ACT Planning and Land Authority v 50 Emu Drive Pty Ltd
[2019] ACTSC 276
•4 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT Planning and Land Authority v 50 Emu Drive Pty Ltd |
Citation: | [2019] ACTSC 276 |
Hearing Date: | 19 November 2018 |
Final submissions date: | 17 December 2018 |
Decisiondate: | 4 October 2019 |
Before: | McWilliam AsJ |
Decision: | See [70]-[74] |
Catchwords: | APPEAL – APPEAL FROM ACT CIVIL AND ADMINISTRATIVE TRIBUNAL – Application for development approval – where ACAT granted conditional approval – characterisation of use – whether development for restaurant or take-away food shop – where dual use co-existed – appeal allowed STATUTORY INTERPRETATION – Proper characterisation of the term ‘use’ in the planning context – whether characterisation of ‘use’ is a jurisdictional fact |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 68, 86 Commercial Zones Development Code (ACT) r 56 Planning and Development Act 2007 (ACT), ss 46, 50, 51, 112, 119, 120, 162, 165, 165A 185, 408A Ch 7 Territory Plan 2008 (ACT), Pt 13 |
Cases Cited: | Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 Authentic Systems Pty Ltd & Anor and Department of Environment and Planning [1993] ACTAAT 47 Young Men’s Christian Association Inc & ACT Planning and Land Authority & Ors [2011] ACAT 78 |
Parties: | Australian Capital Territory Planning and Land Authority (Applicant) 50 Emu Drive Pty Ltd (ACN 611 128 342) (Respondent) |
Representation: | Counsel Mr C Erskine SC (Applicant) Mr P Walker SC with Mr J Larkings (Respondent) |
| Solicitors ACT Government Solicitor (Applicant) Trinity Law (Respondent) | |
File Number: | SCA 23 of 2018 |
McWilliam AsJ:
The respondent in these proceedings, 50 Emu Drive Pty Ltd (ACN 611 128 342) (the Company), is part of the Southern Restaurant Group, better known for its ownership of the KFC chain of food stores across Australia. It applied to the applicant in these proceedings, the ACT Planning and Land Authority (the Authority), to develop land on the southern part of Lake Ginninderra on the edge of Belconnen (through Development Application number 201630298). Unsurprisingly, given its name and business, the Company wants to build a KFC on Emu Bank Road in Belconnen, specifically at Block 83, Section 65, Belconnen (the Site).
The application described the development as being for the purpose of building a restaurant and takeaway food shop, with associated car parking, landscaping, paving and other site works (the proposed development) on the Site, and was made in the ‘merit track’ under the regime prescribed by Ch 7 of the Planning and Development Act 2007 (ACT) (Planning Act).
On 3 August 2017, the Authority refused the development application for a number of reasons. Under the Planning Act (ss 50 and 51), the Authority “must not” approve any development that is inconsistent with the Territory Plan (prescribed by s 46 of the Planning Act), which includes various development codes. Relevant to this appeal, the Authority found the proposed development to be inconsistent with the Crown Lease for the Site and inconsistent with the Commercial Zones Development Code (CZ Code) and therefore, the Territory Plan 2008 (ACT) (Territory Plan).
However
, the Authority’s decision was overturned on 14 December 2017 by the ACT Civil and Administrative Tribunal (the Tribunal), who approved the proposed development subject to a condition that the Crown Lease be varied to permit the use of the Site as a takeaway food shop. The present proceeding commenced on
24 May 2018. The Authority seeks leave to appeal and if leave is granted, appeals the Tribunal’s decision.
The appeal revolves around Rule 56 of the CZ Code (Rule 56) which required each “shop” to have a maximum gross floor area (GFA) of 250m2. The building proposed on the Site has a GFA in excess of 300m2.
Issues for determination
The first issue is whether to grant leave to appeal. If leave is granted, then the Authority raises five grounds of appeal, in summary as follows:
1) The Tribunal erred in law in not considering or applying Rule 56 (Ground 1).
