Terra Ag Services Pty Limited v Griffith City Council [2017] NSWLEC 167

Land and Environment Court New South Wales

Medium Neutral Citation: Terra Ag Services Pty Limited v Griffith City Council [2017] NSWLEC 167 Hearing dates: 30 November 2017 Date of orders: 07 December 2017 Decision date: 07 December 2017 Jurisdiction: Class 1 Before: Preston CJ Decision: The Court orders: (1) The appeal is upheld. (2) The decision and orders of Senior Commissioner Martin of 6 July 2017 are set aside. (3) The proceedings are remitted to be determined according to law. (4) The respondent is to pay the applicant's costs of the appeal. Catchwords: APPEAL – appeal against a Commissioner's decision on questions of law – refusal of development consent for rural supplies business – part of development held to be for prohibited purpose of "heavy industrial storage establishment" – whether development for one or more purposes – acceptance that development for more than one purpose – failure to characterise development as a whole – constructive failure to exercise jurisdiction to determine and give reasons for finding that development not for sole purpose of "rural supplies" – constructive failure to exercise jurisdiction to determine whether use for heavy industrial storage establishment subservient to use for rural supplies – constructive failure to exercise jurisdiction to determine and give reasons for finding whether part of development met each element of definition of "heavy industrial storage establishment" – not established that wrong test applied in determining whether goods or materials needed separation from other development – construction of definition of "heavy industrial storage establishment" – no error in not construing by reference to name of development being defined – no error in construction of phrase "for commercial purposes" because phrase not construed at all – construction of zone objectives – error in having regard to objectives of zone in characterising the purpose of development Legislation Cited: Land and Environment Court Act 1979 s 56A(1) Griffith Local Environmental Plan 2014 Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Beale v GIO of NSW (1997) 48 NSWLR 430 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 Chamwell v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Cheetham v Goulburn Motorcycle Club Inc (2017) 223 LGERA 43; [2017] NSWCA 83 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388; [2007] NSWCA 190 El Boustani v Minister administering Environmental Planning and Assessment Act 1979 (2014) 199 LGERA 198; [2014] NSWCA 33 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Housing Commission of NSW v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378 Kovacevic v Queanbeyan City Council [2016] NSWCA 346 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123 Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 People for the Plains Inc v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 Tovir Investments Pty Ltd v Waverly Council [2014] NSWCA 379 Wacal Developments Pty Ltd v Realty Pty Ltd (1978) 140 CLR 503; [1978] HCA 30 Texts Cited: Herzfeld, Prince and Tully, Interpretation and Use of Legal Sources – The Laws of Australia (2013, Thomson Reuters) Pearce and Geddes, Statutory Interpretation in Australia (2004, 8th ed, LexisNexis) Category: Principal judgment Parties: Terra Ag Services Pty Limited (Applicant) Griffith City Council (Respondent) Representation: Counsel: Mr A Pickles SC and Dr S Berveling (Applicant) Mr J Lazarus (Respondent)