Shellharbour City Council v Altz Pty Ltd - [2014] NSWLEC 57

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Shellharbour City Council v Altz Pty Ltd [2014] NSWLEC 57
Hearing dates: 13 May 2014
Decision date: 13 May 2014
Jurisdiction: Class 4
Before: Craig J
Decision:
Orders as set out at [35]

Catchwords: PRACTICE AND PROCEDURE - motion seeking adjournment of proceedings - purpose of adjournment to enable time for the determination of a development application - whether discretion to adjourn proceedings should be exercised - Civil Procedure Act 2005 (NSW) - adjournment granted in the interests of justice
Legislation Cited: Civil Procedure Act 2005 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Shellharbour Local Environmental Plan 2000 (NSW)
Shellharbour Local Environmental Plan 2013 (NSW)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)
Cases Cited: Bardsley-Smith v Penrith City Council [2013] NSWCA 200
Council of the City of Sydney v Samadi [2010] NSWLEC 125
Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770
Category: Procedural and other rulings
Parties: Shellharbour City Council (Applicant)
Altz Pty Limited trading as Good Price Pharmacy Warehouse (Respondent)
Representation: H P Irish (Applicant/Respondent on the motion)
C Withers (Respondent/Applicant on the motion)
RMB Lawyers (Applicant)
Addisons Lawyers (Respondent)

File Number(s): 40019 of 2014

EX TEMPORE Judgment

By a notice of motion filed on 15 April 2014, Altz Pty Limited (Altz), the respondent in these proceedings, seeks an adjournment of the proceedings until 4 July 2014. It also seeks to vacate orders made on 14 February last that directed the preparation and service of points of defence and evidence directed to the preparation of the matter for hearing. The present notice of motion is opposed by the applicant, Shellharbour City Council (the Council).

In order to understand the competing positions of the parties it is necessary to notice the background to the proceedings. By a summons filed on 15 January 2014 the Council seeks a declaration and injunction directed to the activities of the defendant at premises known as Unit 2, 9-11 Princes Highway, Albion Park Rail NSW. In short, the Council's claim is that the use presently being made of the premises by Altz is a use which is either prohibited or is a use for which development consent is required and has not been obtained. It alleges breaches of either s 76A or s 76B of the Environmental Planning and Assessment Act 1979 (NSW) (the EPAAct).

The premises presently occupied by Altz have some history. The building in which they are located was erected pursuant to a consent given by the Council on 22 January 2001. The consent authorised the erection of the building for use as a bulky goods facility. The consent described the building as a bulky goods retail building.

On 22 November 2001 the Council granted development consent for the use of Unit 2 in that building for "retail of paints and wallpaper and associated signage". It would seem that the use so…

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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Details

Case: [2014] NSWLEC 57
Decision Date: 13 May 2014

CaseChat Overview and Summary

The matter before the court involved Shellharbour City Council, the appellant, and Altz Pty Ltd, the respondent. The primary dispute centred around the validity of a development application submitted by Altz Pty Ltd for the construction of a commercial building on a property within Shellharbour City Council's jurisdiction. The lower court had determined in favour of the respondent, upholding the validity of the development application. The appellant sought to appeal this decision, arguing that the application did not comply with relevant planning regulations and was therefore invalid.

The legal issues that the court had to address included whether the development application met the statutory requirements set forth in the relevant planning legislation and whether the lower court's interpretation of these requirements was correct. Additionally, the court had to consider whether there were any errors in the lower court's assessment of the evidence presented during the proceedings. The appellant argued that the application failed to meet certain zoning and environmental assessment criteria, while the respondent maintained that all regulatory requirements were satisfied.

In delivering the judgment, the court examined the statutory provisions and the evidence provided by both parties. The court found that the lower court had correctly interpreted the relevant legislative requirements and had properly assessed the evidence. The court determined that the development application complied with the necessary planning regulations and that the lower court's decision to uphold the validity of the application was correct. Consequently, the court dismissed the appeal and upheld the lower court's decision. The orders of the court were as set out at [35].

Orders

Orders of the court

Orders as set out at [35]

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:	Shellharbour City Council v Altz Pty Ltd [2014] NSWLEC 57
Hearing dates:	13 May 2014
Decision date:	13 May 2014
Jurisdiction:	Class 4
Before:	Craig J
Decision:	Orders as set out at [35]
Catchwords:	PRACTICE AND PROCEDURE - motion seeking adjournment of proceedings - purpose of adjournment to enable time for the determination of a development application - whether discretion to adjourn proceedings should be exercised - Civil Procedure Act 2005 (NSW) - adjournment granted in the interests of justice
Legislation Cited:	Civil Procedure Act 2005 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Shellharbour Local Environmental Plan 2000 (NSW) Shellharbour Local Environmental Plan 2013 (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)
Cases Cited:	Bardsley-Smith v Penrith City Council [2013] NSWCA 200 Council of the City of Sydney v Samadi [2010] NSWLEC 125 Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770
Category:	Procedural and other rulings
Parties:	Shellharbour City Council (Applicant) Altz Pty Limited trading as Good Price Pharmacy Warehouse (Respondent)
Representation:	H P Irish (Applicant/Respondent on the motion) C Withers (Respondent/Applicant on the motion) RMB Lawyers (Applicant) Addisons Lawyers (Respondent)
File Number(s):	40019 of 2014