D'Orazio Enterprises Pty Ltd and City Of Stirling

[2012] WASAT 219

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   D'ORAZIO ENTERPRISES PTY LTD and CITY OF STIRLING [2012] WASAT 219

MEMBER:   MR P McNAB (SENIOR MEMBER)

MR J ADDERLEY (SENIOR SESSIONAL MEMBER)

HEARD:   19 AND 20 DECEMBER 2011

DELIVERED          :   1 NOVEMBER 2012

FILE NO/S:   DR 74 of 2011

BETWEEN:   D'ORAZIO ENTERPRISES PTY LTD

Applicant

AND

CITY OF STIRLING
Respondent

Catchwords:

Town planning ­ Development application ­ Refusal of proposed extension of butcher's shop ­ Preliminary issues to be determined in respect of nature of present use and whether that use is non­conforming and capable of approval ­ Proportions of retail and wholesale and processing activity ­ Whether uses are separate and distinct ­  Dominant and subservient functions ­ Integrated activities ­ Consideration of nature, scale and regularity of activities ­ Limits of non­conforming use rights ­ ­ Tribunal finding no separate land uses ­ Extension of butcher's shop permissible ­ Words and phrases: 'shop', 'industry', 'warehouse', 'wholesale' and 'planning unit'

Legislation:

City of Stirling District Planning Scheme No 2
City of Stirling Local Planning Scheme No 3, cl 4.2.7, cl 4.8, cl 4.9, cl 9, Sch 1
Planning and Development Act 2005 (WA), s 172
State Administrative Tribunal Act 2004 (WA)

Result:

Preliminary issues were determined by the Tribunal

Summary of Tribunal's decision:

This is a consideration of certain preliminary issues arising in respect of a review of the respondent's decision to refuse development approval for extension of a butcher's shop into an adjoining tenancy on premises situated on Wanneroo Road in Yokine.
The issues under consideration raised questions as to the nature of the present use of the butcher's shop business in relation to the provisions of the applicable town planning schemes, and also as to its capability of extension as either a conforming or a non­conforming use under the provisions of the current scheme.
The respondent refused the proposal, in part, on grounds that the proposed development involves the carrying out of two different and distinct land uses on the site, namely, a 'shop' use which is capable of approval in the prevailing Local Centre zone, and a 'warehouse' use which is prohibited.
The respondent contended that the conduct of the business involved a significant component of processing of meat and meat products such that it also constituted, at least in part, an 'industrial' land use, a use also not capable of approval in the zone.
The respondent therefore submitted that the existing butcher's shop was a non­conforming use and that it should not be permitted to extend its non­conforming use rights beyond the footprint of the existing building in which it presently operates, otherwise described as the 'planning unit'.
The applicant submitted that since the 1950s, the butcher's shop had always functioned with components of product preparation and wholesaling.  Although the scale of activity has changed over time, the use has always been, and remains, a shop, which is a use capable of approval in the Local Centre zone.
Insofar as the element of wholesale activity might be construed as a non­conforming use, the applicant submitted that the non­conforming use should be capable of extension into the adjoining vacant building as proposed, because it was compactly situated within the boundaries of the lot, or 'planning unit', otherwise wholly owned by the proponent.
After considering the evidence and arguments, the Tribunal decided that the business of the butcher's shop was characterised predominantly by retail activity, supplemented by integrated, but subservient, functions of processing and wholesaling.  Having regard to relevant case law and comparison of the business with other commonly operating retail outlets with dominant and subservient functions, the Tribunal found that the combined and integrated activities of this business could reasonably constitute a 'shop' use for the purposes and provisions of the respondent's town planning scheme.  There is no distinct or separate land use identifiable beyond the parameters of the definition of 'shop'.
Accordingly, the Tribunal found that there would be no issue of non­conforming use arising in respect of this review.
The essential determinations of the Tribunal on the preliminary issues, therefore, are:
The use of the premises where the applicant conducts its business is best described as a 'shop' use.  This is not a non­conforming use.
The proposed extended development of the butcher's shop is capable of approval under the provisions of the current town planning scheme, as it will be a 'shop'.  The question of non­conforming use rights does not arise.