2) The Tribunal erred in law because it:
(a) failed to determine whether the proposed development was in whole or in part, a take-away food shop (as defined in the Territory Plan); and
(b) if it was such a shop:
i. Failed to determine the GFA occupied by the shop;
ii. Failed to determine whether the GFA exceeded the limit of 250m2 prescribed by Rule 56; and
iii. Failed to determine whether the development proposal was inconsistent with Rule 56 and thus could not be approved in accordance with s 119 of the Planning Act (Ground 2).
3) The Tribunal erred in law by requiring (see [88] of the Tribunal’s reasons) the Authority to satisfy the Tribunal that the development application was not compliant with the requirements of the Territory Plan that any use of the Site as a takeaway shop not exceed 250m2 (Ground 3).
4) The Tribunal erred in law (see [83] of the Tribunal’s reasons) in finding that in the absence of statistical evidence about whether eat-in use of the Site was the predominant use or whether the take-away use of the Site was the predominant use, it must find that the two uses co-existed (Ground 4).
5) In the alternative, if the Tribunal was correct to find that the eat-in use and takeaway use co-existed, the Tribunal committed an error of law in failing to decide that Rule 56 was not satisfied once it had made that finding (Ground 5).
Summary of findings
For reasons that follow, I have determined that leave to appeal should be granted and that the appeal should be allowed. The Authority has succeeded in establishing Grounds 1, 2 (in part) and 5. Essentially, the proposed restaurant use and takeaway use coexisted over the Site (either on the Tribunal’s finding or on review by this Court, due to the question of characterisation of use being a jurisdictional fact).
The consequence of that finding is that the proposed development was for a dual use of a restaurant and a takeaway food shop. Once a finding of dual use was made, the application could not be approved as the proposed development is for a building with a GFA of more than 250m2, and is therefore inconsistent with Rule 56. The Tribunal erred in either deferring the question of the use of the Site or seeking to partition the use by imposing the condition of a limit in the Crown Lease.
Accordingly, the Authority was correct to refuse the application. On the proposed plans, there was no other conclusion available to it.
Should the applicant be granted leave to appeal?
The appeal is brought pursuant to s 86 of the ACTCivil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) and r 5051 of the Court Procedures Rules 2006 (ACT).
Under s 86 of the ACAT Act, a party to an application for review under the Planning Act may appeal the decision only ‘on a question of law’ and with leave of the Court. The appeal is not limited to establishing jurisdictional error.
The Authority also requires leave to extend the time in which to file the application for leave to appeal. Under r 5072 of the Court Procedures Rules, the application for leave must be filed within 28 days of the order sought to be appealed. The difficulty for the Authority was that although the order was made on 14 December 2017, the reasons for the decision were not delivered until 20 April 2018 (referred to hereafter as the Tribunal Reasons). It was only upon receipt of the Tribunal Reasons that the Authority could properly assess whether there were grounds to appeal.
I have recently set out a summary of the applicable principles in Bailey v Bottrill [2019] ACTSC 45 at [8], drawing on the earlier authorities of Pires v DibbsBarkerCanberra Pty Ltd [2014] ACTSC 283 at [48] and Wsol v John James Memorial Hospital [2015] ACTSC 378 at [9]. They are as follows:
(a)The need for leave is to reduce the number of appeals and provide a filter so that only those of some substance or where there is a miscarriage of justice should be able to be heard, though the test should be applied “in a liberal manner, and not begrudgingly”: Perry v Smith [1901] ArgusLawRp 51; 27 VLR 66 at 68.
(b)Whether leave should be granted or not must depend upon the justice of the case.
(c)The application for leave must identify the question, of fact or law, which the applicant for leave claims arises and which is important to the substantive appeal succeeding or failing.
(d)The applicant need not show error – that is for the appeal itself – but must show that there is a real or significant argument to be put that error exists.
(e)Where a question has been identified which bears directly on the relief which will be sought on the appeal and once it has been shown that there is sufficient doubt attending the question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in effect.
(f)The public importance of any question of fact or law is relevant but not decisive as to the question of whether leave to appeal should be granted.
(g)It may be relevant to show that the error, if uncorrected, would impose substantial hardship.
In the present case, the Company sensibly does not take issue with the grant of an extension of time in which to file the Application for Leave to appeal the decision. However, the Company does dispute that leave to appeal should be granted, primarily on the grounds of lack of utility.
