Bardsley-Smith v Penrith City Council

(2013) 195 LGERA 32; [2013] NSWCA 200

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Development consent
3. › Construction of consent
4. › Documents incorporated into consent
5. › Whether consent authorised prohibited use
6. › Whether use as retail pharmacy subordinate to distribution centre use
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 76B, 81
1. Environment and Planning
2. › Planning schemes and instruments
3. › Prohibited development
4. › Characterisation of purpose of use
5. › Whether use for purpose of a 'shop'
6. › Whether retail business subordinate to principal purpose
7. › Dominant and subordinate purposes
8. › Penrith Local Environmental Plan (Industrial Land) 1996
1. Environment and Planning
2. › Existing use rights
3. › Whether use for lawful purpose immediately before coming into force of new planning instrument
4. › Whether use in breach of consent capable of constituting existing use
5. › Environmental Planning and Assessment Act 1979 (NSW), ss 106, 107

Quick Take

A retail pharmacy conducted on a large scale within premises primarily consented for use as a distribution centre constitutes an independent use for the prohibited purpose of a 'shop', not a subordinate use ancillary to the distribution centre, where the retail operation occupies a substantial proportion of floor space, generates significant independent revenue, and is conducted by a separate entity. The requirements of s 90(3D) of the National Health Act 1953 (Cth) mandate only that the public have access to receive pharmaceutical benefits, not that a full-service retail pharmacy be operated. A development consent incorporating a Statement of Environmental Effects that limits the retail component to PBS items and OTC drugs does not authorise a full-range retail pharmacy.