Category:    B

Representation:

Counsel:

Applicant:     Mr M Hardy

Respondent:     Mr A Roberts

Solicitors:

Applicant:     Hardy Bowen

Respondent:     McLeods Barristers & Solicitors

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

Clay and City of Nedlands [2012] WASAT 193

Clay v City of Nedlands [2012] WASC 402

Food Barn Pty Ltd v Solicitor General (1975) 32 LGRA 157

La Rosa v City of Wanneroo [2006] WASC 304; (2006) 154 LGERA 11

Scully v Leichardt Council (1994) 85 LGERA 109

Town of Claremont v Complete Furniture Restoration Pty Ltd [2005] WASC 113

Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1This is a matter raising certain preliminary issues in respect of a review of the City of Stirling's (respondent or City) decision to refuse planning approval for the proposed 'extended' use of premises situated at No 102 (Lot 4) Wanneroo Road, Yokine (land, site or premises) as a butcher's shop.

2The application for planning approval was lodged with the respondent by Hodge and Collard Architects on behalf of D'Orazio Enterprises Pty Ltd (applicant) in February 2009.  The applicant trades under the name of 'Meat Lovers Paradise'.  Amended plans were prepared and lodged with the respondent in August 2010 after certain issues were raised by the respondent following consultation with nearby landowners.

3Following further consideration of the amended plans, the respondent refused the application on 8 February 2011.  The applicant lodged an application for review of the respondent's decision with this Tribunal on 4 March 2011.

4An order of the Tribunal was made on 19 April 2011 requiring the parties to identify certain preliminary issues which would require determination prior to embarking on a full review of the respondent's decision.  The preliminary issues, at that stage, were:

1)the nature of the existing and proposed uses of the premises;

2)the use classifications that should apply; and

3)what permissibility, if any, such uses enjoyed under the City of Stirling Local Planning Scheme No 3.

5An agreed statement of the preliminary issues was filed with the Tribunal by the parties on 9 August 2011.  However, by an order dated 26 August 2011, the preliminary issues were amended and finalised for consideration in the course of this review.  These issues are reproduced in full below, and broadly reflect the three issues described in the previous paragraph, but with more emphasis on the question of the alleged non­conforming use rights (if any) attaching to the subject land.  As will appear below, the Tribunal has found that it is not necessary to make findings about non­conforming use rights.

6The matter was heard in December 2011 (with a site visit).  Further submissions or material were filed in March 2012 and July 2012 (by the applicant) and in April 2012 and July 2012 (by the respondent).

The context of the development

7The land the subject of this review is an oblong shaped commercial property 1,449 square metres in area.  The site has an approximately 33 metre western frontage to Wanneroo Road and a 14 metre eastern boundary to Frape Avenue at the rear.  The land slopes downwards from Frape Avenue, which enjoys an elevation some 5 metres above the Wanneroo Road frontage of the land.

8Two separate buildings occupy the site.  The northern building is used as a butcher's shop trading as 'Meat Lovers Paradise'.  The southern building was used as a restaurant but ceased trading several years ago.

9Both buildings have provision for parking and customer access from Wanneroo Road, and obtain service and goods delivery access from Frape Avenue at the rear.  Wanneroo Road, in the vicinity of the land, is generally developed with commercial premises.  Frape Avenue to the north of the land is of north/south orientation, but turns sharply east/west, such that it forms a right­angled corner at the rear boundary of the subject land.

10Properties to the east and south of Frape Avenue in the vicinity of the subject land are residential, although along its north/south section, it provides service access from the rear of the commercial properties fronting Wanneroo Road.

The development application

11The proposed development is to use the southern, or restaurant, building for the purposes of a butcher's shop and to undertake internal works for that purpose.  These proposed works are the 'extension' of the premises already referred to.  Approval is also sought for internal works to the present butcher's shop building, such that both buildings will be able to be used as an integrated butcher's shop business on the premises.

