Can a DCP be considered when determining desired future character?

El-Hazouri v Mosman Municipal Council [2026] NSWLEC 1276

Many Environmental Planning Instruments (EPIs) and Development Control Plans (DCPs) now require development of a particular type, or in a particular zone, to be designed to be consistent with the desired future character of the surrounding area. The State Environmental Planning Policy (Housing) 2021 (Housing SEPP) mandates consideration of desired future character when assessing proposals for: in-fill affordable housing (s20), boarding houses (s25), co-living housing (s69), and residential apartment development (Schedule 9). Likewise, many Local Environmental Plans (LEP) have made desired future character a consideration, either by including it within zone objectives, or requiring particular types of development to maintain it through other clauses.

’Desired future character’ is not defined in the Housing SEPP, nor is it generally defined in an LEP. As such, it has been left to the courts to determine what can, and what cannot, be considered when determining how the desired future character of an area is defined. That was one of the primary questions the Court considered in the recent case of El-Hazouri v Mosman Municipal Council [2026] NSWLEC 1276 (El-Hazouri).

El-Hazouri involved a Class 1 appeal against Mosman Council’s deemed refusal of a development application for the demolition of an existing dwelling and construction of a new 4-storey dwelling house and swimming pool. The proposal included significant exceedances of the following development standards:

• maximum FSR by 72%
• maximum height by 25%
• wall height by 44%, and
• an encroachment into the foreshore building line.

The applicant sought to justify each of these exceedances by separate cl 4.6 variation requests.

The Council contended that the proposed number of storeys, and exceedance of the above referenced numerical controls, was excessive and inconsistent with the objectives of the site’s C4 Environmental Living Zone. The objectives of the C4 zone under the Mosman Local Environmental Plan 2012 (MLEP) included the requirement, ’to ensure that development is of a height and scale that achieves the desired future character of the area’. The objectives of cl 4.3A Height of Buildings similarly included a requirement ’to encourage 2-storey buildings consistent with the desired future character of the area’.

Council submitted that the desired future character of the area should be defined by reference to the controls in the MLEP, and the Mosman Residential Development Control Plan 2012 (MRDCP). Citing Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD DB2), Peatman AC found in El-Hazouri that ’the provisions of a development control plan cannot be used to interpret the provisions of a local environmental plan, unless the provisions of the local environmental plan expressly refer to the provisions of the development control plan for that purpose.’ (at [84]). As explained by Preston CJ in SJD DB2, this is because of ‘the general principle of statutory interpretation that delegated legislation made under an Act should not be taken into account for the purposes of interpretation of the Act itself’ (at [33]). Accordingly, Peatman AC found that ’the terms of MRDCP 2012 cannot be used to overcome the fact that the definition is not included in MLEP’ at [87].

Importantly however, in SJD DB2, this was qualified at paragraph [50] , in that ’[though the Commissioner did not err in not construing the “desired future character” by reference to the provisions of the DCP] this is not to say that it was not permissible for the Commissioner to have had regard to the desired future character provisions in WDCP, only that he was not bound to do so.’

That qualification did not appear to have been considered by the Court in El-Hazouri.

In SJD DB2, Preston CJ goes on to explain at [54] that the matters which may be taken into account in evaluating the desired future character of a particular neighbourhood or area at any point in time  are unconfined where the term ’desired future character’ is not defined, fixed or confined in the LEP by reference to particular provisions in the LEP (such as the zoning or development standards). Accordingly, nearby approved developments which are non-compliant with LEP development standards may legitimately be considered to shape the desired future character of an area.

In El-Hazouri, the Court found at [88] that, in this instance, the desired future character could be ascertained with regard to:

1. The provisions of the MLEP, particularly the zone objectives and development standards
2. The fact that development standards are capable of variation under cl 4.6 (which contemplates that the desired future character may comprise development which exceeds the development standards), and
3. The surrounding developments, particularly those which have been approved notwithstanding their noncompliance with the MLEP standards,

but not the provisions of the DCP.

The appeal was upheld.

Takeaway

Whilst the Commissioner’s decision in El-Hazouri is not binding, it draws from the reasoning of Preston CJ in SJD DB2, which should be followed. The key takeaway from El-Hazouri appears to be that, where desired future character is not defined in an LEP and the LEP does not expressly point to the DCP in its definition, the provisions of a DCP cannot be considered when determining the desired future character of a particular area. However, that may be inconsistent with paragraph [50] in SJD DB2, which rather, deems that a Commissioner is not bound to consider the provisions of a DCP in determining desired future character, but may well do so. It is not entirely clear when a Commissioner should in fact take into consideration the provisions of a DCP, and most likely, this would need to be assessed on a case by case basis.

The decision in SJD DB2 predates the Housing SEPP and so it will be interesting to see how the Court applies that decision (which will inevitably be relied upon by applicants for non-compliant development) in respect of low and mid-rise housing and transport-oriented developments. Councils should also carefully consider their planning controls to ensure that they accurately reflect the desired future character of different areas.