Background
Prosper Land appealed the City of Canada Bay Council’s refusal of a development application for five lots at 55-61 St Georges Crescent and 2 Queen Victoria Street, Drummoyne. The proposal involved demolishing five dwellings and building a nine-storey, 55-apartment residential flat building, including 12 affordable dwellings, three basement parking levels, a pool and landscaping.
The applicant amended its proposal during the proceedings. The remaining disputes included the proportion of one-bedroom apartments, the calculation and location of the affordable-housing component supporting Housing SEPP bonuses, compatibility with the area’s future character, the six-storey provision for low and mid-rise housing, landscaped area, and several consent conditions.
The Court’s Holding
Commissioner O’Neill upheld the appeal and granted development consent subject to conditions. The Court accepted a clause 4.6 variation to the Canada Bay Local Environmental Plan 2013 requirement that 20% of dwellings be studio or one-bedroom apartments. Although only six of the 55 apartments were one-bedroom dwellings, the applicant’s market evidence, housing strategy and Apartment Design Guide assessment justified the variation in light of local demographic demand for larger dwellings.
The Court held that the affordable-housing component must be calculated by reference to the interiors of the affordable dwellings, rather than including shared circulation space, and imposed a condition requiring the alternative allocation shown in Exhibit J. It also held that the six-storey limit in section 175 of the Housing SEPP did not apply where the development used the 30% affordable-housing height bonus, raising the applicable height maximum from 22 metres to 28.6 metres. The pool area counted toward landscaped area, producing 30.6% landscaped area. The applicant was ordered to pay the Council’s reasonable thrown-away costs from its 20 August 2026 amendment.
Key Takeaways
- A supported clause 4.6 request may justify departure from apartment-mix controls where local demand and strategic housing evidence support a different mix.
- For the Housing SEPP affordable-housing component, the Court preferred an allocation confined to the internal areas of affordable dwellings.
- The six-storey limit for low and mid-rise housing did not constrain this project because its affordable-housing component attracted the Housing SEPP’s 30% height bonus.
Why It Matters
The decision addresses the interaction between the Housing SEPP’s affordable-housing incentives and its low and mid-rise housing provisions. It confirms that a qualifying affordable-housing project may receive the statutory height bonus without requiring a separate clause 4.6 request for the six-storey provision.
It also illustrates that apartment-mix standards and affordable-housing calculations remain subject to close, project-specific scrutiny, even where a proposal is supported by State policy incentives.