12The following table, which is drawn from information supplied jointly by the parties, summarises the proposal in terms of existing and proposed floor space:

Existing shop	39.67 square metres	Proposed	83.45 square metres
Existing meat preparation	82.51 square metres	Proposed	89.24 square metres
Existing coolrooms/freezers	78.42 square metres	Proposed	135.91 square metres
Existing office area	4.63 square metres	Proposed	51.68 square metres
Existing staff amenities	7.24 square metres	Proposed	45.99 square metres
Existing food preparation	0.0 square metres	Proposed	20.49 square metres
Total existing floor area	212.47 square metres	Proposed	426.76 square metres

The planning framework

13The land is zoned Local Centre under the City of Stirling Local Planning Scheme No 3 (LPS 3 or Scheme).  The objectives of the Local Centre zone are found in cl 4.2.7 as follows:

a)To provide for a limited range of small scale retail, commercial and community facilities to meet day to day needs of the immediate neighbourhood.

b)To ensure safe and convenient access to facilities in an environment which is conducive to pedestrian movement.

c)To ensure development is sited and designed so as to reinforce a sense of place and attractive streetscapes.

14Under Sch 1 of LPS 3, the use classification 'shop' means 'premises used to sell goods by retail, or hire goods, but does not include a showroom or fast food outlet'.  The use classification 'warehouse' means 'premises used to store or display goods and may include sale by wholesale'.  The use class 'industry' means:

… premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances and includes premises on the same land used for ­

a)the storage of goods;

b)the work of administration or accounting;

c)the selling of goods by wholesale or retail;

d)the provision of amenities for employees incidental to any of the industrial operations.

15The word 'retail' means 'the sale or hire of goods to the public'.  The word 'wholesale' means 'the sale of goods or materials to be sold by others'.

16The expression 'non­conforming use' has the same meaning in LPS 3 as it has in s 172 of the Planning and Development Act 2005 (WA). So far as is relevant, that definition means:

[a] use of land which, though lawful immediately before the coming into operation of a planning scheme …is not in conformity with a provision of that scheme [that deals with zoning or special controls].

17Non­conforming use rights are governed by cl 4.8 and cl 4.9 of LPS 3 to which further reference is made below.

Reasons for refusal

18The respondent refused the proposed development for four reasons, alleging inconsistency with the planning framework set out above:

1.The proposed development is inconsistent with the objectives of [LPS 3] for the Local Centre zone ...

2.The proposed development involves the carrying out of two different and distinct land uses on the site, although in the same premises and using the same facilities, being 'shop' which is capable of approval and 'warehouse' which is prohibited.

3.The proposed development does not comply with the car parking requirements of the City's Parking policy with the resultant effect that the proposal involves a 4 car parking bay shortfall.

4.The proposed development is contrary to the requirements of orderly and proper planning as the proposal has failed to address Council's concerns in relation to noise, odour, waste disposal, traffic and access and egress of delivery and pick­up trucks to the development site.

The preliminary issues as finally formulated

19As is mentioned above, by an order of the Tribunal dated 26 August 2011, the following issues were to be determined as preliminary issues:

1.What is the present use of the premises where the applicant conducts its business for the purposes of the provisions of [LPS 3] in relation to non­conforming use?

2.Is any present use of the premises where the applicant conducts its business a non­conforming use for the purposes of the provisions of the Scheme in relation to non­conforming use?

3.Is the proposed development involving the use of the premises formerly used as a restaurant capable of approval under the provisions of the Scheme in relation to non­conforming use?

4.If the answer to either 2 or 3 above is in the negative, (a) What is the correct classification of the use or uses proposed in the development application for the purposes of the Scheme[?]; and (b) If [sic] whether the proposed development includes a distinct warehouse land use that is incapable of approval under the Scheme.

The neighbours' submissions

20At various points in the review process, the Tribunal has received submissions or communications from or on behalf of affected neighbours raising amenity concerns about both the existing and proposed operations of the butcher's shop on the subject land.  These documents have been disclosed to the parties.

