193 Liverpool Road Pty Ltd v Inner West Council

Land and Environment Court (NSW)|2017-02-17|Before: Moore J

Introduction

On 12 May 2016, the Local Government (Council Amalgamations) Proclamation 2016 took effect. One element of the outcome of the proclamation was the amalgamation of Ashfield, Leichhardt and Marrickville Councils to form the new Inner West Council. However, for planning application purposes, the individual local environmental plans, development control plans and council policies applicable to development application processes continued to have effect in the area of each of the three former councils.
For the purposes of the present proceedings, 193 Liverpool Road, Ashfield (the site) is located within the area of the former Ashfield Council and, thus, the development proposed for the site is to be dealt with by having regard, to the extent relevant, to the Ashfield Local Environmental Plan 2013 (LEP 2013) and the Ashfield Development Assessment Policy (DAP) (with this document being superseded by the Ashfield Comprehensive Development Control Plan 2016 (CDCP 2016)), preserving the applicability of the DAP for development applications (such as this one) that were made prior to the coming into effect of the CDCP. It will be necessary to set out a number of provisions of LEP 2013 for the purposes of determining this appeal.

The development proposal

The proposal sought approval for a part three-storey, part eight-storey development, with the three-storey element addressing the street frontage at Liverpool Road, and the eight-storey element set back a distance of ~ 12 metres from the street frontage. Consistent with the development pattern along Liverpool Road in the vicinity of the site, the proposal has a zero setback from the Liverpool Road boundary of the site.
The proposed development has three separate elements. First, at the ground level street frontage, there is proposed to be space for a retail shop and the necessary accessways needed for entry to the remainder of the development. Other ancillary services, unnecessary to be set out in detail, are also provided at this level. Access to the two basement levels of car-parking forms the remainder of this level (with access to that car-parking being by a right-of-way from Murrell Street, a street at a right angle to Liverpool Road and a little to the east of the site).
Above the entrance area and the retail premises, at Levels 1 and 2, there is proposed to be a single, two-level residential apartment. Above the service and driveway areas, to the rear of the site, separated from the apartment element by an internal courtyard at the first level, are proposed to be erected seven levels of boarding house accommodation. This accommodation will provide thirty-eight self-contained single-occupancy accommodation units.
How this proposed development is to be characterised, for the purposes of both LEP 2013 and State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP) discussed below, requires consideration in these proceedings.

The previous Court proceedings

A somewhat similar (but materially, relevantly different) development proposal for this site was the subject of earlier proceedings in this Court. Those proceedings were heard by Tuor C, who determined that that appeal should be rejected and that proposed development refused development consent (193 Liverpool Road Ashfield Pty Ltd v Ashfield Council [2015] NSWLEC 1399). It is, however, unnecessary to refer to that decision further, as the nature of the changes to the design, as later discussed, make it irrelevant to my consideration of this appeal.

The hearing

The hearing commenced, as is customary in Class 1 merit appeals, with a site inspection on the morning of the first day. During the course of the site inspection, Mr Pickles SC, for the Applicant, and Ms Irish, counsel for the Council, had their respective expert planners, Mr Nimo and Mr North, point out relevant matters concerning the site's location; its access right-of-way off Murrell Street; salient features of development within the block where the site is located; and other relevant multi-storey development within Area 1 of the Ashfield town centre.
Mr Nimo and Mr North had held a discussion and produced a Joint Planning Expert Report which was tendered and became Exhibit 3. Mr Nimo and Mr North also gave concurrent oral evidence during the course of the hearing.
Although originally expected to run for a single day, it was necessary for the hearing to go over for half of a second day.

The site

The street address of the site is 193 Liverpool Road, Ashfield. It is located on the northern side of this major arterial road and toward the eastern end of the Ashfield town centre. The site has a frontage of ~10.6 metres to Ashfield Road and a depth, including the right-of-way, of a little over 37 metres (the side boundaries are not identical). The site thus has a site area of 430 square metres. As earlier noted, the site also has the benefit of access via a right-of-way from Murrell Street, the street to the east that defines, effectively and for the purposes of the relevant maps in LEP 2013, the eastern boundary of the Ashfield town centre.
Although the dilapidated building that is presently located on the site at its Liverpool Road frontage is not heritage listed, only this site and one other on the northern side of Liverpool Road between Murrell Street and Brown Street (this being the next street to the west), are not heritage listed in the list of local heritage items in LEP 2013. The relationship between that which is proposed for this site and its adjacent local heritage items plays a role in these proceedings. It is to be observed that the façades of the immediately adjacent heritage items are constructed at the street frontage with no setback and are of a height consistent with the height proposed for the street frontage element of this proposed development.

