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Pallas Newco Pty Limited v Votraint No 1066 Pty Limited

Pallas Newco Pty Limited v Votraint No 1066 Pty Limited

Case [2003] NSWLEC 232 10 October 2003

Jurisdiction

Unauthorised Development

Adverse Possession

Prohibited Development

Planning & Development Law

Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Pallas Newco Pty Limited v Votraint No 1066 Pty Limited and Others [2003] NSWLEC 232

PARTIES:
APPLICANT
Pallas Newco Pty Limited
FIRST RESPONDENT
Votraint No 1066 Pty Limited
SECOND RESPONDENT
Ashfield Municipal Council
THIRD RESPONDENT
Woolworths Limited

FILE NUMBER(S): 40443 of 2003

CORAM: Talbot J

KEY ISSUES: Development Application :- whether prohibited use proposed is a jurisdictional fact - whether proposed use for a prohibited development subsuming a use permissible with consent or two separate uses one of which is prohibited

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pt 4 Div 2, s 77
Ashfield Local Environmental Plan 1985 Sch 3

CASES CITED: Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126;
Chambers v Maclean Shire Council and 2 Ors [2003] NSWCA 100, unreported;
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389;
Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135;
Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157;
Giddings v Ashfield Council [1999] NSWLEC 238, unreported;
Londish v Knox Grammar School and Others (1997) 97 LGERA 1;
North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd and Others (1989) 16 NSWLR 50;
Shire of Perth v O'Keefe and Another (1964) 110 CLR 529;
Steedman and Another v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562;
Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55;
Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710

DATES OF HEARING: 29/09/2003, 30/09/2003

DATE OF JUDGMENT:
10/10/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr T S Hale SC with Mr J Horowitz (Barrister)
SOLICITORS
Freehills
FIRST RESPONDENT
Mr D Lasky (Solicitor)
SOLICITORS
Rosmin & Associates
SECOND RESPONDENT
Mr P M Jackson (Solicitor)
SOLICITORS
Pike Pike & Fenwick
THIRD RESPONDENT
Ms J Jagot (Barrister)
SOLICITORS
Corrs Chambers Westgarth

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40443 of 2003

Talbot J

10 October 2003

Pallas Newco Pty Limited

Applicant

Votraint No. 1066 Pty Limited

First Respondent

Ashfield Municipal Council

Second Respondent

Woolworths Limited

Third Respondent

Judgment

Introduction

1 The third respondent is the proposed lessee of land situated at 552-554 Parramatta Road, Ashfield (“the land”) under an agreement for lease made with the first respondent. The first respondent, which is the owner of the land, has not participated in argument.

2 On 11 September 2002 a development application was lodged with the second respondent, Ashfield Municipal Council (“the council”), to carry out development for what was described as “use of an existing ‘My Car’ building as a Dan Murphy drive-in take away liquor store; Demolition of a café building keeping some of the façade for signage, addition of 4 parking spaces, landscaping”. On 20 January 2003 the council granted a development consent to allow “Demolition of part of existing café building with retention of some facades and construction and…

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 Pallas Newco Pty Limited v Votraint No 1066 Pty Limited

Details

AGLC: Pallas Newco Pty Limited v Votraint No 1066 Pty Limited [2003] NSWLEC 232
Case: [2003] NSWLEC 232
Decision Date: 10/10/2003

CaseChat Overview and Summary

In the matter of Pallas Newco Pty Limited v Votraint No 1066 Pty Limited, the Land and Environment Court of New South Wales was tasked with determining whether a development application for a proposed drive-in take-away liquor store on land in Ashfield was within the jurisdiction of Ashfield Municipal Council. The applicant, Pallas Newco, argued that the proposed development was a prohibited use under the Ashfield Local Environmental Plan 1985, and as such, the council did not have the jurisdiction to grant development consent. The primary issue before the court was whether the proposed development was a permissible use requiring consent or if it constituted a prohibited use that fell outside the council's jurisdiction.

The court considered whether the proposed development was a jurisdictional fact and if the development could be characterised as a prohibited use. The court acknowledged that if the development was prohibited, the council lacked the jurisdiction to grant consent, rendering any such consent void. The court examined the nature of the proposed development, including the layout and operational aspects of the drive-in facility, and concluded that the dominant use of the premises would be a conventional bottle shop rather than a drive-in take-away establishment. The drive-in aspect was deemed ancillary to the main business of selling liquor within the store. Consequently, the court found that the proposed development constituted a prohibited use as a shop, which did not require consent under the LEP. Therefore, the council did not have jurisdiction to grant the development consent, making the consent void and of no effect.

In its judgment, the court declared the development consent issued by the council to be void and of no effect. It further ordered that the first respondent, Votraint No 1066 Pty Limited, be restrained from acting on the development consent. The court reserved the matter of costs and directed that the exhibits be returned.

Orders