Codling v Central Coast Council

The site and its locality

1. The site is an irregular shaped, vacant site of 6458m² located at the end of a cul-de-sac known as Colony Close. It is relatively flat, and has a curved road frontage and a depth of around 82m. The site is cleared and vacant land, with the exception of a few trees located along the front boundary.
2. Surrounding the site are a range of different uses, including community services, industrial and commercial buildings.

The Planning Framework

1. The site is zoned B7 Business Park under the Wyong Local Environmental Plan 2013 ("WLEP 2013"). Clause 2.3(2) of the WLEP 2013 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are: • To provide a range of office and light industrial uses. • To encourage employment opportunities. • To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. • To permit limited residential accommodation that contributes to the provision of employment opportunities.
2. Whilst "residential accommodation" is a nominated prohibited use in the B7 Business Park zone, "shop top housing" is a nominated permissible use.
3. "Residential accommodation" is defined in the Dictionary to the WLEP 2013 as follows: residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following: (a) attached dwellings, (b) boarding houses, (c) dual occupancies, (d) dwelling houses, (e) group homes, (f) hostels, (g) multi dwelling housing, (h) residential flat buildings, (i) rural workers' dwellings, (j) secondary dwellings, (k) semi-detached dwellings, (l) seniors housing, (m) shop top housing, but does not include tourist and visitor accommodation or caravan parks.
4. Whilst this appears to cause an inconsistency within the zoning table by the prohibition of "residential accommodation" and the permissibility of "shop top housing", this inconsistency is resolved by cl 2.3(3)(b), which provides that: (3) In the Land Use Table at the end of this Part: … (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.
5. The effect of cl 2.3(3)(b) is that the nomination of "shop top housing" as a permissible use excludes it from the general category of prohibited "residential accommodation" uses for the purposes of the zoning table with respect to the B7 zone. That is, whilst "shop top housing" is permissible in the zone, all other forms of residential accommodation are prohibited.
6. Similarly, whilst the general category "commercial premises" (which include retail and business premises) are prohibited in the B7 zone, development for the purposes of "Food and drink premises" and "Neighbourhood shops" are both nominated permissible uses.
7. Further, whilst the general uses of "Tourist and visitor accommodation" (which include serviced apartments in the definition in the WLEP 2013) are prohibited in the B7 zone, development for the purpose of "Serviced apartments" is a nominated permissible use in the zone.
8. As such, each of the uses proposed by Mr Codling in the development application is permissible in the B7 zone. Notwithstanding this, the Council raises an issue as to whether the proposed uses can be properly characterised as those nominated permissible uses.
9. The parties both agree that the development is a "mixed use development" under the WLEP 2013, which means "a building or place comprising 2 or more different land uses".
10. However, any development for the purposes of shop top housing must comply with cl 7.13 of the WLEP 2013, which provides as follows: 7.13 Shop top housing in certain business zones (1) This clause applies to land in the following zones: (a) Zone B5 Business Development, (b) Zone B6 Enterprise Corridor, (c) Zone B7 Business Park. (2) Development consent must not be granted for development for the purpose of shop top housing on land to which this clause applies unless the gross floor area used for that purpose will not exceed 50 per cent of the total gross floor area of the building.
11. As such, shop top housing cannot exceed 50% of "the total gross floor area of the building."
12. The parties agree that the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ("SEPP 65") also applies to the shop top housing, and provides at cl 28(2) that: (2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide.
13. Clause 30(2) of SEPP 65 provides: (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria.
14. The Apartment Design Guide ("ADG") is therefore relevant in the context of cll 28 and 30. The experts agree that the dwellings identified as shop top housing comply with the ADG, and that there is no requirement for serviced apartments to comply with the ADG.
15. The Wyong Development Control Plan 2013 ("WDCP 2013") also applies. Chapter 6.14 of the WDCP 2013 concerns the Tuggerah Precinct, in which the site is located. Chapter 6.14 provides general objectives and controls for the precinct, and then divides the precinct into 4 areas. Area D is the Tuggerah Business Park, in which the site is located. Section 3.4 of Chapter 6.14 provides objectives and controls specific to Area D.
16. Further, a draft local environmental plan, which consolidates the WLEP 2013 and three other instruments within the local governmental area of the Council, is the subject of a Gateway Determination by the Minister for Planning and was exhibited between 6 December 2018 and 28 February 2019. It is known as the draft Central Coast Local Environmental Plan 2018 ("CCLEP").
17. The Gateway Determination was issued on 26 October 2017, with a condition that the plan be completed by 26 October 2018. On the 29 November 2018, the Gateway Determination was amended to extend the timeframe for completion of the CCLEP to the 26 October 2019.
18. Following the Gateway determination, but prior to the exhibition of the CCLEP, the wording of the current cl 7.13 was amended and is proposed to be cl 7.14 under the CCLEP as follows: "(1) This clause applies to land in the following zones: (a) Zone B5 Business Development, (b) Zone B6 Enterprise Corridor, (c) Zone B7 Business Park. (2) Development consent must not be granted for development for the purpose of shop top housing on land to which this clause applies unless the gross floor area used for that purpose will not exceed 50 per cent of the total gross floor area of the ground floor retail premises or business premises."
19. Under this proposed provision, shop top housing cannot exceed 50% "of the total gross floor area of the ground floor retail premises or business premises."
20. However, a savings and transition provision is also proposed to apply, as follows: "1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced."
21. This means that even if the CCLEP is made, the present development application must be determined "as if this Plan had not commenced".

Evidence

1. Expert evidence on the town planning issues was given by Ms Salli Pendergast, an employee of the Council, and Mr Garry Chapman, a consultant town planner engaged by Mr Codling. Expert evidence on the strategic planning concerning the CCLEP was also given by Ms Breanne Bryant. The three experts conferred and produced a joint report, which was in evidence at the hearing, and also gave concurrent evidence at the hearing.

Is the proposed development for a permissible use?

1. Shop top housing, one of the permissible uses for which consent is sought, is defined in the Dictionary to the WLEP 2013 as follows: shop top housing means one or more dwellings located above ground floor retail premises or business premises.
2. Serviced apartment is defined as follows: serviced apartment means a building (or part of a building) providing self-contained accommodation to tourists or visitors on a commercial basis and that is regularly serviced or cleaned by the owner or manager of the building or part of the building or the owner's or manager's agents.