The planning controls

As earlier noted, a range of provisions of LEP 2013 require to be considered in these proceedings. It is, first, appropriate to set out the element of the Land Use Table in LEP 2013 for that B4 - Mixed Use zone, as this is the zone within which the site and its surrounding allotments are located. The Land Use Table is in the form conventionally adopted for local environmental plans based on the Standard Instrument Template. The Land Use Table extract for the B4 zone is in the following terms: Zone B4 Mixed Use 1 Objectives of zone � To provide a mixture of compatible land uses. � To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. � To enhance the viability, vitality and amenity of Ashfield town centre as the primary business activity, employment and civic centre of Ashfield. � To encourage the orderly and efficient development of land through the consolidation of lots. 2 Permitted without consent Home occupations 3 Permitted with consent Boarding houses; Business identification signs; Child care centres; Commercial premises; Community facilities; Educational establishments; Entertainment facilities; Function centres; Hotel or motel accommodation; Information and education facilities; Medical centres; Passenger transport facilities; Recreation facilities (indoor); Registered clubs; Respite day care centres; Restricted premises; Roads; Seniors housing; Shop top housing; Any other development not specified in item 2 or 4 4 Prohibited Agriculture; Air transport facilities; Airstrips; Animal boarding or training establishments; Biosolids treatment facilities; Boat building and repair facilities; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Crematoria; Depots; Eco-tourist facilities; Electricity generating works; Environmental facilities; Exhibition villages; Extractive industries; Farm buildings; Farm stay accommodation; Forestry; Freight transport facilities; Heavy industrial storage establishments; Helipads; Highway service centres; Home occupations (sex services); Industries; Jetties; Marinas; Mooring pens; Moorings; Mortuaries; Open cut mining; Recreation facilities (major); Rural industries; Sewage treatment plants; Signage; Transport depots; Truck depots; Vehicle body repair workshops; Warehouse or distribution centres; Waste or resource management facilities; Water recreation structures; Water supply systems; Wharf or boating facilities
I have earlier noted that the portions of the proposed development comprise a retail shop, a two-level residential apartment at the first level located above, amongst other space, the retail premises; a tower containing seven levels of boarding house accommodation units; and, at the ground level and two basement levels, service, parking and ancillary spaces.
In this context, it can be seen that, in the list of types of development permitted with development consent in (3) of the Land Use Table extract, boarding houses and shop top housing are expressly permissible. In addition, as a consequence of the wide scope at the conclusion of (3), that any development not otherwise specified in (2) or (4) is permissible with consent, residential flat buildings, a type of development defined in the Dictionary to LEP 2013, is also permissible with development consent as an innominate permissible use.
Three other provisions of LEP 2013 are also relevant, as are a number of definitions contained in the Dictionary to LEP 2013. The three additional relevant provisions are: 1. Clause 2.3(3)(b): 2.3 Zone objectives and Land Use Table (1) … (2) … (3) In the Land Use Table at the end of this Part: (a) … (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone. (4) … 1. Clause 4.3: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to achieve high quality built form for all buildings, (b) to maintain satisfactory sky exposure and daylight to existing buildings, to the sides and rear of taller buildings and to public areas, including parks, streets and lanes, (c) to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings, (d) to maintain satisfactory solar access to existing buildings and public areas. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. (2A) If a building is located on land in Zone B4 Mixed Use, any part of the building that is within 3 metres of the height limit set by subclause (2) must not include any area that forms part of the gross floor area of the building and must not be reasonably capable of modification to include such an area. 1. Clause 4.3 A: 4.3A Exception to maximum height of buildings in Ashfield town centre (1) The objective of this clause is to increase the supply of affordable rental housing by providing height incentives for the development of certain types of affordable rental housing. (2) This clause applies to development for the following purposes on land identified as "Area 1" on the Height of Buildings Map: (a) residential flat buildings, (b) shop top housing that forms part of a mixed use development. (3) Despite clause 4.3 (2), development consent may be granted to development to which this clause applies that exceeds the maximum height shown for the land on the Height of Buildings Map (the maximum height) by no more than 7 metres if: (a) the development will contain at least 1 dwelling used for the purpose of affordable rental housing, and (b) at least 25% of the additional floor space area resulting from the part of the building that exceeds the maximum height will be used for the purpose of affordable rental housing. (4) In this clause, affordable rental housing has the same meaning as in State Environmental Planning Policy (Affordable Rental Housing) 2009.
The Dictionary definitions that are also necessary to be considered are: boarding house means a building that: (a) is wholly or partly let in lodgings, and (b) provides lodgers with a principal place of residence for 3 months or more, and (c) may have shared facilities, such as a communal living room, bathroom, kitchen or laundry, and (d) has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate one or more lodgers, but does not include backpackers' accommodation, a group home, hotel or motel accommodation, seniors housing or a serviced apartment. building height (or height of building) means: (a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or (b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like. dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. Height of Buildings Map means the Ashfield Local Environmental Plan 2013 Height of Buildings Map. residential flat building means a building containing 3 or more dwellings, but does not include an attached dwelling or multi dwelling housing. shop top housing means one or more dwellings located above ground floor retail premises or business premises.
In the later discussion of the role of LEP 2013 in these proceedings, it will also be necessary to make reference to the Height of Buildings Map that forms part of LEP 2013.

The SEPP

The SEPP is a facultative and beneficial state environmental planning policy that applies to the site by virtue of cl 7 of the SEPP causing the SEPP to apply to the whole of the State. To the extent that there is any inconsistency between the SEPP and a local environmental plan (in this instance, LEP 2013), the provisions of the SEPP prevail (see cl 8 of the SEPP).
The SEPP provides for specific beneficial provisions for the provision of affordable rental housing, with the particular facultative provisions that apply depending on the nature of the affordable rental housing proposed to be developed. In this instance, as the proposal is for a boarding house, the provisions of Pt 2 Division 3 Boarding Houses apply. For this appeal, those contained in cl 29(2)(a) and cl 29(4) arise for consideration. These provisions are set out below: 29 Standards that cannot be used to refuse consent (1) … (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b)-(f) … (3) … (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).

The purpose of cl 4.3A

I have set out above the provisions of the SEPP concerning boarding houses and the relevant facultative mandatory and permissive provision that does, or can, permit a boarding house to receive the benefit of additional, otherwise nonconforming, height for its development envelope. As Ms Irish correctly pointed out, there is no such provision in the relevant portions of the SEPP that apply to residential flat buildings, nor is there any such provision for shop top housing.
In accepting that this was the position, Mr Pickles submitted that this provided a logical and coherent basis for understanding why cl 4.3A of LEP 2013 had been included in that plan. He submitted that it was reasonable to assume that, for the purposes of LEP 2013, those who had set the policy framework for the plan had included this provision as a specific provision, in these circumstances, to apply to the Ashfield town centre to compensate for the absence of a bonus height provision for shop top housing or residential flat buildings in the SEPP, with the aim of providing a similar facultative mechanism to allow bonus height for affordable residential housing of these two types, if either were to be proposed in a development in the Ashfield town centre.
A reading of the terms of cl 4.3A, itself, in conjunction with the relevant silence in the provisions of the SEPP, leads me to conclude that the proposition advanced by Mr Pickles, as providing an underlying reason for cl 4.3A, is correct.

Matters in contention

Although the Council's objections to the proposed development were originally pressed on the basis of two separate contentions, the second of them was able to be resolved during the joint conferencing process of the planning experts and needed no further consideration.
The remaining contention was that, as the proposed development exceeded what would ordinarily be the maximum height permitted by LEP 2013 for the site, the proposal was not able to take advantage of the bonus height potentially available pursuant to either LEP 2013 or the SEPP for accommodation characterised as affordable rental housing.
This proposition was advanced on both the basis that the proper construction of the various elements of the planning instruments potentially applicable did not permit the proposed development to be approved as of right, whilst if the proposed development required assessment, on a merit basis, to access the additional height, it was not appropriate to approve the proposed development on such a basis.
With respect to this latter aspect, the Council pressed that the proposed development would be out of character, in a future streetscape sense, because the remaining subdivision pattern of allotments fronting Liverpool Road within the block where the site is located was likely to constrain future development patterns. This, the Council said, would mean the general development characteristic would be of six-storey setback elements, with this proposed development, if approved, being uncharacteristic by virtue of having an eight-storey setback element on the site. A subsidiary merit consideration was also pressed, arising from the fact that all other buildings (bar one) fronting Liverpool Road in the block where the site is located are listed as heritage items in LEP 2013

