Woolworths Limited v Randwick City Council [2017] NSWCA 179

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Woolworths Limited v Randwick City Council [2017] NSWCA 179 Hearing dates: 23 June 2017 Decision date: 25 July 2017 Before: Leeming JA at [1]; Payne JA at [17]; Preston CJ of LEC at [25] Decision: (1) The appeal is upheld. (2) The answers given by the Land and Environment Court on 7 July 2016 to the separate questions are set aside. (3) Instead, the answers to the separate questions are: (a) Does the development application seek consent for development which does not relate to a building that was designed or constructed for the purpose of commercial premises pursuant to cl 6.13(3)(a) of Randwick Local Environmental Plan 2012? Answer: No. (b) Having regard to the answer to question (a), is it open to the consent authority to grant approval to the development application? Answer: Yes. (4) The order made by the Land and Environment Court on 7 July 2016 that the appeal is dismissed is set aside. (5) The proceedings are remitted to the Land and Environment Court to be heard and determined in accordance with this Court's decision. (6) The respondent is to pay the appellant's costs of the appeal. Catchwords: DEVELOPMENT – proposed development of existing building for shop – precondition to grant of consent to development of shop – whether building designed or constructed for purpose of "commercial premises" – "commercial premises" includes "retail premises" – misdirection to ask whether current use of building is for registered club – misdirection to ask whether registered club can be "commercial premises" – whether building designed or constructed for "retail premises" – misdirection to require retail sale "directly to the public" – error not to hold on facts found that existing building designed or constructed for retail premises Legislation Cited: Environmental Planning and Assessment Act 1979 ss 5(a)(ii), 97, 108 Environmental Planning and Assessment Regulation 2000 Pt 5, cl 41 Land and Environment Court Act 1979 s 57 Liquor Act 2007 s 18(1) Uniform Civil Procedure Rules 2005 r 28.2 Randwick Local Environmental Plan 2012 cll 1.5; 6.13(3)(a); Pt 2 Randwick Local Environmental Plan 1998 Registered Clubs Act 1976 ss 10(1)(e),(f), 23 Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 Alcan (NT) Alumina v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 AMP Capital Investors Ltd v Transport Infrastructure Development Corporation (2008) 163 LGERA 245; [2008] NSWCA 325 Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 Carden v Willoughby Municipal Council (1985) 56 LGRA 366 Coulton v Holcombe (1986) 162 CLR 1 Chambers v MacLean Shire Council (2003) 57 NSWLR 152; (2003) 126 LGRA 7; [2003] NSWCA 100 Chamwell Pty Ltd v Strathfield Municipal Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 221 LGERA 73; [2017] NSWCA 73 Greenwood v Warringah Council [2014] NSWCA 205 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257 ISPT Pty Ltd v Valuer General (2009) 165 LGERA 25; [2009] NSWCA 31 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Sevenex Pty Ltd v Blue Mountains City Council (2011) 183 LGERA 1; [2011] NSWCA 223 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Woolworths Ltd v Randwick City Council [2016] NSWLEC 82 Category: Principal judgment Parties: Woolworths Limited (Appellant) Randwick City Council (Respondent) Representation: Counsel: Mr A Galasso SC (Appellant) Mr I Hemmings SC and Mr D Beaufils (Respondent)