The Council's position that the proposed use is not permissible

1. The Council contends that the proper categorisation of the development is not for uses that are permissible. It raises this contention on a number of grounds. Firstly, the Council's position is that the definition of shop top housing does not encompass other forms of accommodation, such as serviced apartments, being located within a shop top housing building. Secondly, Mr Wright SC, counsel for the Council, submits that the ground floor serviced apartments are similarly contrary to the definition of shop top housing, which does not allow residential uses at the ground floor. Thirdly, he submits that the serviced apartments are similar in appearance to the layouts of the dwellings, and that the proper characterisation of the development is therefore as a residential flat building. Fourthly, Mr Wright submits on behalf of the Council that due to the layout of the serviced apartments, the ongoing use of the serviced apartments for temporary rather than permanent accommodation cannot be reliably enforced, and is not self-policing.
2. In support of these submissions, the Council relies on the evidence of Ms Pendergast, who opines that shop top housing does not allow additional uses other than the ground floor retail and the shop top housing. That is, she considers that what is proposed is a mixed use development containing residential accommodation other than shop top housing. Further, she opines that, with the indistinguishable layout of the serviced apartments and the dwellings, there will be difficulty enforcing the serviced apartment use and the building is more properly characterised as a residential flat building.
3. The Council also relies on the decision in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [36], in which Preston CJ considered that the activities of the supermarket and car parking were "so commingled" that the uses were for the same purpose. In reaching that conclusion, His Honour stated at [36] that: "The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes…"
4. Mr Wright submits, on behalf of the Council, that on a "common-sense" reading of the plans, the building is by nature residential and that the activities of the serviced apartments and the shop top housing are so comingled that they cannot be considered discrete uses. He submits that the proposed use should therefore be characterised as a residential flat building, which is prohibited in the B7 zone.

Mr Codling's position that the proposed uses are permissible

1. Mr Tomasetti SC, counsel for Mr Codling, instead submits that the dwellings within the proposed development meet the definition of shop top housing, as they are located above ground floor retail or business premises. He submits that the definition of shop top housing does not preclude other land uses at ground level, or within the building. He relies on the decision of Sheahan J in Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121, in which (at [56]) His Honour accepted submissions (recited at [34]) that "dwellings do not need to be directly or immediately above ground floor retail premises or business premises in order to be characterised as 'shop top housing'", and that: "a broad interpretation of the word 'above' in the definition should be given which would suggest that the dwellings need only be at a floor level that is higher than the top of the ground floor retail or business premises and do not need to be contained in an envelope on the higher floor level that would be intersected by a line drawn vertically from within the envelope of the ground floor retail or business premises."
2. This decision was considered by Senior Commissioner Moore (as His Honour then was) in Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 113, in which he stated (at [21]) that in Hrsto v Canterbury City Council "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."
3. Mr Tomasetti submits, on behalf of Mr Codling, that the proposed dwellings therefore fall within the definition of "shop top housing".
4. Further, Mr Tomasetti submits that serviced apartments are a type of permissible business premises as, pursuant to the definition of a serviced apartment, they are operated "on a commercial basis". Consistent with the definition of "business premises" they are a service "provided directly to members of the public on a regular basis". As such, Mr Tomasetti says that the serviced apartments at ground floor are a use for the purposes of "business premises", above which shop top housing dwellings can be located.
5. Mr Codling also relies on the evidence of Mr Chapman that there is a clear separation between the serviced apartments use and the shop top housing use. Mr Chapman opines that the plans nominate serviced apartments by colour coding, and show that the serviced apartments are located at the rear, southern portion of the building. Each have a separate entrance, and a concierge manages the entrance to the serviced apartments. Mr Chapman's evidence is that if required, additional separation between the residential dwellings and the serviced apartments could be achieved by a system of lift operation so that for the occupants of the serviced apartments, the lifts only open to the side of the development containing the service apartments, and for the occupants of the dwellings, the lifts only open to the side of the development containing the shop top housing. He considers that this, together with the closing of some of the doors within the corridors, will separate the residential and serviced apartment corridors. Further, his evidence is that the serviced apartments will have an on-site manager and operate under a Plan of Management with a minimum stay of 3 nights and maximum stay of 6 months. He considers that the Plan of Management and associated length of stay can be covered by the conditions of consent and by a covenant on the title for the strata title, and that there can also be separate strata plans for the two uses.

The proposed uses are permissible

1. I accept the proposed development is for a mixed use development, and that each component is permissible with development consent. I do not accept that it should be characterised as a residential flat building.
2. Firstly, the proposed dwellings clearly fall within the definition of shop top housing. I accept that they are "one or more dwellings located above ground floor retail premises", and that, consistent with the decisions in Arco Iris Trading Pty Ltd v North Sydney Council and Hrsto v Canterbury City Council, the dwellings are at a floor level that is higher than the top of the ground floor retail even though there is some lateral displacement at the upper levels. I note also that, shop top housing comprises the dwellings themselves, and does not include the ground floor uses that qualify the definition of shop top housing.
3. Secondly, there is nothing in the definitions of shop top housing or mixed use development that precludes shop top housing forming part of a mixed use development.
4. Thirdly, there is nothing in the definition of shop top housing that precludes there being other permissible ground floor uses that are not retail or business uses, in addition to the ground floor uses that qualify the shop top housing. As such, it is acceptable to have some serviced apartments located at the ground floor regardless of whether or not I consider the apartments to be "business premises".
5. Fourthly, as set out above in [11]-[14], each of the uses for which consent is sought are nominate permissible uses in the B7 zone. This includes the serviced apartments, which is a separate use to the shop top housing.
6. Fifthly, the risk that the serviced apartments might be used for the purposes of dwellings in the future is not relevant to determining the permissibility of the use that is presently sought. That is, whether there is a risk that the use of the premises might evolve into an illegal use is irrelevant to determining whether consent should be granted for a permissible use. With respect to the serviced apartments, I need only be satisfied that the application seeks consent to carry out development for the purpose of serviced apartments, and that those apartments can be used for that purpose. The mere fact that they have the same layout as the dwellings is of no consequence, given that serviced apartments are required to be self-contained. I consider that the separate entry and clear marking on the plans demonstrate that they will be utilised for a different purpose to the dwellings, and I accept the evidence of Mr Chapman that the further separation of the uses can be maintained and regulated through a Plan of Management. The agreed conditions of development consent also require a register to be maintained with details of the length of each stay or each person accommodated in the serviced apartments, and for that register to be made available to the Council upon request. This condition is sufficient to allow the Council to ensure that the serviced apartments are being used as self-contained accommodation for tourists or visitors, and not as dwellings.
7. For these reasons, the application seeks consent for development for the purpose of uses that are permissible in the zone.

