The Court upheld a deemed refusal appeal by consent following a conciliation conference, granting development consent for alterations and additions converting an approved multi dwelling housing development to a residential flat building with a new 4th storey. The Commissioner accepted that the 2.83m exceedance of the 17.5m non-discretionary height standard under s 180(3) of SEPP (Housing) 2021 could be varied via cl 4.6 of the RLEP 2012 pursuant to s 4.15(3)(b) of the EPA Act, on the basis that the exceedance was a technical breach resulting from prior excavation of the site. The applicant was ordered to pay $10,000 in agreed costs thrown away due to amendments to the development application under s 8.15(3) of the EPA Act.
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