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Bardsley-Smith v Penrith City Council

Bardsley-Smith v Penrith City Council

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Case Copied 4 July 2013 66 min read

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bardsley-Smith v Penrith City Council [2013] NSWCA 200
Hearing dates: 2, 3 May 2013
Decision date: 04 July 2013
Before: McColl JA at [1];
Barrett JA at [2];
Sackville AJA at [3]
Decision:
1. Appeal allowed.
2. Set aside Orders 1 and 2 made by the primary Judge on 18 April 2012.
3. Direct the appellants to file an amended notice of appeal within seven days.
4. Direct the parties to file within 14 days an agreed draft of the proposed injunction referred to at [127] of this judgment.
5. In the absence of agreement, the appellants file within 14 days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length.
6. The Respondents file within a further seven days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length.
7. Subject to the parties' compliance with Orders 3 - 6 above and to any further order of this Court, the matter be remitted to the Land and Environment Court to deal with paragraph 4(h) of the Amended Points of Defence and otherwise the matter to be dealt with in conformity with this judgment.
8. The Respondents pay the appellants' costs of the appeal.
9. The costs of the proceedings in the Land and Environment Court be determined by that Court.
10. The Respondents, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: ENVIRONMENT AND PLANNING - planning schemes and instruments - validity of development consent relating to pharmacy - whether consent approved use of premises for prohibited purpose of a shop - whether use in accordance with development consent - whether retail business subordinate to principal purpose - whether continuing use for a prohibited purpose
Legislation Cited: National Health Act 1953 (Cth), ss 84, 90
Environmental Planning and Assessment Act 1979, ss 76A, 76B, 106, 107(1), 122, 123(1)
Land and Environment Court Act 1979, s 58
Poisons and Therapeutic Goods Act 1966
Penrith Local Environmental Plan (Industrial Land) 1996
Penrith Local Environmental Plan 2010
Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343
ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC…

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: [2013] NSWCA 200
Decision Date: 04 July 2013

CaseChat Overview and Summary

The appeal concerned the validity of development consent granted by Penrith City Council for a pharmacy. The appellants, Bardsley-Smith and others, argued that the consent improperly approved the premises for use as a shop, which was a prohibited purpose under the relevant planning instrument. They contended that the retail business conducted was not subordinate to the principal purpose of the pharmacy and that the consent effectively sanctioned a continuing use for a prohibited purpose.

The Court of Appeal was required to determine whether the development consent was valid, specifically whether it permitted the use of the premises for a prohibited purpose, namely a shop, and if so, whether that use was subordinate to the principal purpose of a pharmacy. The court also considered whether the consent effectively authorised a continuing use for a prohibited purpose.

The Court of Appeal found that the primary judge had erred in their interpretation of the development consent and the relevant planning provisions. The court reasoned that the consent, when properly construed, did not authorise the premises to be used as a general shop. Instead, it permitted a retail business that was ancillary and subordinate to the principal purpose of operating a pharmacy. The court applied principles of statutory interpretation to the planning instrument and the development consent, emphasising the need for a clear and unambiguous authorisation for a prohibited use.

The appeal was allowed, and the orders of the primary judge were set aside. The matter was remitted to the Land and Environment Court for further determination, with directions regarding the filing of an amended notice of appeal and proposed injunctions. The respondents were ordered to pay the appellants' costs of the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside Orders 1 and 2 made by the primary Judge on 18 April 2012.

3. Direct the appellants to file an amended notice of appeal within seven days.

4. Direct the parties to file within 14 days an agreed draft of the proposed injunction referred to at [127] of this judgment.

5. In the absence of agreement, the appellants file within 14 days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length.

6. The Respondents file within a further seven days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length.

7. Subject to the parties' compliance with Orders 3 - 6 above and to any further order of this Court, the matter be remitted to the Land and Environment Court to deal with paragraph 4(h) of the Amended Points of Defence and otherwise the matter to be dealt with in conformity with this judgment.

8. The Respondents pay the appellants' costs of the appeal.

9. The costs of the proceedings in the Land and Environment Court be determined by that Court.

10. The Respondents, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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:	Bardsley-Smith v Penrith City Council [2013] NSWCA 200
Hearing dates:	2, 3 May 2013
Decision date:	04 July 2013
Before:	McColl JA at [1]; Barrett JA at [2]; Sackville AJA at [3]
Decision:	1. Appeal allowed. 2. Set aside Orders 1 and 2 made by the primary Judge on 18 April 2012. 3. Direct the appellants to file an amended notice of appeal within seven days. 4. Direct the parties to file within 14 days an agreed draft of the proposed injunction referred to at [127] of this judgment. 5. In the absence of agreement, the appellants file within 14 days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length. 6. The Respondents file within a further seven days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length. 7. Subject to the parties' compliance with Orders 3 - 6 above and to any further order of this Court, the matter be remitted to the Land and Environment Court to deal with paragraph 4(h) of the Amended Points of Defence and otherwise the matter to be dealt with in conformity with this judgment. 8. The Respondents pay the appellants' costs of the appeal. 9. The costs of the proceedings in the Land and Environment Court be determined by that Court. 10. The Respondents, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ENVIRONMENT AND PLANNING - planning schemes and instruments - validity of development consent relating to pharmacy - whether consent approved use of premises for prohibited purpose of a shop - whether use in accordance with development consent - whether retail business subordinate to principal purpose - whether continuing use for a prohibited purpose
Legislation Cited:	National Health Act 1953 (Cth), ss 84, 90 Environmental Planning and Assessment Act 1979, ss 76A, 76B, 106, 107(1), 122, 123(1) Land and Environment Court Act 1979, s 58 Poisons and Therapeutic Goods Act 1966 Penrith Local Environmental Plan (Industrial Land) 1996 Penrith Local Environmental Plan 2010
Cases Cited:	Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC…