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Y&M Australia Pty Ltd v Waverley Council [2026] NSWLEC 1657 | Case summary | Zoe

NSWNSWLEC

Y&M Australia Pty Ltd v Waverley Council

[2026] NSWLEC 1657

Land and Environment Court (NSW)|2026-10-02|Before: Porter C

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-10-02

Before

Porter C

Catchwords

DEVELOPMENT APPEAL — overshadowing clause — development standard or prohibition — whether clause 4.6 is excluded — housing SEPP incentive provisions

Source

Original judgment source is linked above.

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Catchwords

DEVELOPMENT APPEAL — overshadowing clause — development standard or prohibition — whether clause 4.6 is excluded — housing SEPP incentive provisions

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Y&M Australia Pty Ltd v Waverley Council [2026] NSWLEC 1657

Hearing dates: 17, 18 June and 28 August 2026

Date of orders: 02 October 2026

Decision date: 02 October 2026

Jurisdiction: Class 1

Before: Porter C

COMMISSIONER: This appeal is about an affordable housing development in a highly accessible area within Bondi Junction, its amenity impacts both internally and externally and whether an overshadowing provision is amenable to cl 4.6 of the Waverley Local Environmental Plan 2012 (WLEP).
The Applicant, Y&M Australia Pty Ltd (Y&M) has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against a refusal of DA-146/2025 by Waverley Council (Council).
During the hearing, Y&M sought leave to amend the DA. Unopposed by Council, leave was granted. As the amendments were more than minor, the Court made orders during the hearing for the Applicant to pay the Respondent’s costs thrown away by reason of the amended development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $3,000.
The DA, as amended, seeks development consent for:
Consolidation of lots.
Demolition of the existing structures.
Construction of a twelve storey shop top housing development and roof top communal space, comprising residential dwellings, ground floor shops and office/commercial tenancies with basement car parking.
The proposed development provides in-fill affordable housing pursuant to Div 1 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP).
On 28 August 2026, on an agreed Notice of Motion from the parties, the hearing was reopened to tender Council’s endorsed Bondi Junction Vision and Master Plan 2026 (Master Plan) (Ex G). Short submissions were made as to the weight to be afforded to the document, generally reflective of those made in the hearing. Y&M’s case placed more weight on the Master Plan given its endorsed status. Less weight was to be afforded on Council’s case.
With consideration of the submissions on the first contention in relation to additional overshadowing of Clementson Park, I find that cl 6.7 prevails over cl 4.6 of the WLEP, and that development consent cannot be granted.

The phrase “Notwithstanding anything in this Act” and “notwithstanding any other Act” were considered by the High Court in Perrett v Robinson (1988) 169 CLR 172; [1988] HCA 41 at 178-179 per Wilson, Gaudron JJ (Perrett) and the Full Court of the Supreme Court of Queensland in Price v JF Thompson (Q) Pty Limited [1990] 1 Qd R 278 (Price). In Perrett, the phrase was found not to displace s 5 of the relevant Act. In Price, the majority held that the term within the Limitation of Actions Act 1974 (QLD) did not exclude the operation of s 38(3) of the Acts Interpretation Act 1954 (QLD) as they were not expressly excluded.
The words “despite any other provision” must be considered with regard to the context of the provision in the WLEP. Clause 6.7 appears in Part 6 with other local provisions including cll 6.5, 6.8 and 6.12, which are development standards. Only cl 6.12 is expressly excluded under cl 4.6(8). If cl 6.7 was intended to have been excluded, it would have been simply to include cl 6.7 at cl 4.6(8) or for cl 6.7 to express ‘including cl 4.6’. Applying the principle from Jersey J’s decision in Price, cl 4.6 applies unless expressly excluded. This gives rise to a conflict between cl 6.7 and cl 4.6(2) as the words “despite any other provision” does not expressly exclude cl 4.6.
The express exclusion of cl 4.6 is consistent with Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73 (Pathways Property), where similar wording of “despite the provisions of any other environmental planning instrument” did not expressly exclude the operation of cl 4.6. The decision is consistent with Price and Perrett.
The use of the general words “despite any other provision” do not expressly exclude its operation and as per the quoted text authored by Herzfeld and Prince, a narrower focus should be adopted. The narrow focus is that cl 6.7 operates despite the height and FSR provisions in cll 4.3 and 4.4. It is agreed that the words “despite any other provision” must be given work to do, but that the focus is more relevant directed to prevailing over cll 4.3 and 4.4, not cl 4.6.
In response to Council’s submissions about the objects of the EPA Act, the objects do not prevail over the cardinal principles of statutory construction. However, Council’s construction does not advance object 1.3(b) “to promote the supply, delivery and maintenance of housing, including affordable housing.” An alternate interpretation of cl 6.7 would undermine the provision and supply of more affordable housing.
Mr Pickles SC submits that the maximum building height for the purposes of the incentive provisions of s 16(3) of the Housing SEPP is the height permitted under cl 4.3 of the WLEP. The relevant height provision is the maximum height allowed of any building on the land: 193 Liverpool Road Pty Limited v Inner West Council [2017] NSWLEC 13 at [37]-[38]. Clause 6.7 does not specify a maximum building height but rather, specifies a standard in respect of overshadowing.

