Determining the “desired future character” of an area is often a difficult task.

However, the Land and Environment Court has provided some guidance.

The key points are:

• Existing developments under the State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 (Codes SEPP) are relevant in determining the “desired future character” of an area.
• However, possible future developments may not be if they are uncertain.
• Desired future character cannot be determined by height and FSR standards alone.
• Architectural style may be different to building pattern. 

Background

In Akbal v City of Canada Bay Council [2023] NSWLEC 1237, the Court had to consider whether proposed development, being demolition of an existing dwelling and construction of a new, more modern dwelling in Lenore Street, Russell Lea, would detract from the local character or streetscape of Lenore Street. 

The site had the benefit of a Complying Development Certificate (CDC) for demolition of the existing building.  But the Applicant did not seek to rely upon the CDC because it could not obtain a CDC for construction of the new dwelling.

Lenore Street contained Californian bungalows, but also other development which had been carried out under the Codes SEPP. 

The parties’ town planning experts agreed that the character of the area was low density residential development, without a strictly uniform architectural character and contained various original and altered Californian bungalows, as well as single and two storey 1980s dwellings and more recent detached and dual occupancy development (see [26] of the Judgment). 

Council contended that the architectural style of the proposed development would detract from the character and streetscape of the local area, because it would not reflect the ‘dominant building pattern in the streetscape’ (being, the Council seemingly argued, the group of intact Californian Bungalows close to the site) as required by the DCP. 

The proposed development complied with all relevant development standards and controls in the Canada Bay Local Environmental Plan. 

Decision 

The Court found that:

a. the proposed development was compatible with the pre-existing and desired future character of the locality, and 

b. the site was not located within an intact group of Californian Bungalows and ‘architectural style’ at least in this case, was different to ‘building pattern’. 

On the meaning of future character, the Commissioner relied upon the Chief Judge’s decision in SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 where his Honour accepted that in considering “desired future character”, regard can be had to developments approved under the Codes SEPP. This is because “desired future character” is not defined in the local environmental plan (LEP) as being confined to forms of development permitted by the relevant LEP. Justice Preston reasoned in SJD DB2 (see [54] of SJD DB2 extracted at [37] of Akbal):

“In circumstances where the term ‘desired future character’ is undefined and unconfined in WLEP, the matters that may be taken into account in evaluating what is the desired future character of a particular neighbourhood or area at any point in time will similarly be unconfined, except insofar as there may be found in the subject matter, scope and purpose of WLEP some implied limitation on the matters that may legitimately be considered.”

The Court also relied upon Commissioner O’Neill’s decision in Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161 as authority for the proposition that the desired future character of an area cannot be determined by height and FSR standards alone (see [38]). 

The Court went on to conclude that “future possible complying development” does not necessarily assist in determining the future character of an area because there is insufficient certainty as to the probability or likelihood of that future development being carried out under either the Codes SEPP or the LEP (see [39]). 

However, existing developments constructed pursuant to the Codes SEPP did, in this case, contribute to the character of the area and were therefore relevant in considering the desired future character (see [39]). 

The Court went on to accept the Applicant’s argument (as set out below) that there is a difference between architectural style and building pattern, relying upon the distinction between physical and visual impacts explained in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80. 

“Building pattern has got nothing to do with architectural style. Building pattern is about relationships between buildings, both to the street and to each other. It's a building envelope control, essentially. It's about front façade articulation and presentation to the street by reference to the side setbacks and the front setbacks. It's got nothing to do with architectural style.

Architectural style only comes into it in the context of E1.3 and the only mention of it is in O2, "to encourage complementary and sympathetic wall treatments and new and existing houses are consistent with the architectural style of existing dwellings in the street and adjoining locality", and when we do that, we go wider than the streetscape. We go as far as to consider the rest of the locality” (see [43]).