Mr Pickles' pathways to approval

In his written submissions, Mr Pickles summarised what he said were the four pathways to approval of this development. He wrote: Contention 1 - four paths to approval 9. There are four alternative paths of approval to the application despite the breach of clause 4.3 of ALEP: (i) First, the part of the development on levels 6 and 7 that causes a breach of clause 4.3 comprises a boarding house. Clause 29(2) and clause 4.3A of ALEP allow a maximum height of 30 m. (ii) Secondly and alternatively, if clause 4.3A does not have the effect of allowing a building of 30 m, approval may be granted despite non-compliance with the standard in clause 4.3 because clause 29(4) of SEPP ARH prevails over the prohibition in clause 4.3. (iii) Thirdly, and alternatively, the development while comprising part boarding house, part shop-top housing and retail space may be also characterised under ALEP as a "residential flat building" or "shop-top housing development that forms part of a mixed use development" that qualifies for the maximum height permitted under clause 4.3A. (iv) Fourthly, and alternatively, the development can be approved subject to the Court being satisfied pursuant to clause 4.6(4) of ALEP.
As can be seen, his third pathway comprises two separate subpathways and each needs separate analysis. I therefore turn to consider each of the five resulting pathways in turn.

Pathway 1

The terms of cl 29(2)(a) of the SEPP require consideration as to whether Mr Pickles' Pathway 1 is able to be utilised for the approval of this development.
Mr Pickles submits that cl 29(2)(a) of the SEPP provides an appropriate basis upon which to conclude that this proposed development is entitled, as of right, to approval through the facultative avenue provided by this provision of the SEPP.
I am satisfied that this submission is correct. To understand why, it is necessary to take the words in the provision, "the maximum building height permitted under another environmental planning instrument or any building on the land", and analyse what is the relevant meaning to be derived from those words for the purposes of this assessment.
The starting position, in this analysis, are the terms of cl 4.3 of LEP 2013. This provision has earlier been set out. It provides the relevant, mandated link to the Height of Buildings Map (a defined term in LEP 2013 - with that definition earlier set out). There are two aspects of this map that should be noted in the context of this analysis. First, as can be seen from the extract from that map reproduced below (with the site marked in red boundaries by me), the site is within Area 1, as specifically identified on the map. Area 1 is a specific and confined precinct identified as the Ashfield town centre.
The second element of the Height of Buildings Map that warrants being noted is the colour-coded legend appearing on the left-hand side of the copy of the map in evidence in these proceedings. A copy of that legend is reproduced below.
As can be seen from the legend, for Area 1, express reference takes an observer seeking to analyse what might be the maximum height of a building permitted in Area 1 not to an annotated height (as is the position which applies for the other colour-coding elements in the legend reproduced above), but to cl 4.3A of LEP 2013.
The reason for this is that, despite the terms of cl 4.3 of LEP 2013, cl 4.3A of LEP 2013 provides an internal facultative exception provision for what might otherwise be the height limit that might be presumed to apply in Area 1.
This, then, requires returning to an analysis of the relevant portion of cl 29(2)(a) of the SEPP. The rhetorical question now to be asked and answered is "What is the maximum building height for any building on the land?".
The answer to that is given, clearly and expressly, by cl 4.3A(2) of LEP 2013. That answer is that a residential flat building or shop top housing is permitted to be built to a maximum height of 30 metres in Area 1, provided that such residential flat building or shop top housing is for the purposes of affordable residential housing. Each of these types of building is permitted under LEP 2013, by virtue of the facultative provisions cited, to be built on the land.
To adjust the wording of the provision in the SEPP to reflect this position means that the maximum building height permitted under LEP 2013 for a residential flat building or shop top housing built on the land is 30 metres, provided that residential flat building or shop top housing is for the purposes of affordable rental housing.
Properly analysed in this fashion, it is evident that, as Mr Pickles submitted, this development proposal is one to which cl 29(2)(a) of the SEPP applies and that that clause mandates that this Court, standing in the shoes of the Council as the consent authority in these proceedings, must not refuse consent to this development. The upholding of this appeal and the granting of development consent to the proposed development on 193 Liverpool Road, Ashfield is, therefore, to be seen to be mandated in circumstances where the Council raises no merit issues with the design of the building for any other reason.
This proper construction of cl 29(2)(a) of the SEPP is sufficient to dispose of these proceedings. Indeed, this interpretation is one which self-evidently applies from a careful reading of the provision.
However, as this matter has been more widely argued on a number of other bases and I am of the view that three of the four further bases advanced by Mr Pickles also result in the same conclusion (with two of those being on the basis of statutory construction and mandating such conclusion), it is appropriate that I set out my reasoning of those three additional bases.