Does the proposed development satisfy cl 7.13 of the WLEP 2013?

1. Pursuant to cl 7.13 of the WLEP 2013, shop top housing in the B7 zone cannot exceed 50% of "the total gross floor area of the building." In s 1.4 of the EPA Act, the word "building" is defined to include "part of a building".
2. "Gross floor area" is defined in the Dictionary to the WLEP 2013, and pursuant to that definition the total gross floor area of the entire proposed building is 5130m2. The retail at the ground floor level has a floor area of 285m2, the use for the purpose of the dwellings has a floor area of 2491m2, and the serviced apartments have a floor area of 2354m2. Indeed, following the amendment of the plans on the final day of the hearing, the floor area utilised for the dwellings reduces to 2400m2, and the floor area for the serviced apartments increases to 2444m2.
3. The Council's position is that the word "building" in cl 7.13 is constrained to that part of the building that comprises the dwellings as well as the ground floor uses which enable the definition of shop top housing. The Council submits that any other construction of the word "building" allows other (unrelated) uses within the building to enlarge the floor space that can be utilised for shop top housing. As such, the evidence of Ms Pendergast is that, to calculate the percentage of shop top housing, the floor space of the serviced apartment use should be subtracted from the whole of the building to determine "the total gross floor area of the building". Her evidence is that, as the proposal includes 285m2 of ground floor retail, the effect of cl 7.13 should be that the floor area of shop top housing should be limited to 285m2. Her evidence is therefore that the "total gross floor area of the building" is 2776m2 (the total building less the serviced apartment use) and the shop top housing is 90% of this floor area, in breach of cl 7.13. As such, the Council submits that cl 7.13 precludes consent being granted to the shop top housing.
4. Alternatively, due to the residential nature of the serviced apartments, the Council's other calculation includes the serviced apartments in the shop top housing. Ms Pendergast's evidence is that the residential component is considered to include the serviced apartment units as, in her opinion, these are capable of readily being used for residential purposes. On this basis, she calculates that 94.5% of the floor area of the building can be used for residential accommodation, and is similarly a breach of cl 7.13.
5. Mr Codling's position, instead, is that cl 7.13 should have its ordinary meaning and that the "total gross floor area of the building" is 5130m2, and the shop top housing comprises 2491m2. This means that the shop top housing comprises 48.5% of the total gross floor area of the building. Indeed, this percentage will be smaller with the amendment to the plans that was made at the hearing. As such, Mr Codling submits that cl 7.13 is complied with.
6. I accept the position of Mr Codling that cl 7.13 is complied with. I do not accept that you can confine the reading of the word "building" in the way sought by the Council merely due to what they consider to be an unintended consequence of cl 7.13. Instead, the interpretation of cl 7.13 must be taken from the words of the clause itself, taken in their context. There is nothing in the wording of cl 7.13 that suggests that the word "building" should be confined in the manner contended by the Council. Although the word "building" can mean part of a building (pursuant to s 1.4 of the EPA Act), there is nothing in cl 7.13 that suggests that the use of the word "building" is confined to that part of the building that comprises only the shop top housing and the qualifying ground floor uses that enable the shop top housing.
7. Further, I have accepted above that the serviced apartments are a separate permissible use, and as they do not fall within the definition of "shop top housing" they ought not be included in the calculation of the floor area used for shop top housing. Accordingly, the appropriate calculation is the gross floor area to be used for the purpose of shop top housing (now 2400m2) as a percentage of the total gross floor area of the building, which is 5130m2. As this percentage is less than 50%, the development complies with cl 7.13.

The proposed instrument

1. The Council contends that cl 7.14(2) of the draft CCLEP (quoted at [25]) should be given significant weight because it will, when in force, operate to prohibit the proposed development.
2. Pursuant to proposed cl 7.14(2), development consent cannot be granted if the shop top housing exceeds 50% "of the total gross floor area of the ground floor retail premises or business premises." Applying this to the present application, as the ground floor retail premises has a floor area 285m2, the proposed shop top housing would be limited to 142.5m2. It is clear that if the draft provision applied to the proposed development in its current terms, there would be no scope for approving the proposal, which has 2400m2 of floor space for the purposes of shop top housing.

