Bridle and City Of Stirling - [2009] WASAT 62

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BRIDLE and CITY OF STIRLING [2009] WASAT 62

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 2 APRIL 2009 - FURTHER SUBMISSION FILED ON 6 APRIL 2009

DELIVERED : 8 APRIL 2009

FILE NO/S: DR 467 of 2008

BETWEEN: GARY BRIDLE
RIC VAN DER FELTZ
Applicants
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning Development application Drive through takeaway coffee outlet Preliminary issue Whether proposed use is capable of approval Land use classification Whether 'drive through fast food outlet' Whether coffee is 'fast food' Whether 'shop' Whether use not listed Words and phrases: 'fast food', 'food', 'shop'

Legislation:

City of Stirling District Planning Scheme No 2, cl 1.1.11.2, cl 1.3.2.3, cl 1.3.2.5
Planning and Development Act 2005 (WA), s 252(1)

Result:

Proposed use is classified as 'drive through fast food outlet' and is prohibited
Development application refused

Category: B

Representation:

Counsel:

Applicants: In person
Respondent: Ms P Di Perna (Public Sector Employee)

Solicitors:

Applicants: Self-represented
Respondent: City of Stirling

Case(s) referred to in decision(s):

Filton Pty Ltd and Town of Vincent [2006] WASAT 7
Hopkins and Town of Vincent [2007] WASAT 149
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Maroney v The Queen (2003) 216 CLR 31
R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532
R v City of West Torrens; ex parte Kentucky Fried Chicken Pty Ltd (1960) 20 LGRA 388

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned a development application for a drive through takeaway coffee outlet. The Tribunal was called upon to determine a preliminary issue as to whether the proposed development was capable of approval. This required consideration of whether the proposed development was properly classified as a 'drive through fast food outlet' under the local planning scheme, which turned on whether 'fast food' relevantly includes coffee.
While, according to its ordinary meaning, food is something which is eaten or is, more or less, solid nourishment, the Tribunal determined that, in a town planning context, fast food also includes drinks and, more particularly, coffee. A drive through takeaway outlet selling coffee and one selling food according to its ordinary meaning give rise to common town planning considerations, namely, traffic movements, facilitating safe access and egress, and parking. The planning scheme therefore intended to regulate both types of drive through takeaway outlets by the land use class 'drive through fast food outlet'.
The Tribunal concluded that while drive through takeaway coffee is a relatively novel business concept, it is, in town planning terms, simply a variation on an existing theme. As the proposed development was properly classified as 'drive through fast food outlet', it was prohibited and incapable of approval. The development application was therefore refused.

Introduction

Drive through takeaway coffee is a relatively recent convenience available to consumers seated in motor vehicles. The interesting and novel question raised in this review is whether the use of land as a drive in takeaway coffee outlet is classified as 'drive through fast food outlet' under the City of Stirling District Planning Scheme No 2 (DPS 2 or Scheme). This turns on whether coffee is 'fast food'.

Background

In February 2007, Mr Gary Bridle opened a drive through takeaway coffee outlet in a former service station building located on the southern half of No 3 (Lot 118) Guthrie Street, Osborne Park (Lot 118), which is located at the corner of Guthrie Street and King Edward Road, Osborne Park (site). The site is zoned 'Service Station' under DPS 2. The northern half of Lot 118 is zoned 'General Industry' under DPS 2.
Mr Bridle did not seek or obtain development approval under DPS 2 for the use of the site.
Mr Bridle gave evidence that between 72% and 75% of the turnover of the business comes from the sale of takeaway coffee. Takeaway coffee is sold in three sizes. About 5% of turnover is due to the sale of soft drinks, and the remaining approximately 20% involves the sale of biscuits, muffins, pies and sausage rolls. Mr Bridle said that the biscuits, muffins, pies and sausage rolls are usually sold with coffee, rather than on their own.
In July 2007, the City of Stirling (City or Council) considered and approved a development application for a landscape supply yard in the northern half of Lot 118. The reporting officer noted the following in the background section of the report to the Council:
The corner section of the site (zoned 'Service Station'), currently contains an automotive service centre, which has been in operation for many years. A drive-through coffee shop is also located on-site. It is understood that the drive-through facility has been operating for a short period of time. However, a check of the City's records revealed that no approval has been granted. It should be noted that a coffee shop would not be permitted in a 'Service Station' zoned site, and therefore would have to be removed. This matter has been referred to the City's Compliance Unit for action.
On 14 February 2008, the City's Compliance Officer wrote to Mr Stephan Matthaus and Mr Ric van der Feltz, the head tenants of Lot 118, referring to a site inspection carried out on 12 February 2008 and stating that the use of the site as a takeaway coffee outlet is not permissible under the Scheme. The letter required the use to cease immediately.
On 10 April 2008, Mr Bridle applied to the City for development approval under DPS 2 for the use of the site as a drive through takeaway coffee outlet. The development application was accompanied by a site plan, showing the path of vehicle movements through the site, entering at the access point closest to the intersection of Guthrie Street and King Edward Road, proceeding to a window under the awning where coffee and the other items referred to earlier are purchased, and then exiting the site at a different access point onto King Edward Road. The site plan also showed parking spaces to the south of the building.
On 14 November 2008, the Council refused to grant development approval for the proposed use on the following ground:
The proposed development 'Drive Through Fast Food Outlet' is classified as an 'X' (not permitted) use in the 'Service Station' zone of [DPS 2].
On 4 December 2008, Mr Bridle and Mr van der Feltz sought review of the Council's decision under s 252(1) of the Planning and Development Act 2005 (WA).

