APPEAL — Development Application — residential flat building — low and mid rise housing near identified centres — sufficiency of landscaping — character compatibility — neighbour objections — visual massing
Quick Take
1Where SEPP Housing Ch 6 non-discretionary development standards for FSR and building height override local LEP controls, a proposal that complies with the SEPP Housing FSR standard cannot be refused on FSR grounds under s 4.15(2) EPA Act, but a building height contravention still requires satisfaction of cl 4.6 LEP preconditions.
2A local DCP deep soil control (here 50%) that is not among the matters over which the ADG prevails under s 149 SEPP Housing must still be considered, but under s 4.15(3A)(b) EPA Act the consent authority must be flexible and allow reasonable alternative solutions where the DCP's objectives are otherwise achieved — compliance with the ADG and Tree Canopy Guide 'enhanced' targets, together with satisfaction of the DCP's landscaping and setback objectives, can constitute such an alternative.
3Under the Wehbe first-way analysis, where a building height contravention involves spatially limited areas, produces no perceptible adverse environmental impact distinguishable from the compliant building envelope, and the objectives of the height standard are met notwithstanding the contravention, the applicant has demonstrated that compliance is unreasonable or unnecessary and that sufficient environmental planning grounds exist.
