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Warehouse Group (Australia) Pty Ltd v Woolworths Ltd

Warehouse Group (Australia) Pty Ltd v Woolworths Ltd

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Case Copied 8 September 2005 77 min read

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Reported Decision:
141 LGERA 376

Court of Appeal

CITATION:
The Warehouse Group (Australia) Pty. Ltd. v. Woolworths Ltd. & Anor. [2005] NSWCA 269
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
16 and 17 May 2005

JUDGMENT DATE:

8 September 2005

JUDGMENT OF:
Handley JA at 1; Hodgson JA at 17; Basten JA at 122

DECISION:
1. Cross-appeal allowed. 2. Order 2 made on 3 February 2004, Order 2 made on 8 June 2004, and Order 1 made on 13 December 2004 (as amended on 12 January 2005) set aside. 3. Declare that purported consent 1937/01 granted by the second respondent on 6 April 2001 was not a valid consent, and that the application pursuant to which that consent was purportedly granted has not been determined. 4. Order that the appellant be restrained from carrying out, causing, or permitting or suffering the use of the premises known as "The Warehouse" at Unit 1 in Lot 10 in DP 788368 as 1-3 Sappho Road, Warwick Farm for the purposes of a bulky goods salesroom or storeroom or for the purpose of a shop (in both cases as defined in the Liverpool Local Environmental Plan 1997 (as amended)), except pursuant to a valid consent granted under the EPA Act. 5. Order 4 stayed for a period of 28 days. 6. The appellant to make any application to the Land & Environment Court for an adjournment of the proceedings and any further stay of Order 4 within 7 days of the date of these orders. 7. Appeal dismissed. 8. Appellant to pay the respondents' costs of the appeal and cross-appeal.

CATCHWORDS:
BUILDING CONTROL AND TOWN PLANNING - Development applications - Planning schemes - Bulky goods salesroom - Whether application a nullity - Whether purported consent was "to" the application - Requirement of Local Environmental Plan as to areas for specified use - Whether applied at time of consent or thereafter - Whether SEPP 1 applied - Whether Council could have been satisfied as to requirement - Whether consent valid.

LEGISLATION CITED:
Environmental Planning & Assessment Act 1979 ss.4, 76A, 76B, 78A, 79A, 79C, 80, 80A, 96.
Environmental Planning Assessment Regulation 2000
State Environmental Planning Policy 1
Liverpool Council Environmental Plan 1997

CASES CITED:
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 253
Chambers v. Maclean Shire Council [2003] NSWCA 100, 57 NSWLR 157
Corporation of the City of Enfield v. Development Assessment Commission [2000] HCA 5, 199 CLR 135
Currey v. Sutherland Shire Council [2003] NSWCA 100, 129 LGERA 223
Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1981-82) 148 CLR 88
Mison v. Randwick Municipal Council (1991) 23 NSWLR 734
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
Patrick Autocare Pty. Limited v. Minister for Infrastructure Planning & Natural Resources [2004] NSWLEC 687
Poynting v. Strathfield Municipal Council [2001] NSWCA 270, 116 LGERA 319
R. v.…

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: [2005] NSWCA 269
Decision Date: 8 September 2005

CaseChat Overview and Summary

The appeal concerned a dispute between Warehouse Group (Australia) Pty Ltd and Woolworths Ltd regarding a development application for a bulky goods salesroom. The matter was heard in the Court of Appeal of New South Wales before Handley, Hodgson, and Basten JJA.

The central legal issues before the court were whether a purported development consent granted by the council was a nullity, whether that consent was validly given to the application, and whether the council had been satisfied as to the requirements of the Local Environmental Plan concerning areas for specified uses. The court also considered whether State Environmental Planning Policy No 1 applied and whether the consent was valid at the time it was granted or thereafter.

The Court of Appeal allowed the cross-appeal, setting aside previous orders and declaring that the purported consent granted by the council was not valid. The court reasoned that the application had not been validly determined and that the council's consent was invalid. Consequently, the court restrained Warehouse Group from using the premises as a bulky goods salesroom or shop except pursuant to a valid consent. The appellant was ordered to pay the respondents' costs of the appeal and cross-appeal.

