The Court held that non-compliance with a non-discretionary development standard under s 19(2)(a) of the Housing SEPP (minimum site area) requires a cl 4.6 written request, because s 4.15(3)(b) of the EPA Act treats non-discretionary development standards as development standards to which EPI flexibility provisions apply. The Court found that an area experiencing some redevelopment is not necessarily 'in transition' for the purposes of DCP setback controls, and that the broad principles of the Housing SEPP (s 3) lack sufficient nexus with a specific non-discretionary development standard to demonstrate that compliance is unreasonable or unnecessary — the underlying purpose of the particular standard must first be identified. The Court also cautioned against placing determinative weight on theoretical building envelope capacity under Part 2D of the ADG as a sufficient environmental planning ground to justify FSR contraventions under cl 4.6.
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