Austexx Developments Pty Ltd v Logan City Council
[2003] QPEC 27
•18 July 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Austexx Developments Pty Ltd v. Logan City Council [2003] QPEC 027
PARTIES:
AUSTEXX DEVELOPMENTS PTY LTD (Applicant)
v.
LOGAN CITY COUNCIL (Respondent)
FILE NO/S:
4106/02, 4446/02 & 4642/02
DIVISION:
Planning and Environment Court Brisbane
PROCEEDING:
Application
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
18 July 2003
DELIVERED AT:
Brisbane
HEARING DATE:
13 & 14 February 2003
JUDGE:
Quirk DCJ
ORDER:
CATCHWORDS:
BUILDING CONTROL AND TOWN PLANNING – town planning – applicant seeks declaratory relief in respect of construction of town planning scheme – direct factory outlet – “incidental to and necessarily associated”
Integrated planning Act, Schedule 10
BCC v. A-G (Qld) (1979) QC 411
Boral Resources (Qld) v. Cairns CC (1997) 2 Qd.R. 31
BCC v. Bemcove Pty Ltd (1998) 104 LGERA 1
COUNSEL:
Mr D Gore QC and Mr M Rackemann for the applicant in 4106/02, the first respondent in 4446/02 and the first respondent in 4642/02
Mr G Gibson QC for the respondent in 4106/02, the second respondent in 4446/02 and the second respondent in 4642/02
Mr R Litster for the applicant in 4642/02
Mr M Hinson SC for the applicant in 4446/02
SOLICITORS:
Connor O’Meara for the applicant in 4106/02, the first respondent in 4446/02 and the first respondent in 4642/02
Corrs Chambers Westgarth for the respondent in 4106/02, the second respondent in 4446/02 and the second respondent in 4642/02
Allens Arthur Robinson for the applicant in 4642/02
Freehills for the applicant in 4446/02
In this matter the relief sought is declaratory in nature. Applications for competing relief in respect of the same matter have also been made by Lewiac (4446/02) and Longhurst (4642/02) and the applications have been consolidated.
Austexx has made an application for a development permit for a material change of use in respect of land on the eastern side of the Pacific Motorway near its junction with the Logan Motorway. The land occupies an area of a little over 5.176 hectares.
The purpose of the application is to establish on the subject land a retail facility of the kind which the applicant operates in other parts of Australia, and which is described as a “Direct Factory Outlet”. Full details of the proposal and relevant layout plans are to be found in material before the court. The dispute is whether the subject application is code assessable under the Integrated Planning Act.
In the relevant Town Planning Scheme the subject land is included partly in the General Industry Zone and partly in the Particular Purpose Zone. In July and August of 2002 applications were made and granted for “preliminary approvals” under the Integrated Planning Act for the areas separately zoned. Pursuant to s.3.1.5(1) of the Act, a preliminary approval approves assessable development to the extent stated in the approval, and subject to the conditions in the approval, but does not authorise assessable development to occur. Hence the necessity for a further application for a development permit.
The Act further provides (in s.3.1.6(2)) that a preliminary approval may state that any approval that may take place on the land may be subject to code assessment. To the extent that a preliminary approval in that respect is contrary to the Planning Scheme the approval prevails (s.3.1.6(3)).
The preliminary approvals given in this matter contained a condition which provided a table of development that identifies development that is self-assessable, code assessable, impact assessable and incompatible. “Retail Showrooms” were, pursuant to the table, code assessable development. It is the contention of the applicant that the proposal now before the court is a “Retail Showroom”. This contention is disputed by the other parties.
The concept of the “Discount Factory Outlet” is one which is not unknown to the commercial world. As was indicated in the evidence, such facilities are prevalent in the United States and are beginning to make their appearance in this country. A useful description of such a facility, given by counsel for the applicant, was:
“A discount factory outlet provides an environment for manufacturers, wholesalers, distributors, and retailers to sell clearance product to the public. Clearance product includes out of season stock, inferior quality stock, odd lots, seconds, damaged and irregular stock, samples, and stock not sold through traditional outlets.”