The history of the change to the wording now found in draft cl 7.14

1. The evidence of Ms Bryant, the strategic planner for the Council, is that the amendment to the wording of the current cl 7.13 that is found in cl 7.14 was a response to the present development application. The purpose of the amendment to the wording is, on her evidence, to clarify that the original intent of that clause was to allow limited shop top housing in the B7 zone. Ms Bryant's evidence, as recorded in the joint expert report, is that it was "not intended that a third land use would be utilised to bulk up the gross floor area of the building to increase the potential gross floor area of the shop top housing."
2. In support of her evidence that the intent of the current cl 7.13 was to limit shop top housing, the Council refers to the WLEP 2013 as exhibited and the Council's response to submissions received on its exhibition. A report on the same states as follows: "The documentation supporting draft WLEP 2012 'Intent of Local Provisions' provided justification for the introduction of the clause. The intent of the clause was to limit shop to housing to 25% of the gross floor area of buildings in the applicable zones, in order to limit the scale of the residential development in these zones. Numerous submissions were received in response to this particular clause. As a result, the Clause was amended based on the following justification as detailed within the report to Council of 8 May 2012: 'These submissions claim that this restriction will have significant development implications. Council has considered these submissions, and agrees that the 25% restriction may present some challenges. However, a restriction should be retained to limit the scale of residential development in these commercial zones, which mainly occur at Tuggerah, Long Jetty and Lake Haven. It is therefore recommended that an amendment to the restriction on shop top housing be implemented, to restrict shop-top housing to 50% of the GFA, rather than 25%. It is considered that this is a more workable solution.' This justification was supported by Council. The amendment clause relating to this matter (cl 7.13…) became effective on the on 23 December 2013, the date on which WLEP 2013 came into effect."
3. As such, the wording of cl 7.13, which has been in its current form since the WLEP 2013 commenced, was finalised following consideration of the submissions received on the exhibition of a more restrictive provision.
4. The proposed amendment to the wording of the current cl 7.13, which is now found in draft cl 7.14, was part of the exhibited draft CCLEP. However, it was not included in the draft instrument the subject of the Gateway determination of the delegate of the Minister for Planning on 26 October 2017. Instead, the draft instrument provided to the Minister made it clear that there was no change to the wording of the current cl 7.13. Nor was it the subject of the amendment to the Gateway determination on 29 November 2018, which was confined to the extension of time to complete the CCLEP. Instead, the Council relies on ss 3.34 and 3.35 as authorising such changes to the proposal. They provide (insofar as relevant): 3.34 Gateway determination (cf previous s 56) … (6) The planning proposal authority may, at any time, forward a revised planning proposal to the Minister. (7) The Minister may, at any time, alter a determination made under this section. (8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under Schedule 1, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that Schedule. … 3.35 Planning proposal authority may vary proposals or not proceed (cf previous s 58) (1) The planning proposal authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason. (2) If it does so, the planning proposal authority is to forward a revised planning proposal to the Minister. …
5. Section 3.35(1) makes it clear that the planning proposal authority, the Council, may vary its proposals "for any… reason". Whilst Ms Bryant's evidence is that the exhibited version of the planning proposal was provided to the Department of Planning, there is no evidence that the revised planning proposal was forwarded to the Minister or a delegate of the Minister in compliance with s 3.35(2) of the EPA Act.

The parties' submissions

1. The Council submits that significant weight should be given to cl 7.14(2) because the making of the draft CCLEP is imminent, and it is certain to be made in a form which includes cl 7.14(2) as drafted. In support of its submission, it relies on the evidence of Ms Bryant that the CCLEP is likely to be made, and that no change to the wording of cl 7.14 is likely.
2. The Council also refers to the authority of the Court of Appeal in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289, in which Mason P states (at [50] and [51]): "50 The cases acknowledge that (as regards a proposal) the relevant instrument is not to be treated as made. But the terms of the transitional provision and the command of s79C(1)(a)(ii) themselves require proper regard to be given to draft instruments that have been exhibited. The cases recognise that proper regard means that some draft instruments are entitled to significant weight. 51 … Common sense explains why significant regard may be given to one whose commencement is imminent and whose terms have become certain. "Imminence" indicates close temporal proximity of application, but stops short of "presence" or "arrival"."
3. The Council also submits that no question arises with respect to the validity of the draft cl 7.14, if it eventuates, as s 3.34(8) of the EPA Act makes it clear that a failure to comply with a requirement of the Minister's determination does not invalidate the instrument.
4. The position of Mr Codling is that draft cl 7.14 is not certain in its terms, and the making of the draft CCLEP is not imminent. In support of this position, Ms Bryant conceded that she couldn't be certain that there would be no change to the wording of cl 7.14, and that she couldn't be certain as to when the CCLEP would be made.
5. Further, Mr Tomasetti points out that over 600 submissions have been received following the exhibition of the draft CCLEP. As such, he submits that the making of the CCLEP cannot be said to be imminent when council staff are still going through the submissions that have been received, and when there is yet to be a report prepared on those submissions for consideration by the Council. Mr Tomasetti also submits that the fact that the Council couldn't complete the consolidating instrument in the first timeframe suggests that the completion within the new timeframe is unlikely and raises further questions about the imminence of the plan.
6. As to the certainty of the terms of the draft cl 7.14, Mr Tomasetti points out that the terms of the current cl 7.13 were changed prior to its introduction in response to submissions received in the exhibition period, following which the Council agreed that the original proposed wording was "restrictive" and "may present some challenges". He submits on behalf of Mr Codling that similarly, following submissions received, the terms of cl 7.14 may change to reduce the restrictive nature of the proposed clause.
7. Additionally, Mr Tomasetti submits that there is little to support the proposed wording of draft cl 7.14. He relies on the evidence of Ms Bryant that it was not the subject of the Gateway determination, it was not drawn to the attention of the Department of Planning, there was no strategic study done to justify the proposed wording, and it was not the subject of consideration or discussion by the elected councillors. This is supported by the evidence of Mr Chapman, who considers that draft cl 7.14 has not been subject to proper planning consideration to assess the effect of the change to the floor area of residential accommodation with shop top housing development in the B5, B6 and B7 zones. Mr Chapman opines that a change to a development standard of this nature should be made as part of a planning review or strategy as a comprehensive review of local environmental plan provisions, not as part of a consolidated plan directed by the Department of Planning.
8. Mr Tomasetti submits that, contrary to the evidence of Ms Bryant, the change is not consistent with the so-called original intent of the provision, as the change to restrict shop top housing to a floor area that is less than 50% of the floor area used for ground floor retail and commercial makes the provision far more restrictive than the wording originally proposed (25% of the building).
9. Further, he submits on behalf of Mr Codling that the fact that it hasn't been submitted for Gateway determination or pursuant to s 3.35(2) raises legal issues concerning compliance with the legal process for a planning proposal.
10. Finally, Mr Codling also relies on the Local Planning Direction, 3.1 Residential Zones, issued pursuant to the former s 117(2) of the EPA Act on 14 April 2016, which prevents a planning proposal from containing provisions that "reduce the permissible residential density of land" unless it is justified by a strategy.
11. However, the Council submits that the Local Planning Direction does not apply given that it only applies to residential zones or zones "in which significant residential development is permitted or proposed to be permitted". The Council submits that the B7 zone falls within neither of those categories.

