Wollongong City Council v McDonald’s Australia Limited [2022] NSWLEC 121

Land and Environment Court New South Wales

Medium Neutral Citation: Wollongong City Council v McDonald's Australia Limited [2022] NSWLEC 121 Hearing dates: 30 May, 7 and 9 June 2022 Date of orders: 5 October 2022 Decision date: 05 October 2022 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [221] Catchwords: APPEAL - appeal pursuant to s 56A of the Land and Environment Court Act 1979 - Commissioner approves a new McDonald's restaurant at Wongawilli - appeal on questions of law - Council presses three grounds of appeal - Ground 1, Council complains that Commissioner misconstrued or misapplied applicable provisions of the Council's development control plan - Commissioner's decision demonstrates appropriate and sufficient consideration of applicable provisions of the development control plan - Ground 1 fails - Ground 2 pleads three subgrounds - Ground 2.1 alleges failure to make applicable provisions of the development control plan a focal point of the Commissioner's consideration of the relevant issues - Ground 2.1 contingent on Ground 1 and therefore fails - Ground 2.2 alleges specific failure to address cl 3.74 ch B4 of Wollongong Development Control Plan 2009 - matters in the provision adequately addressed - Ground 2.3 alleges failure to have regard to objector evidence concerning "healthy food" - objector evidence appropriately considered - Ground 2 fails - Ground 3 proposed that the Commissioner had no evidence to support his conclusion that changes made to the proposed development were acceptable by failing to consider the likely impacts of the proposed changes - proper evidence upon which the Commissioner based his conclusion of acceptability of the changes - expert evidence on the relevant point supported the Commissioner's conclusion as to acceptability of the changes - Ground 3 fails - failure on all three grounds requires dismissal of appeal COSTS - costs of s 56A appeals follow the event - Council ordered to pay the Company's costs as agreed or assessed Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15(1)(d), (3A), 4.16(4) and 8.7 Land and Environment Court Act 1979, s 56A Land and Environment Court Rules 2007, r 3.7 Wollongong Local Environmental Plan 2009 Wollongong Development Control Plan 2009 Cases Cited: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Cacalot Pty Ltd v Sydney City Council (1996) 90 LGRA 424 McDonald's Australia Limited v Wollongong City Council [2021] NSWLEC 1621 McDonald's Australia Limited v Wollongong City Council (No 2) [2021] NSWLEC 1752 McDonald's Australia Limited v Wollongong City Council (No 3) [2021] NSWLEC 1773 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 North Sydney Council v Ligon 302 Pty Ltd (No 2) [1996] 93 LGERA 23 Randwick City Council v Manousaki (1988) 66 LGRA 330 Tanious v Georges River Council [2016] NSWLEC 142 Wang v Australian Securities and Investments Commission [2019] FCA 1178 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) Category: Principal judgment Parties: Wollongong City Council (Appellant) McDonald's Australia Limited (Respondent) Representation: Counsel: Mr T To, barrister (Applicant) Mr A Galasso SC (Respondent)