21In the Tribunal's view, with respect, none of this material is relevant to the determination of the preliminary issues identified above.  If and when the matter proceeds to a review on the merits, then this material, so far as relevant, will be revisited by the Tribunal as is appropriate.

The applicant's evidence and arguments

22The applicant firstly argued that the present use of the existing butcher's shop was as a general butchery/butcher's shop/butcher's business that has operated in much the same manner continuously since about 1955.  The activities associated with this business involving the preparation and wholesaling of meat and meat products is, and has always been, an integral component of the butcher's shop business.  These activities were in conformity with the definition of 'shop' as it appeared in the now repealed Perth Road Board's By-laws, and in the respondent's District Planning Scheme No 2 (DPS 2).

23The second component of the applicant's argument was that insofar as the use of the butcher's shop building and the proposed use of the restaurant building was still generically a 'shop', but which included the wholesaling of meat and meat products, it could arguably be classified as a non­conforming use under LPS 3.  The proposal, however, remains a 'shop', and therefore could contemplate an approval under the provisions of LPS 3.

24In support of these contentions, the applicant called several witnesses, mainly former employees and butchers, who provided a history of the butcher's shop business since its beginnings in 1955.

25They described the range of functions, including the processes of butchery, cool storage, shop counter retailing, and deliveries to retail and wholesale customers.  They also identified the gradual change of customer demand over time, particularly the expectation for ready­to­cook meat products and the increasing preference for poultry products.

26There was some uncertainty and variation as to the proportion of wholesale and retail custom of the business.  This is a matter that we will return to below.  However, there was a consistency as to the general description of the functions of the butcher's shop, and that it had not changed materially since the early days of the commencement of the business.

27Mr A D'Orazio, the owner and operator of 'Meat Lovers Paradise', gave evidence that the present proportion of retail to wholesale sales was approximately 70:30 in favour of retail.  This was similar to the estimate of retail and wholesale sales provided to the Tribunal by Mr G Pilton, who had worked at, and subsequently became a partner in, the business between 1957 and 1964.

28The Tribunal sought further evidence on the proportion of wholesale sales.  That evidence was apparently comprised of some recent accounting records.  This material appears to show a 75:25 ratio in favour of retail.  Mr A Roberts, counsel for the respondent, attacked this evidence, saying it was 'uncertain' and could 'not be relied upon'.  Further, he drew attention to an apparent discrepancy between some of the applicant's witnesses as to the extent of wholesale activity that took place with regard to poultry sales.

29Notwithstanding these matters, we are reasonably satisfied that the overall level of wholesale activity, although significant, is still a secondary and subservient, albeit to some degree, integrated activity.  Overwhelmingly, the evidence suggests a predominantly retail operation.

30Mr M Hardy, counsel for the applicant, submitted that businesses have evolved over the last 50 years.  Hence, the grocery store of the 1950s has become the retail supermarket of today.  It was and still is a shop, and is understood to be a shop.  This is so, irrespective of the massive increase in the scale and the changes to the processes and the conduct of the business.

31In the same way, this butcher's shop of the 1950s, then known as the 'Ideal Meat Market', has evolved over time, with some modest changes of scale, marketing and product refinement, to become the 'Meat Lovers Paradise' of today.  It was lawfully then a shop and, in essence, it remains a shop now.

32Mr Hardy opposed any suggestion that the use of the butcher's shop today could be classified as 'industry'.  He submitted that the definition of 'industry' under LPS 3 was not a comfortable fit with the established facts.  None of the primary activities, except perhaps for 'processing', could be said to describe any of the functions of the butcher's shop business.

33Mr Hardy submitted that, in order for the use to be classified as 'industry', it would need to be shown that some form of 'processing' took place, and that this processing was a substantial and dominant activity on the premises.  He argued that 'processing' involved changing the product into some different form but, in fact, there was no such transformation involved here.  What took place at this butcher's shop was simply a supplementary preparation of meats for sale, a function which has always and normally been associated with butcher's shops.