Pathway 2

I now turn to consider the pathway provided by cl 29(4) of the SEPP. This provision arises in my consideration of Mr Pickles' Pathway 2 and is in the following terms: (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).
This is, self-evidently, a provision that does not provide an automatic pathway to approval but one which requires consideration of discretionary matters in an assessment of the proposed height exceedence.
In this regard, Ms Irish submitted that it was appropriate, in undertaking such an assessment, that the process to be undertaken was to be considered equivalent to that engaged in the assessment of an objection pursuant to cl 4.6 of LEP 2013 to complying with a standard set by LEP 2013 (in this instance, the 23-metre height limit engaged by cl 4.3 of LEP 2013). In advancing this proposition, Ms Irish relied upon the approach taken by Brown C in White v Parramatta City Council [2011] NSWLEC 1059 (White) and in Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026 (Panarea).
A careful examination of each of those decisions reveals that the Commissioner, in each instance, considered it appropriate to have regard to the relevant zone and other objectives in considering whether or not to give the dispensation pursuant to cl 29(4) that was sought in each instance. This is clear from White at [42] and Panarea at [33].
However, if I am wrong in my understanding of the approach taken by the Commissioner, I am not bound by it but, obviously, need to explain why I consider some alternative approach would be appropriate.
I do not consider that a strict cl 4.6-like approach is mandated because there is nothing in the terms of this provision of the SEPP that purports to impose fetters on the exercise of the discretion given by it in the fashion that arises from the very structured testing regime that flows from cl 4.6 itself. The absence of such a regime, in my view, means that it is inappropriate to infer that such a strict regime would be required to be applied.
A proper merit assessment, having regard to the matters pressed by the Council in its contentions, would, in my view, be the appropriate course to follow. I undertake this process below.

The site consolidation issue

Mr North was concerned that approval of this proposed development, at eight storeys in height, would end up being an intrusive and unacceptable element in the streetscape of this portion of Liverpool Road as, he opined in the Joint Expert Planning Report, it was likely that the remainder of the development along this portion of Liverpool Road between Murrell Street and Brown Street would be limited to six storeys as a result of existing allotment size constraints.
Mr Nimo had two responses to this broad proposition. First, he was of the opinion that the design of the building proposed for the site was one of an appropriately high standard of design so as to make, in itself, a positive contribution to the streetscape.
As I understood his position, particularly given that redevelopment along this portion of Liverpool Road will be evolutionary, the proposed development's positive contribution to the streetscape would be somewhat akin to infill redevelopments which had occurred to the west where a similar broad design strategy of having the tower element of the building somewhat set back from the street frontage had been a significant element of the design outcome. These were observed during the site inspection.
Mr Nimo was also of the opinion that, although the other allotment sizes along this element of Liverpool Road might not, individually, sustain development of the same height as proposed in this design, he expected that the economic incentive of being able to access the bonus height provisions provided by either the SEPP or cl 4.3A of LEP 2013 would be sufficient to ensure that site amalgamations took place as part of the redevelopment process in order to access this economic benefit.
In support of this proposition, Mr Nimo had pointed out, during the course of the site inspection, the location of an approved (but unconstructed) development in Murrell Street that had involved the consolidation of three adjoining sites, with the consolidated site comprising two former single dwellings and a small existing two-level apartment building.
The question of how this portion of Liverpool Road will redevelop over time is at the heart of the concerns pressed by the Council as to why the proposed redevelopment should be rejected.

Applicability and continuing validity of Planning Principles

In the Joint Planning Expert Report, at page 8, Mr Nimo discussed the potential applicability of three planning principles that have been, over time, developed and published by the Court concerning redevelopment of sites and potential impacts on neighbouring sites. Those planning principles were set out in:

Karavellas v Sutherland Shire Council [2004] NSWLEC 251 (Karavellas);
Melissa Grech v Auburn Council [2004] NSWLEC 40 (Melissa Grech); and
Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189 (Cornerstone)

In Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 (Revelop) at [30], I explained the process that the Commissioners of the Court had undertaken to review the then existing planning principles. In the decision in Revelop, I took the opportunity to explain the outcome of that review with respect to the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 concerning compatibility of a proposal with surrounding development. A number of other decisions of Commissioners, since Revelop, have taken the opportunity to address the outcomes of that review concerning other planning principles. This decision provides an appropriate opportunity to deal with the planning principles listed immediately above dealing with issues of site amalgamation.
A reading of the discussion in Karavellas makes it clear that the planning principle there enunciated by Tuor C folded in and subsumed the planning principles in Melissa Grech and Cornerstone. There is, at [17] to [19] in Karavellas, a discussion of an express incorporation of the planning principle elements of those two decisions in the planning principle established by Karavellas.
As a consequence, the Commissioners have concluded that the planning principle set out in Karavellas remains valid and does not require revision. However, as this planning principle has absorbed the earlier planning principles set out in Melissa Grech and Cornerstone, the Commissioners have determined that it is no longer necessary to refer, separately, to these two earlier decisions, as the consolidated planning principle in Karavellas is sufficient and comprehensive for future purposes.

Consideration of this proposed development

For my consideration of this proposed development there is, however, no need to consider the now confirmed planning principle in Karavellas. This is because I am satisfied that the economic incentive provided by the additional height incentive will inevitably act as sufficient reason for future redevelopment to be likely to give rise to site consolidations that will make a pattern of eight-storey development of a similar typology likely to occur, if not uniformly along this portion of Liverpool Road, at least with sufficient incidence to ensure that the development on this site will not be an orphan protruding two levels above an otherwise consistent six-level streetscape.
Although it may be, at some future time in the redevelopment cycle, necessary for the Council to consider the application of the planning principle in Karavellas to this portion of the Ashfield town centre, there is no specific potentially orphan site arising from the present proposed development that would warrant its invocation.
I do not consider that the necessity for future site consolidations being required to provide opportunities for buildings, consistent with the general design of that which is here proposed, is improbable. Indeed, for the reasons set out above, I think that the contrary position will prevail.

The presence of heritage items

As earlier noted, this site, and one other allotment along this portion of Liverpool Road, are the only sites that are not listed as heritage items in LEP 2013.
As I understand the position, the presence of these heritage items does not act to prevent the probability of future redevelopment of a general built form consistent with that proposed in this development.
It was Mr Nimo's evidence, during the course of the site inspection, that the redevelopment of the former Ashfield Post Office site in Hercules Street had been undertaken in a fashion where the built form (of three levels at the street frontage with the tower element set back behind) had been constructed on the Post Office site in a fashion that incorporated the heritage fabric of the façade of that building in the redevelopment. He anticipated that such a treatment would be undertaken for any redevelopments of heritage sites in the block between Murrell Street and Brown Street along the Liverpool Road frontage.
Such a heritage façade incorporation in future designs was, as I understood the position, regarded as an acceptable design outcome, given the much more intense and taller redeveloped character of the area envisaged by the now applicable planning controls in LEP 2013 for Area 1 (the Ashfield town centre).
As a consequence, I consider that Mr North's concerns that this proposed development would be alien in a streetscape context are fundamentally misplaced. A combination of sufficient quality of design, coupled with what can reasonably be expected to be future redevelopment patterns for the reasons described, render the present proposal acceptable in its planning context.
The proposal therefore warrants approval, as a matter of discretion, pursuant to cl 29(4) of the SEPP.

