Background
Salerno Holdings appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 from the refusal of its development application for 1 Russell Avenue, Lindfield. The proposal was for a six-storey residential flat building containing 19 apartments, including three affordable-housing apartments, with rooftop communal open space and three basement parking levels.
The site is a tapered corner allotment near Lindfield station, with a 16.47-metre Russell Avenue frontage and an area of about 1,131 square metres. The Council maintained objections concerning the site’s minimum dimensions, setbacks, landscaping, streetscape and compatibility with local and desired future character. The proposal complied with applicable SEPP Housing minimum site-area and landscaped-area standards, but not the 24-metre minimum site dimension in cl 6.6 of the Ku-ring-gai Local Environmental Plan 2015.
The Court’s Holding
Commissioner Walsh found that the proposal gave a satisfactory response to local character and streetscape concerns. Its landscape scheme, including substantial canopy planting, compliance with the Tree Canopy Guide and Apartment Design Guide measures, and the site’s setting near the centre and rail corridor supported that conclusion despite numerical non-compliances with some Development Control Plan setback and landscaping controls.
The Commissioner was persuaded that the site-specific additional-permitted-use provision in cl 2.5 of the KLEP prevailed over the more general site-dimension provision in cl 6.6(2). In any event, the Court held that a cl 4.6 exception was available: strict compliance was unreasonable or unnecessary because the objectives of cl 6.6 were achieved, and sufficient planning grounds existed, including the SEPP Housing 450-square-metre minimum site-area standard and the KLEP’s express contemplation of a residential flat building on the site.
The Court did not immediately grant consent. It directed the parties to finalise and file conditions by 9 October 2026. The Court rejected the Council’s proposed deferred-commencement condition and found that the existing consent for a smaller development need only be surrendered before a construction certificate is issued; it indicated it would then uphold the appeal and grant consent subject to the final conditions.
Key Takeaways
- A site-dimension departure may be justified where the development nevertheless achieves the control’s objectives and has sound planning grounds.
- Compliance with applicable SEPP Housing, ADG and tree-canopy measures can support approval despite non-compliance with local numerical setback or landscaping controls.
- A site-specific additional-permitted-use provision may prevail over a general development standard.
Why It Matters
The decision illustrates the Court’s contextual approach to apartment proposals enabled by affordable-housing incentives and transitional planning arrangements. Local character assessment turned on the actual streetscape, landscape quality and design response, rather than numerical departures alone.
It also confirms that an existing consent need not necessarily make a replacement approval deferred commencement where an appropriately timed surrender condition can avoid practical uncertainty.