Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121

Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121

Dwellings located at ground floor level are not 'above' ground floor retail or business premises and cannot be characterised as 'shop top housing' under the Canterbury Local Environmental Plan 2012. As a result, residential accommodation at ground floor level is prohibited in the B2 Local Centre zone. The proposal...

Source-derived case information.

Parties
First Applicant: Andrew Hrsto; Second Applicant: Troy Pestano Douglas; Respondent: Canterbury City Council
Jurisdiction
Australia
Judgment Date
14 August 2014
Procedural Posture
Class 1 Appeal / Separate Question Determined
Outcome
Separate question answered in the affirmative; costs reserved; matter referred to Registrar for further directions; exhibit returned.
Legal Topics
Construction and Interpretation of Local Environmental Plan, Characterisation of 'shop Top Housing'
Planning Law Construction and Interpretation of Local Environmental Plan Characterisation of 'shop Top Housing'

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Parties

Andrew Hrsto

First Applicant

Troy Pestano Douglas

Second Applicant

Canterbury City Council

Respondent

Procedural Posture

Class 1 Appeal / Separate Question Determined

Legal Issues

  1. 1 Whether residential accommodation at ground floor level can be characterised as 'shop top housing' under Canterbury Local Environmental Plan 2012
  2. 2 Proper construction of the definition of 'shop top housing'
  3. 3 Application of zoning prohibitions to mixed use developments

Ratio Decidendi

Dwellings located at ground floor level are not 'above' ground floor retail or business premises and cannot be characterised as 'shop top housing' under the Canterbury Local Environmental Plan 2012. As a result, residential accommodation at ground floor level is prohibited in the B2 Local Centre zone. The proposal cannot be considered an indivisible mixed use development subsuming prohibited elements into permissible development.

Court Disposition

Separate question answered in the affirmative; costs reserved; matter referred to Registrar for further directions; exhibit returned.

Orders

  • The separate question posed by the parties is answered in the affirmative.
  • The question of the costs of this hearing is reserved.