Background
CBR9 Pty Ltd sought development consent to demolish existing structures at 130–134 Coogee Bay Road, Coogee and construct an eight-storey shop top housing building comprising 20 residential units, three commercial tenancies, and two basement levels with 32 car spaces. The site — a combined 1,005.3 m² rectangular allotment with a 10.95-metre fall from Coogee Bay Road to Powell Lane at the rear — presented as three storeys from the street frontage despite its full height toward the lane. Randwick City Council’s Local Planning Panel refused the development application in October 2025, and CBR9 appealed to the Land and Environment Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW).
The proposal exceeded two key controls under the Randwick Local Environmental Plan 2012: the 12-metre maximum building height (proposed: 12.165 m) and the 1.5:1 maximum floor space ratio (proposed: 1.85:1). Clause 4.6 variation requests were lodged for both. While the Council conceded the height variation was justified, it maintained that the FSR variation was not, contending the excess floor space created unacceptable bulk and scale when viewed from Powell Lane, failed to achieve the desired future character of the area, caused avoidable overshadowing on the neighbouring apartment building at 124–126 Coogee Bay Road, and resulted in the unnecessary removal of significant trees.
Expert planners engaged by each party agreed on the resolution of numerous contentions through amended plans — including building height (as varied), setbacks, communal open space, deep soil, visual privacy, and view impacts — but remained in dispute on bulk and scale, FSR, design excellence, local centre objectives, solar access, and public interest. The hearing proceeded before Commissioner Miller AC on 4 and 5 May 2026.
The Court’s Holding
Commissioner Miller upheld the appeal and granted development consent. On bulk and scale, the Court accepted the applicant’s expert evidence that the building was located within a compliant envelope (apart from the agreed minor height exceedance) and that its stepped form — presenting as two to three storeys at the Powell Lane frontage and rising toward Coogee Bay Road — was consistent with the desired future character of the area as defined by prevailing controls and existing development, including the six-storey mixed-use building immediately to the west. The Court found it unnecessary to determine precisely where the excess FSR floor space was located within the building: whether in the height-non-compliant portion (already accepted) or within the envelope-compliant middle levels, neither scenario produced significant adverse amenity impacts. Both clause 4.6 variation requests — for height and for FSR — were upheld as well-founded on sufficient environmental planning grounds.
On solar access, the Court held that the Apartment Design Guide (ADG) standard — requiring a minimum of two hours of direct sunlight between 9 am and 3 pm on 21 June to living rooms and private open spaces of at least 70% of apartments — displaced the more stringent RDCP control (three hours, 8 am–4 pm, all habitable room windows) by operation of s 149(1)(b) of the State Environmental Planning Policy (Housing) 2021. Both experts agreed the proposal complied with the ADG standard. The remaining shadow impacts — confined to east-facing bedroom and bathroom windows of lower-level units in the western neighbour before 9 am on 21 June — fell outside the ADG assessment window and were found reasonable in circumstances where those windows faced a side boundary in an E1 Local Centre zone permitting nil setbacks. The Court also accepted that a compliant-FSR building with a nil western setback could have produced greater impacts, so the excess FSR was not causally linked to the overshadowing concern.
The Court further found that the proposed tree removal was acceptable having regard to the relevant planning controls and proposed landscaping, that the development complied with the E1 zone objectives, and that design excellence was demonstrated under cl 6.11 of the RLEP. Conditions of consent addressing all resolved contentions, including stormwater management and housing and productivity contributions, were imposed by annexure.
Key Takeaways
- Section 149(1)(b) of the State Environmental Planning Policy (Housing) 2021 renders DCP solar access controls of no effect for residential apartment development where the Apartment Design Guide addresses the same matter — the ADG’s 9 am–3 pm, two-hour standard is the operative control, not a more demanding local DCP provision.
- A clause 4.6 FSR variation request can succeed even where the Council accepts only the height variation: where the excess floor space falls either within the already-accepted height exceedance zone or within an otherwise-compliant building envelope without producing material adverse amenity impacts, compliance with the FSR standard may be unnecessary and unreasonable.
- Desired future character is assessed by reference to the prevailing planning controls and nearby development unlikely to be redeveloped in the near future; a proposal that steps down in scale toward a lower-density zone, as contemplated by those controls, will generally be consistent with that character even if it exceeds numerical FSR limits.
- Shadow impacts limited to non-living-room windows (bedrooms, bathrooms) before 9 am on the winter solstice will not ordinarily defeat a proposal that otherwise complies with the ADG solar access standard, particularly where those windows face a side boundary in a zone permitting nil setbacks.
Why It Matters
This decision clarifies an important interaction between state housing policy and local development control plans in New South Wales. By confirming that the HSEPP 2021 displaces more stringent DCP solar access provisions for shop top housing — a development type the Court found expressly brought within the definition of “residential apartment development” under Chapter 4 of the HSEPP — the judgment limits councils’ ability to rely on local solar access rules to resist infill development on mixed-use sites. Developers and councils in NSW should audit their solar access contentions against this hierarchy before and during Class 1 proceedings.
The ruling also offers practical guidance on FSR variation requests under clause 4.6 where bulk and scale, desired future character, and overshadowing are the live issues. The Court’s willingness to assess the variation without resolving the precise spatial location of excess floor space — and to find both possible locations acceptable — may assist applicants in analogous stepped or sloping-site developments where the distribution of excess floor space is genuinely ambiguous.