34As to the other identified supplementary activities coincident to the business (and, for that matter, coincident to the 'industry' definition), namely, storage, administration, selling by wholesale or retail, and employee amenities, none of these activities are, he submitted, in themselves industrial activities.

35The proposition that the butcher's shop involved a component of 'warehouse' use was rebutted by Mr Hardy on the basis that the premises were not used for the storage and display of goods as described in the 'warehouse' definition.

36Mr Hardy then addressed the issue of non­conforming use rights and whether the proposal was capable of being approved as an extension or change to a non­conforming use on the land.

37As has already been mentioned, the use of the butcher's shop premises is, according to Mr Hardy, a shop and always has been a shop since inception.  It has been lawfully used in the same manner since approval in the 1950s.  The only aspect of its function which might cause it to be classified as a non­conforming use today is the supplementary sale of goods by wholesale, because such a function is not expressly included in the definition of 'shop' in LPS 3.

38However, shop use is capable of approval in the Local Centre zone.  Accordingly, Mr Hardy submitted that the proposed extension of the butcher's shop to the former restaurant premises, insofar as the whole development is generically a shop but with some non­conforming use rights, was capable of approval on the land as a non­conforming use under cl 4.9 of LPS 3 (dealing with extensions and changes).  Further, it is neither a use, nor any combination of uses otherwise defined by the Scheme, that is not permitted on land in the Local Centre zone.

39Mr Hardy disagreed with the respondent's submission that any extension of a non­conforming use was restricted to a 'planning unit' defined solely by the present butcher's shop and the land to its rear.  Mr Hardy noted that there was nothing in LPS 3 referring to such a concept as a limited 'planning unit' as described by the respondent.  The logical limits for extension of any non­conforming use, in this case, were the boundaries of the lot.  The lot is small, wholly owned by the applicant, and clearly defined.  Mr Hardy relied upon La Rosa v City of Wanneroo [2006] WASC 304; (2006) 154 LGERA 11, at [90] and [91], where a list of factors is set out in order to assess whether land may be regarded as a 'single planning unit'.

40Mr Hardy submitted that the answers to the questions identified as the four preliminary issues should be as follows:

1)The present use of the premises is generically a shop, which is a use capable of approval under the provisions of LPS 3.  The use may arguably also be classified as a non­conforming use, only because of its incidental function of wholesale sales.

2)The present use of the premises, insofar as it involves the wholesaling of meat products, may constitute a non­conforming use for the purposes of LPS 3.

3)The proposed shop development involving the use of the restaurant premises is capable of approval either under the non­conforming use provisions of LPS 3 or, alternatively, as a use permitted in its own right.

4)In the circumstances of the positive responses to issues 2 and 3, the questions posed at 4 do not require any answer.

The respondent's arguments

41In summary, the City submitted that the existing use of the butcher's shop constitutes more than, and is other than, the use of the land as a shop.  Further, to the extent that the business comprises a use or uses that are currently prohibited by LPS 3, it may nevertheless be a non­conforming use.  However, any approval to extend the non­conforming use is limited to the 'planning unit' to which the non­conforming use rights relate.  Thus, the respondent argued that the non­conforming use rights, and the potential for extension, related solely to the existing butcher's shop premises, being the building and land to its rear; it would not extend to the adjacent restaurant premises.

42Mr Roberts conceded at the outset that the evidence demonstrated that there was a butcher's shop operating at the premises from the 1950s onwards, involving both retail and wholesale sales, processing and some deliveries.  This was an entirely proper concession to make.

43It was the respondent's case that, over time, town planning scheme controls superseded by­laws under which the butcher's shop had originally operated.  Applying a presumption of regularity, it may be accepted that what was there in the 1950s and 1960s (that is, a butcher's shop) was what was approved under those by­laws.

