Mairds Pty Ltd v Campbelltown City Council [2021] NSWLEC 1448

Mairds Pty Ltd v Campbelltown City Council [2021] NSWLEC 1448

The Court held that the existing use of the site is properly characterised as a neighbourhood shop/supermarket, which was a permissible use in the B1 zone under the Campbelltown Local Environmental Plan 2015 at the relevant time and remains so; therefore, the existing use is not an 'existing use' within the meaning of section 4.65 of the Environmental Planning and Assessment Act 1979. The proposed development is for a prohibited use (commercial premises exceeding permitted numerical controls) in the B1 zone and cannot be approved. The appeal is dismissed and the development application refused.

Parties
Applicant: Mairds Pty Ltd; Respondent: Campbelltown City Council
Jurisdiction
Australia
Judgment Date
05 August 2021
Procedural Posture
Appeal / Final Judgment Appeal Against Deemed Refusal of Development Application
Outcome
Appeal dismissed; development application refused.
Legal Topics
Development Application, Existing Use Rights, Prohibited Development, Zoning, Retail Premises, Strategic Planning, Development Consent, Jurisdiction
Planning and Environment Law Development Application Existing Use Rights Prohibited Development Zoning Retail Premises Strategic Planning Development Consent +1 more

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Parties

Mairds Pty Ltd

Applicant

Campbelltown City Council

Respondent

Procedural Posture

Appeal / Final Judgment Appeal Against Deemed Refusal of Development Application

Legal Issues

  1. 1 Whether the existing use of the site is an 'existing use' under section 4.65 of the Environmental Planning and Assessment Act 1979 entitling the applicant to seek enlargement or intensification of that use
  2. 2 Whether the proposed development is prohibited in the B1 Neighbourhood Centre zone under the Campbelltown Local Environmental Plan 2015
  3. 3 Characterisation of the existing use and whether it is permissible

Ratio Decidendi

The Court held that the existing use of the site is properly characterised as a neighbourhood shop/supermarket, which was a permissible use in the B1 zone under the Campbelltown Local Environmental Plan 2015 at the relevant time and remains so; therefore, the existing use is not an 'existing use' within the meaning of section 4.65 of the Environmental Planning and Assessment Act 1979. The proposed development is for a prohibited use (commercial premises exceeding permitted numerical controls) in the B1 zone and cannot be approved. The appeal is dismissed and the development application refused.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • The appeal is dismissed.
  • Development Application No. 792/2020/DA-C for the demolition of the existing shopping centre and the construction of a two storey shopping centre containing a supermarket, 13 shops and parking for 200 cars, at 44 Riverside Drive, Airds, is refused.