Pathway 3(a) - residential flat building

I have earlier explained why "residential flat building" is an innominate permissible use within the B4 - Mixed Use zone where the site is located. I have also set out the provisions of cl 2.3(3)(b) of LEP 2013 that acts to permit one defined use in a zone, where that use is a nominated one in the Land Use Table, to also be regarded as being development for another defined use in the same zone, where that second use is permitted by virtue of an innominate permitted use provision in the relevant "permitted with development consent" provision of the Land Use Table for that zone.
The consequence of that, for these proceedings, is that the proposed boarding house is also able to be considered as a residential flat building, as it can be seen, from the definitions extracted from LEP 2013 as earlier set out, that the proposed development also satisfies that provision.
On the question of whether characterising the use of the proposed development as being for the purpose of a residential flat building could provide a basis for the proposed development having an entitlement to the additional height by virtue of the operation of cl 4.3A(2)(a) of LEP 2013, Ms Irish relied on three decisions to support the proposition that this was not so. In each instance, her submission cannot find the support she sought by consideration of the circumstances arising in each instance.
Before turning to each of the decisions, it is appropriate to observe that the earlier set out extract from cl 2.3(3)(b) of LEP 2013 makes it clear that, when issues of potential dual characterisation are being considered, a proposed development that is expressly permissible in the B4 zone (boarding house being such a specifically identified use) can also be regarded as another use provided that that use is a permissible innominate use (as is here the case where, as earlier noted, residential flat building is not expressly listed in (3) of the Land Use Table for the B4 zone but is rendered permissible by the catch-all provision at the conclusion of that element of the Land Use Table for the B4 zone).
Before turning to each of the three cases upon which Ms Irish has relied, it is to be noted that, contrary to the design dealt with by Tuor C in the earlier noted decision concerning a proposed boarding house on this site, the current design proposes that each of the boarding house units will satisfy the definition of a dwelling in LEP 2013 and thus, by doing so, cause the whole of the residential component of the proposed development to satisfy the definition in LEP 2013 of residential flat building.
As a consequence, in contrast to the position arising in each of the cases discussed below, this proposed development, with respect to the eight-storey element setback from Liverpool Road, can validly be regarded as either a boarding house or a residential flat building for assessment purposes. I now turn to consideration of the three cases relied upon by Ms Irish.
In Warlam Pty Ltd v Marrickville Council (2009) 165 LGERA 184; [2009] NSWLEC 23, Biscoe J was considering an application for additions and alterations to an existing boarding house. As the additions and alterations included the incorporation of design elements in a number of the boarding house units that would cause those units to satisfy the definition of the dwelling in the relevant applicable local environmental plan, such incorporation would also have caused the boarding house to be regarded as a residential flat building. As residential flat buildings were prohibited in the zone where the boarding house was located, such a prohibited use would have infected the proposal in a fashion to render it impermissible. Design changes were made that ensured that the proposed development, if approved, would not be a residential flat building and, thus, the proposed development came permissible.
In Abdo v Fairfield City Council; Tony & Janet Partners Pty Ltd v Fairfield City Council; Abdo v Fairfield City Council (No 2) (2012) 191 LGERA 231; [2012] NSWLEC 247, Lloyd AJ was considering a development for a boarding house where that proposed development had two separate design elements, one of which was permissible and the other of which was prohibited. Unlike Warlam, there was no redesign option available to rectify the prohibition and, as a consequence, that proposed development was refused.
In Abret Pty Limited v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107, the Court of Appeal was faced with the same characterisation of use position as in Abdo. As a consequence, that development also required rejection.
Because, for the reasons earlier set out, the proposed development here under consideration is nominate permissible/innominate permissible, none of these decisions is applicable to this proposed development.
As can be seen from the provisions of cl 4.3A(2)(a), as earlier set out, proposed development for the purpose of residential flat buildings, where such residential flat building is also proposed to provide affordable rental housing, attracts the facultative height bonus provision of this clause of LEP 2013.
As this proposed development, therefore, is brought within the framework facilitated by cl 4.3A, the bonus height which this development seeks is additional height to which the development is entitled as of right.
The proposed development is, therefore, entitled to approval pursuant to this clause on this basis.

