Aldi Stores v Newcastle City Council [2010] NSWLEC 1110

Aldi Stores v Newcastle City Council [2010] NSWLEC 1110

The proposed Aldi food store involved two co-extensive uses: a permissible local shop use and a separate shop use. The projected 2016 trading pattern showed that about 25% of turnover, with an estimated value of about $2 million per annum, would come from outside Fletcher. That trading volume was too significant to be merely ancillary to or subsumed by the predominant local shop use. Because a shop was prohibited in the 3(a) Local Centre Zone under the Newcastle Local Environment Plan 2003, the prohibited second use fatally infected the application and development consent had to be refused.

Jurisdiction
Australia
Judgment Date
07 June 2010
Procedural Posture
Development Application Appeal / Consent Orders Hearing Following Deemed Refusal
Outcome
Appeal dismissed and development consent refused.
Legal Topics
['development Consent' 'permissibility of Land Use' 'local Shop and Shop Uses' 'zone Objectives' 'development Control Plan Controls' 'traffic and Parking Impacts' 'noise and Light Impacts' 'solar Access' 'visual Amenity']
['planning and Environment Law'] ['development Consent' 'permissibility of Land Use' 'local Shop and Shop Uses' 'zone Objectives' 'development Control Plan Controls' 'traffic and Parking Impacts' 'noise and Light Impacts' 'solar Access' 'visual Amenity']

Case Brief

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Procedural Posture

Development Application Appeal / Consent Orders Hearing Following Deemed Refusal

Legal Issues

  1. 1 ['Whether the proposed Aldi food store was properly characterised solely as a local shop under the Newcastle Local Environment Plan 2003.' 'Whether projected trade from outside Fletcher constituted a separate shop use that was neither ancillary to nor subsumed by the local shop use.' 'Whether the prohibited shop use fatally infected the development application.' 'If permissible, whether the proposal satisfied the relevant zone objectives and was acceptable having regard to amenity, traffic, parking, noise, light and solar access impacts.']

Ratio Decidendi

The proposed Aldi food store involved two co-extensive uses: a permissible local shop use and a separate shop use. The projected 2016 trading pattern showed that about 25% of turnover, with an estimated value of about $2 million per annum, would come from outside Fletcher. That trading volume was too significant to be merely ancillary to or subsumed by the predominant local shop use. Because a shop was prohibited in the 3(a) Local Centre Zone under the Newcastle Local Environment Plan 2003, the prohibited second use fatally infected the application and development consent had to be refused.

Court Disposition

Appeal dismissed and development consent refused.

Orders

  • ['The appeal is dismissed.' 'Development Application 09/0227 for the erection of an Aldi food store at the intersection of Minmi Road and Britannia Boulevard, Fletcher, is determined by the refusal of development consent.' 'The exhibits are returned.' 'The respondent is to write to each individual who wrote a letter...