Warriewood Properties Pty Ltd v Pittwater Council - [2010] NSWLEC 215

Land and Environment Court

of New South Wales

CITATION: Warriewood Properties Pty Ltd v Pittwater Council [2010] NSWLEC 215

PARTIES: APPLICANT
Warriewood Properties Pty Ltd
RESPONDENT
Pittwater Council

FILE NUMBER(S): 10229 of 2010

CORAM: Sheahan J - Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- appeal against refusal of consent - dispute about permissibility of supermarket component of the proposal - "hierarchy" of supermarkets - characterisation of proposed supermarket - "associated community and urban infrastructure" - "neighbourhood shop"

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Model Provisions 1980
Pittwater Local Environmental Plan 1993

CASES CITED: Australian Lifestyle Corporation v Wingecarribee Shire Council [2008] NSWLEC 284; (2008) 168 LGERA 239
Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Grace v Thomas Street Café Pty Ltd and Others [2007] NSWCA 359; (2007) 159 LGERA 57
Hastings Cooperative v Port Macquarie Hastings Council [2009] NSWLEC 99; (2009) 167 LGERA 205
Hastings Cooperative v Port Macquarie Hastings Council [2009] NSWCA 400; (2009) 171 LGERA 152
Maryland Development v Penrith City Council [2001] NSWLEC 135; (2001) 115 LGERA 75
Modog v Baulkham Hills Shire Council [2000] NSWLEC 180; (2000) 109 LGERA 443
Murlan Consulting v Ku-ring-gai Municipal Council [2007] NSWLEC 182
National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223
North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50
Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305
Webster & Daff v McIntosh (1980) 3 A Crim R 455

DATES OF HEARING: 3, 4, 5 and 6 August 2010

DATE OF JUDGMENT:
22 October 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Galasso, SC
SOLICITORS
Harris & Company
RESPONDENT
Mr P Larkin, with Mr R White
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J
22 October 2010

10229 of 2010 WARRIEWOOD PROPERTIES PTY LTD v PITTWATER COUNCIL
JUDGMENT

Introduction

1 HIS HONOUR: This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Pittwater Council (the Council) of Development Application No. N0603/09 for the subdivision of 23B Macpherson Street, Warriewood (the site) into two lots. One lot is to be dedicated to the Council as part of an open space corridor along an existing creek and the other lot is to contain a new retail facility.

2 The court, in the presence of the parties, conducted a site view on the morning of the first day of hearing. The court heard residents’ expressions of support and opposition, and then proceeded to visit nearby supermarkets, and shopping centres.

3 Many of the reservations expressed about the proposal could be resolved by appropriate conditions, to many of which the proponent would agree. However, Council persisted with its contention that the retail facility as proposed is not permissible.

4 I acknowledge the assistance provided by Commissioner Brown…

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: [2010] NSWLEC 215
Decision Date: 22 October 2010

CaseChat Overview and Summary

Warriewood Properties Pty Ltd sought to appeal the decision of the Pittwater Council to refuse a development application for a retail facility at 23B Macpherson Street, Warriewood. The proposed development involved the subdivision of a site into two lots, with one lot to be dedicated to the Council as part of an open space corridor along an existing creek, and the other lot to contain a new retail facility. The key issues in the case were whether the proposed supermarket component of the proposal was permissible and its correct characterisation. The court had to determine if the proposed supermarket was permissible as "associated community and urban infrastructure" or a "neighbourhood shop". The applicant argued that the supermarket should be characterised as a permissible use with consent, while the Council submitted that the supermarket could not be categorised as either "associated community and urban infrastructure" or "neighbourhood shop". The court held that the proposed supermarket component of the development was not permissible as "associated community and urban infrastructure". The court also concluded that the proposed supermarket was not a "neighbourhood shop". The court accepted the evidence that the proposed supermarket was a "major" supermarket, and would provide goods that extended beyond "small daily convenience goods", which provide for "the day-to-day needs of people who live or work in the local area". The court found that the proposed supermarket would defeat the zoning intentions of the LEP and that a supermarket of the size proposed should be located in the 3(a) or 3(c) business zones. The appeal was dismissed, and the development application was refused.

Orders