193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13

193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13

The proposed development is entitled to development consent as of right under cl 29(2)(a) SEPP and cl 4.3A Ashfield LEP, as each provides an applicable pathway to bonus height for affordable rental housing; further, the discretionary pathway under cl 29(4) SEPP is also satisfied on its merits, the site's character and future consolidation, and the proposal can also be considered as residential flat building or shop top housing, both eligible for bonus height. Each legal pathway independently mandates or justifies consent.

Parties
Applicant: 193 Liverpool Road Pty Ltd; Respondent: Inner West Council
Jurisdiction
Australia
Judgment Date
01 March 2017
Procedural Posture
Appeal (class 1 Merit Appeal) / Judgment and Orders
Outcome
Appeal upheld; development approval granted.
Legal Topics
Development Application, Height Controls, Affordable Rental Housing, Bonus Height Provisions, Mixed Use Development, Discretion Under SEPP, Characterisation of Use
Planning and Environment Development Application Height Controls Affordable Rental Housing Bonus Height Provisions Mixed Use Development Discretion Under SEPP Characterisation of Use

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Parties

193 Liverpool Road Pty Ltd

Applicant

Inner West Council

Respondent

Procedural Posture

Appeal (class 1 Merit Appeal) / Judgment and Orders

Legal Issues

  1. 1 Does the mandatory height control override in cl 29(2)(a) of State Environmental Planning Policy (Affordable Rental Housing) 2009 apply to the proposed development?
  2. 2 Does the discretionary height control override in cl 29(4) of State Environmental Planning Policy (Affordable Rental Housing) 2009 apply to the proposed development?
  3. 3 Does the mandatory height control override in cl 4.3A(2)(a) and (b) of Ashfield Local Environment Plan 2013 apply to the proposed development?

Ratio Decidendi

The proposed development is entitled to development consent as of right under cl 29(2)(a) SEPP and cl 4.3A Ashfield LEP, as each provides an applicable pathway to bonus height for affordable rental housing; further, the discretionary pathway under cl 29(4) SEPP is also satisfied on its merits, the site's character and future consolidation, and the proposal can also be considered as residential flat building or shop top housing, both eligible for bonus height. Each legal pathway independently mandates or justifies consent.

Court Disposition

Appeal upheld; development approval granted.

Orders

  • The appeal is upheld.
  • Development Application 10.2016.65.1 for a mixed use development comprising one retail shop, one residential apartment and thirty-eight units of boarding house accommodation in a part three-storey, part eight-storey development at 193 Liverpool Road, Ashfield is determined by the granting of development consent,...