Agreed on height and FSR, still refused: why the edge of an LMR area can matter
A plain-English look at a recent Land and Environment Court decision about an eight-storey apartment proposal in Mosman.
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Video transcript
Agreed on height and FSR, and still refused. A recent Land and Environment Court decision in Mosman shows why the edge of an LMR area can matter.
The plan was an eight-storey building with fourteen apartments, including three affordable units [1].
The site was in a low and mid-rise inner area, where the Housing SEPP sets a 22-metre height standard for residential flat buildings in Zone R3 [22].
With the affordable housing bonus, the parties agreed the maximum was 28.6 metres [23].
It was common ground that the proposal met the height and floor space limits [23].
Even so, the appeal was dismissed and the application refused [81].
The Housing SEPP requires the consent authority to consider whether the design is compatible with the desired future character of a precinct in transition [24].
In this case, the Court accepted the Council's submission that the “precinct” included land outside the LMR area: the low-scale zone to the east and nearby heritage items [62].
One lot further east, land zoned C4 keeps an 8.5-metre height limit, and the LMR rules don't apply there [17], [64].
Generally, an LMR outer area steps the scale down [64]. Here, the Court noted there was none [64].
The Court found this could create an abrupt change in scale [64].
The Court found the proposal was not compatible with the desired future character and was out of scale [65], [69].
It described being on the edge of the LMR inner area as an inherent site constraint [66].
It found the two extra storeys from the affordable bonus made the change in scale worse [66].
The Court also found unacceptable impacts on a significant public view corridor and on an adjacent heritage item [71], [74], [79].
The Court did not decide whether a scheme within the standard 22 m limit, without the bonus, would be acceptable [66].
This was a merit decision on its own facts, decided under the law at the time.
So at the edge of an LMR area, compliance may not be the whole story. Character, views and heritage may also be weighed.
Before relying on it, get a section 10.7 planning certificate and advice from a town planner or registered certifier. Then check your site with SN Architects.
Key points
In this case the parties agreed the proposal met the Housing SEPP height and floor space limits, including the affordable housing bonus [23].
In this case, the Court accepted the Council's submission that the "precinct" included land outside the LMR area: the low-scale zone to the east and nearby heritage items [62].
The Court found it was not compatible with the desired future character of the precinct, given nearby low-scale land and heritage items, and dismissed the appeal [64]–[69], [81].
The Court also found unacceptable public view and heritage impacts [79].
The Court did not decide whether a scheme within the standard 22 m limit, without the bonus, would be acceptable [66].
The decision turned on its own facts and was decided under the law at the time.
It does not mean the same result for any other site.
Check your site
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As at and sources
Case: Prosker Pty Ltd v Mosman Municipal Council [2026] NSWLEC 1648 (30 September 2026), Miller AC. Paragraph numbers in brackets refer to the judgment.
Read the judgment on NSW Caselaw: https://www.caselaw.nsw.gov.au/decision/1a0e674cf87a33833eb76cde
Source: NSW Caselaw. SN Architects is not affiliated with or endorsed by the Court, NSW Caselaw or either party.
Case status as at 14 October 2026: no appeal or later decision located on NSW Caselaw or the web search. Re-checked on posting day.
Instruments: State Environmental Planning Policy (Housing) 2021, ss 16, 18, 20(3), 147, 163, 180(2) and Sch 9, as at 11 September 2026 (version in force). Mosman LEP 2012 and Mosman Residential DCP 2012 as referred to in the judgment.
No change to these provisions as at 14 Oct 2026.
Based on content from the New South Wales Legislation website at 14 October 2026. For the latest information on New South Wales Government legislation please go to https://www.legislation.nsw.gov.au.
General information only, not planning advice. Get a section 10.7 planning certificate and advice from a qualified town planner or registered certifier before relying on it. Current as at October 2026.
Narration: AI-generated voice
Disclaimer
This is general information only, not planning, legal or financial advice, and it is not an assessment of any particular property. Planning rules change and every site is different. Before relying on it, obtain a section 10.7 planning certificate for your property and advice from a qualified town planner or registered certifier. To the extent permitted by law, SN Architects accepts no liability for any loss arising from reliance on this information. Information current as at October 2026. © SN Architects 2026.
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