Preliminary issue

A preliminary issue has been identified for determination as to whether the proposed use is capable of approval under the Scheme.
The City contended that the proposed use is properly classified as 'drive through fast food outlet' under the Scheme. This use class is prohibited in the Service Station zone under DPS 2. The term 'drive through fast food outlet' is defined in cl 1.1.11.2 of DPS 2 to mean:
a fast food outlet which includes the sale and serving of food direct to persons driving or seated in motor vehicles. The term may or may not include the preparation of food for sale and consumption within the building, or portion thereof.
The term 'fast food outlet' is defined in cl 1.1.11.2 of DPS 2 to mean:
premises used for the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation, primarily off the premises.
In contrast, Mr Bridle and Mr van der Feltz contended that the proposed use is a use that is 'not listed' under the Scheme and is, therefore, capable of approval under cl 1.3.2.5 of DPS 2.

What is the proper classification of the proposed use?

Mr Bridle and Mr van der Feltz observed that the definitions of 'drive through fast food outlet' and 'fast food outlet' in DPS 2 include the word 'food' and that, according to the dictionary meaning of the noun 'food', it refers to solid nourishment, as opposed to a beverage, such as coffee. The Macquarie Dictionary (4th ed, 2005) defines the noun 'food' as follows:
1. what is eaten, or taken into the body, for nourishment. 2. more or less solid nourishment (as opposed to drink). (page 550)
The definition of the verb 'eat' includes 'to take into the mouth and swallow for nourishment; especially to masticate and swallow, as solid food' (page 450).
In contrast, the definition of the noun 'drink' includes 'any liquid which is swallowed to quench thirst, for nourishment, etc.; a beverage' (page 435).
As, on the evidence of Mr Bridle, the sale of takeaway coffee makes up 72% to 75% of the turnover of the business, and as food is usually only sold with coffee, the Tribunal finds that the dominant land use in the proposed development is the sale of takeaway coffee, and that the sale of food is not an independent dominant use of the land, but rather, is incidental or ancillary to the sale of takeaway coffee.
The issue of whether coffee is 'fast food' for the purposes of a planning scheme definition does not appear to have been previously argued and determined. In Hopkins and Town of Vincent [2007] WASAT 149, which concerned a development application for a drive through takeaway coffee outlet, both the parties and the Tribunal proceeded on the assumption that coffee is 'fast food'.
As Lord Steyn said in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [28], '[i]n law[,] context is everything'. After quoting this observation, Justice Kirby wrote in Maroney v The Queen (2003) 216 CLR 31 at [63] – [64] as follows:
Where the lens of interpretation is narrowed to particular words, so as to derive meaning from those words, the result will often be different from that which follows where the lens is broadened and the words are seen in a wider field of perception. Generally speaking, the trend of courts in recent times has been away from purely textual interpretation, towards contextual or purposive interpretation. Each of these approaches, at different stages of legal history, has enjoyed judicial favour.
With respect to those of a differing view, I favour the contextual approach. I do so because I regard it as the way that the human mind normally unravels problems expressed in language. In statutory interpretation (which is in issue in this appeal) the approach can invoke additional support. It is an approach more likely to achieve the overall legislative and social purpose of the lawmaker than one which confines the judicial interpretation to words and text. Moreover, it is one more likely to lead to clearer and simpler laws – generally a desirable objective for judicial activity [article reference omitted]. (See also Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 and 424 per McHugh JA applied by the Tribunal in Filton Pty Ltd and Town of Vincent [2006] WASAT 7.)
The context in which the terms 'fast food' and 'food' appear in this case is a town planning context. In particular, these terms are found in the definition of a land use class used in the zoning table for the purpose of regulating development in the Scheme area.
Ms Paola di Perna, a town planner and the City's Coordinator Planning Approvals, gave evidence on behalf of the City. Ms di Perna said that, as a matter of town planning, there is no distinction between a drive through takeaway outlet selling coffee and one selling items that accord with the ordinary meaning of the noun 'food', namely, something which is eaten or is, more or less, solid nourishment.
Ms di Perna explained that each of these activities gives rise to common town planning considerations reflected in the land use class 'drive through fast food outlet', namely, traffic movements, facilitating safe access and egress, and parking. She said that, from a town planning perspective, the substantive issue is not whether the item purchased for human consumption is solid or liquid, but rather the fact that it is sold directly to persons driving or seated in motor vehicles. This substantive issue gives rise to the same planning considerations.
