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[2025] NSWLEC 1556
General information, not legal advice.
Land and Environment Court (NSW)
2025-08-05
Pullinger AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Roscoe St By HSN Pty Ltd v Waverley Council [2025] NSWLEC 1556
Hearing dates: Conciliation conference held 16 and 26 June, and 3 July 2025
Date of orders: 05 August 2025
Decision date: 05 August 2025
Jurisdiction: Class 1
Before: Pullinger AC
Decision: The Court orders that:
(1) Leave is granted to the Applicant to amend Development Application DA-379/2024 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $18,185 within 28 days of the date of these orders.
(3) The Applicant’s written request, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the WLEP, is upheld.
(4) The appeal is upheld.
(5) Consent is granted to Development Application DA-379/2024 (as amended) for the demolition of existing buildings and the construction of a new four-storey residential apartment building containing seven units with basement parking, landscaping and ancillary works, and consolidation of lots, at 27-29 Roscoe Street, Bondi Beach, subject to the conditions of consent at Annexure A.
Catchwords: DEVELOPMENT APPLICATION – residential apartment building development – clause 4.6 written request – floor space ratio – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 NSW), ss 26, 27, 29, 37, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
State Environmental Planning Policy (Housing) 2021 Ch 2, Pt 2, Div 1, ss 16, 19, 20, 21, Ch 4, ss 145, 147, Sch 9
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
Waverley Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 6.2, 6.14, 6.15, Sch 5, Pt 1
Texts Cited: NSW Department of Planning, Apartment Design Guide, July 2015
Waverley Council, Community Engagement Strategy, 2023
Category: Principal judgment
Parties: Roscoe St By HSN Pty Ltd (Applicant)
Waverley Council (Respondent)
Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2024/464041
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by Roscoe St By HSN Pty Ltd (the Applicant), against the deemed refusal of Development Application DA-379/2024 (the DA) by Waverley Council (the Respondent).
At the date of its lodgement on 6 August 2024, the DA sought consent for demolition of the existing semi-detached dwellings, tree removal, and construction of a four-storey residential apartment building with basement car parking and affordable rental housing at 27-29 Roscoe Street, Bondi Beach (the site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 16 and 26 June, and 3 July 2025. I presided over the conciliation conference.
During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.
Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions raised by the Respondent. These contentions included issues of excessive building bulk and scale, inadequate setbacks, a failure to exhibit design excellence, an inadequate level of residential amenity available to some proposed apartments, unacceptable impacts upon neighbouring dwellings including overshadowing, loss of outlook and views, inadequate visual privacy and cross viewing, excessive tree loss, inadequate deep soil and landscape, and inadequate vehicle parking, amongst other contentions.
Agreed, design amendments have now been made to improve the proposed building’s relationship to the site and its context. Changes have been made to reduce the overall bulk and scale of the proposal, particularly the extent and geometry of the balconies as they present to the site’s side and rear boundaries. Other issues such as visual privacy, cross-viewing, and vehicle access have been resolved.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.
The DA was publicly notified in accordance with the Respondent’s Community Engagement Strategy 2023 between 23 September and 14 October 2024. A total of 33 submissions were received by the Respondent raising concerns, including in summary:
Loss of views and no view analysis provided.
Exceedance of the relevant floor space ratio (FSR) development standard without adequate justification.
Amenity impacts resulting from the exceedance of FSR.
Excessive bulk and scale, with the proposed development being too large for the subject site.
The proposed development is incompatible with surrounding context due to FSR and building height bonuses available for the provision of infill affordable housing.
Inconsistency with the objectives of the relevant land use zone, FSR, and building height controls.
The proposed development would set an undesirable local precedent.
Inconsistency with minimum setbacks for excavation.
Impacts upon neighbouring properties resulting from excavation and inadequate geotechnical assessment.
Insufficient parking provision, inconsistent with relevant planning controls, a lack of visitor parking and motorbike parking, and traffic and on-street parking impacts.
