Milano Convenience Store Pty Ltd v Meqdadi and Anor [2010] NSWLEC 29

Milano Convenience Store Pty Ltd v Meqdadi and Anor [2010] NSWLEC 29

The Council did not commit legal error. LEP cl 28 and cl 29 did not automatically apply to all convenience store applications, and the Council was entitled to decide that the proposed convenience store and internet coffee shop was not within those clauses. The Council properly considered the DCP and was entitled to determine, having regard to the actual operation of No 88-90 and the DCP definition, that No 88-90 was not a convenience store for the purposes of the 75m concentration control. That conclusion was not manifestly unreasonable, so the 2009 consent was not invalid on the grounds advanced.

Jurisdiction
Australia
Judgment Date
05 March 2010
Procedural Posture
Class 4 Judicial Review Proceedings / Application for a Declaration That Development Consent Was Invalid and for Restraining Orders
Outcome
Application dismissed
Legal Topics
['validity of Development Consent' 'mandatory Relevant Considerations' 'sydney Local Environmental Plan 2005 Cl 28 and Cl 29' 'city of Sydney Convenience Store Development Control Plan 2004' 'concentration Controls for Convenience Stores' 'manifest Unreasonableness']
['environmental Planning Law' 'administrative Law' 'judicial Review'] ['validity of Development Consent' 'mandatory Relevant Considerations' 'sydney Local Environmental Plan 2005 Cl 28 and Cl 29' 'city of Sydney Convenience Store Development Control Plan 2004' 'concentration Controls for Convenience Stores' 'manifest Unreasonableness']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings / Application for a Declaration That Development Consent Was Invalid and for Restraining Orders

Legal Issues

  1. 1 ['Whether the Council failed to take into account Sydney Local Environmental Plan 2005 cl 28 and cl 29 as mandatory relevant considerations under s79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979.' 'Whether the Council failed properly to consider or apply cl 4.2.3 of the City of Sydney Convenience Store Development Control Plan 2004 under s79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979.' "Whether the Council's conclusion that No 88-90 Wentworth Avenue was not a convenience store for the purposes of the DCP was manifestly unreasonable." 'Whether the development consent granted for No 92-94 Wentworth Avenue was invalid.']

Ratio Decidendi

The Council did not commit legal error. LEP cl 28 and cl 29 did not automatically apply to all convenience store applications, and the Council was entitled to decide that the proposed convenience store and internet coffee shop was not within those clauses. The Council properly considered the DCP and was entitled to determine, having regard to the actual operation of No 88-90 and the DCP definition, that No 88-90 was not a convenience store for the purposes of the 75m concentration control. That conclusion was not manifestly unreasonable, so the 2009 consent was not invalid on the grounds advanced.

Court Disposition

Application dismissed

Orders

  • ['The Class 4 proceedings should be dismissed.' 'Costs were not determined in the judgment.']