The evidence indicated in this case that the proposal involved a single building with a circuit mall giving access to tenancies via roller door entrances. The building floor area is 20,000 square metres and the gross lettable area is 15,630 square metres. Tenancies are not self contained but are partitioned. The proposal intends to provide cafeteria facilities at either end of the building for use by customers and employees.
The definition of retail showroom provided by the Planning Scheme is as follows:
“Premises having a gross leasable area of not less than 200 m2 used for the display, sale or hire in a predominantly indoor setting of goods of a similar or bulky nature which:
(a) includes, but it not limited to, the display or sale of:
(i) barbeque supplies and outdoor furniture;
(ii) building and construction materials with or without hardware, handyman and tradesman supplies;
(iii) camping, outdoor, sporting and fitness equipment including bicycles and golfing goods and equipment;
(iv) curtains and furnishing materials;
(v) domestic fixtures and fittings;
(vi) floor coverings and floor and wall tiles;
(vii) furniture;
(viii) non-portable machinery;
(ix) non-portable appliances being washing machines, dishwashers, clothes dryers, refrigerators, hot water systems, air conditioning systems and the like with or without portable domestic appliances;
(x) spa and pool supplies and equipment; and
(xi) boats, caravans, motor vehicles, trailers, swimming pools, motor cycles, lawn mowers and garden appliances, and the like where carried on predominantly within a building; and
(b) includes ancillary activities such as:
(i) the storage of goods on the premises, and
(ii) offices for the conduct of administration and accounting; and
(c) excludes a department store, discount department store, variety store, supermarket or the like.”
One of the arguments put forward by the respondent counsel was that the proposed development was not a “retail showroom” but a “shopping centre”. This purpose is separately defined and attention was drawn to s.13.2.2.2 of the Scheme which provides that:
“Unless expressly provided otherwise:
(a) A purpose of development shall not be taken to include other purposes of development separately defined in this section.”
The definition of “shopping centre” must therefore be considered. It is:
“Premises used for a group of shops in association with other purposes of development which:
(a) Function as an integrated unit; and
(b) Contain one or more buildings having a gross leasable area of more than 500 m2 erected at the one time as one complete entity or in stages according to a co-ordinated layout where each succeeding stage forms a complete entity with any previous stage or stages; and
(c) Comprises separate areas of occupation and other activity areas used in connection therewith where each separate area of occupation were it not part of a shopping centre would be a:
(i) Shop; or
(ii) Commercial premises; or
(iii) Commercial services; or
(iv) Child care centre; or
(v) Detached bottle shop; or
(vi) Food outlet; or
(vii) Health care practice; or
(viii) Restaurant; or
(ix) Services and trades where each separate area of occupation does not exceed a gross leasable area of 200 m2; and
(d) Includes a department store, discount department store, variety store, supermarket, or other similar premises.”
In argument, attention focused upon sub-paragraph (d) of this definition. In putting forward its argument, the council glossed over this provision and suggested it did no more than identify a number of uses which could, in themselves, constitute a shopping centre. I regard this argument as untenable. A sensible interpretation of the definition requires that sub-paragraph (d) be read together with the introductory paragraph
“Premises used for a group of shops in association with other purposes of development which: -”.
Fundamental to this definition is the notion of a group of shops. None of the uses identified in (d) could, by itself, constitute a “group of shops”. Furthermore, it is consistent with planning experience that when, as in this Scheme, a hierarchy of retail outlets is contemplated, the viability and appropriate function of a shopping centre (which normally leads that hierarchy and is of a regional or at least district status) depends upon its being anchored by a facility of the kind referred to in (d).
My conclusion is that, sensibly interpreted, this definition requires that, to be a “shopping centre”, the group of shops which constitute it must contain at least one of the kinds of facilities identified in sub-paragraph (d). Although not specifically defined by the Scheme, the nature of each of these facilities is well enough known in a commercial sense. None of those (or similar premises) is part of this proposal. I find that it is not a “shopping centre”.