The removal of significant existing trees, further removal of existing trees, loss of tree canopy, and inadequate tree replacement.
Impacts on wildlife, landscape character and loss of shading resulting from tree removal.
Inadequate provision of deep soil.
Acoustic impacts from increased density, proximity of balconies and air conditioning units, and lift equipment, with no acoustic assessment provided.
No communal open space provided with the proposed development.
Study spaces within proposed apartments erroneously included in storage calculations.
Inconsistency with the 15m minimum site frontage requirement.
Loss of privacy for neighbouring properties, and lack of privacy protection measures.
Overshadowing and loss of solar access for neighbouring properties, and inadequate overshadowing information to accurately demonstrate impacts.
Loss of natural ventilation and the free circulation of air due to proposed density.
Exceedance of the relevant wall height control.
Inaccuracies in the gross floor area calculations.
Inadequate building setbacks to site boundaries.
The affordable housing component not being truly affordable.
Insufficient three-dimensional modelling and perspective views to properly portray the proposal.
Congestion and overcrowding in the local area.
Lack of clarity regarding the surveyed location of the southern site boundary.
Health impacts for affected neighbouring residents due to reduced solar access, fresh air, outlook, views and access to landscape features.
At the site view on the morning of 16 June 2025, eight affected local residents addressed the Court to restate many of these concerns, and the Court visited a number of adjacent properties to directly observe building separation, privacy and overshadowing relationships, along with potential view affection and tree loss issues.
The Court also heard concerns from neighbours regarding building height and density incentives recently made available for the provision of affordable housing.
The residents expressed concern that these density incentives make up to an additional 30% FSR and building height permissible in a local area which is already experiencing development and density pressures.
Noting the concerns of affected residents, the parties agree, and I am satisfied, the amended DA resolves a number (but not necessarily all) of the concerns raised by the objectors, primarily by reducing the proposed building form, bulk and scale, improving solar access for neighbouring dwellings, and by ensuring improved privacy between neighbouring properties.
The parties agree, and I am satisfied, that view and outlook affectation has been reduced by the amended DA to the point of acceptability.
The parties agree, and I am satisfied, that the amended DA and conditions of consent have satisfactorily considered matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.
The parties agree, and I am satisfied, that the Waverley Local Environmental Plan 2012 (WLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential. The amended DA - characterised as residential apartment development - is permissible with consent within the R3 zone.
The parties agree, and I am satisfied, that pursuant to cl 2.3 of the WLEP, the amended DA is consistent with the R3 Medium Density Residential zone objectives.
The parties agree, and I am satisfied, that pursuant to cl 2.7 of the WLEP, demolition of existing structures is permissible with consent. The amended DA proposes demolition of the existing structures occupying the site.
Pursuant to cl 4.3 of the WLEP - Height of buildings - the site has a development standard for building height of 12.5 m. However, certain clauses of Ch 2 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) which deals with affordable housing, make an additional 30% building height available for the provision of infill affordable housing.
The amended DA seeks to rely upon this additional building height, taking the total cumulative development standard to 16.25 m. The amended DA proposes a maximum building height of 13.95 m, which complies with the development standard.
The parties agree, and I am satisfied, that all remaining principal development standards of the WLEP have been met by the amended DA, with the exception of cl 4.4 - Floor space ratio.
In such an instance, cl 4.6(3) of the WLEP requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
Accordingly, the Applicant has provided a written document seeking to vary the FSR development standard, prepared by LK Planning and dated 24 July 2025.
Pursuant to cl 4.4 of the WLEP the site is subject to a FSR development standard of 0.9:1. Similar to the height of building development standard, Ch 2 of SEPP Housing also makes an additional 30% FSR available for the provision of infill affordable housing.
