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.
APPLICANT Ms S Duggan SOLICITORS Pike Pike & Fenwick
RESPONDENT Mr A Galasso SC SOLICITORS Wilshire Webb
JUDGMENT:
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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 Act1979 (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…
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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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.