The weight to be given to draft cl 7.14

1. Whilst the draft CCLEP is a mandatory relevant consideration for the determination of the present application, for the following reasons I do not accept that the proposed development should be refused on the basis of the wording of the exhibited draft cl 7.14.
2. Firstly, even if the draft CCLEP was made in its current terms, the proposed development is saved by the savings provision in draft cl 1.8A, which provides that a development application made before the commencement of the CCLEP "must be determined as if this Plan had not commenced."
3. Secondly, I accept the submission made on behalf of Mr Codling that cl 7.14 is not certain in its terms. Whilst the draft CCLEP will be made at some point in the future, there is no certainty that cl 7.14 will be made in the same terms as exhibited. This was conceded by Ms Bryant in cross-examination. In particular, there remains scope for changes to the clause following the consideration of submissions received on exhibition, just as the current cl 7.13 was changed following receipt of submissions on its "restrictive" nature.
4. Thirdly, a further basis upon which it is not certain in its terms is that the draft cl 7.14, which is a significant change to the quantum of shop top housing permitted, is not supported or justified by a strategic review or study by the Council or its staff at the broader planning level across the Central Coast Local Government Area. Similarly, it has not been the subject of a discussion by or decision of the elected councillors. The only review that the Council's staff have carried out is a discussion about the "intent" of the clause, including the preparation of a table that compares permissibility of shop top housing in the B5, B6 and B7 zones in two of the current instruments that are sought to be consolidated. This falls short of any planning study or strategic plan that could justify the change to the clause. I accept the evidence of Mr Chapman in this regard.
5. Fourthly, draft cl 7.14 is not certain in its terms as it was not the subject of the Gateway determination by the delegate of the Minister for Planning, and has not been provided to the Minister in accordance with the requirement in s 3.35(2) of the EPA Act. Accordingly, uncertainty arises as to whether the wording of the draft cl 7.14 will be supported.
6. Fifthly, the draft CCLEP does not change the objectives of the B7 zone and the uses proposed in the present development application remain permissible in the draft CCLEP. Based on my consideration below with respect to consistency with the objectives of the B7 zone, I consider that the proposed development is not antipathetic to those objectives. Accordingly, the only change that affects the proposed development concerns the quantum of dwellings that would be permitted as shop top housing. As such, I consider that the proposed development is not antipathetic to the draft CCLEP, and therefore, consistent with the decision of Commissioner Morris in Tim Shellshear & Associates v Warringah Council [2012] NSWLEC 1097, I do not consider the draft CCLEP and the draft cl 7.14 to have determinative weight.
7. For the above reasons, taken together, I consider that the development application should not be refused on the basis of the draft cl 7.14 of the draft CCLEP. I note that in reaching this conclusion, I accept that the Local Planning Direction, 3.1 Residential Zones, does not apply to the B7 zone.

Is the proposed development consistent with the zone objectives?

1. As set out above (at [8]), cl 2.3(2) of the WLEP 2013 requires the Court, in exercising the functions of the consent authority, to "have regard to the objectives for development in a zone" when determining a development application. The Council contends that the development application does not comply with the objectives of the B7 zone. In particular, the Council relies on the evidence of Ms Pendergast that:

• The proposal does not propose any office or light industrial uses, contrary to the objective "to provide a range of office and light industrial uses".
• The proposal involves development of a large vacant site for very limited employment opportunities and may conflict with and serve to undermine existing light industrial activities and associated employment opportunities, contrary to the objective to "encourage employment opportunities".
• The scale of residential development does not appear to be a limited form but is a dominant use on the site, and there is no information to demonstrate how the residential accommodation will contribute to employment opportunities. This is contrary to the objective to "permit limited residential accommodation that contributes to the provision of employment opportunities".
• The primary purpose of the B7 zone is to provide a range of office, warehousing and light industrial uses that contribute to employment. Residential development is to be subservient to this purpose, as residential activities have the potential to conflict with, and undermine, this primary purpose.

1. On the other hand, Mr Chapman's evidence is that the proposal is compatible with the objectives of the zone for the following reasons:

• The business park is largely developed and contains a range of office and light industrial land uses. The development proposal does not restrict or impact on the continued operation of the office and light industrial uses in the business park.
• The proposed development includes employment generating land uses including the cafe, neighbourhood shop and serviced apartments.
• The residential accommodation (20 units) and serviced apartments will contribute to, and generate demand for services and therefore employment in the business park.
• The cafe, neighbourhood shop and serviced apartments contribute to the day to day needs of workers in the business park. The serviced apartments provide for short term accommodation in the business park for those utilising the distribution centres, warehouses and existing office spaces.
• The proposed shop top housing development containing 20 dwellings, at an occupancy rate of 2.5 persons per dwelling, is limited residential accommodation in the zone. In circumstances where 90% of the business park that is zoned B7 is developed, the proposal provides limited residential accommodation within the zone. Further, the residential accommodation is centrally located and within 800m walking distance of employment in the business park, therefore contributing to employment opportunities.
• The residential accommodation is 48% of the building and the residential dwellings have a FSR of 0.38:1, which is less than FSR in a low density residential zone, which clearly constitutes limited residential accommodation.

1. Further, Mr Tomasetti submits on behalf of Mr Codling that the WLEP 2013 permits only limited residential accommodation in the B7 zone. Out of all the types of residential accommodation, shop top housing is the only type permitted in the zone. Indeed, the Council has specifically chosen to include shop top housing as a permissible use in the B7 zone, it being a use that is not in the zoning tables for the B7 zone under the Standard Instrument - Principal Local Environmental Plan. As such, Mr Tomasetti submits that the objective is met by the fact that only limited residential accommodation, being in the form of shop top housing only, is permissible in the zone. Mr Tomasetti points out that Ms Pendergast's evidence is that there is no other residential accommodation provided in the Tuggerah Business Park. He submits that the proposed residential accommodation will contribute to the provision of employment opportunities because it will enable people, if they so wish in this business park, to live near where they work. Mr Tomasetti submits that the fact that this is the first residential accommodation being provided in the business park, in an area that is 90% developed, demonstrates that it is consistent with the objective of the zone to provide limited residential accommodation in this permissible form.
2. On the other hand, Mr Wright submits, on behalf of the Council, that the proposed development provides for a significant residential development that goes beyond the provision of limited residential accommodation that contributes to employment, and is therefore contrary to and inconsistent with the objectives of the zone.

