matters at s 4.15(1) of the EPA Act as are relevant to the proposal.

The Affordable Housing SEPP

64. As stated at [28], the first environmental planning instrument of relevance to the proposal is the Affordable Housing SEPP as Sch 7A(2)(da) of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) saves an application to modify a development consent granted after the commencement date, if it relates to a development application made, but not determined, on or before the commencement date.

65. As the development application was lodged with the Council on 16 March 2021 (Exhibit A, Tab 2, p 3 and CWS, par 12), the modification application relates to a development application made but not determined prior to the commencement of the Housing SEPP.

66. Clause 29 of the Affordable Housing SEPP sets out standards that cannot be used to refuse consent. The first of these standards is FSR. The GSA Addendum identifies the FSR is unchanged from that approved in the Original Consent.

67. I note the planning expert for the Council, Ms Olivia Navratil, provides evidence on pp 6-7 of the Joint Expert Report of the planners (Exhibit 3) on what she considers to be the chronology of decision making by Phillip House. In essence, Ms Navratil believes Phillip House initially undertook that the Boarding House would operate as a residential aged care hostel, but did not seek to rely upon the relevant provisions for such a purpose due to more favourable provisions for FSR being found in the Affordable Housing SEPP.

68. Ms Navratil’s evidence is that the Council imposed Condition 2 as a mechanism by which to be assured the proposed development would operate as an aged care facility. The alternative available to Phillip House then, as now, is to lodge a fresh development application to be assessed under the Housing SEPP, but in which less favourable FSR provisions are found.

69. Whether Ms Navratil is, or is not, correct in her chronology, the terms of Condition 2 do not impose a requirement for the development to operate as an aged care facility but merely stipulate the age of occupants of the development.

70. Ms Navratil does not identify in her evidence any aspect of the development, beyond that of the age of its occupants that varies from the development the subject of the Original Consent.

71. While Ms Navratil’s evidence is that the development application “can be considered to be more in keeping with the land use definition of ‘seniors housing’ under the Waverley Local Environmental Plan 2021”, there is no indication of this in the Council’s Notice of Determination at the time of granting the Initial Consent and, but for the PoM, is not dealt with in any form in the conditions of consent imposed with the Original Consent. To the extent the PoM is referred to in the conditions of consent of the Original Consent, Condition 66(h) requires the manager to “ensure that the PoM is complied with at all times, including ensuring the number of patrons in the premises does not exceed the approved capacity.” I note the number of patrons, but not their age, is to be expressly ensured.

72. The FSR is unchanged from that in the Original Consent, as is the height of the development. Where the Original Consent considered a written request prepared in accordance with cl 4.6 in respect of height, the Court has long held that s 4.56 of the EPA Act is a complete source of power: SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 at [31], and no change in height is proposed.

73. The remainder of the standards set out at cl 29 of the Affordable Housing SEPP are also unchanged from the development the subject of the Original Consent, as stated by Phillip House at [39].

74. The proposal complies with the standards for boarding houses at cl 30 of the Affordable Housing SEPP, and is unchanged from the development the Original Consent found to be compatible with the character of the local area, in accordance with cl 30A of the Affordable Housing SEPP.

75. It is relevant to note that the site and the land immediately south and south east located on the other side of Bronte Road are zoned R3 Medium Density Residential pursuant to the WLEP.

76. The land immediately north and west are zoned SP2 Infrastructure for the purpose of an educational establishment pursuant to the WLEP which accommodates St Catherine’s School (Nos. 315-317 and 323 Bronte Road).

77. The land located adjacent to the site on the other side of Bronte Road to the east and north east are zoned R2 Low Density Residential pursuant to the WLEP.

78. The site is located within the Charing Cross Conservation Area (C7) as identified in Sch 5 of the WLEP and is also within the vicinity of a number of heritage items, including:

79. 26 Albion Street and Macpherson Street, Waverley: Item Nos I444 and I521 – St Catherine’s School;

80. Nos 348-358 Bronte Road, Waverley: Item Nos I457-I462 – single dwellings; and

81. No 327-335 Bronte Road, Bronte: Item Nos I268-I270 and I509 – terrace houses.

82. There is no suggestion that the impacts of the development on the Charing Cross Conservation Area are other than acceptable, as found by the Council in the Assessment Report.

Public submissions

80. The proceedings commenced on site at which the Court, in the company of the parties and experts, heard oral submissions from four speakers identified in the list of objectors prepared by Council (Exhibit 5).

81. In essence, the concerns expressed by the objectors may be summarised as follows:

82. Loss of a valued community asset that allows residents of the area to age in place.

83. Loss of low cost housing options in the area, especially for older women.

84. Adverse amenity impacts arising from younger occupants with different expectations and behaviours, including to St Catherine’s School that surrounds the subject site.

85. Traffic congestion and demand for on-street parking

86. After hearing the public submissions, the Court was taken to the rear of the subject site where the interface with St Catherine’s School was observed.

87. I have considered the public submissions, the interface with St Catherine’s School, and conclude that the development as proposed to be modified is unchanged from the Original Consent, but for reduced traffic impacts in the locality. To the extent fears are held for a ‘younger’ cohort being eligible to occupy the development, I consider any correlation between age and noise-making activity to be speculative and unfounded.

Orders

84. The Court orders that:

85. The appeal is upheld.

86. Development Consent No DA-94/2021/C is modified in the terms in Annexure A.

87. Development Consent No DA-94/2021/C as modified by the Court is Annexure B.

88. All Exhibits are returned except for Exhibits A, B and 5.

T Horton

Commissioner of the Court

Annexure A (224 KB, pdf)

Annexure B (578 KB, pdf)

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