The amended DA seeks to rely upon this additional FSR, taking the total cumulative development standard to 1.17:1. Consequently, the amended DA proposes a maximum FSR of 1.31:1, exceeding the relevant building development standard by 0.14:1 or 82.504 sqm gross floor area (GFA) and representing a variation of approximately 11.97%.
The parties agree, and I am satisfied, that this written document adequately justifies the proposed variance to the FSR development standard for the following reasons:
The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and anticipated future character of the immediate locality.
The amended DA presents to the primary street frontage as a four-storey residential apartment building with its uppermost floor level set back from the street and differentiated from the typical floors below.
With the exception of a small portion of the proposed lift overrun, which is situated towards the centre of the site, the four-storey building form complies with the 12.5m height of building development standard set out at cl 4.3 of the WLEP (and excluding the additional 30% height made available pursuant to SEPP Housing).
The amended DA is sited according to the various relevant front, rear and side setbacks, and by virtue of being sited across two amalgamated lots, accommodates the proposed quantum of GFA within a building envelope that is largely anticipated by the suite of development controls.
In this way, and despite the FSR exceedance, the amended DA proposes a building form that is generally consistent with setback controls, provides adequate landscape and deep soil areas, and has distributed the floor space across four storeys rather than the five made available by height incentive provisions of SEPP Housing.
The proposed FSR exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties when compared with those impacts arising from a theoretical proposal that is consistent with the maximum five-storey height control and accommodating a compliant FSR.
The objectives of the WLEP R3 Medium Density Residential land use zone include providing for the housing needs of the community within a medium density residential environment; providing a variety of housing types within a medium density residential environment; enabling other land uses that provide facilities or services to meet the day-to-day needs of residents; maximising public transport patronage and encouraging walking and cycling; increasing or preserving residential dwelling density; encouraging the supply of housing, including affordable housing, that meets the needs of the population, particularly housing for older people and people with disabilities; providing development that is compatible with the desired future character and amenity of the surrounding neighbourhood; promoting development that incorporates planning and design measures that reduce the urban heat island effect; and improving the urban tree canopy by providing high levels of deep soil planting and additional landscaping. I am satisfied the amended DA is consistent with these objectives.
The relevant objectives of cl 4.4 of the WLEP - FSR - include providing an appropriate correlation between maximum building heights and density controls; ensuring that buildings are compatible with the bulk and scale of the desired future character of the locality; and establishing limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality. I am satisfied the amended DA is consistent with these objectives.
Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.
The parties agree, and I am satisfied, that pursuant to cl 5.10 of the WLEP - Heritage conservation - the site is not an identified heritage item, nor is it situated within a Heritage Conservation Area. The site is located within reasonable proximity of a listed heritage item, at 41-43 Roscoe Street, (item I127 - Late Federation style detached residences - identified at Sch 5, Pt 1 of WLEP).
However, the parties agree, and I am satisfied, that this heritage item is not affected by the amended DA and does not require further assessment against cl 5.10.
The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the WLEP - Earthworks. The Applicant has provided a Geotechnical Investigation Report prepared by Rapid Geo. Accordingly, I am satisfied the matters set out at cl 6.2(3) have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works.
The parties agree, and I am satisfied, that pursuant to cl 6.14 of the WLEP - Waste minimisation and recycling - the Applicant has provided an Operational Waste Management Report, prepared by Elephants Foot and dated 8 May 2024. The amended DA satisfactorily addresses those matters set out at cl 6.14(3) and the proposal maximises opportunities for waste and recycling storage, which are appropriately sized and accessible.
The parties agree, and I am satisfied, that pursuant to cl 6.15 of the WLEP - Stormwater management - the Applicant has provided Stormwater Plans prepared by ITM Design and dated 10 June 2025. The amended DA satisfactorily addresses those matters set out at cl 6.15(3) and the proposal is designed to maximise water-permeable surfaces on the site, including on-site stormwater retention, and avoids significant adverse impacts of stormwater runoff on adjoining properties.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.
Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the parties agree, and I am satisfied, that long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.
Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree and I am satisfied, that the amended DA seeks consent for the removal of vegetation and proposes appropriate replacement trees and satisfies the requirement for a permit for vegetation removal pursuant to Ch 2 of SEPP BC.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), a BASIX certificate, No. 1751767M_06, dated 20 June 2025, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.
The parties agree, and I am satisfied, that SEPP Housing is an additional relevant environmental planning instrument.
Chapter 2 of SEPP Housing deals with Affordable Housing and the amended DA is subject to the relevant provisions for in-fill affordable housing set out at Pt 2, Div 1.
Relevantly, I am satisfied that development for the purposes of residential apartment buildings is permitted with consent in the R3 Medium Density Zone pursuant to the WLEP. The affordable housing component proposed within the amended DA is equivalent to 15% of the total FSR, and all of the proposed development is located within 800m of an E1 Local Centre Zone, meeting the requirements of a ‘relevant zone’.
Pursuant to s 16(1) of SEPP Housing, the relevant FSR development standard is calculated by adding the base FSR for the land (0.9:1 pursuant to the WLEP) to an additional FSR of up to 30%, based on the minimum affordable housing component.
For the subject site and amended DA, this equates to a total FSR of 1.17:1, which is amenable to variation by cl 4.6 of the WLEP. As noted previously in this judgment, the maximum FSR sought by the amended DA exceeds 1.17:1 and has been varied to 1.31:1.
Consistent with s 16(2) of SEPP Housing, the amended DA allocates 120.2 sqm of GFA as the affordable housing component, in the form of Unit 101, which is equivalent to 15.58% of the maximum FSR.
Section 19(2) of SEPP Housing provides a number of relevant non-discretionary development standards. The amended DA complies with all relevant non-discretionary development standards.
Section 20 of SEPP Housing sets out certain design requirements. The parties agree, and I am satisfied, that the amended DA is compatible with the desired character of the local area, noting that the operation of SEPP Housing means that existing stock is undergoing transition.
Section 21(1)(a) of SEPP Housing requires that, commencing at occupation certificate, the development will provide the affordable housing component for a period of 15 years. Further, s 21(1)(b) requires the consent authority (the Court in this instance) to be satisfied that the affordable housing component will be managed by a registered Community Housing Provider (CHP). Accordingly, and consistent with s 26(a) of the EPA Reg, the CHP is identified as HomeGround Sydney.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of SEPP Housing.
Pursuant to the relevant provisions of SEPP Housing, the EPA Reg, the Applicant's architect, PBD Architects (and its nominated architect Mr Paul Buljevic - NSW registered architect 7768) has prepared a Design Verification Statement dated 21 June 2025, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the final amended DA.
Additionally, on 9 October 2024, the Waverley Design Excellence Advisory Panel considered the DA and provided comments on the design, including suggested amendments to improve the interface with the site’s boundaries. Accordingly, I am satisfied the amended DA meets the requirements of ss 145 and 147 of SEPP Housing.
The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.
Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
The Court notes that:
Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent.
The Applicant has lodged the final amended DA with the Court on 9 July 2025.
The Court orders that:
Leave is granted to the Applicant to amend Development Application DA-379/2024 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $18,185 within 28 days of the date of these orders.
The Applicant’s written request, pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP), seeking to vary the development standard for floor space ratio as set out at cl 4.4 of the WLEP, is upheld.
The appeal is upheld.
Consent is granted to Development Application DA-379/2024 (as amended) for the demolition of existing buildings and the construction of a new four-storey residential apartment building containing seven units with basement parking, landscaping and ancillary works, and consolidation of lots, at 27-29 Roscoe Street, Bondi Beach, subject to the conditions of consent at Annexure A.
Annexure A (678 KB, pdf)
Architectural Plans (34.5 MB, pdf)
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Roscoe St By HSN Pty Ltd
Waverley Council [2025] NSWLEC 1556