Kingdom Towers 1 Pty Ltd v Liverpool City Council [2021] NSWLEC 1074

Kingdom Towers 1 Pty Ltd v Liverpool City Council [2021] NSWLEC 1074

The proposal did not satisfy the precondition in cl 7.5A(2) of Liverpool Local Environmental Plan 2008 that at least 20% of the gross floor area of the building be used for nominated qualifying uses. The proposed hotel accommodation was not business premises because its purpose was the provision of relatively...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
03 March 2021
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Concept Development Application DA 626/2018 / Hearing and Final Determination
Outcome
The appeal was dismissed and Concept Development Application DA-626/2018 was refused.
Legal Topics
['concept Development Application' 'mixed Use Development' 'floor Space Ratio and Building Height Uplift' 'interpretation of Liverpool Local Environmental Plan 2008 Cl 7.5 A' 'characterisation of Business Premises' 'characterisation of Food and Drink Premises']
['planning and Environment Law' 'development Consent' 'land Use Planning'] ['concept Development Application' 'mixed Use Development' 'floor Space Ratio and Building Height Uplift' 'interpretation of Liverpool Local Environmental Plan 2008 Cl 7.5 A' 'characterisation of Business Premises' 'characterisation of Food and Drink Premises']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Concept Development Application DA 626/2018 / Hearing and Final Determination

Legal Issues

  1. 1 ['Whether the proposal qualified for maximum floor space ratio and building height uplift under cl 7.5A of Liverpool Local Environmental Plan 2008.' 'Whether cl 7.5A(2) of Liverpool Local Environmental Plan 2008 is beneficial and facultative and warrants the widest interpretation that its language will give.' 'Whether the proposed hotel accommodation may be categorised as business premises for the purposes of cl 7.5A(2).' 'Whether the proposed hotel accommodation may be categorised as food and drink premises by reference to the Dictionary definition of pub.']

Ratio Decidendi

The proposal did not satisfy the precondition in cl 7.5A(2) of Liverpool Local Environmental Plan 2008 that at least 20% of the gross floor area of the building be used for nominated qualifying uses. The proposed hotel accommodation was not business premises because its purpose was the provision of relatively generic and static accommodation rather than services to individual customers in accordance with their particular requirements. It was also not food and drink premises as a pub because, on a common sense assessment, the principal purpose of the proposed hotel accommodation was not retail sale of liquor for consumption on the premises. As the proposal relied on cl 7.5A for uplift but...

Court Disposition

The appeal was dismissed and Concept Development Application DA-626/2018 was refused.

Orders

  • ['The appeal is dismissed.' 'Concept development application DA-626/2018 for a mixed-use development at 402 Macquarie Street, 180-186 Terminus Street and 190 Terminus Street Liverpool is refused.' 'The exhibits are returned except for Exhibits A and B.']