I accept Ms Hammond’s submissions and find that cl 4.6 is excluded from operation in relation to cl 6.7 of the WLEP for the following reasons.
I have considered the principles of statutory construction and the various cases provided by the parties.
In considering the decision of Perrett, the relevant provisions, when read in their context, were not in similar terms as cll 4.6 and 6.7 of the WLEP. In Price, the facts of the case were between two Acts and whether one was expressly excluded. The facts and regime are quite different to the circumstances here, but the principles expressed about any inconsistency between provisions or an express exclusion of provisions is relevant to the issues in this case. I accept Y&M’s submissions that Price does not necessarily deal with the issue of a provision prevailing over all other provisions in tangible circumstances.
Having considered Pathways Property, I am of the view that the facts are different to those here. The disputed inconsistency was between EPIs and whether there was an implied exclusion under s 15 of the now repealed State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. The terms to allow development despite the provisions of any other EPI are different to the provisions being considered here.
In considering RIG Consulting and acknowledging that the Court of Appeal was dealing with a narrower construction within a single provision, cl 4.1, aspects of the decision are indirectly relevant. In RIG Consulting, the Court found that there was no inconsistency, clash, or overlap, as the provisions within cl 4.1 regulated different forms of subdivision, and accordingly there was no work for the phrase “despite clause 4.1” to do.
My understanding of the relevant parts in RIG Consulting and Price is that phrases such as “despite” or “notwithstanding” are used to ‘ensure that the operation of one clause is unaffected by some other clause’. There needs to be a clash between provisions or clauses for the opening phrase “despite” to resolve: RIG Consulting at [22] and [54] – [55].
Extracted below is the offending part of the building that causes increased shadowing impacts to Clementson Park, shown in white and above the yellow shadow plane (the plane created by cl 6.7).