Having regard to Ms di Perna's evidence, the Tribunal considers that the Scheme intends to regulate the sale and service of both solid and liquid items for human consumption by persons driving or seated in motor vehicles through the land use class 'drive through fast food outlet'. Relevantly, in the definition of this land use class, the terms 'fast food' and 'food' are intended to include both food, according to its ordinary meaning, and drink. Thus, the proposed development is a 'drive through fast food outlet' under the Scheme, which is not capable of approval in the Service Station zone.
If the proposed development did not fall within the definition of 'drive through fast food outlet' under the Scheme, it would fall within the definition of 'shop' under the Scheme, which is another prohibited land use in the Service Station zone under DPS 2. Clause 1.1.11.2 of the Scheme defines the land use class 'shop' to mean:
premises used to sell goods by retail, or hire goods, but does not include a showroom or fast food outlet.
A 'good' is 'an item of merchandise' (The Macquarie Dictionary page 611). Takeaway food and drink accords both with the ordinary meaning of 'goods' and, as Ms di Perna said, with its use in a town planning context. As the Supreme Court of South Australia held in R v City of West Torrens; ex parte Kentucky Fried Chicken Pty Ltd (1960) 20 LGRA 388 at 409, the sale of fast food involves the sale of 'goods' in a 'shop'.
However, cl 1.3.2.3 of DPS 2 states that where, in the zoning table, a particular use is mentioned, 'it is deemed to be excluded from any use class which by its more general terms would otherwise include such particular use'. In the present case, therefore, although the proposed development would otherwise fall within the definition of the land use class 'shop', it is deemed to be excluded from that use class, because it also falls within a more particular use, namely, 'drive through fast food outlet'.
As the proposed development falls within the definition of 'drive through fast food outlet', it is not an unlisted use under the Scheme.
Mr Bridle and Mr van der Feltz also argued that the proposed development is capable of approval as a non-conforming use or as a change of use from a former non-conforming use to another non-conforming use.
However, at the time when the current use of the site commenced in February 2007, it was prohibited in the Service Station zone, and was therefore unlawful, as it fell within the then applicable land use definition of 'takeaway/fast food'. This term and definition was removed from the Scheme when the term and definition 'drive through fast food outlet' was inserted in August 2008.
Furthermore, while Mr Bridle and Mr van der Feltz said that the current use replaced a former shop, as noted earlier, use of the site as a shop is also prohibited, and therefore unlawful, in the zone. Mr Bridle and Mr van der Feltz did not present evidence to show that the shop which replaced the service station on the site commenced lawfully, as a matter of planning law, and that the use had not been abandoned at the time when the current use commenced. The proposed development is, therefore, not capable of approval as a change of use from a non-conforming use.
Finally, Mr Bridle and Mr van der Feltz sought to rely on other legal and equitable principles, such as estoppel, fiduciary relations and waiver. However, these principles have no relevance to the proper classification of the proposed development as a matter of town planning law.

Conclusion

While drive through takeaway coffee is a relatively novel business concept, it is, in town planning terms, simply a variation on an existing theme. On their proper interpretation in a town planning context, the terms 'fast food' and 'food' in the definition of 'drive through fast food outlet' include liquid as well as solid items sold for human consumption. In this context, food includes drink.
The proposed development, which involves the sale of takeaway coffee to persons driving or seated in motor vehicles, is, therefore, properly classified as 'drive through fast food outlet' under DPS 2. This land use is prohibited in the Service Station zone under the Scheme.
It follows that the decision of the City to refuse development approval for the proposed development should be affirmed and the application for development approval should be refused.

Orders

The Tribunal makes the following orders:
1.The proposed development is properly classified as 'drive through fast food outlet' under the City of Stirling District Planning Scheme No 2.
2.The application for review is dismissed.
3.The decision of the respondent made on 14 November 2008 to refuse development approval for a drive through takeaway coffee outlet at No 3 (Lot 118) Guthrie Street, Osborne Park is affirmed.

I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER