Bunnings Group Ltd v Resource Management and Planning Appeal Tribunal

[2011] TASSC 24

[2011] TASSC 24

COURT:  SUPREME COURT OF TASMANIA

CITATION:Bunnings Group Ltd v Resource Management & Planning Appeal Tribunal [2011] TASSC 24

PARTIES:  BUNNINGS GROUP LTD
  v

RESOURCE MANAGEMENT & PLANNING APPEAL  TRIBUNAL

FILE NO/S:  1/2011
JUDGMENT

APPEALED FROM:  Bunnings Group Ltd v Burnie City Council [2010]         TASRMPAT 246

DELIVERED ON:  20 May 2011
DELIVERED AT:  Launceston
HEARING DATE:  4 April 2011
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Construction of Burnie Planning Scheme 1989 – Effect of scheme which was silent as to whether a particular use was permitted, discretionary or prohibited – No apparent control or regulation of the use – Whether use prohibited.

Aust Dig Environment and Planning [52]

REPRESENTATION:

Counsel:
             Appellant:  S R Morris QC, S B McElwaine
             Respondent:  K A M Pitt QC
Solicitors:
             Appellant:  Shaun McElwaine & Associates
             Respondent:  Jackson Tremayne & Fay

Judgment Number:  [2011] TASSC 24
Number of paragraphs:  44

Serial No 24/2011
File No 1/2011

BUNNINGS GROUP LIMITED v RESOURCE MANAGEMENT & PLANNING APPEAL TRIBUNAL

REASONS FOR JUDGMENT  CRAWFORD J
  20 May 2011

1. The appellant, Bunnings, applied to the Burnie City Council for a development permit for what was described as a Bunnings Warehouse and third party bulky goods store.  The land of about 6.5 hectares is at 72 Marine Terrace, Burnie, a former paper mill site.

1. Under the Burnie Planning Scheme, the land is zoned Industrial.  The council decided that the proposed use was as a "Major Shop (or Shopping Complex)", after a consideration of the "Use Definitions" in SchC PtB of the Scheme.  It determined that it had no power to grant a permit for a Major Shop (or Shopping Complex) in the Industrial zone, nor in any other place subject to the Scheme.  Notwithstanding that the use was defined in the use definitions, no other provision of the Scheme referred to it.  The council refused to grant a permit, considering that because of lack of power to grant it, the proposed use was prohibited under the Scheme. 

1. Bunnings appealed to the tribunal against the refusal under the Land Use Planning and Appeals Act 1993, s61(4).  The tribunal agreed to determine as a preliminary point whether it had jurisdiction to hear and determine the appeal if, as the council had concluded, no provision was made in the Scheme for a permit for the use.  An issue that arose between the parties was whether, if the Scheme made no provision for granting or prohibiting the use, so that the use was entirely unregulated, the development could proceed without a need for a permit or alternatively, the development could not proceed because it was prohibited under the Scheme.

1. The tribunal also concluded that the proposed use was as a "Major Shop (or Shopping Complex)".  In its view, that was the most appropriate use classification in the use definitions.  It rejected a suggestion that the use should be categorised instead as a "Showroom". 

1. Like the council, the tribunal concluded that the proposed use was prohibited under the Scheme.  It held that the development could not be built anywhere in the City of Burnie because that was what the Scheme provided.  For that reason, the tribunal held that it had no jurisdiction to hear and determine the appeal further because it was incompetent.  It held the appeal to be incompetent because no right was conferred by the Act to challenge a decision of the type made by the council. 

The appeal to the Court

1. Bunnings appealed to the Court under the Resource Management andPlanning Appeal Tribunal Act 1993, s25. Its appeal has alternate grounds. The first is that the tribunal erred when construing the Scheme and determining that Bunnings's application was prohibited by the Scheme. The second was that the tribunal erred by failing to determine that the application either did not require a planning permit under the Scheme or required a discretionary planning permit because the proposed use fell within the use class "Showroom".

The proposal

1. As was observed by the tribunal, most people would be familiar with Bunnings Warehouses.  The proposed development was described as involving construction of such a warehouse to service the trade industry and a similar bulky good store.  Initially, the reference to the trade industry misled me, for it gave me the impression of a business that largely sold to members of trades, such as builders, plumbers and electricians.  But that is incorrect.  Bunnings's counsel conceded that close to 80% of sales from a Bunnings Warehouse are to retail customers and no more than about 20% are to trades people.  Bunnings is regarded as a specialist retailer of home and garden improvements products and building materials.  It caters predominantly to "do-it-yourself" customers as well as building contractors. 

