Snowside Pty Limited v Holroyd City Council [2003] NSWLEC 136

Snowside Pty Limited v Holroyd City Council [2003] NSWLEC 136

The proposed development was not permissible in Zone No 4(a). Clause 6 of the LEP adopted the Model Provisions definition of shop in an adapted form that did not exclude the Model Provisions definition of general store, because the LEP expressly did not adopt that definition. On the facts, the proposed development did not involve the sale by retail of general merchandise and was not a general store; bulky goods retailing under cl 29 was confined to Zone No 4(c) and could not be translated into a generally permissible purpose in Zone No 4(a); and the proposed mixed purpose characterisation failed because the retail sales component was an independent shop use. A shop was prohibited in the...

Jurisdiction
Australia
Judgment Date
06 June 2003
Procedural Posture
Application for Declaratory Relief Concerning Permissibility of Proposed Development Under an Environmental Planning Instrument / Judgment
Outcome
Application dismissed; exhibits to be returned; question of costs reserved.
Legal Topics
['development Consent' 'permissible and Prohibited Development' 'characterisation of Development' 'general Industrial Zone' 'shop' 'general Store' 'bulky Goods Retailing' 'mixed Purpose Development']
['environmental Planning Law' 'land Use and Zoning'] ['development Consent' 'permissible and Prohibited Development' 'characterisation of Development' 'general Industrial Zone' 'shop' 'general Store' 'bulky Goods Retailing' 'mixed Purpose Development']

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Procedural Posture

Application for Declaratory Relief Concerning Permissibility of Proposed Development Under an Environmental Planning Instrument / Judgment

Legal Issues

  1. 1 ['Whether the proposed Bunnings Warehouse development was a development that may be carried out with development consent pursuant to Holroyd Local Environmental Plan 1991 within the meaning of s 76A of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed development was properly characterised as a general store, bulky goods retailing, or mixed purpose development comprising warehouse, retail plant nursery and general merchandising.' 'Whether the proposed development was properly characterised as a shop, being a prohibited purpose in Zone No 4(a) under the LEP.' 'Whether cl 6 of the LEP adopted the Model Provisions definition of shop in a way that excluded or did not exclude the Model Provisions definition of general store.']

Ratio Decidendi

The proposed development was not permissible in Zone No 4(a). Clause 6 of the LEP adopted the Model Provisions definition of shop in an adapted form that did not exclude the Model Provisions definition of general store, because the LEP expressly did not adopt that definition. On the facts, the proposed development did not involve the sale by retail of general merchandise and was not a general store; bulky goods retailing under cl 29 was confined to Zone No 4(c) and could not be translated into a generally permissible purpose in Zone No 4(a); and the proposed mixed purpose characterisation failed because the retail sales component was an independent shop use. A shop was prohibited in the...

Court Disposition

Application dismissed; exhibits to be returned; question of costs reserved.

Orders

  • ['Application be dismissed.' 'Exhibits to be returned.' 'Question of costs be reserved.']