44Sometime in the 1990s, during the life of the respondent's DPS 2, the predecessor to LPS 3, the nature of the use of the butcher's shop changed in terms of scale, intensity and emphasis.  Processing and wholesaling appear to have become more dominant features of the business.

45Mr Roberts referred to the agreed statement of facts prepared by the parties.  He submitted that the present uses listed as components of the butcher's shop business in that statement, in conjunction with the evidence of the applicant's witnesses who were knowledgeable of or had experience as to the extent of activities undertaken on the site (for example, processing and packaging of meat products, deliveries of meat products for retail and wholesale to external customers, storage of meat in coolrooms, and the associated work of administration and accounting), led to the conclusion that currently the most apt classification of the land use (in the context of LPS 3), was 'industry'.

46In this case, Mr Roberts submitted, the functions of the butcher's shop coincided closely with the listed functions of the 'industry' definition under the Scheme.  He identified the inadequacies of other possible land use classifications, such as 'shop' and 'warehouse', and contrasted them with the comprehensive suitability of the 'industry' classification.  It followed, therefore, in his submission, that the nature of use of the butcher's shop building or premises would be best classified under LPS 3 as an 'industry' use.

47As an 'industry' use is a use not permitted in the Local Centre zone under LPS 3, it followed that it was appropriate that it should be treated as a non­conforming use.

48Further, the extent to which the non­conforming use could be extended must be limited to the 'planning unit' within which the non­conforming use lawfully operates.  In support of this contention, Mr Roberts referred the Tribunal to the non­conforming use provisions of LPS 3 (see cl 4.8 referring to '(a) the continued use of any premises ...').

49By implication, identification of the relevant 'premises' would also lead to identification of the relevant 'planning unit'.  According to LPS 3, 'premises' means 'land or buildings'.  Mr Roberts submitted that the facts and circumstances of each particular case set the parameters for determining the building or land to which the existing use rights attach (cf: Scully v Leichardt Council (1994) 85 LGERA 109 at [111]). This is sometimes expressed as the 'planning unit' to which these rights attach: see, for example, Town of Claremont v Complete Furniture Restoration Pty Ltd [2005] WASC 113.

50In this case, the relevant 'planning unit' should be defined, Mr Roberts submitted, as the butcher's shop and the land to the rear thereof used to provide service access from Frape Avenue.  The 'planning unit' should not include the quite separate restaurant building or the land immediately to its rear.

51Mr Roberts contended that, in any case, the restaurant building part of the site was not lawfully being used for any relevant purpose at all prior to the commencement of LPS 3, such that there was no existing use to preserve.

52According to Mr Roberts then, and for the brief reasons given (which are set out below), the answers to the questions identified as the four preliminary issues should be as follows:

1)The present use of the premises should be classified as 'industrial' under LPS 3, because it represents the most comprehensive, accurate and literally correct land use classification of the described use of the butcher's shop business.

2)The 'industrial' use of the premises, or 'planning unit', being the existing butcher's shop and the land at its rear, constitutes a non­conforming use within the extent of that 'planning unit'.

3)The restaurant premises, however, lie beyond the 'planning unit' in which the non­conforming 'industrial' use continues.  In accordance with the proper interpretation of the provisions of cl 4.8 and cl 4.9 of LPS 3, the proposed development, involving an extension of the 'industrial' non­conforming use, ought not to be capable of approval beyond the limits of the 'planning unit'.  To do otherwise would impermissibly allow occupation or use of the adjacent but separate restaurant premises.

4)Under LPS 3, the correct classification of the use proposed in the development application is 'industrial'.  The question of whether there is otherwise a 'warehouse' component incapable of approval under the Scheme does not arise.

Discussion of the case

53The present use of the premises is 'industry', according to the respondent.  The applicant, on the other hand, submits that the use should be accepted for what it has always been and continues to be, namely, that of a 'shop'.

54In examining each of these alternatives, the Tribunal deals first with the respondent's contention that the application of the definition of 'industry' should be preferred as the appropriate land use classification.  The respondent, in effect, relies on a literal matching of the terminology covering the actual use components of the butcher's shop business.