Dealing first with identifying the legal issue, the overarching question is whether the Tribunal was lawfully able to conditionally approve the development. The Authority argues the Tribunal could not do so because of the application of Rule 56 (Grounds 1 and 5). That broad question involves a number of further questions of law, put in different ways by the other various grounds of appeal. Those questions include whether the Tribunal failed to characterise the proposed use of the Site (Ground 2). Relevant to each of Grounds 1, 2 and 5 is the further debate about whether the issue of characterisation was itself a jurisdictional fact such that the Court can review it (and decide the fact on appeal if necessary). The remaining Grounds 3 and 4 are directed to the Tribunal’s approach to the evidence. The Authority argues that the Tribunal incorrectly shifted the evidentiary onus to the Authority (Ground 3) and further took an incorrect approach to the evidence, in stating that an absence of statistical evidence about whether eat-in use of the Site was the predominant use or whether the takeaway use of the Site was the predominant use left it to determine that the two uses co-existed (Ground 4).
Each of the grounds sought to be argued therefore involve a question of law sufficiently identified by the Authority. In addition, it will be seen from the discussion of the ultimate merit of the grounds that there is sufficient doubt about the Tribunal’s approach in relation to the questions set out in the grounds of appeal to meet what might be seen as the threshold for leave, namely that the grounds raise some substantial issue or significant argument.
It was uncontroversial that the complaints the Authority seeks to raise bear directly upon the final orders made, and no party raised hardship or public interest as being of great weight in the circumstances of the decision under challenge. The foregoing considerations favour the grant of leave to appeal.
As to utility, the Company contends that since the delivery of the Tribunal’s decision, the Crown Lease has been amended to permit the use of the Site for the purposes of a takeaway food shop, but to limit that use to a GFA of less than 250m2 so that the issue regarding whether use of the Site is consistent with Rule 56 and therefore the Territory Plan has been resolved.
In some cases, the fact that a party has acted on the decision under challenge may be sufficient to ground an argument of lack of utility. In this regard, the Planning Act provides further support for the Company’s submission, in that s 185 relevantly provides that if a development approval consists in part of a variation of a lease, then the part of the development approval referable to the lease variation ends once the lease is varied in accordance with the approval.
Here however, it cannot be said that there is no utility in determining the appeal, because the development approval was for more than a pure lease variation. The subsequent variation of the Crown Lease does not have the effect of superseding the remainder of the development approval, and the development itself has not yet been carried out.
On the contrary, the dual use of the Site and the fact that the proposed development of the Site itself has a GFA larger than 250m2 raises a real question about whether the proposed development could have been approved at all. The Tribunal’s imposition of a condition requiring the amendment of the Crown Lease may have been fulfilled, but that does not render the appeal futile. If such a requirement was itself not in accordance with law because the development could not be approved in the first place, then the Court would still be in a position to provide a remedy with regard to that aspect of the approval, regardless of whether the Crown Lease has now been amended. The appeal therefore continues to have utility.
Accordingly, the justice of the case is in favour of leave to appeal being granted.
Statutory framework applicable to the proposed development
Before dealing with each of the grounds of appeal, it is helpful to consider the statutory scheme and the applicable legal principles arising in relation to it.
The decision-making process under Chapter 7 of the Planning Act starts with a development application made to the Authority (putting to one side the power of the Minister, which is immaterial here). An application may be made in one of three tracks: code, merit or impact: s 112. The proposed development under consideration here was made pursuant to the merit track.
In deciding a development application for a development proposal in the merit track, the decision-maker must consider a number of matters set out in s 120. Relevantly, those matters include: “the suitability of the land where the development is proposed to take place for a development of the kind proposed”.
Once an application is made, there are three options available to the Authority. It must approve the development application, approve it subject to a condition or refuse it: s 162.
One of the conditions the Authority can impose is approval on the condition that a Crown Lease be varied: s 165(3)(e). Under s 165A, if the Authority approves a development under s 162 which includes a lease variation, the Authority must vary the lease in accordance with the terms of the approval.
In assessing a development application made in the merit track, approval must not be given unless the proposed development is consistent with a ‘relevant code’: s 119.
