Background
BWSLD Killara II Pty Ltd appealed the deemed refusal of its development application for 23–25 Lorne Avenue, Killara. The proposal was to demolish two homes, amalgamate the lots and construct a 46-apartment residential flat building with three basement parking levels. The building would generally present as eight storeys to Lorne Avenue, near Killara Station and opposite the Marian Street Heritage Conservation Area.
The project met the applicable uplifted height and floor-space-ratio standards under the State Environmental Planning Policy (Housing) 2021, supported by its affordable-housing component. It also exceeded the 30% landscaped-area standard. The principal dispute was whether its limited deep-soil planting, side setbacks and resulting building bulk produced an unacceptable visual and character outcome in Lorne Avenue’s established garden setting.
The Court’s Holding
Commissioner Walsh dismissed the appeal and refused consent. Although the proposal complied with the applicable SEPP Housing height, floor-space-ratio and landscaped-area standards, its design configuration was unacceptable on balance.
The Court held that the Apartment Design Guide did not displace the Ku-ring-gai Development Control Plan controls concerning deep soil, landscaping and setbacks in this context. The proposal was broadly consistent with the ADG but significantly deficient against the DCP’s garden-setting and tall-canopy-tree objectives. Its constrained side planting and limited capacity for tall canopy trees would leave the large building visually prominent and jarring in Lorne Avenue.
The Court gave considerable weight to the housing and affordable-housing benefits, but found that the proposal did not adequately respond to local context or the Schedule 9 design principles in SEPP Housing. The adverse effects on the visually sensitive, landscaped streetscape at the interface with the heritage conservation area outweighed those benefits.
Key Takeaways
- Compliance with SEPP Housing uplift standards does not itself require approval.
- DCP provisions on deep soil, setbacks and landscaping may remain relevant where the ADG does not prevail over them.
- The consent authority must apply non-compliant DCP standards flexibly, but may still refuse a proposal that does not achieve their objectives through a reasonable alternative design.
Why It Matters
The decision confirms that transport-oriented and affordable-housing incentives operate alongside, rather than erase, the SEPP’s design and contextual objectives. A project can be compliant with numerical height, density and landscaped-area standards yet fail the broader merits assessment under s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW).
For applicants, the case underscores the importance of demonstrating how increased density can retain a contextually responsive landscape framework—particularly where a tall, bulky building fronts a leafy streetscape or heritage-sensitive area.