Aldi Stores v Newcastle City Council - [2010] NSWLEC 1110

Set aside by Appeal: see: 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 1110

PARTIES:
APPLICANT
Aldi Stores
RESPONDENT
Newcastle City Council

FILE NUMBER(S): 10048 of 2010

CORAM: Moore SC

KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION - WORDS AND PHRASES :-
Dual uses
Second use prohibited
Second use neither ancillary to nor subsumed by predominant use

LEGISLATION CITED: Newcastle Local Environment Plan 2003

CASES CITED: Pallas Newco Pty Limited v Votraint No 1066 Pty Limited [2003] NSWLEC 232; [2003] 129 LGERA 234
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373

DATES OF HEARING: 11 May 2010

DATE OF JUDGMENT:
7 June 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan, barrister
INSTRUCTED
Baker & McKenzie
RESPONDENT
Ms A Pearman, barrister
INSTRUCTED BY
Newcastle City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

7 June 2010

10/10048 Aldi Stores v Newcastle City Council

JUDGMENT

Introduction

1 SENIOR COMMISSIONER: Fletcher is a developing suburb on the western outskirts of the Newcastle City local government area. It is located on the southern side of Minmi Road, a road that links a number of suburbs in the Blue Gum Hills area – as the area is identified by Newcastle City Council (the council). Access to the suburban area of Fletcher is via Britannia Boulevard, a street with, relevantly, an unbroken landscaped centre median strip. Britannia Boulevard intersects with Minmi Road utilising a roundabout. The first of the internal residential streets within Fletcher are accessed from a second, smaller, roundabout at the southern end of this short section of Britannia Boulevard.

2 To the west of the roundabout at the entrance to Fletcher, on the southern side of Minmi Road, there are a number of houses with direct frontages to Minmi Road. However, to the east of the roundabout with Britannia Boulevard, the houses in the first residential street in Fletcher, Broome Street, are separated from Minmi Road by a number of presently vacant, lightly wooded allotments. The first of these, immediately to the east of Britannia Boulevard, is identified in the council's Newcastle Urban Strategy 2009 as the location proposed by the council for a business precinct.

3 It is this allotment (the site) and its proposed future use as an Aldi food store that forms the basis of these proceedings.

4 The site has an area of 6,658 sq m and is, generally, rectangular in shape with an additional smaller area added in its south-eastern corner. Although Minmi Road and Broome Street are not precisely parallel and neither of them runs precisely east and west, it is convenient for the purposes of understanding orientation references in this judgement to treat them as running east-west for descriptive purposes and to describe, for explanatory reasons, the orientation of the dwellings on the northern side of Broome Street with the rear private open space areas, to…

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 1110
Decision Date: 7 June 2010

CaseChat Overview and Summary

The case of Aldi Stores v Newcastle City Council involves a dispute over the approval of a development application for an Aldi food store at the intersection of Minmi Road and Britannia Boulevard in Fletcher. The Land and Environment Court of New South Wales was tasked with deciding on the permissibility of the development under the Newcastle Local Environment Plan 2003, specifically focusing on whether the proposed Aldi store qualified as a local shop and whether any additional uses on the site would be prohibited. The court had to consider objections from local residents concerning potential impacts on property values, traffic, noise, and sunlight, as well as the compatibility of the proposal with the local centre zone objectives. The court concluded that the proposal involved two separate uses: a local shop, which was permissible, and a shop serving a larger population, which was prohibited. Given that the prohibited use was neither ancillary nor subsumed by the permissible use, the proposal was deemed impermissible and the appeal was dismissed. The court also directed that the council inform individual objectors and supporters of the outcome and reasons for the decision.

Orders