Submissions
17The applicants submit that the proposal meets the zone objectives by locating retail and commercial premises on main road frontages, but that it is "indivisible", and cannot be staged (Tp13, LL25 - 37). They submit that the plan (in Exhibit C1) uses the term "building", not in its statutory meaning, but merely to identify the different components of that indivisible project (Tp12, LL41 - 44).
18Further, they submit (par 21) that each of the proposed "mixed" uses of the subject land is "separately permitted and/or ancillary to the permitted development", and (par 25) that, to satisfy the definition of "shop top housing" in the LEP, only one dwelling, not "all" proposed dwellings, need be located "above ground floor retail premises or business premises", in the sense of having "a floor level that is lower (sic) than the top most part of the ground floor retail premises or business premises" (par 35, as corrected at Tp11, LL45 - 50).
19They submit that the Court should adopt a "wide view" of the term "shop top housing", because, if it were the LEP's intention that there would be no dwellings on the same level as the retail and commercial uses, it would have used the term "all", rather than "one or more" (Tp11, LL14 - 31).
20They submit (par 60) that the LEP's use of the term "shop top housing" is intended:
... to allow flexibility for applicants and consent authorities to consider alternate configurations for development, provided that at least "one or more" than one dwelling/s are located above some form of retail premises or business premises.
and that (par 58):
The proposal has provided retail and commercial premises to (sic) the most logical and accessible locations, namely the main road frontages to the proposed development, Canterbury Road and Burwood Road as the primary Retail Roads and has satisfied the objectives of the Zone B2 Local Centre of the CLEP 2012.
21In his oral submissions on their behalf Mr Hage said (Tp11, LL21 - 32):
There's no presumption in the Canterbury Local Environmental Plan that states that all dwellings must be located above retail premises or business premises. We feel that as long as one retail premises or business premises is located on the ground floor level, it would suffice to satisfy the definition of shop top housing.
So the applicants contend that the residential accommodation that is at floor level, that is lower than the topmost part of the ground floor retail premises or business premises, can be characterised as shop top housing so long as at least one dwelling in the building as defined has a floor level that is lower than the topmost part of the ground floor retail premises or business premises, your Honour.
22Their submissions are based on the characterisation of the five separate "buildings" ([14] and [15] above) "as one building, with a podium connected to a common basement car park and a switch room" (par 36).
23The various components of the proposal - residential, commercial, or retail - could not "function on the land" without the "basement, driveway ... and access ways", the physical acts of construction of which "represent the means by which the land is made to serve the 'mixed use purpose'" of the proposal (pars 19 and 54. See also Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493; (1957) 4 LGRA 69, at 508).
24They contend (par 57) that:
... the character, extent and other features of the uses of the common basement and access ways and their integral relationship with the podium incorporating purposes for the use of a "mixed use development" means that it is appropriate to characterise the uses as being for the purpose of a "mixed use development" and as such must be seen as ancillary to the permissible development.
25The respondent insists (par 27 on p10, not p8) that there are five separate "buildings", to which the principles it espouses must be applied.
26Across the five buildings, there are many dwellings proposed for "a floor level that is completely higher than the top of the ground floor retail [or business or commercial] premises" proposed (see eg subs par 29 on p10, not p8), and the respondent accepts that such dwellings "would be properly categorised as being ... 'shop top housing' ... even where some of them are not directly over the top of the ground floor retail [or business or commercial] premises".
27However, a number of dwellings are proposed for the ground floor level of Buildings B and F, and would not be "above" any ground floor retail or business premises. They are "residential accommodation" not capable of being properly categorised as "shop top housing" (see pars 28 - 35 on p10, not p8 - 9).
28Home office floor space is proposed for the upper ground floor of Building C. This space would comprise business premises (par 36 on p10, not p8), but it is at ground level at Canterbury Road (par 37). Twelve dwellings proposed in Building C are not "above" any ground floor retail or business premises (par 39).
29Dwellings on the ground floor of Buildings B and F and some of those in Building C have ground floor access, and would be properly characterised as "multi dwelling housing", which is prohibited, by the LEP, in the B2 zone (par 41).
30The ground floors of Buildings L and N are proposed to have 10 and 12 dwellings respectively (with ground floor access), and no retail or business premises. The two buildings would properly be characterised, Council submits, as "residential flat buildings", which would also be prohibited in the zone (pars 42 - 49).
31The Council submits (par 28 on p8, not p10) that "only dwellings that are 'above' ground floor retail premises or business premises are capable of being characterised as 'shop top housing'".
32As the word "above" is not defined in the model/standard instrument, nor in the LEP, Council submits (par 30 on p8, not p10), and the applicants accept (par 27), that it must be given "its ordinary meaning in the context in which it appears" in the LEP.
