Crick v Bunnings Group Limited
[2011] VSC 398
•23 August 2011
| 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 |
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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 | |
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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.
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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:
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.
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.
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.
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, or to hire, materials, tools, equipment, machinery or other goods for use in:
a) automotive repairs and servicing;
b) building;
c) commerce;
d) industry;
e) landscape gardening;
f) the medical profession;
primary production; or
local government, government departments or public institutions
Timber yard
Land used to sell sawn, dressed, and treated timber, wood fibreboards, and the like. It includes cutting the timber and boards to order, and selling hardware, paints, tools, and materials used in conjunction with the use and treatment of timber.[1]
[1]Bunnings Pty Ltd v Surf Coast SC & Ors [2011] VCAT 690 (19 April 2011), [20].
‘Trade supplies’ is further defined to include ‘timber yard’.
The definitions are preceded by the following introductory provisions:
LAND USE TERMS
The following table lists terms which may be used in this planning scheme in relation to the use of land. This list is not exhaustive. However, a term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table.
Meaning of terms
A term listed in the first column, under the heading ‘Land Use Term’, has the meaning set out beside that term in the second column, under the heading ‘Definition’.[2]
[2]Surf Coast Planning Scheme, cl 74.
In the Industrial 3 zone within which the appeal site is located retail premises other than shop are permissible uses requiring a permit. Shop is a prohibited use. The definition of shop excludes trade supplies.
It can be seen that some of the terms defined above are themselves terms used in ordinary language, such as ‘shop’ and ‘timber yard’. On the other hand, terms such as ‘restricted retail premises’ are constructs of the planning scheme itself.
The terms ‘retail premises’ and ‘trade supplies’ are themselves informed by the definitions of ‘retail’ and ‘wholesale’ contained in the planning scheme. Those definitions are as follows:
RetailThe sale of goods or materials, in any quantity or manner, other than by wholesale.
Wholesale The sale of goods or materials, to be sold by others.[3]
[3]Ibid, cl 72.
In turn, both concepts are defined in terms which might be thought to extend the ordinary meaning of the words defined. Retail premises includes land used to sell goods by retail and wholesale (as defined). Trade supplies includes land used to sell, by both retail and wholesale, materials, tools, equipment, machinery or other goods for use in the medical profession and government departments and public institutions.
It is common ground between the parties that Bunnings warehouses do not only supply materials, tools, equipment and other goods to tradespeople but also supply goods to what the Tribunal referred to as the DIY public. Bunnings conceded before the Tribunal that typically 80 to 85 per cent of sales from a Bunnings warehouse are sales to the general public as opposed to sales to commercial customers with an Australian Business Number.
The plaintiffs submitted to the Tribunal that as a result the proposed use would not be that of trade supplies.
The Tribunal rejected this argument and held:
…[trade supplies] involves the sale of goods suitable for use in the trade and is not confined, as submitted by the objector/respondents, to goods actually sold to persons in trades, businesses or professions described in the definition. Such sales under ‘trade supplies’ can be by both wholesale and retail. Under the definition, the sale of goods for the use in building and landscape gardening is also allowed. These are not restricted to either the building trade or the landscape gardening trade.[4]
[4]Bunnings Pty Ltd v Surf Coast SC & Ors [2011] VCAT 690 (19 April 2011), [26].
The plaintiffs contend that the Tribunal misconstrued the definition of trade supplies. In turn, it wrongly granted a permit for trade supplies when the disclosed intention of Bunnings was not to use the land for that purpose as defined.[5]
[5]Cf the Odyssey House case – Franceschini v MMBW 1 PABR 279 and the conceptual premise of the argument there identified by Tadgell J.
The plaintiffs submit that the definition is to be understood in its context and that the term defined ‘trade supplies’ is a significant element of that context. They submit that just as the expansive definition of ‘railway station’ under the planning scheme must be construed as setting out permissible elements of a commonly understood land use, so must the definition in issue.[6]
[6]See the discussion of Deputy President Dwyer in Hall v Kingston CC (Red Dot) [2008] VCAT 1060, [17]-[19].
I do not accept that ‘trade supplies’ is a commonly understood land use term of the same sort as ‘railway station’. It seems to me that in ordinary language people speak of the ‘plumbing supplies’ or ‘timber yard’ but do not speak of ‘trade supplies’ as a type of land use. Nevertheless, the question raised is more complex than this.
I do not accept that the Tribunal’s decision with respect to the construction of the definition is attended by sufficient doubt to justify the grant of leave to appeal.[7] The applicant has not shown that there is a real or significant argument that the Tribunal fell into error[8] for three reasons upon which I shall elaborate:
[7]Secretary to Department of Premier & Cabinet v Hulls (1999) 3 VR 331.
