Delicious win for My Foodie Box Ltd (ASX: MBX) in claim against the City of Bayswater

My Foodie Box Ltd has operated a fulfilment centre within the locality of the City of Bayswater for over 5 years at two different premises. It has been in its current premises for over 2 years. For no known reason and without any warning or consultation, the City raised several issues regarding the use of their land by MBX.

On 31 March 2022, the City issued a direction pursuant to s214 of the Planning and Development Act 2005 (WA) alleging that MBX was undertaking unauthorised development on its land. Pragma Lawyers assisted MBX by challenging the Direction in the State Administrative Tribunal (SAT).

A preliminary question was raised in the proceeding as to the classification of the land use being conducted on the land where MBX operates and if development approval would be required based on the classification as prescribed in the City of Bayswater Local Planning Scheme No 24 and the Planning and Development Act 2005 (WA) (Act).

The preliminary issue was heard by Senior Member Willey in the Tribunal in August 2022. MBX submitted that the City had undertaken an unreasonable interpretation of LPS 24 and the Act.

In his decision of My Foodie Box Limited and City of Bayswater [2023] WASAT 4, Senior Member Willey ruled that the Direction issued by the City was without basis and "the City has taken an overly narrow and pernickety approach in applying LPS 24 as it relates to the Business, and in issuing the Direction".

Senior Member Willey concluded that "the Business is either properly classified as either a 'General Industry' or 'Light Industry' use under LPS 24 [which] are P uses in the General Industry zone and thus do not require approval under LPS 24 where no works are proposed."

A link to the full decision is here.

Chairman of MBX, Mr Bryan Hughes said:

"We were extremely surprised when the City of Bayswater launched this legal action against us without any warning or consultation given we have operated within the City, from two different premises, for over 5 years prior. Ratepayers would certainly have a right to feel very aggrieved at the waste of their money spent on this action when the correct process should have included some prior discussion with us. As the SAT tribunal has found, the City had no legal basis for launching this action and that was completely obvious from the outset. The City of Baywater should not be taking legal action costing tens of thousands of dollars when there is no legitimate reason and no prior consultation. The commencement of legal action by the City of Bayswater caused significant stress and required us to respond by engaging lawyers. We are very pleased that Pragma Legal immediately grasped the key issues and oversaw a successful outcome. Aaron and his team did an outstanding job."

The Pragma Lawyers team was led by Managing Director Aaron McDonald and Associate Cosmos Liu with the assistance of Mr Clinton Russell, of Counsel.