1. The proposed Bunnings Warehouse will have a total area of 10,505 square metres and the third party bulky goods store a total of 3,200 square metres.

1. In addition to indoor shelf items, the Bunnings component of the development will include an outdoor nursery, a timber trade sales area, a building materials area and a landscape supplies area. 

1. In evidence was a 2006 report prepared for Bunnings by Leyshon Consulting Pty Ltd.  Although based on a detailed analysis of a Bunnings Warehouse in Bankstown, New South Wales, the report stated that its objective was to summarise the trading characteristics of a typical Bunnings Warehouse.  I will refer to some of the findings.

1. Typically, Bunnings's stores consist of four main elements, a timber yard, a timber trades sales area, a warehouse and an outdoor nursery.  The majority of space is constituted by the warehouse. 

1. The majority of the stock is delivered direct from manufacturers to individual stores.  That creates a need to have a capacity to "warehouse" a large amount of stock awaiting sale.  Stock is stored within a store by using racks up to four metres high, like those usually found only in traditional industrial warehouses.  Stock which is not required for immediate sale is usually placed on pallets on the top or upper shelves for later retrieval. 

1. Leyshon undertook a detailed survey of the Bankstown store to determine the extent of space devoted to bulky goods and non-bulky merchandise.  In assessing what were bulky goods, Leyshon adopted guidelines for them:

·items needing removal after sale by a trailer or commercial vehicle;

·items requiring a shopping trolley to move them to the point of sale;

·products designated under Australian Safety Standards as requiring a "two person lift";

·products in excess of 20 kilograms;

·products over one metre long;

·products which are small in size individually but are usually purchased in bulk – for example, tiles;

·products which might require the assistance of Bunnings's staff to move them to a vehicle; and

·products requiring home delivery.

1. Items that Leyshon thought were obviously bulky goods included:

·large extension ladders;

·wheelbarrows;

·timber over one metre long;

·outdoor furniture;

·laundry tubs;

·large shelving units;

·mulchers;

·kitchen cupboard units;

·mowers; and

·doors.

1. In terms of total lineal shelf space occupied within the Bankstown store, Leyshon found that 28.8% contained bulky retail, 29.1% bulky storage, 38.6% non-bulky and 3.5% display.  Hence, some 57.9% of lineal space was devoted to bulky goods for retail sale and storage. 

1. In terms of cubic capacity, Leyshon found that in the Bankstown store space devoted to the sale, display and storage of goods totalled 12,586 cubic metres of which bulky retail occupied 41%, bulky storage 26.3%, non-bulky 28.2% and display 4.5%.  Hence some 67.3% of the total cubic space was devoted to bulky goods. 

1. Based on those analyses, the conclusion in Leyshon's report was that the majority of products in the Bunnings Warehouse were bulky in nature. 

1. Leyshon also reported that whereas an Australian Bureau of Statistics Retail Industry Survey for 1998-99 found that wholesale sales comprised some 5% of total sales within the retail trade industry, in the 2004-05 financial year credit sales on account to trades people amounted to 17.7% of total annual sales by Bunnings. 

1. A substantial part of the land was to be used for associated car parking, 375 spaces in all. 

The Scheme

1. The Scheme divides the city into 12 zones, one of which is the Industrial zone.  By cl 1.7, except as otherwise provided in the Scheme, no person shall carry out development in a zone without first applying for planning approval in accordance with Pt6, which regulates applications for and determinations of planning approvals. 

1. By cl 11.1.1 the status in any designated zone of a development of land for any defined use is shown in the Table of Uses in SchA.  The Table of Uses allocates developments for a particular use of land as either "permitted as of right", "permitted", "discretionary" or "prohibited" in the respective zones.  In the Industrial zone no use is treated as permitted as of right; 18 uses are treated as permitted; 18 uses are discretionary; and 34 uses are prohibited. 

1. For relevant purposes, cl 11.2 provides that if a development is for a use which is permitted as of right then it may be undertaken without an application for and issue of a planning permit.  Clause 11.3 provides that if a development is for a use which is permitted then it is a permitted development in respect of which an application for planning approval must be made and for which the council shall grant planning approval, with or without conditions.  By cl 11.4, if a development is for a use which is discretionary, then it is a discretionary development which the council may refuse or approve, with or without conditions.  By cl 11.5, if a development is for a use which is prohibited then it is a prohibited development and the council must refuse it. 

1. It follows that of vital importance to the outcome of an application for planning approval is the zone in which the land is contained and the use for which the land will be developed.  In the Table of Uses provision is made for the status of a total of 70 uses in each of the respective zones.  The uses are described briefly in the table by labels, for example, "Abattoir", "Car Park", "Garden Centre", "General Industry", "Miscellaneous", "Sale Yard", "Shop", "Showroom", "Timber Yard" and "Warehouse". 

