Bardsley-Smith v Penrith City Council [2013] NSWCA 200

Bardsley-Smith v Penrith City Council [2013] NSWCA 200

Use of the premises as a large-scale retail pharmacy exceeds what is permitted by the development consent, which properly construed only allows retail pharmacy supply of PBS items and OTC drugs as ancillary to the primary use as a distribution centre/ePharmacy. The large-scale retail operation is for a prohibited 'shop' purpose under both the relevant 1996 and 2010 planning instruments, and is not protected as an existing use. Accordingly, the current retail pharmacy use is unlawful.

Jurisdiction
Australia
Judgment Date
04 July 2013
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed. Primary judge's orders set aside. Direction for amended notice of appeal and parties to agree on terms of an injunction. Matter remitted for consideration of discretionary defence and other issues. Respondents to pay appeal costs; costs of lower court to be determined there; certificate under...
Legal Topics
['planning Schemes and Instruments' 'development Consent Validity' 'use of Premises for Prohibited Purposes' 'ancillary and Subordinate Use' 'existing Use Rights']
['environment and Planning'] ['planning Schemes and Instruments' 'development Consent Validity' 'use of Premises for Prohibited Purposes' 'ancillary and Subordinate Use' 'existing Use Rights']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the development consent permitted use of the premises as a shop, a prohibited purpose under the relevant planning instruments' 'Whether the current use of the premises as a retail pharmacy was in breach of the development consent and environmental planning instruments' 'How to properly characterise the purposes for which the premises are used under planning law']

Ratio Decidendi

Use of the premises as a large-scale retail pharmacy exceeds what is permitted by the development consent, which properly construed only allows retail pharmacy supply of PBS items and OTC drugs as ancillary to the primary use as a distribution centre/ePharmacy. The large-scale retail operation is for a prohibited 'shop' purpose under both the relevant 1996 and 2010 planning instruments, and is not protected as an existing use. Accordingly, the current retail pharmacy use is unlawful.

Court Disposition

Appeal allowed. Primary judge's orders set aside. Direction for amended notice of appeal and parties to agree on terms of an injunction. Matter remitted for consideration of discretionary defence and other issues. Respondents to pay appeal costs; costs of lower court to be determined there; certificate under...

Orders

  • ['Appeal allowed.' 'Set aside Orders 1 and 2 made by primary Judge on 18 April 2012.' 'Direct appellants to file an amended notice of appeal within seven days.' 'Direct parties to file within 14 days an agreed draft of the proposed injunction referred to at [127] of the judgment.' 'In absence of agreement,...