Douglas Shire Council v Fabcot Pty Ltd

[1999] QCA 203

IN THE COURT OF APPEAL	[1999] QCA 203
SUPREME COURT OF QUEENSLAND
Brisbane
Before McMurdo P

Davies JA

Thomas JA

Appeal No 11051 of 1998

[Douglas SC v Fabcot P/L & Ors]

BETWEEN

DOUGLAS SHIRE COUNCIL

(First Respondent) Appellant

AND

FABCOT PTY LTD ACN 002 960 983

(Applicant) First Respondent

AND

D G ROBERTSON HOLDINGS PTY LTD ACN 010 515 796

(Second Respondent) Second Respondent

AND

THE RAINFOREST HABITAT PTY LTD ACN 010 778 793

(Third Respondent) Third Respondent

Appeal No 11052 of 1998

[D G Robertson Holdings P/L v Fabcot P/L]

BETWEEN

D G ROBERTSON HOLDINGS PTY LTD ACN 010 515 796

(Second Respondent) Appellant

AND

FABCOT PTY LTD ACN 002 960 983

(Applicant) First Respondent

AND

DOUGLAS SHIRE COUNCIL

(First Respondent) Second Respondent

AND

THE RAINFOREST HABITAT PTY LTD ACN 010 778 793

(Third Respondent) Third Respondent

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 4 June 1999

1                 I have had the advantage of reading the reasons for judgment of both Davies and Thomas

JJA. I am in agreement with the reasons given by both and with the orders proposed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before McMurdo P
Davies JA
Thomas JA

Appeal No. 11051 of 1998

[Douglas SC v Fabcot P/L & Ors]

BETWEEN:

DOUGLAS SHIRE COUNCIL

(First Respondent) Appellant

AND:

FABCOT PTY LTD ACN 002 960 983

(Applicant) First Respondent

AND:

D G ROBERTSON HOLDINGS PTY LTD ACN 010 515 796

(Second Respondent) Second Respondent

AND:

THE RAINFOREST HABITAT PTY LTD ACN 010 778 793

(Third Respondent) Third Respondent

Appeal No. 11052 of 1998

[DG Robertson Holdings P/L v Fabcot P/L & Ors]

BETWEEN:

DG ROBERTSON HOLDINGS PTY LTD ACN 010 515 796

(Second Respondent) Appellant

AND:

FABCOT PTY LTD ACN 002 960 983

(Applicant) First Respondent

AND:

DOUGLAS SHIRE COUNCIL

(First Respondent) Second Respondent

AND:

THE RAINFOREST HABITAT PTY LTD ACN 010 778 793

(Third Respondent) Third Respondent

REASONS FOR JUDGMENT - THOMAS JA
Judgment delivered 4 June 1999

1                    The appellant DG Robertson Holdings Pty Ltd desires to develop a supermarket on a

parcel of land in Port Douglas described as Lot 193. The Planning and Environment Court

determined that that was a prohibited use. This appeal is supported by the Douglas Shire Council,

but opposed by the respondent Fabcot Pty Ltd which is the owner of nearby land on which a

supermarket is a permitted development.

2                    Lot 193 is zoned "Special Facilities (Information Centre, Tearooms, Shopping Centre and

Specialty Shops with ground floor area of 2000 m[2])".

[2]           The Scheme, para 6.3.1(1).

3                    The question is whether a supermarket is a "prohibited development"[1] under the 1996

[1]           Douglas Shire Council Planning Scheme para 5.3.1(4). The scheme came into effect on 20 December 1996.

Douglas Shire Council Planning Scheme ("the Scheme"). The development of a "shopping centre"

on Lot 193 is specifically included in the description of the above zone. On the ordinary meaning

of the words, a supermarket is something that would be taken as a normal and acceptable unit in

a shopping centre, and unless such a development is excluded on the proper construction of the

scheme as a whole, a supermarket would be a permitted development2 on Lot 193 under the 1996

scheme just as it was under the 1981 scheme.

4                    The Scheme was prepared pursuant to a complex process involving planning, consultation,

reconsideration, and various procedures which lead to ultimate approval of a Planning Scheme by

the Governor in Council. This Scheme was prepared pursuant to the Local Government

(Planning and Environment) Act 1990. That Act has now been repealed by the Integrated Planning Act 1997, but the effect of schemes made under it is preserved by s6.1.2(1) of the latter

Act. This and other schemes made under the former Act are drawn according to a certain structure

or "composition" laid down by the Local Government (Planning and Environment) Act notably

in ss2.1 to 2.7. A particular status or purpose can be seen in relation to each of the various

components of the scheme of which they form part. The components stated in s2.1 are:

(a)         Planning scheme provisions for the regulation, implementation and administration

of the planning scheme;

(b)        zoning maps and any regulatory maps;

(c)         a strategic plan;

(d)        a development control plan (if any).