1. What each of those labelled uses means is provided in SchC PtB – Use Definitions.  In alphabetical order it defines each of the 70 uses that appear in the Table of Uses.  Strangely, two other uses are also defined, namely "Crematorium" and "Major Shop (or Shopping Complex)" but for no apparent purpose.  They are not included in the Table of Uses and the Scheme makes no provision for them other than their definitions.  I was told that has been the case since the Scheme commenced. 

1. The definition of the use "Major Shop (or Shopping Complex)" is the following: 

"Any land with unrestricted access to the general public (including minors) during trading hours that is used for one or more retail goods and/or personal services premises, the gross floor area of which is in excess of 1000 m²." 

Both the council and the tribunal found that the use for which the appellant applied to develop the land falls within that definition.  Although under the Table of Uses it is not prohibited, it is not permitted as of right, permitted or discretionary either and for that reason, the application was refused by the council and the tribunal dismissed the appeal. 

1. By cl 11.1.2 it is provided that "if any use does not comply precisely with any defined use but complies with the intent of the definition of a defined use the Council shall determine an application for planning approval in respect of that use as if that use complied precisely with the definition of that defined use", and "in determining the intent of a definition of a use the Council shall have regard to the provisions of the Scheme relating to that use or similar uses." 

1. The use class "Miscellaneous" is a discretionary use in the industrial zone.  Its definition is "any use of land which is not specifically defined elsewhere in this Schedule".  If the proposed use was "Major Shop (or Shopping Complex)", by definition it was not a "Miscellaneous" use. 

Did the tribunal err in point of law when it said that the only use categorisation open was "Major Shop (or Shopping Complex)"?

1. The primary submission to the tribunal by Bunnings was that "Major Shop (or Shopping Complex)" is the correct use classification for what was proposed and that because it is not regulated by the Scheme, it is permitted and does not require a planning permit.

1. An alternative submission to the tribunal by Bunnings was that the correct classification is "Showroom", which is a "discretionary" use in the Industrial zone and not prohibited under the Scheme.  The definition of "Showroom" in SchC PtB is:

"Any land used for a building where in motor vehicles, boats, caravans, machinery, equipment, furniture or other goods or products of a bulky nature are offered for sale, but does not include a Sales Yard."[1]

[1] "Sale Yard" is defined as:  "Any land used for an unroofed area where motor vehicles, boats, caravans, machinery or the like are offered for sale, and includes, buildings(s) normally appurtenant thereto and minor servicing and repairs, but does not include a showroom."  It is clear that the proposed use was not that of a "Sale Yard".

1. Before the tribunal the council agreed with the primary submission of Bunnings that the most appropriate categorisation is "Major Shop (or Shopping Complex)".   It submitted that "Showroom" is specifically aimed at the type of goods that are referred to in the definition and other goods of a bulky nature, whereas "Major Shop (or Shopping Complex)" aims at the retail sale of an unspecified range of goods, which fits the description of a Bunnings Warehouse. 

1. The council's submissions continued that as no provision is made by the Scheme for approval of a "Major Shop (or Shopping Complex)", the development is prohibited because of the provisions of cl 1.7. 

1. After considering the submissions of the parties, the tribunal said in its reasons for decision:

"Bunnings and the Council both agree (and there can be little doubt that they are correct) that the proposal closely meets the description of 'Major Shop (or Shopping Complex)'.  ...  As has been noted everybody agrees that the appropriate categorisation is 'Major Shop (or Shopping Complex)'.  That categorisation on the basis of the material that was furnished to the Council must be correct.  It is the only categorisation that is open on the facts of this case.  The suggestion that was advanced to the Council on behalf of Bunnings, during the approval process, that another categorisation – 'Show room' – was more appropriate, whilst understandable was not, and is not, tenable.  The Tribunal is satisfied that the most appropriate use classification is 'Major Shop (or Shopping Complex)'.  Having reached this conclusion the issue then is how the application should be treated given, as has already been mentioned, the Table of Uses does not and has never made any provision for or seemingly even ever mentioned that use classification."

1. An appeal to the Court from a decision of the tribunal may only be brought on a question of law.  Resource Management and Planning Appeal Tribunal Act, s25(1). Counsel for Bunnings submitted that the tribunal erred in point of law when it determined that the categorisation "Showroom" is not open. He argued that it is open and that the tribunal should have considered more deeply the question which of "Major Shop (or Shopping Complex)" and "Showroom" is the more appropriate categorisation. Its failure to do so amounted to a legal error, it was asserted.

