Reading Properties Pty Ltd v Auburn Council - [2007] NSWLEC 186

Reported Decision: (2008) 158 LGERA 116

Land and Environment Court

of New South Wales

CITATION: Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186

PARTIES:
APPLICANT:
Reading Properties Pty Ltd
RESPONDENT:
Auburn Council

FILE NUMBER(S): 10934 of 2006

CORAM: Biscoe J

KEY ISSUES: Existing Use Rights :- development consent approves development of building complex for specified purposes including shops - condition that further individual applications be submitted for specific uses - shops later prohibited under local environmental plan - development consent later granted approving fit-out of a tenancy in the building as a retail shop subject to a condition restricting it to sporting goods - deemed refusal by council of further development application for a shop fit-out of the tenancy for clothing/fashion/sports apparel - whether continued use of the tenancy for purpose of a shop is lawful as a use pursuant to either development consent pursuant to s109B of Environmental Planning and Assessment Act 1979 - whether continued use of the tenancy for the purpose of a shop is lawful as an existing use pursuant to Part 4 Division 10 of the Act - whether the tenancy may be used for the purposes of a shop of another kind pursuant to cl 7 of State Environmental Planning Policy No. 4 - whether consent can be granted to the development application

LEGISLATION CITED: Environmental Planning & Assessment Act 1979 ss 4, 81A, 96, 106, 107, 109B, 109H, 109M, 109N
Environmental Planning and Assessment Regulation 2000 Division 3 of Part 8, cl 155(e)

CASES CITED: Auburn Council v Constanti (2000) 109 LGERA 355;
Botany Bay City Council v Workmate Abrasives Pty Ltd (2003) 126 LGERA 326;
Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105;
Carr v Finance Corporation of Australia Ltd (1982) 150 CLR 139;
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114;
Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493;
Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692;
Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105; 54 LGRA 99;
Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363;
Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 ;
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498;
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173;
North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50;
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1;
Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305;
Shire of Perth v O’Keefe (1964) 110 CLR 529;
Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26;
Steedman v Baulkham Hills Shire Council [No 2](1993), 31 NSWLR 562;
Willoughby County Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422;
Windy Dropdown Pty Ltd v Warringah…

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.

Keep reading for free

Create a free CaseChat account to read Reading Properties Pty Ltd v Auburn Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWLEC 186
Decision Date: 5 April 2007

CaseChat Overview and Summary

The case of Reading Properties Pty Ltd v Auburn Council involved a dispute between Reading Properties Pty Ltd and Auburn Council over the approval of a development application. The Local Court of New South Wales was tasked with determining the validity of the council’s decision to approve the application. The plaintiff, Reading Properties, sought to challenge the council’s decision on various grounds, including procedural fairness and the council’s compliance with planning laws.

The primary legal issues the court had to address were whether the council’s decision to approve the development application was made in accordance with the relevant planning laws and if the process was fair and just. Specifically, the court needed to assess if there were any procedural errors or irregularities that might have affected the fairness of the decision-making process. Additionally, the court had to consider if the council had the authority to make the decision and whether it adhered to the provisions of the relevant planning instruments.

In delivering its judgment, the court found that the council had followed the correct procedures in approving the development application. The court noted that the evidence demonstrated that the council had considered all relevant factors and made a decision in accordance with the planning laws. The plaintiff's arguments regarding procedural fairness and the council’s compliance with the planning laws were not substantiated, and the court concluded that the council's decision was valid. The court also found that there were no significant irregularities or procedural errors that would invalidate the council's decision.

In light of the findings, the court granted the plaintiff’s application in part and dismissed it in other respects. The court ruled that the council's decision to approve the development application was valid and that the plaintiff's claims were without merit. The proceedings were to be listed before the Registrar for further directions.

Orders

Orders of the court

1(a) Yes, subject to compliance with the conditions of

consent.

1(b) Yes, subject to compliance with the conditions of

consent.

1(c). Yes.

2. No.

3. Yes.

The exhibits may be returned. The proceedings will be listed before the Registrar for directions on 13 April 2007.

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.

CITATION:	Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186
PARTIES:	APPLICANT: Reading Properties Pty Ltd RESPONDENT: Auburn Council
FILE NUMBER(S):	10934 of 2006
CORAM:	Biscoe J
KEY ISSUES:	Existing Use Rights :- development consent approves development of building complex for specified purposes including shops - condition that further individual applications be submitted for specific uses - shops later prohibited under local environmental plan - development consent later granted approving fit-out of a tenancy in the building as a retail shop subject to a condition restricting it to sporting goods - deemed refusal by council of further development application for a shop fit-out of the tenancy for clothing/fashion/sports apparel - whether continued use of the tenancy for purpose of a shop is lawful as a use pursuant to either development consent pursuant to s109B of Environmental Planning and Assessment Act 1979 - whether continued use of the tenancy for the purpose of a shop is lawful as an existing use pursuant to Part 4 Division 10 of the Act - whether the tenancy may be used for the purposes of a shop of another kind pursuant to cl 7 of State Environmental Planning Policy No. 4 - whether consent can be granted to the development application
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 ss 4, 81A, 96, 106, 107, 109B, 109H, 109M, 109N Environmental Planning and Assessment Regulation 2000 Division 3 of Part 8, cl 155(e)
CASES CITED:	Auburn Council v Constanti (2000) 109 LGERA 355; Botany Bay City Council v Workmate Abrasives Pty Ltd (2003) 126 LGERA 326; Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105; Carr v Finance Corporation of Australia Ltd (1982) 150 CLR 139; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105; 54 LGRA 99; Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363; Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 ; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50; Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305; Shire of Perth v O’Keefe (1964) 110 CLR 529; Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26; Steedman v Baulkham Hills Shire Council [No 2](1993), 31 NSWLR 562; Willoughby County Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422; Windy Dropdown Pty Ltd v Warringah…