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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bardsley-Smith v Penrith City Council [2013] NSWCA 200 Hearing dates: 2, 3 May 2013 Decision date: 04 July 2013 Before: McColl JA at [1]; Barrett JA at [2]; Sackville AJA at [3] Decision: 1. Appeal allowed. 2. Set aside Orders 1 and 2 made by the primary Judge on 18 April 2012. 3. Direct the appellants to file an amended notice of appeal within seven days. 4. Direct the parties to file within 14 days an agreed draft of the proposed injunction referred to at [127] of this judgment. 5. In the absence of agreement, the appellants file within 14 days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length. 6. The Respondents file within a further seven days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length. 7. Subject to the parties' compliance with Orders 3 - 6 above and to any further order of this Court, the matter be remitted to the Land and Environment Court to deal with paragraph 4(h) of the Amended Points of Defence and otherwise the matter to be dealt with in conformity with this judgment. 8. The Respondents pay the appellants' costs of the appeal. 9. The costs of the proceedings in the Land and Environment Court be determined by that Court. 10. The Respondents, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ENVIRONMENT AND PLANNING - planning schemes and instruments - validity of development consent relating to pharmacy - whether consent approved use of premises for prohibited purpose of a shop - whether use in accordance with development consent - whether retail business subordinate to principal purpose - whether continuing use for a prohibited purpose Legislation Cited: National Health Act 1953 (Cth), ss 84, 90 Environmental Planning and Assessment Act 1979, ss 76A, 76B, 106, 107(1), 122, 123(1) Land and Environment Court Act 1979, s 58 Poisons and Therapeutic Goods Act 1966 Penrith Local Environmental Plan (Industrial Land) 1996 Penrith Local Environmental Plan 2010 Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Hawkesbury City Council v Sammut [2002] NSWCA 18; 119 LGERA 171 Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth (1994) 51 FCR 213 Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 Parramatta City Council v Hale (1982) 47 LGRA 319 Shire of Perth v O'Keefe [1964] HCA 37; 110 CLR 529 Terry White Chemists Australia Fair v Secretary, Department of Health and Ageing [2009] FCAFC 74; 178 FCR 161 Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508 Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 Category: Principal judgment Parties: Janis Margaret Bardsley-Smith (First Appellant) Ian Patrick Stubbs (Second Appellant) Penrith City Council (First Respondent) Administration and Marketing Solutions Pty Limited (Second Respondent) Damien Michael Gance (Third Respondent) Representation: Counsel: J Robson SC with C R Ireland (Appellants) N M Eastman (Second and Third Respondents) Solicitors: McPhee Kelshaw Solicitors (Appellants) Gadens Lawyers (First Respondent) Rotstein Lockwood Reddy Lawyers (Second and Third Respondents) File Number(s): 2012/154959 Decision under appeal Citation: Bardsley-Smith & Anor v Penrith City Council [2012] NSWLEC 79 Date of Decision: 2012-04-18 00:00:00 Before: Sheahan J File Number(s): 40565 of 2009