[8]Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, 55 [28].
(1) The Tribunal’s construction of the definition gives effect to the plain meaning of the words upon which the Tribunal relied;
(2) the definitional context in which that meaning is stated tends to confirm that meaning;
(3) the history of the definition makes clear that the intended meaning is that adopted by the Tribunal.
The plain meaning of the words
The Tribunal inspected a number of Bunnings warehouse stores and recorded that such stores offer hardware, timber, garden supplies, and home improvement goods and services. It accepted the proposal was one to sell ‘materials, tools, equipment, machinery or other goods for use in … building and landscape gardening.’
In my view, the reference to automotive repairs and servicing, building, and landscape gardening are, as a matter of ordinary language, references to particular activities which may or may not be carried out by tradesmen. This group of uses comprises a definition of land use by reference to activity and not by reference to the persons undertaking such activities.
The definition also includes a second category defined by reference to economic purpose, namely commerce, industry and primary production.
Lastly, it includes a third category defined by reference to particular users: the medical profession, local government, government departments, and public institutions. I note in passing that none of these have any connection with the ordinary meaning of ‘trade’.
The definition thus embraces a series of categories of use which may be understood as having as a common denominator the use of materials, tools, equipment, machinery, and other goods capable of use in a trade. It does not, however, proceed by reference to categories of end user save with respect to the third category I have identified. The definition is a broad one extending beyond the ordinary meaning of the words ‘trade supplies’. The plain meaning of the first component of defined land uses to which I have referred is that given to it by the Tribunal. Namely, that the use involves the sale of goods suitable for use in the activities identified including building and landscape gardening.
The plaintiffs rely on the observations of Marks J in Pacific Seven Pty Ltd v City of Sandringham:[9]
All this leads me to say that it is desirable to recall that the definition appears in the context of a planning scheme to be administered largely by laymen entrusted to interpret occupational and trade designations in the light of what is understood by common parlance and practices in the fields trades or areas concerned.[10]
[9][1982] VR 157.
[10]Ibid, 162.
Marks J was concerned with a definition in the relevant planning scheme of the term ‘service premises’. It does not seem to me that this observation is of any particular assistance to the plaintiffs. In the first place, the expert tribunal entrusted with the interpretation of the planning scheme definition in issue and its predecessors has interpreted it in a manner contrary to the plaintiffs’ submission. The Tribunal in the present case comprised not only a legal member with relevant town planning experience but also a town planner. Further, I do not accept that ‘common parlance’ would ascribe a meaning to the phrases here in issue other than their ordinary meaning.
Contextual considerations
I do however accept that the definition must be understood in its context.
Starting from s 35(a) of the Interpretation of Legislation Act 1984 (Vic),[11] the question in issue falls to be resolved in accordance with the principles stated by the High Court. First, by Brennan CJ, Dawson J, Toohey J and Gummow J in CIC Insurance Ltd v. Bankstown Football Club Ltd: [12]
It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. (footnotes omitted)
[11]‘In the interpretation of a provision of an Act or subordinate instrument—
(a)a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object …’
[12](1995) 187 CLR 384, 408 (‘CIC Insurance’).
Secondly, by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority.[13]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.
[13](1998) 194 CLR 355, 381-2, [69]-[71].
I have already set out a series of related definitions of land use terms found in the planning scheme. Three aspects of those definitions require further comment. First, the definition of ‘timber yard’ which is included within the definition of ‘trade supplies’ by way of the nesting provisions contained in the planning scheme, operates entirely by reference to categories of goods and not by reference to end user. This tends to support the view that categories of goods for use in building and landscape gardening contained in the primary definition of ‘trade supplies’ are also to be defined by reference to categories of goods and not by user. There is substantial practical commonality between these concepts. If it were otherwise then timber used in building could be sold to all customers together with hardware, paints, tools and materials used in conjunction with the use and treatment of timber at trade supplies premises but metal and plastic products used for the same purpose as some timber products together with hardware, paints, tools, and materials used in conjunction with the use and treatment of such products could not, unless to tradesmen. The choice to extend the definition of ‘trade supplies’ to materials, tools, equipment, machinery, and other goods used in building generally does not on its face appear surprising or unreasonable.
Next, it may be noted that the definition of ‘wholesale’ is expressed by reference to the nature of the purchaser. As such, it is similar to other land use definitions found in the planning scheme which refer to end users, eg the distinction drawn between medical facilities which accommodate in-patients and out-patients. Whilst the definition of ‘trade supplies’ thus addresses the concept of end user by the utilisation of the concepts of retail and wholesale it does not address the concept of end user by reference to the class of persons who will undertake building or landscape gardening. Further, the fact that retail sales are defined to include the sale of goods or materials ‘in any quantity or manner other than by wholesale’ tends to count against some implication that the nature of retail sales contemplated by the definition of ‘trade supplies’ in respect of building and landscape gardening is to be limited by implication as distinct from express condition.
