Chamwell Pty Ltd v Strathfield Council

Case [2007] NSWLEC 114


Reported Decision: (2007) 151 LGERA 400

Land and Environment Court


of New South Wales


CITATION: Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114
PARTIES: APPLICANT
Chamwell Pty Limited
RESPONDENT
Strathfield Council
FILE NUMBER(S): 11057 of 2006
CORAM: Preston CJ
KEY ISSUES: Development Application :- characterisation of purpose of development - vehicular and pedestrian access within building to shop - whether "roads" or "shop" - "roads" permissable but "shop" prohibited in zone.
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW) s 97
Land and Environment Court Act 1979 s 69(2)
Land and Environment Court Rules Pt 16 r 4(1)-(2)
CASES CITED: Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202;
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404;
Council of the City of Newcastle v Royal Newcastle Hospital (1956) 96 CLR 493;
Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157;
Gee v Port Stephens Council (2003) 131 LGERA 325;
Gold Star Bakeries Pty Ltd v Waverley Municiapl Council (1964) 10 LGRA 396;
Goodwins (Sydney) Pty Ltd v Sydney City Council (1960) 5 LGRA 346;
Hunter Development Brokerage Pty Ltd v Cessnock City Council [No 2] [2006] NSWCA 292;
Lizzio v Ryde Municipal Council (1983) 155 CLR 211;
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173 ;
Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323;
Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305;
Scott's Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191;
Scott's Provision Stores Pty Ltd v Sydney City Council (1967) 13 LGRA 271;
Shire of Perth v O'Keefe (1964) 110 CLR 529;
Warringah Shire Council v Raffles (1978) 38 LGRA 306
DATES OF HEARING: 2 March 2007
EX TEMPORE JUDGMENT DATE: 2 March 2007
LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan
SOLICITORS
Pike Pike & Fenwick

RESPONDENT
Mr A Galasso SC
SOLICITORS
Wilshire Webb



JUDGMENT:

- 15 -

        THE LAND AND
        ENVIRONMENT COURT
        OF NEW SOUTH WALES

        PRESTON CJ

        2 MARCH 2007


        CHAMWELL PTY LIMITED V STRATHFIELD COUNCIL

        JUDGMENT

1 HIS HONOUR: These proceedings are an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (NSW) against Strathfield Council’s deemed refusal of a development application for the demolition of existing buildings and the erection and use of a building as a mixed use development comprising a supermarket and multiple-unit housing with basement car parking for those uses at 29 and 33-35 Burlington Road and 32 The Crescent, Homebush.

2 The Council, in issue 1 of its statement of issues dated 22 January 2007, has raised an issue that parts of the development are prohibited and hence the proposed development in its current form cannot be approved. The parts of the development concerned are located on the part of the development site that is zoned 2(b) Residential under Strathfield Planning Scheme Ordinance 1969. Shop, including supermarket, is a prohibited purpose of development…

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Details
AGLC
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114
Case
[2007] NSWLEC 114
Decision Date

CaseChat Overview and Summary

Chamwell Pty Ltd initiated legal proceedings against Strathfield Council, challenging the council's refusal to approve a proposed development. The proposed development involved modifications to a property situated in Lot D, as detailed in plans submitted on 22 January 2007, and a Statement of Environmental Effects filed on 22 December 2006. The council's decision was based on the assertion that parts of the development were intended for a shop, specifically a supermarket, which was deemed a prohibited purpose under the applicable planning regulations. This dispute necessitated a judicial determination on the legality of the council's decision and the appropriateness of the proposed development in light of the planning regulations.

The court was tasked with resolving several key legal issues, primarily whether the council's decision to deny approval for the proposed development was justified. This involved examining the plans and the Statement of Environmental Effects to ascertain whether the proposed shop (supermarket) constituted a prohibited purpose under the relevant planning laws. Additionally, the court had to consider whether the council's decision was in accordance with the applicable legislative and regulatory framework.

In its reasoning, the court determined that the proposed development, as outlined in the submitted plans and the Statement of Environmental Effects, included elements that contravened the planning regulations by designating part of the property for a shop (supermarket), which was expressly prohibited. The court concluded that the council's decision to deny approval was legally sound and aligned with the statutory provisions governing land use and development in the area. Consequently, the court ruled in favor of the council's decision, affirming that the proposed development could not proceed in its current form due to the prohibited use of part of the property.

The court issued several orders in its decision. Firstly, it ruled that the proposed development could not be approved due to the inclusion of a shop (supermarket) in Lot D, which was a prohibited purpose. Secondly, the proceedings were scheduled for a directions hearing on 4 April 2007. Thirdly, all previous directions in the case were vacated. Fourthly, each party was directed to bear their own costs for the hearing and the determination of the specific issue. Lastly, the court granted liberty to each party to apply to the Court on two days' notice.

Orders

Orders of the court

1. The Court's answer to issue 1 is that the proposed development in the form described in the plans filed 22 January 2007 and the Statement of Environmental Effects filed 22 December 2006 is not able to be approved as parts of the development in Lot D are for the prohibited purpose of shop (supermarket); 2. The proceedings are listed for a directions hearing on 4 April 2007; 3. Previous directions made in these proceedings are vacated; 4. Each party is to pay their own costs of the hearing and determination of the separate issue; 5. Grant liberty to each party to apply to the Court on 2 days notice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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