Consideration

1. It is clear from the terms of cl 2.3(2) that there is no requirement for development within the zone to comply with, or to achieve, each of the objectives of the zone. Nevertheless, the clause requires that the consent authority "have regard to" those objectives. They are therefore a mandatory consideration in the assessment process and a proposed development ought not be antipathetic to those objectives.
2. However, I find that there is no basis upon which to accept the evidence of Ms Pendergast that the first objective, to provide a range of office and light industrial uses, is the "primary" purpose of the B7 zone, and that all other uses must be subservient to that purpose.
3. Instead, as established by McClellan J in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117], there is a general assumption that "development which is consistent with the zoning will be permitted". Indeed, he goes on to state that "[t]he more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects." Given that each of the uses proposed in the development are nominated permissible uses in the B7 zone, there is a general assumption that each of those uses achieve the objects of the zone.
4. Further, I am satisfied that the proposed development is not antipathetic to the objectives of the B7 zone. I accept the evidence of Mr Chapman that it includes employment generating land uses including the cafe, neighbourhood shop and serviced apartments, and that those uses also contribute to the day to day needs of workers in the business park. The proposed development provides residential accommodation in the form of 20 dwellings, which I accept is consistent with the objective for development in the B7 zone to provide "limited residential accommodation", particularly in circumstances where there is no other residential accommodation in the Tuggerah Business Park. Further, I accept the submission of Mr Tomasetti that the accommodation contributes to the provision of employment opportunities by allowing people to live near where they work. Whilst the proposed development does not propose any office or light industrial uses, contrary to the first objective for development in the B7 zone, it nonetheless achieves each of the other objectives and (for reasons outlined in more detail below) I accept the evidence of Mr Chapman that it does not restrict or impact on the continued operation of the office and light industrial uses in the business park.

Suitability of the site

1. The remaining contentions in dispute, which form the basis upon which the Council says that the proposal is not suitable for the site, can be summarised as two issues. The first is that the proposed residential use is not compatible with the prevailing land uses within the business park as it will undermine the surrounding business park activities, and the amenity of its residents will be adversely affected by those surrounding uses (contentions 6 and 7). The second is that the proposal is not consistent with the aims and objectives of the WDCP 2013 for the orderly use of the Tuggerah Business Park (contention 5).

Compatibility with prevailing uses within the Business Park

1. In relation to the first issue, the Council submits that the introduction of the shop top housing is introducing a use that is not compatible with the business park, as it is a high density residential development surrounded by uses that you characteristically see in a business park. The Council says that its introduction will prejudice the supply of land for other uses that are permissible in the zone, and will potentially discourage employment generating uses within the Business Park. This is supported by the evidence of Ms Pendergast that the majority of land uses surrounding the site do not have any operating hours imposed on their conditions of consent, and can therefore alter their operating hours as the need arises. She opines that if residential activities are located close to these sites, there will be potential for conflicts to occur. She considers that the expectations of residential occupants and light industrial activities are often at odds with each other, which will create uncertainty for the future operation of light industrial and business park activities, and will cause adverse amenity impacts on the residents dealing with the activities of the other uses in the business park. These impacts could be odour, light spill, loss of privacy or noise from parking, loading or use of plant and equipment.
2. On the contrary, the evidence of Mr Chapman is that the site adjoins warehouse, commercial and light industrial land uses that are not of high intensity, and are not going to impact on the proposed residential development. He points out that the acoustic report submitted with the development application found that the proposal can comply with the relevant acoustic criteria. His evidence is that the adjoining sites at 18 Reliance Drive and 5 Colony Close have operating hours that close at 5pm. Further, he considers that with the shop top housing component of the proposal addressing Colony Close and with adequate separation to the adjoining properties, all potential impacts are mitigated.
3. Mr Tomasetti points out that the only form of industrial use that is permissible in the B7 zone is "light industries". The general heavier uses, including "Industries", are all prohibited in the zone. Light industry is defined as follows: light industry means a building or place used to carry out an industrial activity that does not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or otherwise, and includes any of the following: (a) high technology industry, (b) home industry, (c) artisan food and drink industry.
4. Mr Tomasetti therefore submits that it's entirely illogical to suggest that the shop top housing residents would have their amenity interfered with by reason of neighbouring land use when the shop top housing use is permissible in the zone and where only light industry is permitted, which, by definition excludes industries which interfere with amenity.
5. Mr Codling's position is also that there is no evidence to support the contention that the introduction of the proposed development would sterilise other uses within the business park.

Consideration

1. I consider that there is no evidence to support the submission made by the Council that there will be a conflict of uses between the proposed development and the other permissible business uses currently operating in the vicinity of the site. Firstly, I accept the evidence of Mr Chapman that each of the surrounding uses have operating hours that are limited to the day. Secondly, there is no evidence that the proposed development will prevent other permissible uses from being carried out within the B7 zone or within the vicinity, particularly in circumstances where only light industries are permissible and therefore any permissible industrial uses are required, by definition, to not interfere with neighbourhood amenity. Thirdly, there is no evidence of any business operations that are currently in place within the vicinity of the site that will cause any actual amenity impacts to the proposed shop top housing.

Consistency with the aims and objectives of the WDCP 2013

1. The Council contends that the proposal is for "large scale residential accommodation" that is not supported by the objectives for the Business Park (Area D) identified under WDCP 2013 Chapter 6.14. The objectives for Area D are as follows: "• To create a "business park" environment that will provide an attractive entry into the Tuggerah Regional Precinct and will provide for investment and employment opportunities • To encourage high quality design and construction that is clearly superior to development found in traditional industrial areas • To accommodate a range of business, light industrial, warehousing and high technology activities within the business park • To provide for ancillary commercial, community and recreational facilities as part of an integrated employment environment • To provide for reasonable areas of linked landscaped space that are compatible with the built environment and to ensure that the landscape design guidelines detailed in the Visual Assessment and Design Guidelines for Wyong Road are implemented to a high standard • To preserve the adjoining wetlands and significant vegetation and to minimise the environmental impacts of development."
2. Ms Pendergast's evidence is that these objectives do not contemplate residential development within the business park.
3. Further, the Council contends that pursuant to the controls contained in chapter 6.14 of the WDCP 2013, there is the potential for compliant zero building setbacks of adjoining future development to adversely impact on the future amenity of the private open space areas and adjoining rooms within the proposed building. The Council points out that zero boundary setbacks are acceptable within the business park where landscape corridors do not apply. Where the landscape corridors do apply (such as along the rear boundaries of the site), they require a setback of 3 or 5m. However, the Council points out that this setback can be varied to allow for smaller setbacks, as was done in the recent approval of development at 5 Pioneer Avenue, which adjoins the site to the rear. The Council contends that these setback controls allow for future development surrounding the site to develop to the side and rear boundary of the subject site. As the proposed development has window openings and balconies within its setbacks, there is potential for existing and future offices of surrounding buildings to be oriented so as to adversely impact on the potential privacy of the occupants within the dwellings of the proposal. As such, Ms Pendergast opines that the proposed shop top housing may not maintain compliance with the AREA DADG into the future, and that there could be significant adverse amenity impacts on the proposed dwellings in the future.
4. Mr Codling's position is instead that the proposed development is consistent with the provisions of the WDCP 2013. Mr Tomasetti makes a number of submissions in support of this position. Firstly, he points out that the proposed development is not "large scale residential development" and that one of the general objectives of Chapter 6.14 concerning the Tuggerah Precinct as a whole is "To encourage mixed use development (incorporating appropriate retail and commercial uses), which can include residential development where it is attached to other permitted buildings only." He submits that the proposed development, which is a mixed use development including residential development, is consistent with this objective. Secondly, within the general controls for the Tuggerah Precinct, cl 2.1.6 allows a FSR bonus as follows: "Mixed use development incorporating a residential component qualifies for a 0.05 FSR bonus where permissible and considered appropriate."
5. Mr Tomasetti submits that the WDCP 2013 therefore encourages residential development in mixed use developments by providing this FSR bonus, which the proposed development does not seek to benefit from. Thirdly, Mr Tomasetti submits that the proposed development complies with all of the controls for Area D, in which it is situated. In support of this submission, Mr Chapman's evidence is that the building has been designed to meet the density controls contained in Section 3.4 of Chapter 6.14, including compliance with the maximum FSR of 0.8:1 and a 50% site coverage control. Further, his evidence is that there is adequate separation to the adjoining properties, with 13m-25m separation to the warehouse development and 14m to the building adjoining the western boundary. Fourthly, Mr Tomasetti relies on Mr Chapman's evidence that you would generally expect future development to comply with the controls with respect to FSR and site coverage, such that redevelopment of adjoining properties can ensure adequate separation is achieved.

Consideration

1. There is nothing in the WDCP 2013 that warrants refusal of the development application. I accept that the proposal complies with the controls with respect to development in Area D by achieving compliance with the site coverage control, the FSR control and by providing adequate setbacks. I also accept that the proposal is consistent with one of the general objectives of Chapter 6.14 concerning the Tuggerah Precinct, which is to "encourage mixed use development (incorporating appropriate retail and commercial uses), which can include residential development where it is attached to other permitted buildings". Consistent with this objective and to encourage residential development, the controls allow for the FSR bonus for development that includes residential accommodation. That residential accommodation is absent from the specific objectives and controls for Area 4 is of no consequence, given that these general objectives and controls remain applicable to all of the areas within the precinct, including Area D.
2. Further, I do not accept that the hypothetical potential for future development to affect the amenity of the residential dwellings is a sufficient basis on which to refuse the development application. The WDCP 2013 is a mandatory consideration for any development application concerning the development of adjoining lots. It provides site coverage and FSR controls and requires additional setbacks along landscape corridors. I accept the evidence of Mr Chapman that this allows for a design that minimises the impacts on adjoining development. Any such development application is required to be considered on its merits, and any impact on adjoining development (including the subject site) can be considered in determining that application.

Precedent

1. Finally, the Council submits that the granting of consent to the proposed development would set a precedent for large scale residential development within the business park and other similarly zoned sites in the locality, which, on a cumulative basis, would result in a significant and detrimental impact on the provision of appropriately zoned land for warehouse, light industrial and other business park uses. The Council's position is that the demand for light industrial and warehousing activities will not be able to compete with the demand for residential accommodation, which will compromise the ongoing use of the B7 land for typical business park uses.
2. I do not accept this submission. The proposed development is not a "large scale residential development". Instead, it is a mixed use development in which each of the uses is a nominated permissible use in the B7 zone. The development is not antipathetic to the objectives of the B7 zone, and is consistent with the objective to provide "limited residential accommodation that contributes to the provision of employment opportunities", in an area that is largely developed yet is currently without residential accommodation. It complies with cl 7.13 of the WLEP 2013, which limits shop top housing to 50% of the floor area of the building. Further, it is consistent with the general objective for the Tuggerah Precinct in Chapter 6.14 of the WDCP 2013 for there to be mixed use development with some residential accommodation, and it complies with the specific planning controls concerning the area of the Precinct in which it is located (Area D). As such, there is no basis upon which it could be considered to have a detrimental impact on the B7 zone in Tuggerah Business Park, and could not, consequentially, be considered as a "precedent" for a detrimental impact.
3. Further, it is not the case that this is the first development in an undeveloped area. Instead, I accept the evidence that the business park is largely developed, and I accept the submission made on behalf of Mr Codling that any future development application will be required to be considered and determined on its own merits. The restriction of permissible residential development to shop top housing, as well as the constraint on the floor area to be used for the purpose (found in cl 7.13 of the WLEP 2013), means that any future residential development of the type that is currently proposed will be within a mixed use development with other uses that are permissible in the B7 zone. As such, I cannot accept the Council's position that the approval of the present application will cause a proliferation of development that will compromise the ongoing use of the B7 land for other business park uses.