Thirdly the construction of the definition adopted by the Tribunal does not in fact divorce the definition from the context of ‘trade supplies’. It limits the definition to ‘the sale of goods suitable for use’ in trade. The real question is not whether the definition envisages a nexus between the concept of ‘trade supplies’ and the definition, but whether that nexus is to be limited by the connections specified in the definition or expanded by implication. It may be accepted, as the Tribunal implicitly did, that the range of ‘materials tools equipment machinery or other goods’ covered by the definition is limited by the notion of ‘trade supplies’. It does not follow that it is also limited by reference to exclusive categories of end user save where the definition itself is expressed by reference to such categories.
The history of the provision
The Tribunal recorded: [14]
In both STY Building Supplies (Shepparton) Pty Ltd v Greater Shepparton CC[15] and Bunnings Building Supplies Pty Ltd v Greater Geelong CC[16] the Tribunal has held that a Bunnings Warehouse could operate under a permit for ‘trade supplies’. The applicant advised the Tribunal that it is common for Bunnings to operate under a permit for ‘trade supplies’ and that more than a third of these stores are located in Industrial zones[17].
[14]Bunnings Pty Ltd v Surf Coast SC & Ors [2011] VCAT 690 (19 April 2011), [24].
[15][2000] VCAT 1880, cited in Bunnings Pty Ltd v Surf Coast SC & Ors [2011] VCAT 690 (19 April 2011), [24].
[16][2002] VCAT 451, cited in Bunnings Pty Ltd v Surf Coast SC & Ors [2011] VCAT 690 (19 April 2011), [24].
[17]Of 45 stores in Victoria, 17 are located in Industrial zones.
In the STY case, Deputy President Macnamara and Member Hewet considered the definition of ‘trade supplies’ contained in the planning scheme at that time.
The ‘as of right’ land use ‘trade supplies’ is defined in the Scheme as follows:
Land used to sell by both retail and wholesale, or to hire, materials, tools, equipment, machinery or other goods for use in:
(a) the automotive trade;
(b) the building trade;
(c) commerce;
(d) industry;
(e) the landscape gardening trade;
(f) the medical profession;
(g) primary production; or
(h) local government, government department or public institution.[18]
[18]STY Building Supplies Pty Ltd v Greater Shepparton CC [2000] VCAT 1880 (30 September 2000), [25]. The definition quoted replaced in part the earlier definition of ‘peripheral sales’ which was found in the Melbourne Metropolitan Regional section of the planning scheme up until 2000.
Peripheral sales
Any of the following:
*Premises in 1 occupation with a floor area of at least 1,000 square metres used to sell or hire furniture, floor coverings, furnishings, household appliances, swimming pools, camping gear or automotive parts and accessories.
*Premises in 1 occupation with a floor area of at least 500 square metres used to sell or hire electric light fittings.
*Premises used to sell or hire party supplies or materials, tools, equipment or machinery for use in industry, commerce, the building or automotive trades, the medical profession, landscape gardening or primary production.
The Tribunal took the view that the phrase ‘for use in’ the building trade, required the relevant goods to be goods which a reasonable person would conclude had as one of their uses use in the building trade. The Tribunal stated that it reached this conclusion with some hesitation. Both senior counsel for the plaintiffs and senior and junior counsel for Bunnings appeared in the STY case and advanced similar arguments to those now advanced before me some 11 years later.
The case was decided in 2000. In 2001, the planning scheme definition was amended to its present form which substitutes the current terms for the previous phrases ‘the automotive trade’, ‘the building trade’ and ‘the landscape gardening trade’. I accept Bunnings’s submission that the obvious purpose of this amendment was to make clear that the construction adopted in the STY case was to be given ongoing effect. No other satisfactory explanation for deleting the reference to ‘trade’ in the relevant phrases can be identified. It follows that the history of the provision strongly supports the view the Tribunal was correct in the present case because:
(a) comparison with the previous definition emphasises the fact that the plain words of the current definition do not refer to the ‘building trade’ or ‘the landscape gardening trade’; and
(b) the apparent intention of the amendment was to give better effect to the construction adopted in STY but about which the terms of the Tribunal decision left some lingering controversy; and
(c) it would be inappropriate to imply the word ‘trade’ back into the references to building and landscape gardening when the makers of the planning scheme have deliberately deleted that word.
When all the above matters, and in particular the history of the provision, are considered the plain meaning of the components of the definition relied on by the Tribunal must be given effect and the Tribunal’s decision is not attended by any material doubt.