The council was the only party to suggest that it was. The other parties involved in this matter took the approach that the proposed use did not come within the definition “retail showroom” and was therefore “incompatible development” under Column 4 of the Table of Development in the preliminary approval. If this was correct, the application would require impact assessment. Accordingly, a close examination of the definition of retail showroom is called for.
Dealing firstly with the negative requirement found in (c), as I have already indicated, facilities of the kind there identified are well understood in a planning sense and by ordinary human experience. The proposal is none of them.
The definition sets out a number of positive requirements. The gross leaseable area of the subject premises is in excess of 15,000 square metres. There is no problem with the requirement that we are dealing with a proposal having a gross leaseable area of not less than 200 square metres. In argument it was sought to be suggested that areas of the premises are intended to be separately tenanted, and some of these tenants’ tenancies are less than 200 square metres. I do not have any difficulties with this. The very concept of gross leaseable area (which is generally used in the context of the use “shopping centre”) contemplates the possibility of separate leases. What is important is that the development here intended is an integrated commercial enterprise put forward as a “retail showroom”. It could not sensibly suggested that a number of separate retail showrooms are proposed. It is not disputed that the goods are to be offered for sale in a predominately indoor setting.
The real dispute regarding the interpretation of the definition arose in respect of the interaction between the introductory paragraph and the sub-paragraph. The grammar is poor. The verbs with which the sub-paragraphs begin are singular. What is their subject? Except for “display, sale or hire” the nouns in the introductory paragraph are plural. None sit well with the sub-paragraphs. However, little would be gained from a semantical discussion. One must attempt to attribute to the definition a sensible and purposeful meaning. I am content to accept the suggestion that the most appropriate result would be to read the definition as having the word “purpose” understood after the word “which” at the end of the introductory paragraph.
The determinative question here appears to be whether these premises are intended for the sale of “goods of a similar or bulky nature” within the meaning of the definition. An understanding of what is intended by the phrase “goods of a similar or bulky nature” and the operation of sub-clause (a) lay at the heart of the dispute in this case.
The applicant’s opponents suggest that (a) had the effect of circumscribing the categories of the goods referred to in the introductory paragraph. For such a construction to prevail, (a) would need to relate only to the word “goods”. As I have indicated I do not favour that interpretation. It requires that the word “includes” be read as meaning “include” and additionally, the suggestion would rob the words “but is not limited to the display or sale of” of any real meaning. It seems plain enough that what is intended by the introductory paragraph is wider than what is set out in (a). The word “hire” is not repeated although “display and sale” are. The words “not limited to” surely rules out the contention that the list in (a) is exhaustive.
That being the case, in my reading of it, it would be sensible to see the function of (a) as exemplifying categories of goods each of which are seen as having the attributes of being “of a similar or bulky nature”. The given examples are expressly said not to be intended to limit the categories to those examples.
There is no justification in reading the words “similar or bulky” as “similar and bulky” as appeared to be suggested at least once in the course of the hearing. The consequence of this is that it is sufficient for the purposes of the definition that the goods to be sold at the proposal are of a similar nature.
Similar does not of course mean identical, but it does require that the individual items share some common characteristic. I believe it is quite unrealistic to suggest that the relevant characteristic should be confined to the physical property of each item. It is pertinent to remember that in this exercise we are working in the world of retailing. In my view, it would be quite sensible to suppose that items could be said to be similar if they could reasonably be expected by the public to be found at a retailing facility of a particular kind.
Ready examples would be office supplies, hardware, or pharmacy stock. Items at such outlets could be quite disparate in their physical constitution, e.g., desk lamps and rubber bands; paint brushes and wheelbarrows; and analgesics and sunglasses. But they may share a similar characteristic in that members of the public would have no difficulty in deciding the type of outlet to resort to to acquire them. Such an approach is supported by the examples given in (a). The groupings appear to relate to types of outlets recognisable by the public.
In a case of this kind the court has preferred a common sense approach rather than an overly technical one. The appropriate questions to ask here would be:
· Is a factory outlet a retail facility of a kind with which members of the public are generally familiar?
