Crick v Bunnings Group Limited

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 2381 of 2011

CHARLES EVANS CRICK & ORS	Plaintiffs
v
BUNNINGS GROUP LIMITED & ORS	Defendants

---

JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2011
DATE OF JUDGMENT:	23 August 2011
CASE MAY BE CITED AS:	Crick & Ors v Bunnings Group Limited & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 398

---

TOWN PLANNING – Bunnings warehouse store – Definition of ‘service premises’ – Plain meaning of words ‘for use in building’ and ‘for use in landscape gardening’ – Context of definition – History of provision – Tribunal’s construction of definition not attended by material doubt – Urban design objectives – No obligation to find objectives met as a precondition to exercise of power to permit – Leave to appeal refused – Section 148 Victorian Civil and Administrative Tribunal Act 1998. 

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Wright QC with Mr P Chiappi	Harwood Andrews Lawyers
For the Defendants	Mr S Morris QC with Ms S Brennan	Norton Rose Australia

TABLE OF CONTENTS

The plain meaning of the words..................................................................................................... 6

Contextual considerations................................................................................................................ 7

The history of the provision........................................................................................................... 10

Design excellence............................................................................................................................. 12

HIS HONOUR:

1. The plaintiffs seek leave to appeal on questions of law from a decision of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) to grant a permit to use and develop land for ‘trade supplies/restricted retail premises’ at Torquay. 

1. The respondent (‘Bunnings’) wishes to develop and operate a Bunnings warehouse store pursuant to the permit.  It concedes that the definition of ‘restricted retail premises’ would not fully cover its proposed operations. 

1. The plaintiffs contend that the Tribunal erred in law:

(a)       by misdirecting itself as to the ambit of the permissible use ‘trade supplies’; and

(b)      by failing to give effect to the provisions of the planning scheme relating to relevant urban design objectives. 

1. The definition of ‘trade supplies’ is one of a series of definitions of different types of retail premises found in the Surf Coast Planning Scheme (‘the planning scheme’). 

Shop

Land used to sell goods or services, or to hire goods. It includes the selling of bread, pastries, cakes or other products baked on the premises. It does not include food and drink premises, gambling premises, landscape gardening supplies, manufacturing sales, market, motor vehicle, boat, or caravan sales, postal agency, primary produce sales, or trade supplies.

Retail premises

Land used to:

a) sell goods by retail, or by retail and wholesale;

b) sell services; or

c) hire goods.

Restricted retail premises

Land used to sell or hire:

a) automotive parts and accessories;

b) camping equipment;

c) electric light fittings;

d) equestrian supplies;

e) floor and window coverings;

f) furniture, bedding, furnishings, fabric and manchester;

g) household appliances, household electrical goods and home entertainment goods;

h) party supplies;

i) swimming pools; or

j) office equipment and supplies

Trade supplies

Land used to sell by both retail and wholesale,…