5                    Each of those terms is further defined by ensuing sections. The planning scheme provisions

referred to in (a) above (to which I shall refer to as the planning scheme provisions) and the zoning

and regulatory maps referred to in (b) above, provide for the actual designation of each zone and

contain the provisions for the regulation, implementation and administration of the Scheme. By

contrast a strategic plan and a development control plan are concerned with future development that

may occur in the area, presumably within the ambit of lawful change that will occur within the

prescription of the scheme. Inter alia they prescribe the policy that the Council will be expected to

follow in endeavouring to ensure that future development proceeds along those lines. In particular

the "development control plan" is to include maps "that indicate the intentions for the future

development of designated parts or the whole of a planning scheme area"[3]. The development

[3] Section 2.5(a).

control plan is also to include statements of the intent of the development control plan and criteria for its implementation[4]. There is an assumption in a later section of the Act[5] that a development

[4] Section 2.5(b) and 2.5(c).

[5] Section 4.3(2)(e).

control plan map may "confer" use rights. That section deals with subsequent applications to a local

government to amend a planning scheme, and the above assumption does not sit comfortably with

the basic structural provisions of Part 2 of the Act. It is not necessary however to say more about

this drafting infelicity in the present case, as the relevant development control maps in this matter on

their face disclaim the conferring or removing of use rights.

6                    I have set out the structural basis of such a scheme because, as I perceive the respondent's

principal argument in this matter, the respondent seeks to use certain statements in the development

control plan to subvert what would otherwise be the clear effect of the planning scheme provisions.

7                    The essential land use provisions appear in Part 6 of the Scheme under the heading

"Zoning". These follow the familiar pattern of prescribing lists of columns containing the purposes

for which development may occur in each zone, including columns of permitted development,

permitted development subject to conditions, consent development and prohibited development.

In my view there is nothing in those provisions that detracts from the prima facie position that a

supermarket would be a permitted development within the zoning prescribed for Lot 193. If it had

been intended to prohibit such a use the prohibition could have been very simply and conventionally prescribed. For example there could have been a simple prescription for the omission of

supermarket from the list of permitted uses as they stood under the former zone description.

"Service station" was deleted from the list, and it would have been easy to do the same for

"supermarket" had that been the intention. It may be observed that had there been a re-zoning of

Lot 193 that destroyed previously existing rights of user, certain rights of compensation would be

expected to arise in favour of the owner of the land. Plainly the planning scheme provisions did not

prohibit a supermarket.

8                    However in other parts of the Scheme, notably in the development control plan, there is

expressed a desire to prevent a supermarket being built on Lot 193, and a positive desire that this

land be developed in a particular way, namely as a "tourist attraction area" with a preferred use of

development which has a "nexus with the natural environmental cultural heritage and rural themes

of the shire". Examples of such developments are given, such as art galleries, flora and fauna

sanctuaries, museums, oceanariums and zoological or botanical gardens[6]. However the

[6]           Development Control Plan in the scheme at para 3.3.7.1.

development control plan itself provides:

"This DCP does not confer or remove any rights to use land. Such rights are established

under parts 6.0 and 7.0 of the Planning Scheme".

9                    If this needed any reinforcement it is found in the development control maps which designate

the areas where such desired policies or objectives are to apply. Those maps contain the following

endorsement:

"This plan shows preferred dominant land uses and does not confer or remove use rights.

The rights to use land are determined by the zoning provisions of the planning scheme, which comprise the zoning maps and section 6 and 7 of the planning scheme".

10                  In my view if one reads the Scheme as a whole, the development control plan and the maps

attached to it are statements of desire or policy indicative of the directions and results which the

Shire Council will lawfully endeavour to achieve in the future. It is not to be taken as a provision

that over-rides the essential provisions of the Scheme which designate the zones and uses to which

the land may be put. The scheme reveals an ambivalence in relation to the subject land, resulting

in the end in an obvious unwillingness to seize the nettle by actually prohibiting the former available

use of supermarket.

