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

Land and Environment Court New South Wales

Medium Neutral Citation: Mairds Pty Ltd v Campbelltown City Council [2021] NSWLEC 1448 Hearing dates: 12-16 July 2021 Date of orders: 5 August 2021 Decision date: 05 August 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is dismissed. (2) 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. (3) The exhibits, other than Exhibit 1, are returned. Catchwords: DEVELOPMENT APPLICATION – demolition of an existing shopping centre and construction of a new shopping centre – characterisation of the existing use – development consents for the use of land as a shopping centre – the existing use is not an existing use within the meaning of section 4.65 of the Environmental Planning and Assessment Act 1979 – the existing use is not a prohibited use under an environmental planning instrument in force – the proposed development is not for the same purpose as the existing use – the proposed development exceeds the numerical controls for the floor area of a neighbourhood supermarket and neighbourhood shops under the Campbelltown Local Environmental Plan 2015 – the proposed development is prohibited in the B1 zone Legislation Cited: Biodiversity Conservation Act 2016 Pt 1 of Sch 2 Campbelltown Local Environmental Plan 2015 cll 2.3, 4.3, 4.6, 5.4 Environmental Planning and Assessment Act 1979 s 4.65 Environmental Planning and Assessment Regulation 2000 cll 41, 42, 49 Interpretation Act 1987 s 35 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy No 64 – Advertising and Signage Local Government Act 1919 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 AMT Planning Consultants Pty Ltd t/as Coastplan Consulting v Central Coast Council (2018) 238 LGERA 116; [2018] NSWCA 289 BYT Nominees Pty Ltd v North Sydney Council 161 LGERA 77 [2008] NSWLEC 164 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Coastplan Consulting v Central Coast Council [2018] NSWLEC 47 Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 Metro Transport Sydney Pty Ltd v Council of the City of Sydney (2009) 210 LGERA 64; [2009] NSWLEC 37 Saffioti v Kiama Municipal Council [2019] NSWLEC 57 Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 Texts Cited: Campbelltown Comprehensive Koala Plan of Management Campbelltown (Sustainable City) Development Control Plan 2015 Category: Principal judgment Parties: Mairds Pty Ltd (Applicant) Campbelltown City Council (Respondent) Representation: Counsel: C Leggat SC (Applicant) J Reid (Respondent)