Orders

Orders of the court

1. Cross-appeal allowed. 2. Order 2 made on 3 February 2004, Order 2 made on 8 June 2004, and Order 1 made on 13 December 2004 (as amended on 12 January 2005) set aside. 3. Declare that purported consent 1937/01 granted by the second respondent on 6 April 2001 was not a valid consent, and that the application pursuant to which that consent was purportedly granted has not been determined. 4. Order that the appellant be restrained from carrying out, causing, or permitting or suffering the use of the premises known as "The Warehouse" at Unit 1 in Lot 10 in DP 788368 as 1-3 Sappho Road, Warwick Farm for the purposes of a bulky goods salesroom or storeroom or for the purpose of a shop (in both cases as defined in the Liverpool Local Environmental Plan 1997 (as amended)), except pursuant to a valid consent granted under the EPA Act. 5. Order 4 stayed for a period of 28 days. 6. The appellant to make any application to the Land & Environment Court for an adjournment of the proceedings and any further stay of Order 4 within 7 days of the date of these orders. 7. Appeal dismissed. 8. Appellant to pay the respondents' costs of the appeal and cross-appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	The Warehouse Group (Australia) Pty. Ltd. v. Woolworths Ltd. & Anor. [2005] NSWCA 269 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16 and 17 May 2005
JUDGMENT DATE:	8 September 2005
JUDGMENT OF:	Handley JA at 1; Hodgson JA at 17; Basten JA at 122
DECISION:	1. Cross-appeal allowed. 2. Order 2 made on 3 February 2004, Order 2 made on 8 June 2004, and Order 1 made on 13 December 2004 (as amended on 12 January 2005) set aside. 3. Declare that purported consent 1937/01 granted by the second respondent on 6 April 2001 was not a valid consent, and that the application pursuant to which that consent was purportedly granted has not been determined. 4. Order that the appellant be restrained from carrying out, causing, or permitting or suffering the use of the premises known as "The Warehouse" at Unit 1 in Lot 10 in DP 788368 as 1-3 Sappho Road, Warwick Farm for the purposes of a bulky goods salesroom or storeroom or for the purpose of a shop (in both cases as defined in the Liverpool Local Environmental Plan 1997 (as amended)), except pursuant to a valid consent granted under the EPA Act. 5. Order 4 stayed for a period of 28 days. 6. The appellant to make any application to the Land & Environment Court for an adjournment of the proceedings and any further stay of Order 4 within 7 days of the date of these orders. 7. Appeal dismissed. 8. Appellant to pay the respondents' costs of the appeal and cross-appeal.

CATCHWORDS:	BUILDING CONTROL AND TOWN PLANNING - Development applications - Planning schemes - Bulky goods salesroom - Whether application a nullity - Whether purported consent was "to" the application - Requirement of Local Environmental Plan as to areas for specified use - Whether applied at time of consent or thereafter - Whether SEPP 1 applied - Whether Council could have been satisfied as to requirement - Whether consent valid.
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 ss.4, 76A, 76B, 78A, 79A, 79C, 80, 80A, 96. Environmental Planning Assessment Regulation 2000 State Environmental Planning Policy 1 Liverpool Council Environmental Plan 1997
CASES CITED:	Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 253 Chambers v. Maclean Shire Council [2003] NSWCA 100, 57 NSWLR 157 Corporation of the City of Enfield v. Development Assessment Commission [2000] HCA 5, 199 CLR 135 Currey v. Sutherland Shire Council [2003] NSWCA 100, 129 LGERA 223 Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1981-82) 148 CLR 88 Mison v. Randwick Municipal Council (1991) 23 NSWLR 734 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Patrick Autocare Pty. Limited v. Minister for Infrastructure Planning & Natural Resources [2004] NSWLEC 687 Poynting v. Strathfield Municipal Council [2001] NSWCA 270, 116 LGERA 319 R. v.…