55In our view, there is some difficulty with this approach because it does not appear to give sufficient weight to what might constitute the predominant, as opposed to the subsidiary, components of the land use, such that it would reflect a common and reasonable understanding of the true nature and purpose of that land use.

56In circumstances where the definition of 'industry' describes a land use involving the processing of goods (in conjunction with storage, administration and sales), it is to be inferred that the predominant function is the industrial activity of processing certain goods.  The functions of storage, administration and sales are supplementary.  This would seem to the Tribunal to be a common and reasonable understanding of the characteristics of an industrial use.

57Further, in the case of a butcher's shop, a common and reasonable understanding of that business would be that its primary function is the promotion, display and sale of meat products.  The activities of processing, storage and administration are supportive, but ultimately subservient, means to that end.

58It is, of course, the case that there is an element of meat product preparation (processing) conducted in this business.  This activity could be seen from the floor area plans and from the deployment and duties of the applicant's employees noted during the site view.  The Tribunal accepts that this gives some weight to the respondent's contentions as to the application of the 'industry' definition to the subject premises.  However, based on the evidence that we received, we do not accept that the nature of the business changed in the 1990s to such an extent that it became more dominantly focussed on processing and wholesaling activity than the conventional emphasis on shop front retailing.

59The Tribunal is therefore persuaded that the primary function of this butcher's shop remains that of a high profile trading outlet, with a heavy reliance on promotion, display and over­the­counter retail sales.  The high exposure and busy street location of the business also gives support to a finding that this is a business substantially reliant for trading success as a retail sales outlet rather than as an industrial enterprise.  Similarly, a bakery, for example, a greengrocer, or even a jeweller's shop, all engage in on­site (or back of the shop) preparation of products for sale.  Such businesses, however, remain commonly understood and accepted as shops, and are an expected feature of shopping centres and high streets.  The element of product preparation at the butcher's shop should likewise not disqualify it from classification as a 'shop' under LPS 3.

60The Tribunal would therefore be reluctant to reach any conclusion that an element of on­site processing or preparation of products for sale would disqualify such a retail business from being classified as a 'shop'.  In these circumstances, the Tribunal agrees with the submission of Mr Hardy to the effect that the facts of this case are not a comfortable fit with the 'industry' definition found in LPS 3.

61It follows, from the analysis above, that the Tribunal accepts the applicant's propositions that the use is a 'shop' and that the nature of the use of the premises is predominantly as that of a retail trading outlet.  A fortiori, such a conclusion also suggests that under the conventional tests for establishing separate land uses, the respondent might well fail to show that the wholesale element of the business similarly constitutes a distinct and separate land use.

62It is true that wholesale sales are not included or referred to in the 'shop' definition.  Amongst other things, it could be argued that such wholesale sales are difficult to reconcile with the 'shop' definition which describes that the use means the selling of goods 'by retail'.  However, these matters are only the starting point in any analysis.

63It is clear that there is a dichotomy between retail and wholesale sales in planning law: see, for example, the discussion in the planning case Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244. It seems to us that the real question is whether the evidence suggests that the wholesale element of the business of the butcher's shop is a land use which is 'independent and not merely incidental': Food Barn Pty Ltd v Solicitor General (1975) 32 LGRA 157 at 161. This is so, notwithstanding the considerable emphasis that the parties in their arguments placed on the issue of non­conforming use rights.

64Recently, the Tribunal had occasion to visit similar issues in Clay and City of Nedlands [2012] WASAT 193 (affirmed: Clay v City of Nedlands [2012] WASC 402). In that case, the Tribunal noted, at [19] ­ [20] (emphasis added):

[Counsel] cited the well­known authority of Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 (Lizzio).  That case endorses the orthodox characterisation of land use analysis found, for example, in the New South Wales Court of Appeal decision in Food Barn Pty Ltd v Solicitor General (1975) 32 LGRA 157. Lizzio dealt with the issue of land characterisation in relation to a married couple selling some 55 ­ 60 bunches of flowers per week, mostly grown on their own land, to augment the husband's full­time wage. The High Court unanimously held that such a use was a separate and prima facie unlawful use, unless saved in some way. Gibbs CJ said, at 216 ­ 217:

Obviously, a person who is entitled to use land for the purpose of a dwelling­house may use it for incidental purposes, such as garaging his car or housing his boat.  No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling house.  For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling­house.  The question is one of fact and degree.  Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling­house.

