Background
Y&M Australia Pty Ltd appealed Waverley Council’s refusal of DA 146/2025 for a 12-storey shop-top housing development at 40 Ebley Street and 31 Newland Street, Bondi Junction. The amended proposal included homes, affordable housing, ground-floor retail and commercial uses, rooftop communal space and basement parking.
The site sits north of Clementson Park in the MU1 mixed-use zone. Although the proposal relied on the affordable-housing incentives in the State Environmental Planning Policy (Housing) 2021, it would cast additional shadow on Clementson Park at noon on 21 June. Y&M sought to use clause 4.6 of the Waverley Local Environmental Plan 2012 to vary clause 6.7, which prohibits consent for development causing that additional shadow.
The Court’s Holding
Commissioner Porter dismissed the appeal and refused the development application. Clause 6.7 was a “development standard” because it regulated the effects of development on sunlight, daylight or shadows. But its opening words—“Despite any other provision of this Plan”—meant that, where clause 4.6 would conflict with clause 6.7 by allowing additional shadowing, clause 6.7 prevailed.
Accordingly, clause 4.6 could not be used to obtain flexibility from the Clementson Park shadow restriction. Because the building would cause additional shadow at the prescribed time, the Court had no power to grant consent. The Court also held that the relevant height control for the Housing SEPP’s additional-height incentive was the LEP’s ordinary maximum-height clause, not clause 6.7; that conclusion did not alter the refusal.
Key Takeaways
- A provision regulating shadows may be a development standard even when it is framed as a mandatory bar on granting consent.
- “Despite any other provision of this Plan” can displace clause 4.6 where the provisions clash.
- Affordable-housing height and FSR incentives do not override a separate local shadow-control provision.
Why It Matters
The decision confirms that clause 4.6 flexibility is not available where an LEP provision expressly prevails over other plan provisions and the proposed variation would defeat that provision’s operation. Developers relying on affordable-housing incentives must still identify and satisfy independent local controls, particularly mandatory solar-access protections.