The term ‘relevant code’ is defined in the Dictionary to mean a code applicable under the relevant development table (which is part of the Territory Plan). The particular development table for the Site shows that it is located in an area zoned CZ6 Leisure and Accommodation Zone and that the CZ Code applies to such land.
Rule 56 in the CZ Code states that the maximum GFA for each shop is 250m2. The rule does not apply to shops selling predominantly one or more of arts, crafts or souvenirs. Critically for the outcome of this appeal, under the heading ‘Criteria’ for Rule 56, the CZ Code states: “This is a mandatory requirement. There is no applicable criterion”.
Those words mean that shops with a GFA greater than 250m2 are prohibited in the CZ6 zone.
The task for the Authority then, for the Tribunal on review and in my view, for this Court on appeal, was and is to determine whether the proposed development was for use as a shop, and if so, whether the GFA for the shop was more than 250m2.
The term ‘shop’ is defined in the Territory Plan to mean:
The use of land for the purpose of selling, exposing or offering the sale by retail or hire, goods and personal services.
Take-away food shop is defined in the Territory Plan to mean:
A shop, which is predominantly for the preparation of food and refreshments for consumption elsewhere.
A ‘restaurant’ is defined in the Territory Plan to mean:
the use of land for the primary purpose of providing food for consumption on the premises whether or not the premises are licensed premises under the Liquor Act 2010 and whether or not entertainment is provided.
Gross floor area (GFA) is defined in the Territory Plan to mean:
…the sum of the area of all floors of the building measured from the external faces of the exterior walls, or from the centre lines of walls separating the building from any other building, excluding any area used solely for rooftop fixed mechanical plant and/or basement car parking.
On review, the Planning Act does not limit the Tribunal’s power: see s 408A and Schedule 1.The Tribunal stands in the shoes of the Authority and has the same function (powers) as those given to the Authority by the Planning Act: see s 68(2) of the ACAT Act.
The proper approach to characterisation of use
The general principles are as follows:
(a) In planning law, the use of land must be for a purpose: Shire of Perth v O’Keefe (1964) 110 CLR 529 (O’Keefe) at 534-535; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173 at 188; Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343, at [51] per Beazley JA (with whom Campbell JA and Handley AJA agreed).
(b) The ‘use’ is the physical acts by which the land is made to serve some purpose: Newcastle City Council v Royal Newcastle Hospital(1957) 96 CLR 493 at 508. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: O’Keefe at 534.
An explanatory example might be a development which has a car park and a storage facility as the physical acts or separate ‘uses’ of the land, but each use serves the purpose of facilitating a supermarket on the land.
These principles are well established and have been consistently applied in the Territory: see for example, Peter Kohlsdorf Golf Distributors Pty Ltd v Liangis Investments Pty Ltd & Anor [2003] ACTAAT 29; Authentic Systems Pty Ltd & Anor and Department of Environment and Planning [1993] ACTAAT 47; Lunardello, Rene and Minister for Urban Services [2001] ACTAAT 27; Gakhar and ACT Planning & Land Authority [2003] ACTAAT 55; and, Young Men’s Christian Association Inc & ACT Planning and Land Authority & Ors [2011] ACAT 78
The correct characterisation of the purpose of the proposed development involves a jurisdictional fact: Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 (Pallas Newco) at [86]-[88] per Spigelman CJ, at [181] per Sheller JA, cited in Bardsley-Smith v Penrith City Council [2013] NSWCA 200 at [64]. Similarly, in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at 151 it was held that although the characterisation of the use of land as “special industry” involved matters of fact and degree, it was nevertheless a jurisdictional fact. See also Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; 141 LGERA 376 at [9].
In Pallas Newco at [62], Spigelman CJ said this:
In the present case, the determination of whether a proposed development is a "drive-in take-away establishment" raises questions of fact and degree but not of such a character as to suggest that Parliament intended that such a characterisation should turn on the opinion of the consent authority. This may be an issue on which reasonable minds may differ, but there is nothing to suggest that the decision requires any particular expertise or local knowledge, let alone that it turns in any way on contestable value judgments. It is a conclusion about which an independent non-expert impartial observer could make an assessment as to whether it is right or wrong. It is not the kind of test which, by its very nature, is unlikely to be jurisdictional.
