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No ‘Character of the Local Area’ in diverse neighbourhoods

Under clause 16A of the State Environmental Planning Policy (Affordable Rental Housing) 2009, a consent authority must not consent to a development if the design is incompatible with the character of the local area.

In the recent decision of Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 (Louden), clause 16A played a prominent role in Commissioner Gray’s judgement. In that case, the Council had refused the development, inter alia, because the development’s design did not match the local aesthetic. The Council relied on the argument that the setbacks and design of the proposal were inconsistent with other residential flat buildings in the local area.

However, Commissioner Gray rejected this argument in favour of the Applicant’s reliance on Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture). There, Roseth SC stated [at 22]: Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.
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Proposed changes to planning rules for outdoor advertising and signage

The NSW Government has recently proposed a number of amendments to the State Environmental Planning Policy No. 64 – Advertising and Signage (SEPP 64) and in conjunction, has also proposed the addition of a new penalty notice offence in the Environmental Planning and Assessment Regulation 2000 (Regulation). The intention of the proposed amendments is to fulfil the community’s expectation of balancing road safety whilst maintaining the public and economic benefit of advertising.

Repealing Council’s power to prohibit advertising

Currently, Clause 16 of SEPP 64 makes permissible advertisements in ‘transport corridors’ with consent.  ‘Transport corridors’ include all land comprising road corridors, any land comprising railway corridors or any land zoned industrial which is occupied or managed by the RMS. However, in accordance with clause 16(4)(b) of SEPP 64, a Local Environmental Plan (LEP) can prohibit advertising altogether in a transport corridor. As a result, across NSW there are a large number of LEPs that override SEPP 64 and prohibit such advertising.
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