Gazcorp Pty Ltd v Westfield Management Pty Ltd & Anor [2004] NSWCA 63

Gazcorp Pty Ltd v Westfield Management Pty Ltd & Anor [2004] NSWCA 63

The warehouse clearance outlet use fell within the definition of shop, and shop was a listed form of development not permitted in the 4(b) Industrial-Special zone. It was not development "not referred to" in the Table merely because it could be described as an unlisted species of shop. The development consent was therefore invalid. The primary judge did not miscarry in discretion by staying the restraining orders for only twenty-eight days, because amendment of the LEP and any later grant of suitable consent remained uncertain. The appeal succeeded only to reformulate the restraining orders so they did not preclude use in accordance with the existing bulky goods consent or another valid...

Jurisdiction
Australia
Judgment Date
31 March 2004
Procedural Posture
Development Consent Appeal Concerning Validity of Consent and Restraining Orders Under Planning Legislation / Appeal From the Land & Environment Court Judgment of Lloyd J
Outcome
Appeal allowed to the extent of reformulation of orders (2) and (3) made on 16 January 2004 but otherwise dismissed; appellant ordered to pay respondents' costs.
Legal Topics
['development Consent' 'local Environmental Plan Construction' 'prohibited Development' 'warehouse Clearance Outlet' 'shop Use' 'injunctive Relief' 'stay of Orders']
['planning and Environment Law'] ['development Consent' 'local Environmental Plan Construction' 'prohibited Development' 'warehouse Clearance Outlet' 'shop Use' 'injunctive Relief' 'stay of Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Development Consent Appeal Concerning Validity of Consent and Restraining Orders Under Planning Legislation / Appeal From the Land & Environment Court Judgment of Lloyd J

Legal Issues

  1. 1 ['Whether use of the property as a warehouse clearance outlet was a prohibited shop use under the Liverpool Local Environmental Plan 1997 or an unlisted form of development for which consent could be granted under cl 9(3).' "Whether the primary judge's discretion miscarried by postponing the restraining orders for only twenty-eight days rather than a longer period." 'Whether the restraining orders should be reformulated to avoid conflict with existing consent for bulky goods salesroom or showroom use.']

Ratio Decidendi

The warehouse clearance outlet use fell within the definition of shop, and shop was a listed form of development not permitted in the 4(b) Industrial-Special zone. It was not development "not referred to" in the Table merely because it could be described as an unlisted species of shop. The development consent was therefore invalid. The primary judge did not miscarry in discretion by staying the restraining orders for only twenty-eight days, because amendment of the LEP and any later grant of suitable consent remained uncertain. The appeal succeeded only to reformulate the restraining orders so they did not preclude use in accordance with the existing bulky goods consent or another valid...

Court Disposition

Appeal allowed to the extent of reformulation of orders (2) and (3) made on 16 January 2004 but otherwise dismissed; appellant ordered to pay respondents' costs.

Orders

  • ['Set aside orders (2) and (3) made on 16 January 2004.' 'In lieu thereof order that the first respondent abstain from carrying out, or causing the carrying out of, or permitting, authorising or suffering the use of the property at No 12, lot 121 in deposited plan 87692, Orange Grove Road, Warwick Farm for the...