The statutory planning regime under consideration in Pallas Newco was that of
New South Wales, not the Territory. Under the Planning Act under consideration here, the assessment of the use of land is required under s 120 (see above at [25]), through the words “the kind of development proposed”. There do not appear to be any particular words in the Planning Act that would cause the Court to adopt a different position in applying the same reasoning in the Territory.
Moreover, characterisation of the purpose of a proposed development is, to my mind, so fundamental to the assessment of an application that it may properly be seen as
“an essential preliminary to the decision-making process”: Pallas Newco at [46], quoting Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443. Without knowing the purpose or kind of development, a decision-maker could not carry out the assessment task, as it is an essential preliminary to assessing whether the development is permissible in a particular zone and whether there are any limitations on that kind of development in the zone (such as building size by reference to GFA). Indeed, the kind of development determines the assessment track by which a proposal is made.
Classification of land where there is more than one use
In Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157, Glass JA set out the following approach to the classification of premises devoted to a dual use (at 161):
It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts …
Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.
The case of O'Keefe is to similar effect. Kitto J stated (at 535) that the question is:
… not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.
Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 (Royal Agricultural Society) is to similar effect, where it was held (at 310) that the process of classification should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes.
That approach was followed in Pallas Newco at [30]-[63] and in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LEGRA 400 (Chamwell) at 407 [36]. Preston CJ in Chamwell went on to state at [45] that the characterisation of the purpose of development must be done in a common sense and practical way.
Grounds 1, 2 and 5: Did the Tribunal fail to consider or apply Rule 56?
Grounds 1, 2 and 5 may be considered together as the latter two grounds are really just a more specific articulation of that part of the complaint under Ground 1 directed to a failure to apply Rule 56.
It is apparent from the Tribunal’s Reasons that the Tribunal did fail to consider Rule 56 and to apply it (Grounds 1 and 2). If it had, I accept that the only result would have been to refuse the application for development, so that the Tribunal erred in approving it (Ground 5).
There are two places in the Tribunal’s Reasons relevant to consideration of these grounds. The first is Issue 2 of the ‘issues for consideration’ listed by the Tribunal, namely:
Is the proposed development consistent with the requirements of the Commercial Zones Development Code?
Nowhere in its consideration of that issue did the Tribunal refer to Rule 56. Instead, it considered criteria 3, 5, 14, 19 and 21, and rule 23 (none of which are relevant to this appeal). It then found (at [68] of the Tribunal’s Reasons):
The proposed development complies with all other relevant rules and criteria in the Code. The Tribunal accordingly finds that the proposed development is consistent with the requirements of the [CZ] Development Code.
The second place in the Tribunal’s Reasons where the issue of GFA was raised was Issue 4 of the ‘issues for consideration’ which the Tribunal described as ‘The Crown Lease’. The relevant part of the Tribunal’s Reasons is as follows:
[85] If the use of the land for take-away purposes qualified as the predominant use this would result in non-compliance with the Crown Lease. The Crown Lease limits the area of use as an individual shop to 250 square metres, which would include use as a take-away food shop. Although some areas were said to be related predominantly to restaurant use, no attempt was made to define any area as being of a predominantly take-away use.
[86] There was also evidence that the total gross floor area of the proposed premises exceeds 250 square metres.The Crown Lease limits the area of use as a shop, which would include use as a take-away food shop.
[87] In its final submissions dated 24 November 2017, the respondent submitted:
10. …The definitions of both restaurant and take-away food shop can be applied to this single building: the difference between them is whether the sit-down area is the primary or predominant purpose of the way the building functions.
11. The amount of space devoted to take-away includes drive through: it is simply taking food away without getting out of your car:
12. By reference to the amount of space devoted to the take-away, and by reference to the occupier (KFC), the premises are better described as being for use by a take away food shop which (as allowed in the definition of that term) also has chairs and tables.
13. That use is not permitted under the Crown lease on two fronts: it is not a permitted type of shop, and in any event it is too large.
(Emphasis added.)
