Compatibility with 'desired future character' requires response to local context, not mere numerical compliance with development standards

BWSLD Killara II Pty Ltd v Ku-ring-gai Council [2026] NSWLEC 1573

TAKEAWAY: This case is an excellent reminder that compatibility with ‘desired future character’ goes beyond mere compliance with height and FSR controls and requires a deeper assessment of how the proposed development responds to the surrounding context, by reference to the contextual objectives and provisions in both the Apartment Design Guide (ADG) and councils’ Development Control Plans (DCPs).

We recently acted for Ku-ring-gai Council in this appeal, which was dismissed by the Court.  This decision is a landmark determination on how compatibility with ‘desired future character’ can be assessed for residential flat building development applications made under the State Environmental Planning Policy (Housing) 2021 (Housing SEPP). In this appeal, the Court found that even where a proposed development is compliant with relevant development standards prescribed by the Housing SEPP such as building height or floor space ratio, for a development to be consistent with the desired future character of an area, it must also be responsive to the context of the surrounding streetscape and have regard to the relevant contextual DCP provisions (such as deep soil and setback objectives and controls).

The proposal

The appeal was against Council’s deemed refusal of a development application for the demolition of existing structures and construction of a part 8, part 9-storey residential flat building above basement parking at 23-25 Lorne Avenue, Killara (Site).

Importantly, the proposed development complied with all relevant development standards under the Housing SEPP, including both FSR and building height, and also complied with the relevant controls in the Apartment Design Guide (ADG) including the deep soil control.

Legislative background

On 13 June 2025, the Department of Planning, Housing and Infrastructure turned off the Transport Oriented Development provisions of the Housing SEPP for new development applications in Ku-ring-gai Council. The Government ‘saved’ some sites where development applications had already been submitted for TOD. The Site was one such saved site.

On 14 November 2025, the Ku-ring-gai Local Environmental Plan 2015 was amended to provide an ‘alternative TOD’ scheme with changes to FSR, building height and minimum lot size controls and active street frontages and affordable housing requirements.

In effect, these changes meant that the proposed development would be significantly taller and bulkier than any surrounding development likely to occur in the future.

Consideration of the DCP

Before determining how the desired future character of an area could be defined, Commissioner Walsh first explored whether the provisions of Council’s DCP were, in a blanket sense, overruled by provisions of the ADG, which is a mandatory consideration under the Housing SEPP.

The Commissioner found that, save for those matters where the ADG explicitly overrules the DCP (which include visual privacy, solar and daylight access, common circulation and spaces, apartment size and layout, ceiling heights, private open spaces and balconies, natural ventilation and storage), the DCP and ADG should both be considered in the assessment and determination of SEPP Housing development applications.

Landscaping and deep soil

The Commissioner found that the KDCP controls are explicit in nominating objectives aimed at preserving the 'garden character and canopy of the Ku-ring-gai locality'.  When evaluated against the KDCP deep soil side setback and tall canopy tree related provisions, the Commissioner considered that the proposal was clearly significantly deficient in landscaping in terms of tall trees and canopy trees.

Visual impact

The Court found that the proposed building would 'stand out markedly and negatively when viewed from certain areas of Lorne avenue … because at present Lorne Avenue is a scenic street dominated by landscape' (see [87]). The proposed development would be jarring in its setting and detract from the garden setting of the street because of its limited capacity to deliver tall canopy trees.

In particular, the Court found that the visual impact of the building was adverse because:

1. The height of the building was much greater than its neighbours.
2. Retention of small group of canopy trees on Site was inadequate to visually soften given the bulk and minimal side setbacks.
3. A feature of the street was the canopy landscaping on a scenic street, which is not disrupted by the mass of existing buildings.
4. The proposal should not be evaluated against unrealistic redevelopment on adjacent sites.
5. Side setbacks half of what is in place for adjoining sites.

Character compatibility

The parties agree that the Site was within a 'precinct undergoing transition' and therefore, under s 20(3) of the Housing SEPP, the consent authority is required to consider whether the development is compatible with the desired future character of the precinct.

The Court found that the strongest argument in support of the proposal’s compatibility with desired future character, was its compliance with the building height and FSR standards.

Yet, the Court found that the desired future character of the locality should also be determined by reference to the KDCP’s deep soil zones, landscaping, and side setback provisions (see [107]-[108]). As the proposal had limited side setbacks and capacity to deliver tall canopy trees, which in turn influenced the streetscape character, the proposal was considered to be 'discordant' with the desired and likely future characters of the locality.

Key takeaways

In short, the Court found that the proposed development’s incompatibility with the desired future character of the locality (as could be understood from the deep soil, side setback and tall canopy tree related provisions in the KDCP), meant that the design of the proposal was unacceptable and its adverse impacts outweighed any positive contributions (see [111], [114]).  At [114] the Court held, 'The considerable adverse impacts of the proposal in this scenically pleasing and visually sensitive streetscape setting of Lorne Avenue, at its interface with a heritage conservation area, outweigh the positive aspects of the proposal.'

While the policy intention of the Housing SEPP is threefold - increase housing supply and density in areas with transport infrastructure, deliver affordable housing, and design in context – for the third of these intentions to be met, any development proposed under the Housing SEPP must respond to the local context, much of which can be found in the DCP in particular (see [113]).  Indeed that sentiment is reflected at Principle ((f) of section 3 of the Housing SEPP, which requires 'reinforcing the importance of designing housing in a way that reflects and enhances its locality.'

The case is an excellent reminder that compatibility with ‘desired future character’ goes beyond mere compliance with height and FSR controls and requires a deeper assessment of how the proposed development responds to the surrounding context, by reference to the contextual objectives and provisions in both the ADG and the DCP.