Pathway 3(b) - shop top housing

Access to the bonus height for the purposes of development characterised as the use of shop top housing for the purposes of affordable rental housing arises from cl 4.3A(2)(b). The terms of this provision have been earlier set out. Each unit is to be a dwelling as defined.
In this aspect of my assessment, it is necessary to consider whether cl 2.3(3)(b) of LEP 2013 (as earlier set out) operates so as to prevent the application of cl 4.3A(2)(b) to this development if characterised as shop top housing.
I am satisfied that it does not.
In this case, although the use for which the development application has been made is that of a boarding house, it would also be entirely consistent to characterise the entirety of the residential element of the proposed development (the street frontage apartment and the seven-storey accommodation tower in combination) as serving the purpose of shop top housing as defined (Shire of Perth v O'Keefe (1964) 110 CLR 529; Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114) in the alternative to boarding house (and not in addition to boarding house - this being the path prohibited by cl 2.3(3)(b)).
If this approach were to be taken (and I can see no reason why it could not be taken in these circumstances), it would be permissible, for the purposes of cl 4.3A(2)(b) of LEP 2013 to describe the purpose that the accommodation elements (particularly including the tower element) of this proposed development as serving as shop top housing. As a consequence, cl 2.3(3)(b) does not stand as a barrier to the invoking of cl 4.3A(2)(b) to provide a pathway to the mandating of the approval of this proposed development as shop top housing.
It therefore requires to be considered whether or not this proposed development can be characterised as shop top housing, a permissible use in the B4 - Mixed Use zone (Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114).
In Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113 at [21], I summarised the relevant element of the decision of Sheahan J in Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121. I said: 21 That matter was dealt with by Sheahan J in Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121. His Honour held that it was necessary for the purpose of the definition of shop top housing for the lowest point of any dwelling that was proposed to be regarded as shop top housing to be entirely above ground floor retail premises or business premises, that is there have to be a vertical surmounting of the shop top housing from the underlying qualifying premises. However, importantly for these proceedings, his Honour also made it clear that it was possible for there to be a lateral displacement in such circumstances, in that there did not need to be a true directly vertical correlation between the shop top housing and the qualifying premises at the lower level.
It is clear that this proposal satisfies those provisions. As the element of the proposed development which would otherwise exceed the height control of 23 metres derived from the LEP 2013 Height of Buildings Map is for the purposes of affordable rental housing, cl 4.3A(2)(b) operates in a fashion similar to that described for Pathway 3(a) and makes this proposed development entitled to access the bonus height as of right.
The proposed development is, therefore, entitled to approval pursuant to this clause on this basis.

Pathway 4 - cl 4.6 objection?

The fourth pathway proposed by Mr Pickles would have involved consideration of whether an objection to compliance with the height control should have been sustained pursuant to the mechanism provided through cl 4.6 of LEP 2013.
Although I granted leave to the Applicant to amend the development application to rely on a revised cl 4.6 objection that had been prepared by Mr Nimo and appended to the Joint Expert Planning Report, as that amended cl 4.6 objection had not been assessed by Mr North and Ms Irish had not, as a consequence, had an opportunity to be advised on it and make submissions concerning it, it is unnecessary for me to consider that further path to approval.

Conclusion

I have earlier set out four pathways by which Mr Pickles had submitted it was either mandated or possible (and appropriate) to grant development consent to the proposed development at 193 Liverpool Road, Ashfield. In setting out those pathways, I have numbered them from 1 to 4, whilst subdividing Pathway 3 into two separate subpathways.
For the reasons earlier set out, Pathways 1 and 3(a) and (b) are satisfied and, as a consequence, each of these separately mandates approval of the development.
In addition, Pathway 2, one which involves the exercise of a discretion on the part of the consent authority (in this case, the Court standing in the shoes of the Inner West Council), on a proper consideration of the facts and circumstances of the proposed development and those elements of the planning instruments of the former Ashfield Council that warrant consideration, considering whether to exercise this discretion results in the conclusion that this development proposal would warrant approval via that pathway.
As a consequence, there are not one but four separate, alternative bases upon which this appeal should be upheld and development consent granted to the proposed development.

Orders

The orders of the Court are: 1. The appeal is upheld; 2. 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, subject to the conditions in Annexure A; 3. Costs are reserved; and 4. The exhibits, other than Exhibits A, D and 1, are returned. Annexure A - Agreed Conditions 16.02.17 (81.5 KB, docx)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2017

(2009) 165 LGERA 184; [2009] NSWLEC 23 White v Parramatta City Council [2011] NSWLEC 1059 Category: Principal judgment Parties: 193 Liverpool Road Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: Mr A Pickles SC (Applicant) Ms H Irish, barrister (Respondent)

(2012) 191 LGERA 231

(2011) 180 LGERA 343

(2007) 151 LGERA 400

(2009) 165 LGERA 184

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