The Tribunal then made the following finding:
[88] On the available evidence it seems likely that the predominant use of some part of the land, for example, areas marked for the ordering and delivering of food for take-away, is for the preparation etc of food for consumption elsewhere. However it is not possible to define these areas by size nor to define their relationship to other areas where such use is not clear.The Tribunal is not able to conclude as suggested by the respondent that the take-away use was the predominant use nor that any use as a take-away shop exceeded 250 square metres. In any event, clause 3(e)(v) of the lease further limits the use to which a shop may be put.
…
[92] It is the view of the Tribunal that the development should be approved subject to a change of the purpose clause to authorise the use of the developed site.
(Emphasis added.)
The Authority takes issue in its Ground 2 with the Tribunal’s finding that it was “unable to conclude” that the “take-away use was the predominant use”. The Authority’s further complaint is that the Tribunal was required to find whether the proposed development was for a takeaway food shop and if so, what was the GFA occupied by the shop.
However, a fair reading of the Tribunal’s Reasons above suggests that in fact the Tribunal accepted that the proposed development was in part for the use as a takeaway food shop. It was unable to determine whether such a use was predominant because it could not define any particular area exclusively for a takeaway food shop. On the proper application of the authorities above, in such a situation the dominant or ancillary use becomes irrelevant. The parties perhaps focused their attention too heavily on the word ‘predominantly’ in their definition of takeaway food shop in the argument before the Tribunal.
It can be seen from the words emphasised in the extract above that the critical findings of the Tribunal were:
(a) part of the proposed development was for use as a takeaway shop;
(b) the total GFA of the premises or building forming part of the proposed development was more than 250m2; and
(c) the Tribunal could not separate the use as a takeaway shop from that of a restaurant.
The Tribunal’s consideration was solely concerned with the terms of the Crown Lease, not the requirements of Rule 56. The Tribunal clearly did not appreciate that the issue of characterisation and GFA was broader than simply incompatibility with the terms of the Crown Lease for the Site. In fairness to the Tribunal, it did not address Rule 56 because of the way the case unfolded before it. It is true that the expert planning evidence referred to the issue created by Rule 56 and the Rule was also referred to in an email concerning conditional approval after the oral hearing, but the arguments before the Tribunal concentrated on a number of other issues which were all resolved by the Tribunal and about which no complaint is made here. Whether the proposed development was for use as a takeaway food shop was squarely raised in the course of the argument that such a use was inconsistent with the Crown Lease. The way the case was put before the Tribunal member was therefore very different to the case on appeal, where the issue of Rule 56 was effectively up in lights as the sole source of the various complaints for resolution.
The Company submitted that notwithstanding the failure to refer to Rule 56 under Issue 2, the Tribunal in fact addressed the substance of Rule 56 when dealing with Issue 4 as set out above.
While I accept that the Tribunal considered characterisation of use, the insurmountable difficulty is that the Tribunal could only assess the plan of the proposed development that was before it and consider whether that plan was capable of approval. On the proper application of the authorities set out above, the legal consequence of its factual findings was that there was a dual use of the Site as a whole, that one of those uses was for a takeaway shop and that the building on the plan presented to the Tribunal for approval showed a GFA of more than 250m2. Therefore, Rule 56 prohibited approval of that plan of the proposed development. The condition imposed by the Tribunal does not solve the problem because on the Tribunal’s findings, a building with a smaller footprint was required before development could be approved.
Even if the Tribunal’s factual finding is put to one side and the question reviewed afresh (given that the question is a jurisdictional fact), the same outcome is produced. There was some discussion during the hearing as to the parties perhaps seeking to put further evidence before the Court if the Court determined characterisation of use to be a jurisdictional fact. However, having reviewed the authorities and limiting the finding to the existing evidence before the Court (in particular the plans), the proposed development is plainly properly characterised as one for dual use. Taking a practical approach to the building depicted in the proposed development, the entry area, the kitchen, the counter, the amenities, the store room and seating all serve the use of the Site for the purposes of both a restaurant and a takeaway food shop. The two uses are inextricably linked, with neither of the two uses subserving the other. On the authorities above, that renders irrelevant an inquiry of the kind attempted before the Tribunal as to which of the two uses is dominant or predominant.