I accept that there is a clash between clauses 4.6 and 6.7. Clause 6.7 seeks to restrain additional shadow impacts on Clementson Park at 12 noon on 21 June. Clause 4.6, not necessarily by its own terms but by way of its operation to allow flexibility to a development standard, which would allow for an additional shadow impact subject to subcl 4.6(3) in the manner sought by this DA.
As submitted by Council, I find that cl 4.6 is a provision of the WLEP like any other provision, such as height, FSR and the various other provisions. There are no textual references in the WLEP or cl 6.7 that indicate that a narrower focus to cl 6.7 should be applied and that the focus should be restrained to development standards such as cl 4.3 (height) and cl 4.4 (FSR), which are also capable of competing with or clashing with cl 6.7. The location of cl 6.7 within Part 6 additional local provisions of the WLEP is not, of itself, an indication that cl 4.6 should prevail or continues to apply. Clause 6.7 is not from the Standard Instrument and is a local provision applying to only a few parks identified in the WLEP. It is located within Part 6 by its purpose as a local provision.
I accept Ms Hammond’s submissions that a plain reading of the text is that cl 6.7 prevails over any other provision in “this Plan”, being the provisions of the WLEP. I accept that in giving meaning to these words, cl 6.7 intends to prevail over all other provisions in the WLEP, including cl 4.6, where there is a clash. Though expressed in different ways, the submissions of the parties agreed there is an inconsistency or clash between the two provisions. As previously stated, cl 4.6, by how it operates to permit flexibility as opposed to any express subclause, would permit additional overshadowing that cl 6.7 expressly seeks to not allow. As there is a clash between the two, the words “despite any other provision of this Plan” have work to do and I find that they prevail over cl 4.6 as a provision like any other of the Plan (the WLEP).
Y&M submits that there is no express exclusion of cl 6.7 and therefore it still applies. I accept that other development standards referred to by Y&M such as local provision cl 6.12 have been expressly excluded under cl 4.6(8). However cl 6.12 is expressed in different terms, more akin to the usual drafting convention of a development standard. Clause 6.7 contains the phrase “despite any other provision of this Plan” that is not included in cl 6.12 or most other development standards in the WLEP. This phrase only occurs elsewhere in the WLEP in relation to cll 2.5 and 2.8 but with a more permissive use of the phrase. I prefer Council’s construction and accept that cl 6.7 prevails on a plain reading of the phrase “despite any other provision of this Plan”. Y&M’s approach undermines a plain reading of cl 6.7. I accept that “despite any other provision of this Plan” also operates to exclude the operation of cl 4.6 where it would clash with cl 6.7, as the phrase seeks to prevail over any others in the WLEP.
Accordingly, I find that cl 6.7 prevails over cl 4.6 and that cl 4.6 cannot be relied on to allow flexibility to cause additional shadow impacts to Clementson Park at 12 noon on 21 June. This is determinative of the DA as consent must not be granted to a development that causes an additional shadow impact at 12 noon on 21 June to Clementson Park, which the proposed building does.

Though the above findings are determinative, for completeness I have considered the remaining aspect relevant to this issue.
I accept Mr Pickles SC’s submissions that cl 6.7 is not the relevant height provision for the purposes of s 16(3) of the Housing SEPP.
The Housing SEPP expresses that the maximum building height pursuant to s 16(3) and Sch 10 is the maximum permissible building height for development on the land under Chs 5 or 6 or another EPI or DCP. As there are no relevant provisions in Ch 5 or 6 of the Housing SEPP, the relevant maximum building height is found under cl 4.3 maximum height of buildings in the WLEP. This approach is consistent with 193 Liverpool Road Pty Limited v Inner West Council [2017] NSWLEC 13 at [37]-[38].
As demonstrated by the ‘yellow line diagram’, whilst cl 6.7 of the WLEP may have a practical outcome of restraining height, it is still not a height control on its terms. It is a development standard regulating shadowing that could result in a range of different built form constraints including height, building width/length, building placement, setbacks or FSR depending on the location of a site captured by the provision. Accordingly, I find that the relevant height control is cl 4.3 of the WLEP.
Notwithstanding, whether the height provision is taken from cll 4.3 or 6.7 of the WLEP is ultimately of little consequence for this application. The proposed development in its current form increases shadowing to a nominated park captured by cl 6.7 of the WLEP and relies on flexibility to vary the development standard pursuant to cl 4.6. As a distinctly different provision that regulates overshadowing, and therefore not in conflict with the provisions of the Housing SEPP, there are no other provisions in the Housing SEPP that would set it aside or allow cl 6.7 to be varied. As previously found, clause 6.7 prevails and clause 4.6 of the WLEP is excluded from operation. Accordingly, development consent cannot be granted for a development that increases shadowing impacts to Clementson Park pursuant to cl 6.7 of the WLEP. Despite the indications by Council in its recent endorsement of the Master Plan to increase height on and around the site and make changes to cl 6.7, the DA must be refused on the basis of the current provisions of the WLEP.