· Are the goods intended to be offered here (clothing, accessories, foot wear, home wear, handbags/luggage) the kind of thing one would expect to find at a factory outlet?
As was pointed out in BCC v. A-G (Qld) (1979) QC 411 at 423 matters of this kind are”
“To be interpreted by the judge using his knowledge of the language and his acquaintance with the accepted applications of the (expressions) to situations arising in the normal life of the community within which he lives. Judicial knowledge is the knowledge of the ordinary wide awake man, used by one who is trained to express in terms of precision”.
I would have no difficulty in answering each of these questions in the affirmative and finding that the goods proposed to be sold at this facility are of a similar nature.
The most difficult problem is the involvement in the proposal of an area of little over 700 square metres for the provision of food and other refreshments to patrons in a cafeteria like setting. In the Integrated Planning Act (in Schedule 10) “use” is defined as:
“In relation to premises, includes any use incidental to and necessarily associated with the use of the premises”.
Accordingly, if the premises are to be used lawfully as a retail showroom, to set aside such an area for the provision of food and other refreshments to patrons would be included in such lawful use if it is sensibly and reasonably seen as incidental to and necessarily associated with the dominant use. In the proposal it is intended that there be 80 tenancies involving in the order of 300 employees. It is also a fact that the nearest food outlet is presently more than three kilometres away.
On the evidence there is no question that the provision of refreshment to patrons would be ancillary to the dominant use (the factory outlet facility). That this could be so is demonstrated by an express acceptance of the notion and other definitions found in the Town Planning Scheme (“indoor entertainment” “outdoor entertainment” “public recreation”).
If the contents of sub-paragraph (b) of the definition of “retail showroom” does not refer specifically to the provision of refreshments, but this sub-paragraph (like in (a)) should not be seen as an exhaustive identification of possibly lawful ancillary uses, and thereby limit the operation of the definition of “use” in the Integrated Planning Act.
The real argument against the applicant in this context was that the provision of refreshments could not be seen as “necessarily associated with” the dominant use. Attention was drawn to two decisions of the Court of Appeal (Boral Resources (Qld) v. Cairns CC (1997) 2 Qd.R. 31; BCC v. Bemcove Pty Ltd (1998) 104 LGERA 1,3) and the use in those judgments of such phrases as unavoidable or inevitable involvement.
I have difficulty with the notion that the definition of “use” in the Integrated Planning Act and particularly the phrase “necessarily associated with” connotes some form of compulsion or inevitable involvement of the ancillary use with the dominant use. It seems to suggest that the dominant use could not be conducted unless the ancillary use was a part of the activity. Such a notion would appear to elevate an ancillary element of the proposal to the status of one of its essential elements. If that were the case “ancillary” would arguably have little or any meaning.
I would have preferred it if the requirements of the definition were met when a use is correctly identified as being ancillary and its association (in a locational sense) with the dominant use is accepted as being necessary. This was consistent with the decision of Ryan J in Southside Action Group against the Proposed Dump at Rochdale Inc. v B.C.C. (1992) 76 L.G.R.A. 402 which decision was long regarded as adopting a wise and practical approach. However there is no point in any further discussion of the matter because the words of the Court of Appeal are clear enough and I am bound by these decisions in which Southside was specifically disapproved.
It cannot be said (to use the words which appeared in Boral and were repeated in Bemcove) that, however sensible or desirable it might be, there is any form of compulsion, unavoidability or inevitability between the provision of refreshment facilities and the dominant use.
I have no difficulty in accepting that these facilities would fulfil an ancillary role and that in so doing it is necessary that they be associated (in a physical locational sense) with these premises. However the authority to which I referred prevents my finding that they would constitute a lawful element of a code assessable proposal.
The end result would seem to be that the major part of the application is one which requires code assessment. The minor part (the provision of refreshment facilities) requires impact assessment. The practical consequences of this would appear to be that, pursuant to s.3.4.2. of the Integrated Planning Act, the “notification stage” is applicable.
In the light of these findings I will invite submissions as to what orders are appropriate.
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