193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13

Land and Environment Court New South Wales

Medium Neutral Citation: 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 Hearing dates: 16 and 17 February 2017 Date of orders: 01 March 2017 Decision date: 01 March 2017 Jurisdiction: Class 1 Before: Moore J Decision: 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. Catchwords: DEVELOPMENT APPLICATION – does the mandatory height control override in cl 29(2)(a) of State Environment Planning Policy (Affordable Rental Housing) 2009 apply to the proposed development – override applies – consent mandated DEVELOPMENT APPLICATION – in the alternative, does the discretionary height control override in cl 29(4)(4) of State Environment Planning Policy (Affordable Rental Housing) 2009 apply to the proposed development – if so, does the proposed development warrant consent on a merit assessment basis – consent warranted DEVELOPMENT APPLICATION – in the further alternative, does the mandatory height control override in cl 4.3A(2)(a) of Ashfield Local Environment Plan 2013 apply to the proposed development – override applies – consent mandated DEVELOPMENT APPLICATION – in the final alternative, does the mandatory height control override in cl 4.3A(2)(b) of Ashfield Local Environment Plan 2013 apply to the proposed development – override applies – consent mandated PLANNING PRINCIPLES – review of planning principles – consideration of Karavellas v Sutherland Shire Council [2004] NSWLEC 251 principle confirmed – consideration of Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189 and Melissa Grech v Auburn Council [2004] NSWLEC 40 principles subsumed by and incorporated in Karavellas – future reference to be confined to Karavellas Legislation Cited: Ashfield Local Environment Plan 2013 State Environment Planning Policy (Affordable Rental Housing) 2009 Cases Cited: 193 Liverpool Road Ashfield Pty Ltd v Ashfield Council [2015] NSWLEC 1399 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 Abret Pty Limited v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113 Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189 Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121 Karavellas v Sutherland Shire Council [2004] NSWLEC 251 Melissa Grech v Auburn Council [2004] NSWLEC 40 Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 Shire of Perth v O'Keefe (1964) 110 CLR 529 Warlam Pty Ltd v Marrickville Council (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)