In Luxcon Developments No 6 Pty Limited v Woollahra Municipal Council [2017] NSWLEC 1426, a development application was classed by the developer as ‘shop-top’ housing. The Council rejected this classification, meaning the development was not permissible within the zone. A ‘shop-top’ requires a ground floor retail premises with residential housing directly above. In this case, the development proposal had a ‘lower ground floor’ for retail use.

In coming to their decision, the judges considered Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113. That case established that a building can have two ground floor levels, but each ground floor must be at street level and have street frontage. The judges found that neither condition was met in this instance. As such, this was not ‘shop-top’ housing, and the development was prohibited by zoning restrictions.

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