The Company did attempt to delineate parts of the building that might be used for a takeaway food shop, by drawing lines on the plan and then adding up the GFA of those spaces. That exercise was somewhat artificial and in my view, fell into the category of a meticulous examination of the individual activities taking place on the Site, an approach which was eschewed in O’Keefe. In any event, it highlighted the inextricability of the two uses, as the parts purporting to denote a takeaway food shop included the kitchen, counter and amenities and entrance – all areas that would undoubtedly also be serving restaurant patrons.
Accordingly, whether the issue is viewed from the perspective of the Tribunal’s findings or from a fresh consideration on review, the development is properly characterised as having a dual purpose of a restaurant and a takeaway food shop across the Site. As the GFA of the proposed building located on the Site is more than 250m2, the proposed development is in breach of Rule 56 and cannot be approved. Grounds 1, 2 and 5 therefore succeed.
Grounds 3 and 4
The above findings are sufficient to allow the appeal, so I will deal with the remaining grounds briefly.
The complaint with regard to Ground 3 is directed to [88] of the Tribunal Reasons which has been set out above. There is no substance to it. The language may be a little loose but the Tribunal’s reasons should not be read with an eye attuned for error. The Tribunal did not require the Authority to make a case for a particular use either way. The Tribunal was simply responding to the argument made by the Authority. That much is evident from the use of the words ‘as suggested by the respondent’ (being the Authority).
Ground 4 relates to the Tribunal’s reference to an absence of statistical evidence about whether eat-in use of the Site was the predominant use or whether the takeaway use of the Site was the predominant use. The Tribunal’s Reasons were as follows:
[83] There was no statistical evidence which could lead to any conclusion as to whether the eat-in use was the predominant use or whether the take-away use was the predominant use. The Tribunal was left to conclude that the two uses co-existed.
That type of evidence does not appear to me to be of any assistance in the circumstances of this case, and on the authorities above (in particular Royal Agricultural Society), it is unnecessary. In my view, it would be dangerous to base a decision about use on the kinds of customers anticipated, which was derived from statistical evidence presumably at other locations. The danger arises in this way: a development application might state an anticipated breakdown of customers who might sit down at the premises versus those who might take away food. In doing so, the proponent might seek to classify a building with an excessive GFA as a restaurant and thus avoid the application of Rule 56. However, the statistics might ultimately bear no resemblance to the actual position once the development was constructed and the business became operational. In that way, the careful planning regime created by the Territory Plan and the application of the CZ Code would be entirely subverted. Further, the reliability of any such evidence must be questionable, as it is not difficult to imagine a customer sitting down and eating a meal and then buying a drink or a dessert to take away.
In my view, if the Tribunal reached a position of resorting to statistical evidence about potential customers in order to separate one use from the other, that would perhaps be an indication the two uses were inextricable, so as to result in a conclusion of dual use. That is what the Tribunal effectively found and in any event, that is what I have found was the correct characterisation regardless of the presence or absence of any statistical evidence.
All this is somewhat moot however, as I am not convinced that the comment by the Tribunal at [83] founds error. Contrary to the Authority’s submission, it does not rise as high as a statement that the lack of such evidence required or compelled a finding that the two uses co-existed. The statement was simply a reference to a lack of evidence that the Tribunal member thought might have been of assistance. What the Tribunal member was saying was that in the absence of such evidence, there was nothing else separating the two uses, and the result was to find that the two uses co-existed.
Relief
It is appropriate to order that leave be granted to extend the time in which to file an application for leave to appeal, and to then grant leave to appeal. The appeal will be allowed.
If successful, the Authority sought remittal of the proceedings. There may be little point as the proposed development as it stands cannot overcome Rule 56 and accordingly the development application must be refused. However, I will allow the parties the opportunity to consider the precise form of relief in light of these reasons.
I note the Company now has the benefit of an amended Crown Lease and no party sought any relief in that regard. This may pave the way for a further development application with a building that complies with Rule 56. That is a matter for the Company to pursue.
Given the Authority has been successful, I would also order that costs follow the event unless either party makes an application for a different order within 7 days of publishing these reasons.
I direct the parties to bring in short minutes of order giving effect to these reasons within 7 days.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 15 October 2019 |
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Amendment
15 October 2019 Paragraph [7] – delete the number “4”.
15 October 2019 Paragraph [48] – delete the words “was the” in the opening line.
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