DEVELOPMENT APPEAL — overshadowing clause — development standard or prohibition — whether clause 4.6 is excluded — housing SEPP incentive provisions
Quick Take
1A local environmental plan clause that regulates overshadowing of nominated public spaces and is expressed to operate 'despite any other provision of this Plan' is a development standard within the meaning of s 1.4(l) of the EPA Act, but the 'despite' language operates to exclude the flexibility mechanism in cl 4.6 where granting a variation would clash with the overshadowing restriction.
2The phrase 'despite any other provision of this Plan' in an LEP clause creates a prevailing provision that excludes the operation of cl 4.6 where there is a clash, notwithstanding that the clause is not expressly listed in cl 4.6(8) as excluded — the absence of express exclusion under cl 4.6(8) does not determine the matter where the competing clause itself contains overriding language.
3An overshadowing clause that has the practical effect of constraining building height is not a 'height control' for the purposes of s 16(3) of the Housing SEPP; the relevant maximum permissible building height for calculating incentive provisions remains the height specified under cl 4.3 of the LEP.
