Aldi Stores v Newcastle City Council - [2010] NSWLEC 227

Land and Environment Court

of New South Wales

CITATION: Aldi Stores v Newcastle City Council [2010] NSWLEC 227

PARTIES:
APPLICANT
Aldi Stores
RESPONDENT
Newcastle City Council

FILE NUMBER(S): 10527 of 2010

CORAM: Pepper J

KEY ISSUES: APPEAL :- appeal pursuant to s 56A - whether there was a mischaracterisation of the use of the proposed development as both a "shop" and a "local shop" - whether there was a denial of procedural fairness - appeal upheld - whether the proceedings should be remitted or whether the consent should be granted - consent granted

LEGISLATION CITED: Civil Procedure Act 2005 s 56
Land and Environment Court Act 1979 s 56A
Newcastle Local Environmental Plan 2003

CASES CITED: Aldi Stores v Newcastle City Council [2010] NSWLEC 1110
Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; (2010) 173 LGERA 456
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Pallas Newco Pty Ltd v Votraint No 1066 Pty Limited [2003] NSWLEC 232; (2003) 129 LGERA 234
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Shire of Perth v O’Keefe (1964) 110 CLR 529
ThainaTown (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230

DATES OF HEARING: 2 November 2010

EX TEMPORE JUDGMENT DATE: 3 November 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan SC
SOLICITORS
Baker & McKenzie
RESPONDENT
Ms A Pearman
SOLICITORS
Newcastle City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

3 November 2010

10527 of 2010 Aldi Stores v Newcastle City Council

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: The applicant, Aldi Stores (“Aldi”) appeals under s 56A of the Land and Environment Court Act 1979 (“the Act”) against the decision of the Senior Commissioner dated 7 June 2010, to refuse a development application (Aldi Stores v Newcastle City Council [2010] NSWLEC 1110 or “the decision”).

2 In the appeal, the council has filed a submitting appearance only.

3 The bases of the appeal are two-fold:

(a) first, that the Senior Commissioner erred in his determination that the proper characterisation of the proposed development was for the dual purpose of a “shop” and a “local shop”, the latter permissible, the former prohibited; and

4 For the reasons below I have upheld the appeal in respect of both errors.

Factual Background Giving Rise to the Appeal

5 The development application made to the council by Aldi on 6 March 2009 (“the DA”), was for the construction and operation of an Aldi food store on land known as 1 Britannia Boulevarde, Fletcher (“the site”). The proposed development was for a new single storey supermarket with associated car parking and signage.

6 The land is zoned 3(a) Local Centre Zone under the Newcastle…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 227
Decision Date: 3 November 2010

CaseChat Overview and Summary

Aldi Stores appeals against a decision of the Senior Commissioner to refuse development consent for a proposed supermarket. The court considers two grounds of appeal. The first is that the Senior Commissioner erred in characterising the proposed development as both a "shop" and a "local shop", and the second is that the Senior Commissioner denied Aldi procedural fairness by not allowing Aldi to comment on certain issues. The court finds that the Senior Commissioner erred in characterising the proposed development. It was an error that fundamentally affected the Senior Commissioner's decision to refuse consent. The court finds that Aldi was denied procedural fairness by not being given an opportunity to comment on the issue of the excess car parking spaces. The court allows the appeal, sets aside the decision of the Senior Commissioner and grants development consent.

Orders