1. That submission is rejected.  The finding that "Showroom" was not open was not a finding of law.  The tribunal demonstrated a clear preference for "Major Shop (or Shopping Complex)" over "Showroom".  While considering the argument in favour of "Showroom" to be "understandable", it preferred "Major Shop (or Shopping Complex)" as more appropriate and found accordingly.  There is no good reason for reading into the tribunal's statement that "Major Shop (or Shopping Complex)" was the only categorisation "that is open on the facts of this case" the words "in point of law" or "as a matter of law".  The tribunal made it clear that on the facts of the case the use should be categorised as "Major Shop (or Shopping Complex)" and not as "Showroom".  That was a finding of fact.  There is no suggestion it was not open. 

The consequence of the use being "Major Shop (or Shopping Complex)" – is it prohibited or may it be permitted?

1. The tribunal agreed with the council that cl 1.7 of the Scheme operates to prohibit what was proposed.  The effect of the clause is that no person is to carry out development in any zone without first applying for planning approval under Pt6.  The tribunal concluded that by reason of the clause, no development may be undertaken without first obtaining a permit for it under the Scheme.  As the Scheme makes no provision for the granting of a permit for "Major Shop (or Shopping Complex)" use in any zone, the result is that the use is prohibited in every zone. 

1. It is Bunnings' case that the tribunal erred in that regard and that the correct legal position is that the proposed development may be permitted by the council in its discretion or alternatively, it is permitted as of right and does not require approval by the council. 

1. Clause 1.7 is not open to an interpretation that all it requires is an application for planning approval and not the granting of approval before a development is carried out.  It should be inferred that it requires approval being granted following the making of an application for it.  Counsel for Bunnings accepted that. 

1. It was argued for Bunnings that the objectives of the Scheme are to regulate and control the development of land within the various zones and applications for the approval of development by the planning authority.  See cll 2.1.1 and 2.2.2.  It was submitted that the objectives would not be served by an outcome that makes a development, for which no provision is made in the Table of Uses, a prohibited development.  It was submitted that instead, the objectives are better served by holding that the planning authority has a discretion whether or not to grant approval in such a case.  That argument makes sense if good policy is the guide.  But the question remains, can it be said that the Scheme gives the council a discretion whether or not to approve a "Major Shop (or Shopping Complex)" or "Crematorium" anywhere in the municipality, or that it gives to a developer a right to develop land for either of those uses without approval, whereas in truth the Scheme makes no such provision at all, certainly not in express terms. 

1. Clause 1.7 provides:

"Except as otherwise provided in the Scheme, no person shall carry out development in a zone without first applying for planning approval in accordance with Part 6 (Application for and Determination of Planning Approvals)."

It is express in its requirement that no person shall carry out development in a zone without compliance with its provisions.  It provides for exceptions to the general rule if they are "otherwise provided in the Scheme". 

1. Counsel referred to two such exceptions.  They are in cll 6.8 and 11.2 respectively.  Clause 6.8 provides that planning approval shall not be required for developments involving the erection of or external alternation to any building or works, where a building permit under building regulations would not be required; an internal alteration of any building, irrespective of whether a building permit is required; and demolition which is exempt pursuant to cl 6.9.  Clause 11.2 provides that a development for a use of land in a zone which is depicted in SchA – Table of Uses by the figure "P1" (a use permitted as of right) may be undertaken without an application for and issue of a planning approval, subject to certain conditions. 

1. Clause 1.7 does not permit of an exception that is not provided in the Scheme.  The exception for which Bunnings argues is not provided in the Scheme. 

1. Upon a consideration of the whole Scheme, a clear intention can be found that except as is provided by it, no development may proceed without approval, and approval of a particular use in a particular zone may only be given if the Scheme provides for it.  The absence of a provision that allows for a "Major Shop (or Shopping Complex)" or "Crematorium" leads to a conclusion that they may not be approved in any zone. 

1. Based on my experience of planning schemes, it would be surprising if the Scheme gave an absolute right to use land anywhere, in any zone, for the purposes of a "Major Shop (or Shopping Complex)" or "Crematorium".  It would normally be expected that those uses would be prohibited in some zones, particularly in a closed residential zone such as the Residential A zone for which provision is made by the Scheme.  One of the intentions for that zone is that there will only be allowed a use which is compatible with residential amenity.  See cl 3.3.1(c).  A "Major Shop (or Shopping Complex)" and "Crematorium" are incompatible with residential amenity.

Conclusion

1. For the reasons I have given, the tribunal's decision was the correct one.  The appeal will be dismissed.