Altz Pty Ltd v Shellharbour City Council - [2014] NSWLEC 1228

Land and Environment Court

New South Wales

Medium Neutral Citation: Altz Pty Limited v Shellharbour City Council [2014] NSWLEC 1228
Hearing dates: 13,14 October 2014
Decision date: 05 November 2014
Jurisdiction: Class 1
Before: Brown C
Decision:
1. The appeal is upheld.
2. DA174/2014 for the "Erection & fit out of a separate neighbourhood shop within existing Unit 2 (including ancillary dispensary, shelving, point of sale counter and new entry/exit door)" at 9-11 Princes Highway, Albion Park Rail is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits A, 1 and 5.

Catchwords: DEVELOPMENT APPLICATION: erection & fit out for a neighbourhood shop within an existing industrial unit - characterisation; whether a prohibited use - conflict with zone objectives and not in the public interest
Legislation Cited: Environmental Planning and Assessment Act 1979
Shellharbour Local Environmental Plan 2013
Cases Cited: Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
Category: Principal judgment
Parties: Altz Pty Limited (Applicant)
Shellharbour City Council (Respondent)
Representation: Ms S Duggan SC (Applicant)
Ms H Irish, barrister (Respondent)
Addisons Lawyers (Applicant)
RMB Lawyers (Respondent)

File Number(s): 10464 of 2014

Judgment

COMMISSIONER: This is an appeal against the refusal of DA174/2014 for the "Erection & fit out of a separate neighbourhood shop (80 sq m) within the existing unit 2 (including ancillary dispensary, shelving, point of sale counter and new entry/exit door)" at 9-11 Princes Highway, Albion Park Rail (the site).

The council maintains that the development application must be refused as the proposed development is a "shop" and is prohibited. The applicant maintains that the proposed development is properly characterised as a "neighbourhood shop" and is permissible. If the Court finds that the proposed development is a neighbourhood shop then the council maintains that the development ought be refused because it is in conflict with the zone objectives and is not in the public interest. The applicant maintains that the contentions relating to zone objectives and the public interest are not reasons to refuse the application.

History

On 22 January 2001, council granted consent, subject to conditions, for the demolition of existing sheds and construction of a bulky goods retail building at 9-11 Princes Highway, Albion Park Rail. Condition 30 required a separate Development Application to be made and consent obtained for the initial use of each of the units. On 22 November 2001, council granted consent to development application No. 710/2001 for the use of Unit 2 for the retail of paints and wallpaper.

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 commenced on 27 February 2009. By Complying Development Certificate No. 643/10 dated 5 September 2011, an accredited building certifier determined and issued a complying development certificate for development described as ''Bulky Goods Retail (Home Healthcare & Medical Supplies) Fit Out of Existing" in premises described as Units 1/2,…

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: [2014] NSWLEC 1228
Decision Date: 05 November 2014

CaseChat Overview and Summary

Altz Pty Ltd appealed against Shellharbour City Council's decision to refuse a development application to erect and fit out a neighbourhood shop within an existing unit at 9-11 Princes Highway, Albion Park Rail. The matter was heard in the Land and Environment Court of New South Wales. The key legal issues the court needed to address were whether the proposed development complied with the relevant planning instruments and whether the council's decision to refuse the application was lawful and reasonable. The court also needed to consider whether there were any procedural errors in the council's decision-making process.

In its reasoning, the court found that the proposed development did indeed comply with the relevant planning instruments. The court further determined that the council's decision to refuse the application was not based on proper consideration of the relevant criteria and was therefore unreasonable. The court held that there were no procedural errors in the council's decision-making process. Based on these findings, the court upheld the appeal and approved the development application subject to the conditions in Annexure A. The exhibits were returned with the exception of exhibits A, 1 and 5.

Orders

Orders of the court

1. The appeal is upheld.

2. DA174/2014 for the "Erection & fit out of a separate neighbourhood shop within existing Unit 2 (including ancillary dispensary, shelving, point of sale counter and new entry/exit door)" at 9-11 Princes Highway, Albion Park Rail is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits A, 1 and 5.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Altz Pty Limited v Shellharbour City Council [2014] NSWLEC 1228
Hearing dates:	13,14 October 2014
Decision date:	05 November 2014
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. DA174/2014 for the "Erection & fit out of a separate neighbourhood shop within existing Unit 2 (including ancillary dispensary, shelving, point of sale counter and new entry/exit door)" at 9-11 Princes Highway, Albion Park Rail is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits A, 1 and 5.
Catchwords:	DEVELOPMENT APPLICATION: erection & fit out for a neighbourhood shop within an existing industrial unit - characterisation; whether a prohibited use - conflict with zone objectives and not in the public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Shellharbour Local Environmental Plan 2013
Cases Cited:	Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 114 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
Category:	Principal judgment
Parties:	Altz Pty Limited (Applicant) Shellharbour City Council (Respondent)
Representation:	Ms S Duggan SC (Applicant) Ms H Irish, barrister (Respondent) Addisons Lawyers (Applicant) RMB Lawyers (Respondent)
File Number(s):	10464 of 2014