Outcome of the appeal

1. As I have determined that none of the contentions raised by the Council are well founded or warrant refusal of the development application, the appeal should be upheld and development consent granted. However, prior to the development consent being granted, a plan of strata subdivision is required to be provided by Mr Codling.
2. A further issue arises concerning whether a Plan of Management should be finalised prior to the grant of consent. Mr Wright submits, on behalf of the Council, that the Plan of Management is required to be prepared as the current plan is uncertain and does not address all of the requisite issues concerning regulation and separation of the use of the serviced apartments from the dwellings.
3. I have examined the draft conditions of consent provided by the parties, which contain the following conditions concerning the Plan of Management, the regulation of the serviced apartments use, and the separation of the two uses: "1.8 Prior to the appointment of any certifying authority, amended plans shall be submitted to Central Coast Council, which: (a) In respect of levels 2, 3 and 4, reflect that the lift that is to service the serviced apartments only opens into the corridor that services the serviced apartments and the lift that is to service the units approved for permanent residential accommodation only opens into the corridor that is to service the units approved for permanent residential accommodation to ensure that access to the two uses are separated; and (b) Amend any reference to the gymnasium to a "serviced apartments manager's office". … 2.22 A revised Plan of Management is to be submitted to Council prior to the issue of a Construction Certificate. The Plan of Management shall be amended to reflect the approved plans in condition 1.1 and include the following: • Introduction (description of building and the uses contained within, location overview, details of available surrounding services, public transport) • Management Arrangements for Serviced Apartments (managing agent contact details & managing agent role for the serviced apartments) • Management Arrangements for Residential Accommodation (owners corporation details, managing agent details) • Management Arrangements for food and drink premises/neighbourhood shop (waste servicing, car parking, owners corporation details) • Visitor information for serviced apartments (general rules, common area/facilities rules and hours of use, car parking, security access) • Resident information (resident information pack, resident's legal rights and duties and general rules, common area/facilities rules and hours of use, car parking, car wash bay, and bike storage, security access) • Emergency management for the whole development (emergency egress routes, evacuation plan, fire safety, important phone numbers, public display of name and number of managing agent and internal display of relevant information - house rules, emergency contacts) • Maintenance (dwelling/serviced apartment/ food and drink premises/ neighbourhood shop maintenance and inspections, incidents register, waste management & recycling) • Complaints/ Dispute handling and noise nuisance register (public display of name and number of managing agent and internal display of relevant information - rules, emergency contacts etc. All complaints should be entered into a register, purpose and function of complaints register, handling a dispute with a resident/visitor, handling a dispute between residents and/or visitors, dealing with aggression, liaison/relationship with neighbours and the local community and how impacts on residents will be mitigated and crime. Details should be provided on how liaison with neighbours will occur and what mitigation measures will be put in place to mitigate impacts on neighbours). • Forms (resident/visitor application form, occupancy agreement, condition report, incident report) … 7.1 The number of days in which a serviced apartment is occupied shall not exceed 6 months. The by-laws adopted, and in force from time to time, for the strata scheme for the development (pursuant to the Strata Schemes Management Act 2015) must include a by-law which provides that the number of days in which a serviced apartment is occupied shall not exceed 6 months. 7.2 The Managing Agent and On-site Manager shall ensure that the Plan of Management, prepared in accordance with Condition 2.23 of this consent is complied with at all times. … 7.4 The following registers shall be maintained by the Managing Agent of the Serviced Apartments and kept up to date: • Details of length of stay of each person accommodated in the serviced apartments • Noise nuisance complaints register • Disputes register These registers shall be made available to Council, at any time, upon request."
4. I consider that these conditions provide sufficient detail of the separation required between the two uses, of what is required in the Plan of Management, and of how the service apartments will be managed and regulated. Accordingly, I consider that the Plan of Management can be provided prior to the construction certificate and need not be prepared prior to the grant of development consent.
5. It is therefore appropriate that I make a direction for the provision of a proposed plan of strata subdivision. I note that I have not made a determination with respect to the necessity of providing separate strata plans for the serviced apartments and for the shop top housing, but instead allow that to be the subject of discussion between the parties and will make a determination only if an agreement cannot be reached.
6. The Court directs that: 1. The applicant provide to the Council a proposed plan of strata subdivision that reflects the current plans of the proposed development by 2 May 2019. 2. The applicant file an agreed plan of strata subdivision by 9 May 2019. 3. The respondent file the final agreed conditions of development consent by 10 May 2019. 4. The exhibits are returned, except for exhibits A, B, E, J and 1. 5. Pending the making of final orders in the proceedings, liberty to restore is granted on 2 days' notice.
7. The final orders will be made in chambers, unless orders (2) and (3) are not complied with, in which case the matter will be re-listed for final orders to be made in court.

Addendum made 13 June 2019

1. Subsequent to the delivery of the above reasons and the making of the directions recorded at [110], Mr Codling considered that the nature of the development was such that it ought to be stratum subdivided, with strata subdivision of each stratum lot. As such, further discussions between the parties ensued, and the parties exercised liberty to restore to enable Mr Codling to seek leave to amend the development application accordingly.
2. The Council agrees to leave being granted to amend the development application, and the parties have reached an agreement on the appropriate conditions of development consent. I am satisfied that the plans of stratum subdivision, and of strata subdivision, reflect the plans the subject of the development application and that the conditions of consent are appropriate.
3. The Court orders that: 1. Leave be granted to the applicant to amend development application No. DA/1087/2017 ("Development Application") to include a 3 lot stratum subdivision and strata subdivision of each stratum lot, and to rely on the following additional plans: Description/Title Drawing No Rev Date Author Plan of Subdivision - DP Administration Sheet Sheet 1-3 of 3 A 30.4.19 Christopher Thomas Norton Surveyors Ref: 13456 Plan of Stratum Subdivision - Draft DP Sheets 1-6 of 6 A 30.4.19 Christopher Thomas Norton Strata Plan Administration Sheet - Lot 1 Sheets 1-3 of 3 A 30.4.19 Christopher Thomas Norton Plan of Strata Subdivision of Lot 1 Sheets 1-7 of 7 A 30.4.19 Christopher Thomas Norton Strata Plan Administration Sheet - Lot 2 Sheets 1-3 of 3 A 30.4.19 Christopher Thomas Norton Plan of Strata Subdivision of Lot 2 Sheets 1-6 of 6 A 30.4.19 Christopher Thomas Norton Strata Plan Administration Sheet - Lot 3 Sheets 1-3 of 3 A 30.4.19 Christopher Thomas Norton Plan of Strata Subdivision of Lot 3 Sheets 1-2 of 2 A 30.4.19 Christopher Thomas Norton

1. The appeal is upheld. 2. Development Application DA/1087/2017, for construction of a building comprising shop top housing (20 units), serviced apartments (20 units), food and drink premises (2 tenancies), a neighbourhood shop, associated parking (90 spaces) and associated 3 lot stratum subdivision and strata subdivision of each stratum lot is approved subject to the conditions of consent at Annexure A. The Court notes the agreement of the parties that the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the Development Application.

Amendments 13 June 2019 - Addendum of 13 June 2019 to include Final Orders. 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: 13 June 2019