33Council refers (par 31 on p8, not p10) to the definition of "above" in the Macquarie Dictionary (4th ed., 2005), namely "in or to a higher place; overhead", and submits (pars 32f on p8, not p10) that the "housing" indicated by the term "shop top housing" must be "at a place or level that is higher" than "the top most part of the ground floor retail premises or business premises ..."
34The respondent Council's written submissions continue (at pars 33ff on p9, not p10):
33. ... a dwelling must be in the same building as the ground floor retail premises or business premises and on a floor of that building that is at a level higher than the top most part of the ground floor retail premises or business premises in order to be characterised as "shop top housing" as defined.
34. Residential development that has a floor level that is lower than the top most part of ground floor retail premises or business premises could not be properly characterised as "shop top housing".
35. The Respondent accepts 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". If it was intended that "shop top housing" be limited to dwellings that are directly or immediately above ground floor retail premises or business premises it is expected that those words would have been included in the definition of the term 'shop top housing'.
36. The Respondent contends that dwellings must be in the same building as the ground floor retail premises or business premises for the purposes of the term "shop top housing". However, the Respondent accepts 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.
35In his oral submissions on Council's behalf, Mr Seton relied on cl 2.3(3)(b) of the LEP, which provides:
A reference to a type of building or other thing does not include, despite any definition, being a reference to a type of building or other thing referred to separately in the land use table in relation to the same zone,
and submitted (Tp7, LL8 - 14):
So once you take shop top housing out of the definition of "residential accommodation", the conflict is no longer there between the two uses, so you can have shop top housing as a permitted development in this zone even though it is a form of residential accommodation, but there is no other form of residential accommodation that is permitted on land within this zone, other than, as I said, boarding houses which are not relevant here. There's no argument that boarding houses are proposed on this site.
36Mr Seton insists (Tp14, LL22 - 31 and LL41 - 44) that multiple dwellings located above the retail and commercial premises may be categorised as "shop top housing", and, in order to be "above" the retail and commercial premises, a dwelling "has to be above the topmost part" of them. Most of the dwellings here proposed are "above", as so defined, but those on the ground floor level are not, and they cannot be "grandfathered" into the category of "shop top housing".
37He also submitted (Tp8, LL20 - 27) that that part of the proposal "that comprises of shop top housing, being the dwellings that are above, and any of the dwellings that are above the ground floor retail or commercial premises are permitted, but the dwellings and the 41 of them that are at the ground floor level, being the same level as the commercial and retail premises, are just residential accommodation that is not excluded from the definition", and (Tp9, LL1 - 8) that such dwellings not permitted as "shop top housing", namely the 41 out of 228 (Tp7, L45), which are "at the ground floor level" (Tp8, L25), and so "not above any ground floor retail or commercial premises" (Tp14, L29), are prohibited (residential) development.
38In that situation (Tp14, LL13 -15), "whether it's characterised as being one building or five separate buildings doesn't really matter on the basis of the ground floor plan that is proposed in this particular development".
39In response (Tp14, LL17 - 19) to the respondent's submission "that if you have one or more dwellings above ground level, then all dwellings in the development can be categorised as shop top housing", Mr Seton said (Tp14, LL23 - 31):
... that simply can't be correct in this particular case. We accept that any of the dwellings that are located above - so there can be multiple dwellings located above ground floor retail commercial premises, as the definition says "one or more", and that's the only work that those words have to do, except that they can be categorised as shop top housing but where the dwellings are not above, and the substantial number of them in this case, 41 of them, are not above any ground floor retail or commercial premises, they simply can't be categorise or characterised as being for the purpose of shop top housing.
40The Council disputes the applicant's submission that the development is permissible as a "mixed use development" (defined in [13] above), under item 3 in the zoning table (as an innominate use).
41Mr Seton relies on the Court of Appeal's reasoning in Abret v Wingecarribee Shire Council ("Abret") [2011] NSWCA 107; (2011) 180 LGERA 343, to submit that that term (Tp8, LL15 - 18):
doesn't have any work to do in the context of the zoning table that applies to B2 because it's not a term that is specifically mentioned anywhere within B2. Nor is it an exclusion from "residential accommodation" definition.
42Beazley JA said in Abret at [62]:
On this approach, which in my opinion is correct, the appellant's argument that because 'seniors housing' is a defined term within the LEP and is not listed as a prohibited use in the planning table, it is permissible with consent, must be rejected. The matter cannot be approached so simply. Rather, it is necessary to characterise the use, so that, if the purpose of the use is otherwise controlled under the LEP, the proposed use is controlled by that provision. However, the rejection of that argument does not conclude the matter in the respondent's favour. It is still necessary to characterise the use by reference to the purpose of the development.
43Council also refutes the applicant's submission that the challenged ground floor residential elements are "ancillary" to the permissible retail and commercial uses.