Background
Fasoula Pty Ltd applied for development consent on 7 December 2023 to demolish existing structures and construct a five-storey residential apartment building with basement parking, landscaping, and strata title subdivision at 27–31 Hampton Court Road, Carlton. Georges River Council refused the application, citing concerns including height exceedance, excessive bulk and scale, inadequate setbacks, insufficient communal open space, inadequate deep soil provision, and failure to exhibit design excellence.
Fasoula appealed to the Land and Environment Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW). The court arranged conciliation conferences held in March, April, and May 2026, during which the parties reached agreement on amended plans and conditions that addressed all of Council’s contentions. The amended proposal included improved ground-level open space, enhanced basement configuration, and refined architectural expression of the primary facade.
The Court’s Holding
The court upheld the appeal and granted development consent to the amended application. The critical issue involved the height of buildings standard under the Georges River Local Environmental Plan 2021, which imposed a 15-metre development standard. The proposed building reached 16.2 metres—a 1.2-metre (approximately 8 per cent) exceedance. The applicant provided a written request under cl 4.6(3) of the planning instrument, arguing that compliance was unreasonable or unnecessary in the circumstances.
The court found the height variance justified for several reasons: the exceedance was minor and associated with the roof overhang and lift overrun, which were set back from the site perimeter; the site’s location at an intersection meant overshadowing predominantly fell on adjoining roads; the proposal created no unreasonable adverse visual impacts, disruption to views, or loss of privacy to neighbouring properties; and the development was compatible with the surrounding low-to-mid-rise housing area (which under state policy could permit up to 22 metres). The amended design was agreed to present as a high-quality architectural contribution exhibiting design excellence, consistent with all applicable local and state environmental planning instruments.
Key Takeaways
- An 8 per cent height exceedance was justified where the additional height was minor, confined to roof and lift elements, and posed no unreasonable adverse impacts to neighbouring properties.
- Design amendments negotiated during conciliation resolved all of Council’s initial concerns, demonstrating the value of collaborative refinement in development disputes.
- Residential apartment development in high-density zones can secure approval where it achieves design excellence standards and addresses amenity concerns through detailed design responses.
- Height variations may be justified where they align with broader strategic planning parameters (such as low-to-mid-rise housing provisions allowing 22 metres) even if they marginally exceed local standards.
Why It Matters
This decision clarifies when minor height variances can be justified under NSW planning law. Rather than treating any exceedance as fatal, the court endorsed a proportionate assessment: where a variance is small, attributable to non-structural elements, and causes no unreasonable adverse effects, it may be approved if environmental planning grounds support it. This approach encourages applicants and councils to engage in genuine design refinement rather than rigid adherence to development standards.
The case also underscores the effectiveness of conciliation in complex development disputes. By facilitating agreement on amended plans and conditions through the court process, both parties reached an outcome resolving all contentions—avoiding protracted litigation while achieving a design-led solution. For practitioners and councils, it demonstrates that strategic compliance with broader planning policies (here, low-to-mid-rise housing) can support approval even where local height controls are modestly exceeded.