Design excellence
I turn then to the second proposed basis of appeal, that the Tribunal erred in failing to give effect to the provisions of the planning scheme relating to relevant urban design objectives.
The Tribunal in its decision expressly identified at [42] that the objectives of the Design and Development Overlay Schedule 5 affecting the land included:
To ensure an excellent standard of architecture and urban design along land fronting the Surf Coast Highway.[19]
[19]Bunnings Pty Ltd v Surf Coast SC & Ors [2011] VCAT 690 (19 April 2011), [42].
It also recorded that the plaintiffs submitted that the built form fell well short of the architectural excellence required and would severely diminish the ‘gateway’ to Torquay opposite the new Civic Centre. It recorded that reference was made by the plaintiffs to cl 22.05-3 of the planning scheme which provides:
In the Torquay North West Industrial Estate development should achieve design excellence for facades facing or visible from the Surf Coast Highway. Development proposals must demonstrate how they will contribute to the attractiveness of the entrance to Torquay. The prominence of the location demands design of the highest quality and this will be a crucial determinant in assessing planning permit applications.[20]
[20]Surf Coast Planning Scheme, cl 22.05-3.
The Tribunal went on to address the urban design considerations affecting the proposal which comprised a warehouse store set back between 83 to 100 metres from the Surf Coast Highway behind a 6 metre landscape buffer.
The Tribunal formed the view that architectural excellence within the context of an industrial estate must take account of both building type and location.
It ultimately concluded that subject to amendment of the design in accordance with recommendations of one of the witnesses before it the building was acceptable.
The plaintiffs postulate that the Tribunal should have held that before it could direct the grant of a permit it must be satisfied that the proposed development:
(a) achieves an excellent standard of architecture and urban design along land fronting the Surf Coast Highway; and
(b) achieves design of the highest quality.
The short answer to this proposition is that as a matter of law it is incorrect. The Tribunal was required to take into account the objectives of the planning scheme with respect to excellence of architecture and design but its power to grant a permit was not conditioned upon a conclusion that the proposal achieved excellence in urban design. The obligation was simply one to consider the objectives ‘as appropriate’.[21]
[21]See cls 33.03, 43.02 and 65 of the scheme.
These objectives fall to be considered along with a series of other objectives including economic policy objectives. The Tribunal was bound to balance all the relevant objectives and arrive at a conclusion with respect to net community benefit and appropriate sustainable development having regard to the scheme as a whole. It was not required as a precondition to the grant of a permit to be satisfied that every relevant objective stated in the planning scheme was met by the proposal.
It is plain the Tribunal did consider and take into account the relevant design objectives.
Further, when the decision is read as a whole it is apparent that the Tribunal concluded as a matter of fact that the proposal achieved a sufficient standard of design excellence in the context of both its type and location. Whether it was correct in so concluding is a matter of fact not appellable to this Court.
It was also submitted that there was no evidence upon which the Tribunal could find that the proposed development achieved an excellent standard of architecture and urban design. I do not accept this contention either. It is plain from the Tribunal’s decision that it carefully considered the evidence before it including that of Mr Murphy, a landscape architect and urban designer. It was not necessary that the Tribunal receive and accept opinion evidence from an architect before it reached its conclusions. It is an expert tribunal entitled to form its own opinion on the whole of the evidence before it.
As the last proposed ground of appeal makes clear, the plaintiffs’ complaint is really one with respect to the conclusion of the Tribunal on the facts. The plaintiffs seek to contend by their draft notice of appeal that the Tribunal’s conclusion was contrary to the evidence and the weight of the evidence. Such a contention does not raise a question of law.
For the above reasons leave to appeal is refused. Although the principal point raised by the plaintiffs is not free from complexity, upon analysis it is devoid of merit. The Tribunal’s decision is not attended by material doubt.
SCHEDULE OF PARTIES
| No. 2381 of 2011 | |
| BETWEEN: | |
| CHARLES EVANS CRICK | Firstnamed Plaintiff |
| MARTIN DUKE | Secondnamed Plaintiff |
| TORQUAY COMMERCE AND TOURISM ASSOCIATION INC | Thirdnamed Plaintiff |
| - and - | |
| BUNNINGS GROUP LIMITED | Firstnamed Defendant |
| SURFCOAST SHIRE COUNCIL | Secondnamed Defendant |
| COUNTRY FIRE AUTHORITY | Thirdnamed Defendant |
| PETER C ROBINSON | Fourthnamed Defendant |
| JOEL GRIST | Fifthnamed Defendant |
| ANDREW CHERUBIN | Sixthnamed Defendant |
| SHAUN LITAIZE | Seventhnamed Defendant |
| STUART ROBINSON | Eighthnamed Defendant |
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