Westfield Management Pty Limited & Anor v Gazcorp Pty Limited & (2) Ors [2004] NSWLEC 7

Westfield Management Pty Limited & Anor v Gazcorp Pty Limited & (2) Ors [2004] NSWLEC 7

The warehouse clearance outlet sold goods by retail directly to the public and therefore answered the LEP definition of a shop. Shops were prohibited in the 4(b) zone except for specified categories, and the outlet did not merely serve the daily convenience needs of the local workforce. Even if the use could be characterised as an innominate use, it also fell within the prohibited shop category, so the council had no power to grant consent. The breach was not technical, delay was not established, trade-competitor status did not justify refusing relief, and economic benefit could not override planning controls; therefore the consent was unlawful and void and injunctive relief should be...

Jurisdiction
Australia
Judgment Date
16 January 2004
Procedural Posture
Proceedings Seeking Declarations and Injunctions Concerning Development Consent and Alleged Prohibited Use Under an Environmental Planning Instrument / Judgment After Hearing
Outcome
Declaration and injunctions granted; injunctive orders postponed for 28 days; costs reserved.
Legal Topics
['development Consent' 'prohibited Development' 'industrial Zoning' 'shop Use' 'bulky Goods Salesrooms or Showrooms' 'injunctions' 'discretionary Relief']
['environmental Planning Law' 'land Use and Development Control'] ['development Consent' 'prohibited Development' 'industrial Zoning' 'shop Use' 'bulky Goods Salesrooms or Showrooms' 'injunctions' 'discretionary Relief']

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Procedural Posture

Proceedings Seeking Declarations and Injunctions Concerning Development Consent and Alleged Prohibited Use Under an Environmental Planning Instrument / Judgment After Hearing

Legal Issues

  1. 1 ['Whether development consent for a change of use from bulky goods warehouse to warehouse clearance outlet was unlawful because the use was prohibited as a shop under the Liverpool Local Environmental Plan 1997.' 'Whether a warehouse clearance outlet was an innominate use permissible with consent under cl 9(3) of the Liverpool Local Environmental Plan 1997.' 'Whether the Court should grant declaratory and injunctive relief despite discretionary considerations including alleged technical breach, delay, trade competition, economic benefit and a proposed draft amendment to the LEP.']

Ratio Decidendi

The warehouse clearance outlet sold goods by retail directly to the public and therefore answered the LEP definition of a shop. Shops were prohibited in the 4(b) zone except for specified categories, and the outlet did not merely serve the daily convenience needs of the local workforce. Even if the use could be characterised as an innominate use, it also fell within the prohibited shop category, so the council had no power to grant consent. The breach was not technical, delay was not established, trade-competitor status did not justify refusing relief, and economic benefit could not override planning controls; therefore the consent was unlawful and void and injunctive relief should be...

Court Disposition

Declaration and injunctions granted; injunctive orders postponed for 28 days; costs reserved.

Orders

  • ['A declaration that Development Consent No. 2919/02 dated 15 November 2002 granted by Liverpool City Council for a change of use from existing bulky goods warehouse to a warehouse clearance outlet at No 12, lot 121 in deposited plan 876962, Orange Grove Road, Warwick Farm is unlawful and void.' 'An order that the...