The reference by his Honour to the fact that, in the instant case, some flowers were grown on another's land, does not mean that, in every such parallel case, a landowner must use another's land in order to create a relevantly separate use.  What is important is that attention must be directed to the nature of the activity, its scale and, as his Honour said, the 'regularity and extent' of the activities involved.  There can be no doubt here that, on the admitted facts, a separate use of the subject land has been established within the tests enunciated and endorsed in Lizzio.

65Here, it is clear that, historically and to the present time, this butcher's shop includes an 'integrated' wholesale element.  But, just as the existence of some complex on­site meat processing (for example, smallgoods production) does not destroy the characterisation of the use as a 'shop', so it is also with regard to wholesaling.  As we have indicated, we think that these things are in the nature of a butcher's shop generally.

66Having regard to our findings on the nature of this butcher's shop and the proportion of wholesale to retail sales (significantly in favour of retail sales, evidence that we accept), we are not persuaded that either the 'nature', 'scale' or the 'regularity and extent' of the two activities involved, viewed as a question of 'fact and degree', show a distinct and separate land use.

67It follows that if this analysis is correct then, prima facie, the 'extension' of the current shop arrangement into the neighbouring part of the building would not offend LPS 3.  Accordingly, it is unnecessary to dwell upon the issue of non­conforming use rights, as these issues simply do not arise.  Rather, the matter would proceed to a consideration of the planning merits of the proposed extended development.

Conclusions

68Based on the preceding analysis and discussion, the Tribunal concludes that the preliminary issues should be determined as follows:

1)The use of the premises where the applicant conducts its business is best classified as a 'shop' use.  This use classification would also apply for the purposes of LPS 3.  This is not a non­conforming use.

2)Not necessary to answer.

3)The proposed extended development of the butcher's shop, involving the use of the premises formerly used as a restaurant, is capable of approval under the provisions of LPS 3 as it will be a 'shop'.  The question of non­conforming use rights does not arise.

4)Not necessary to answer.

Order

69The Tribunal makes the following orders:

1.The preliminary questions are determined as follows:

Q1.What is the present use of the premises where the applicant conducts its business for the purposes of the provisions of the City of Stirling Local Planning Scheme No 3 in relation to non­conforming use?

A1.The use of the premises where the applicant conducts its business is best classified as a 'shop' use.  This use classification would also apply for the purposes of the City of Stirling Local Planning Scheme No 3.  This is not a non­conforming use.

Q2.Is any present use of the premises where the applicant conducts its business a non­conforming use for the purposes of the provisions of the City of Stirling Local Planning Scheme No 3 in relation to non­conforming use?

A2.Not necessary to answer.

Q3.Is the proposed development involving the use of the premises formerly used as a restaurant capable of approval under the provisions of the City of Stirling Local Planning Scheme No 3 in relation to non­conforming use?

A3.The proposed extended development of the butcher's shop, involving the use of the premises formerly used as a restaurant, is capable of approval under the provisions of the City of Stirling Local Planning Scheme No 3, as it will be a 'shop'.  The question of non­conforming use rights does not arise.

Q4.If the answer to either 2) or 3) above is in the negative:

(a)what is the correct classification of the use or uses proposed in the development application for the purposes of the City of Stirling Local Planning Scheme No 3; and

(b)does the proposed development includes a distinct warehouse land use that is incapable of approval under the City of Stirling Local Planning Scheme No 3?

A4.Not necessary to answer.

2.The matter is otherwise to be listed for directions within 14 days.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR P McNAB, SENIOR MEMBER