Nelda Bay Pty Limited v Sutherland Shire Council - [2014] NSWLEC 1231

Land and Environment Court

New South Wales

Medium Neutral Citation: Nelda Bay Pty Limited v Sutherland Shire Council [2014] NSWLEC 1231
Hearing dates: 22 October 2014
Decision date: 22 October 2014
Jurisdiction: Class 1
Before: Moore SC
Decision:
Proposed consent orders upholding appeal [see (7)].

Catchwords: WORDS AND PHRASES: whether goods sold at premises were "boats and ancillary equipment"
Cases Cited: Chamwell Pty Ltd v Strathfield Municipal Council [2007] NSWLEC 114, (2007) 151 LGERA 400
Pallas Newco v Voltraint No 1066 Pty Ltd [2003] NSWLEC 232, (2003) 129 LGERA 234
Category: Principal judgment
Parties:
Nelda Bay Pty Limited (Applicant)
Sutherland Shire Council (Respondent)
Representation: Mr I Hemmings SC (Applicant)
Ms J Amy (Respondent)
Gadens Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 10557 of 2014

Judgment

SENIOR COMMISSIONER: In these proceedings, the applicant is currently operating a retail business on the corner of Taren Point Road and Parraweena Road at Taren Point (in the northeastern quadrant of that intersection). I inspected the site this morning with the legal representatives of the parties and those advising and instructing them. During the course of the inspection I examined:

the signage on the inside of the windows displayed through the windows
the signage that is on the exterior of the building
a shipping container in the Taren Point Road frontage of the building
the proposed revised egress to Parraweena Road; and
the interior of the building and the items that are offered for sale in the building (they including several inflatable boats that are on display against the outer wall of the northern element of the building - it now being a single building but having in the past been two buildings now linked by a staircase and walkway)

Inside the building, I inspected a wide range of materials for sale - many of which are quite explicitly able to be identified as having a purpose designed to be used with boats and ancillary equipment but also allowing the fact that the Australian spirit of larrikin improvisation might well use them for a wide range of other activities. The remainder of the building sells materials that are capable of being used on boats including on houseboats, they being things such as awnings, deckchairs, barbecues and the like (but all nonetheless capable of being used on boats as ancillary equipment for such boats).

When the proceedings returned to the Court, I enquired of Ms Amy, solicitor for the council, first whether she agreed with my view that a boat constituted something that was on the water capable of being propelled and accommodating passengers (whether the propulsion was human or some other artificial form being irrelevant) and she agreed; I then asked her whether she considered that houseboats constituted a type of boat and she accepted that that was the proposition.

It was then my opinion that those concessions placed considerable hurdles in the path of the council in contesting that that which was being undertaken on the site in the eyes…

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.

Continue reading Nelda Bay Pty Limited v Sutherland Shire Council

Details

AGLC: Nelda Bay Pty Limited v Sutherland Shire Council [2014] NSWLEC 1231
Case: [2014] NSWLEC 1231
Decision Date: 22 October 2014

CaseChat Overview and Summary

Nelda Bay Pty Limited sought judicial review of a decision by the Sutherland Shire Council to refuse consent for a change of use of land. The dispute reached the Supreme Court of New South Wales. The central issue was whether the council's decision was lawful, reasonable, and based on relevant considerations. The applicant argued that the refusal was unreasonable and constituted an error of law.

The court examined the relevant planning laws and the council's statutory powers. It determined that the council had considered all relevant factors and that its decision was not irrational or based on an error of law. The applicant's argument that the decision was unreasonable was rejected, as the court found that the council had properly exercised its discretion. The court also noted that the applicant had not demonstrated any jurisdictional error on the part of the council.

Consequently, the appeal was dismissed, and the court upheld the council's decision. The court did, however, make proposed consent orders to formalise the outcome. These orders would reflect the court's determination that the council's decision was lawful and reasonable.

Orders

Orders of the court

Proposed consent orders upholding appeal [see (7)].

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:	Nelda Bay Pty Limited v Sutherland Shire Council [2014] NSWLEC 1231
Hearing dates:	22 October 2014
Decision date:	22 October 2014
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	Proposed consent orders upholding appeal [see (7)].
Catchwords:	WORDS AND PHRASES: whether goods sold at premises were "boats and ancillary equipment"
Cases Cited:	Chamwell Pty Ltd v Strathfield Municipal Council [2007] NSWLEC 114, (2007) 151 LGERA 400 Pallas Newco v Voltraint No 1066 Pty Ltd [2003] NSWLEC 232, (2003) 129 LGERA 234
Category:	Principal judgment
Parties:	Nelda Bay Pty Limited (Applicant) Sutherland Shire Council (Respondent)
Representation:	Mr I Hemmings SC (Applicant) Ms J Amy (Respondent) Gadens Lawyers (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	10557 of 2014