The Court approved a modification to remove all communal open space from a four-unit residential flat building, holding that SEPP (Housing) 2021 Schedule 9 Design Principles and the ADG design criteria for communal open space are not mandatory requirements but flexible standards that must be considered in context. On the facts, the Court found that excellent private amenity (generous apartment sizes, large balconies, ocean views), proximity to public open space, the small scale of the development, and poor connectivity between the apartments and the communal open space justified departing from the ADG's default 25% communal open space requirement. The Court rejected the argument that approval would set an undesirable precedent, finding the result was specific to the site's characteristics.
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