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Bardsley-Smith v Penrith City Council

Bardsley-Smith v Penrith City Council

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Case Copied 18 April 2012 76 min read

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Land and Environment Court

New South Wales

Medium Neutral Citation: Bardsley-Smith & Anor v Penrith City Council & Others [2012] NSWLEC 79
Hearing dates: 1-4 November 2010 and 13-14 January 2011
Decision date: 18 April 2012
Before: Sheahan J
Decision:
1.The applicants' further amended summons dated 22 October 2010 is dismissed.
2.Unless a notice of motion for any further or different orders for costs is filed, by any party, within 14 days, the only order for costs will be that the applicants pay the second and third respondents' costs, on a party-party basis, as agreed or assessed.
3.All exhibits, including those to affidavits, may be returned.

Catchwords: DEVELOPMENT CONSENT: validity, characterisation of proposal and subsequent use pursuant to the consent, correct principles to apply, interaction of national/state regulation of pharmacy and the relevant planning regime, validity of condition imposed, severability of condition
Legislation Cited: Environmental Planning and Assessment Act 1979
Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)
Health Practitioner Regulation National Law Act 2009 (Qld)
Interpretation Act 1987
Land and Environment Court Act 1979
National Health Act 1953 (Cth)
National Health Amendment (Pharmaceutical Benefits) Act 2007 (Cth)
Poisons and Therapeutic Goods Act 1966
Penrith Local Environmental Plan 1996 (Industrial Land)
Penrith Local Environmental Plan 2010
Cases Cited: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2002] NSWLEC 243; (2000) 114 LGERA 345
Bob Blakemore Pty Ltd v The Anson Bay Company (Australia) Pty Ltd [1990] NSWCA 25
Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228
Botany Bay City Council v Ralansaab and 7 Ors [2010] NSWLEC 225; (2010) 178 LGERA 44
Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWCA 189; (2010) 174 LGERA 446
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Chan v Dainford Ltd [1985] HCA 15; (1985) 155 CLR 533
Collector of Customs v Chemark Services Pty Ltd (1993) 42 FCR 588; (1993) 114 ALR 531
Corporation of the City of Enfield v Development Assessment [2000] HCA 5; (2000) 199 CLR 135
Dogild v Warringah Council (2008) 158 LGERA 429
Dooralong Residents Action Group Pty Ltd v Wyong Shire Council [2011] NSWLEC 251
Egan v Hawkesbury City Council (1993) 79 LGERA 321
Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157
Gance v Monash CC [2010] VCAT 388
High Point Commercial Property Group Pty Ltd v Maribyrnong CC [2009] VCAT 16
Holzberger v Secretary, Department of Health & Ageing [2007] FCAFC 68; (2007) 158 FCR 586
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Kang v Blue Mountains City Council [2011] NSWLEC 150
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR…

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: [2012] NSWLEC 79
Decision Date: 18 April 2012

CaseChat Overview and Summary

Bardsley-Smith v Penrith City Council is a case where the applicants sought a judicial review of the Penrith City Council’s decision to grant a development approval for a project, arguing that the decision was unlawful and unreasonable. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issues the court had to address were whether the Council's decision was unlawful and whether it was unreasonable. This involved examining whether the decision-making process complied with relevant legislative requirements and whether the decision was based on relevant considerations. The applicants also argued that the decision was unreasonable due to a perceived bias and reliance on irrelevant considerations.

The court considered the arguments made by the applicants and the respondents, and found that the Council's decision-making process was lawful and reasonable. The court held that the Council had correctly applied the relevant legislation and that the decision was based on relevant considerations. The court also found that there was no evidence of bias or reliance on irrelevant considerations. Consequently, the court dismissed the applicants' application and ordered that the applicants pay the respondents' costs, unless a notice of motion for any further or different orders for costs was filed within 14 days.

Orders

Orders of the court

1.The applicants' further amended summons dated 22 October 2010 is dismissed.

2.Unless a notice of motion for any further or different orders for costs is filed, by any party, within 14 days, the only order for costs will be that the applicants pay the second and third respondents' costs, on a party-party basis, as agreed or assessed.

3.All exhibits, including those to affidavits, may be returned.

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 & Anor v Penrith City Council & Others [2012] NSWLEC 79
Hearing dates:	1-4 November 2010 and 13-14 January 2011
Decision date:	18 April 2012
Before:	Sheahan J
Decision:	1.The applicants' further amended summons dated 22 October 2010 is dismissed. 2.Unless a notice of motion for any further or different orders for costs is filed, by any party, within 14 days, the only order for costs will be that the applicants pay the second and third respondents' costs, on a party-party basis, as agreed or assessed. 3.All exhibits, including those to affidavits, may be returned.
Catchwords:	DEVELOPMENT CONSENT: validity, characterisation of proposal and subsequent use pursuant to the consent, correct principles to apply, interaction of national/state regulation of pharmacy and the relevant planning regime, validity of condition imposed, severability of condition
Legislation Cited:	Environmental Planning and Assessment Act 1979 Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) Health Practitioner Regulation National Law Act 2009 (Qld) Interpretation Act 1987 Land and Environment Court Act 1979 National Health Act 1953 (Cth) National Health Amendment (Pharmaceutical Benefits) Act 2007 (Cth) Poisons and Therapeutic Goods Act 1966 Penrith Local Environmental Plan 1996 (Industrial Land) Penrith Local Environmental Plan 2010
Cases Cited:	Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2002] NSWLEC 243; (2000) 114 LGERA 345 Bob Blakemore Pty Ltd v The Anson Bay Company (Australia) Pty Ltd [1990] NSWCA 25 Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 Botany Bay City Council v Ralansaab and 7 Ors [2010] NSWLEC 225; (2010) 178 LGERA 44 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWCA 189; (2010) 174 LGERA 446 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 Chan v Dainford Ltd [1985] HCA 15; (1985) 155 CLR 533 Collector of Customs v Chemark Services Pty Ltd (1993) 42 FCR 588; (1993) 114 ALR 531 Corporation of the City of Enfield v Development Assessment [2000] HCA 5; (2000) 199 CLR 135 Dogild v Warringah Council (2008) 158 LGERA 429 Dooralong Residents Action Group Pty Ltd v Wyong Shire Council [2011] NSWLEC 251 Egan v Hawkesbury City Council (1993) 79 LGERA 321 Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157 Gance v Monash CC [2010] VCAT 388 High Point Commercial Property Group Pty Ltd v Maribyrnong CC [2009] VCAT 16 Holzberger v Secretary, Department of Health & Ageing [2007] FCAFC 68; (2007) 158 FCR 586 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Kang v Blue Mountains City Council [2011] NSWLEC 150 Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR…