Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWLEC 99

Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWLEC 99

The proposed supermarket was correctly characterised as a "general store" because it would sell a broad range and variety of general merchandise, particularly non-food items, and was not confined to a specialty activity or industry. In the table to cl 9 of the Hastings Local Environmental Plan 2001, the definition of "shop" expressly excluded buildings or land uses elsewhere specifically defined in the Dictionary, including "general store". The development was therefore permissible with consent in Zone 4(b) Service Industrial and was not prohibited, so the application challenging the consent failed.

Jurisdiction
Australia
Judgment Date
26 June 2009
Procedural Posture
Judicial Review of Development Consent / Final Judgment on Application Challenging Validity of Development Consent
Outcome
Application dismissed.
Legal Topics
['development Consent' 'characterisation of Land Use' 'general Store' 'shop' 'prohibited Development' 'validity of Public Notice' 'hickman Principle']
['environmental Planning and Assessment' 'administrative Law' 'local Environmental Planning'] ['development Consent' 'characterisation of Land Use' 'general Store' 'shop' 'prohibited Development' 'validity of Public Notice' 'hickman Principle']

Case Brief

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Procedural Posture

Judicial Review of Development Consent / Final Judgment on Application Challenging Validity of Development Consent

Legal Issues

  1. 1 ['Whether the proposed supermarket was a "general store" for the purposes of the Hastings Local Environmental Plan 2001.' 'Whether a "general store" was nevertheless a species of "shop" prohibited in Zone 4(b) Service Industrial under cl 9 of the Hastings Local Environmental Plan 2001.' 'Whether the public notice under s 101 of the Environmental Planning and Assessment Act 1979 was valid and, if valid, whether it would bar proceedings challenging the consent.']

Ratio Decidendi

The proposed supermarket was correctly characterised as a "general store" because it would sell a broad range and variety of general merchandise, particularly non-food items, and was not confined to a specialty activity or industry. In the table to cl 9 of the Hastings Local Environmental Plan 2001, the definition of "shop" expressly excluded buildings or land uses elsewhere specifically defined in the Dictionary, including "general store". The development was therefore permissible with consent in Zone 4(b) Service Industrial and was not prohibited, so the application challenging the consent failed.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.' "The applicant must pay the second respondents' costs." 'The exhibits may be returned.']