Response to Outstanding Issues - 25-27 Toolar St · MCU21/0083

       and compliance cannot be achieved by imposing development conditions, which, under
       clause 65(1) must be relevant and reasonable.’

       ‘…This is not to imply that, if the assessment of an application requiring code assessment
       concludes that the development does not comply with any or all of the benchmarks for the
       development, and compliance cannot be achieved through development conditions, an
       applicant could not, change the development application under clause 52 in a way that
       would achieve compliance.

       Also, this clause clarifies that nothing stops a development application requiring
       code assessment being approved, even if the development does not comply with
       some or all the assessment benchmarks. Two examples are provided in the Bill of
       circumstances where “balancing” or “trading off” of conflicting benchmarks and other
       matters such as referral agency responses.’

       ‘…For both code assessment and impact assessment, it is intended the new assessment
       and decision rules should lead to a renewed emphasis on the quality, rigour,
       legibility and consistency of policies in planning instruments, and their primacy in
       determining the outcome of performance-based development assessment.’

Emphasis has been added to the above extract to illustrate the point that the Planning Act is intended
to allow, through a performance-based assessment, development to occur where such development
may not have been forecast or envisaged by the authors of the planning scheme at the time if its
creation.

This is in fact the case in this instance. Where the needs of community are great and the ability to
deliver is challenging when availability of land that meets 100% of the parameters that would render it
ideal in a perfect world are limited, some level of compromise needs to be considered. Weight of
assessment needs to be considerate of the depth of adverse conditions and effect to the community
where the development does not comply versus the effect if it were fully compliant.

The following addresses the areas of non-compliance identified by the Council in these terms to
demonstrate that the minor areas of non-compliance in this instance are supportable.

Site Cover and GFA/ Plot Ratio

  1. As you are likely to be aware we are not supportive of the additional site cover and GFA/Plot
      ratio

1. Site cover of the proposed development was initially 39%. The applicant responded to Council’s
     insistence that each 3-bedroom dwelling had 2 covered car spaces despite that the proposed
     alternative solution met the performance criteria of the code. This has increased the site cover by
     67m2 to 42.3%.

     The grounds for Council’s insistence that 2 covered spaces are provided makes little sense and is
     loosely based on the assumption that Council would be inundated with up to 8 future applications

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