Restifa Pty Ltd v Sutherland Shire Council - [2009] NSWLEC 1267

Land and Environment Court

of New South Wales

CITATION: Restifa Pty Ltd v Sutherland Shire Council & ors [2009] NSWLEC 1267

PARTIES:
APPLICANT
Restifa Pty Ltd
RESPONDENT
Sutherland Shire Council
INTERVENOR
(admitted under s38(2) of the Land and Environment Court Act ,1979)
Westfield Ltd and Supabarn Supermarket Pty Ltd

FILE NUMBER(S): 10696 of 2008

CORAM: Tuor C - Taylor C

KEY ISSUES: SECTION 97 APPEAL :- appeal for deemed refusal of a development application for a mixed use development.
Proper planning framework, weight to be given to draft LEP and DCP and other planning documents,
Consistency with LEP and DCP and strategic framework,
Economic impact of retail development and whether assessment adequate
Water quality of compensatory waterbody for ecological and recreational purposes.

LEGISLATION CITED: Environmental Planning and Assessment Act, 1979; Environment Protection and Biodiversity Conservation Act, 1999; Land and Environment Court Act 1979; Threatened Species Conservation Act, 1995. Sutherland Shire Development Control Plan 2006; Sutherland Shire Local Environmental Plan, 2006. State Environmental Planning Policy No 1

CASES CITED: Aldi Foods v Holroyd City Council [2004] NSWLEC 253
Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205
GPT Limited v Belmorgan Property Development Pty Ltd [2008] NSWCA 256
Kavia Holdings Pty Limited v Sydney City Council [2003] NSWLEC 195
Morrison Design Partnership Pty Limited v North Sydney Council and Director General of the Department of Planning [2007] NSWLEC 802
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Terrace Tower Holdings v Sutherland Shire Council (2003) 129 LGERA 195
The Village McEvoy v City of Sydney Council [2009] NSWLEC 1232
Zhang v Canterbury Council (2001) 51 NSWLR 589

DATES OF HEARING: 16, 17, 18, 19, 20, 23 February; 3, 9 April; 30 June; 1, 2 July. Written submissions 16, 20, 31 July 2009

DATE OF JUDGMENT:
7 August 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Galasso SC with Ms S Duggan, barrister
INSTRUCTED
by Gadens
RESPONDENT
Mr T Robertson SC
INSTRUCTED
by HWL Ebsworth
INTERVENOR
Mr Hutley SC with Mr Larkin, barrister
INSTRUCTED
by Mallesons and Freehills

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C with Taylor C

7 August 2009

10696 of 2008 Restifa Pty Ltd v Sutherland Shire Council
JUDGMENT

1 COMMISSIONERS: This is an appeal against the deemed refusal by Sutherland Shire Council (the council) of a development application under the Environmental Planning and Assessment Act 1979 (the Act) for a mixed use development at 566-594 Princes Highway, Kirrawee (the site).

2 The issues raised by council relate principally to the impact of the proposed retail development on the role and function of Kirrawee and Sutherland Centres. Council also contends that the proposal does not address adequately a number of urban design and landscape issues and the compensatory habitat water body (the pond) to be provided on the site is unresolved. The parties also did not agree on the extent of traffic management works to be provided.

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 Restifa Pty Ltd v Sutherland Shire 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: [2009] NSWLEC 1267
Decision Date: 7 August 2009

CaseChat Overview and Summary

This case involved an appeal by Restifa Pty Ltd against the Sutherland Shire Council's deemed refusal of a development application for a mixed use development at 566-594 Princes Highway, Kirrawee. The key issues before the court were the consistency of the proposal with the planning framework, the economic impact of the retail development, and the water quality of the compensatory waterbody for ecological and recreational purposes. The court found that while there was general support for the residential and commercial components of the development, the proposal was inconsistent with the planning controls in relation to the retail component. The court was concerned that the size of the supermarket and the retail component would impact on the sustainability of Kirrawee and Sutherland Centres, and that the design of the compensatory waterbody was inadequate. The court also found that the water quality of the pond was not certain and that the proposal could not be approved as it stood. The appeal was dismissed and the development application refused.

Orders