Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114

Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114

The purpose of the relevant parts of the development in Lot D is properly characterised as shop (supermarket), not as roads, because these areas are integral and indivisible from the retail use; their use is subordinate or so commingled with the supermarket that the dominant and prohibited use is shop.

Jurisdiction
Australia
Judgment Date
02 March 2007
Procedural Posture
Appeal / Determination of Preliminary Issue (characterisation of Development Purpose)
Outcome
Preliminary issue determined in favour of Council; proposed development in its current form cannot be approved as parts of Lot D are for the prohibited purpose of shop (supermarket); proceedings adjourned for further directions; each party to pay their own costs.
Legal Topics
['development Application' 'zoning' 'characterisation of Development Purpose' 'permissibility in Zone' 'shop Prohibition' 'roads as Permissible Use']
['planning and Environment Law'] ['development Application' 'zoning' 'characterisation of Development Purpose' 'permissibility in Zone' 'shop Prohibition' 'roads as Permissible Use']

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Procedural Posture

Appeal / Determination of Preliminary Issue (characterisation of Development Purpose)

Legal Issues

  1. 1 ["Whether the parts of the development in Lot D should be characterised as 'shop' (supermarket) which is prohibited in the 2(b) zone, or as 'roads' which is permitted" 'How to properly characterise the purpose of accesses, parking, forecourt, and circulation areas in the context of an integrated development']

Ratio Decidendi

The purpose of the relevant parts of the development in Lot D is properly characterised as shop (supermarket), not as roads, because these areas are integral and indivisible from the retail use; their use is subordinate or so commingled with the supermarket that the dominant and prohibited use is shop.

Court Disposition

Preliminary issue determined in favour of Council; proposed development in its current form cannot be approved as parts of Lot D are for the prohibited purpose of shop (supermarket); proceedings adjourned for further directions; each party to pay their own costs.

Orders

  • ["The Court's answer to issue 1 is that the proposed development in the form described in the plans filed 22 January 2007 and the Statement of Environmental Effects filed 22 December 2006 is not able to be approved as parts of the development in Lot D are for the prohibited purpose of shop (supermarket)." 'The...