11                  I would add that the use of these essentially subsidiary and policy oriented parts of the Town

Plan to overcome the effect of the basic provisions where zoning rights are prescribed would be a very

oblique not to say surreptitious way of achieving the result for which the respondent contends.

12                  I agree with the reasons which have been prepared by Davies JA and these make it unnecessary

for me to canvass other points in the wide-ranging submissions which were presented. In my view the

essential argument is one of construction, and on the proper construction of the Scheme as a whole I

would hold that a supermarket is a permitted development on lot 193.

13                  The appeal should be allowed and the orders proposed by Davies JA should be made.

IN THE COURT OF APPEAL	99.203
SUPREME COURT OF QUEENSLAND
Brisbane

Appeal No 11051 of 1998

[Douglas SC v Fabcot P/L & Ors]

BETWEEN:

DOUGLAS SHIRE COUNCIL

(First Respondent) Appellant

AND:

FABCOT PTY LTD ACN 002 960 983

(Applicant) First Respondent

AND:

D G ROBERTSON HOLDINGS PTY LTD ACN 010 515 796

(Second Respondent) Second Respondent

AND:

THE RAINFOREST HABITAT PTY LTD ACN 010 778 793

(Third Respondent) Third Respondent

Appeal No 11052 of 1998

[D G Robertson Holdings P/L v Fabcot P/L & Ors]

BETWEEN:

D G ROBERTSON HOLDINGS PTY LTD ACN 010 515 796

(Second Respondent) Appellant

AND:

FABCOT PTY LTD ACN 002 960 983

(Applicant) First Respondent

AND:

DOUGLAS SHIRE COUNCIL

(First Respondent) Second Respondent

AND:

THE RAINFOREST HABITAT PTY LTD ACN 010 778 793

(Third Respondent) Third Respondent

McMurdo P
Davies JA
Thomas JA

Judgment delivered 4 June 1999

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEALS ALLOWED. SET ASIDE EACH OF THE DECLARATIONS MADE BELOW. EACH OF THE APPELLANTS AND THE THIRD RESPONDENT TO HAVE THEIR COSTS OF THE APPEALS AGAINST THE FIRST RESPONDENT.

CATCHWORDS:	INTERPRETATION - GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS - LOCAL GOVERNMENT - TOWN PLANNING
Appeal against a declaration of the Planning and Environment Court that a development for the purposes of a supermarket is a prohibited development under the Planning Scheme for the Shire of Douglas, 1996 - land zoned "Special Facilities" - meaning of "shopping centre" under the Planning Scheme - assistance to be gained from previous Planning Scheme - application and construction of Development Control Plan.
Integrated Planning Act 1997, s 6.1.1, s 6.1.2(1) Local Government (Planning and Environment) Act 1990, s 2.1, s 2.5,

s 2.7, s 4.3(2)(e)

Counsel:  Mr P J Lyons QC, with him Mr W L Cochrane, for Douglas Shire Council
Mr G J Gibson QC, with him Mr M D Hinson SC, for D G Robertson

Holdings Pty Ltd

Mr S L Doyle SC, with him Mr M E Rackemann, for Fabcot Pty Ltd

Mr R S Litster for The Rainforest Habitat Pty Ltd

Solicitors:  O'Mara, Patterson & Perrier as town agents for Williams Graham & Carman

(of Cairns) for Douglas Shire Council

Barker Gosling for D G Robertson Holdings Pty Ltd
Corrs Chambers Westgarth for Fabcot Pty Ltd

McCullough Robertson as town agents for Greer & Timms (of Port Douglas)

for The Rainforest Habitat Pty Ltd

Hearing Date:  12 April 1999

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before McMurdo Davies JA Thomas JA

Appeal No 11051 of 1998

[Douglas SC v Fabcot P/L & Ors]

BETWEEN:

DOUGLAS SHIRE COUNCIL

(First Respondent) Appellant

AND:

FABCOT PTY LTD ACN 002 960 983

(Applicant) First Respondent

AND:

D G ROBERTSON HOLDINGS PTY LTD ACN 010 515 796

(Second Respondent) Second Respondent

AND:

THE RAINFOREST HABITAT PTY LTD ACN 010 778 793

(Third Respondent) Third Respondent

Appeal No 11052 of 1998

[D G Robertson Holdings P/L v Fabcot P/L & Ors]

BETWEEN:

D G ROBERTSON HOLDINGS PTY LTD ACN 010 515 796

(Second Respondent) Appellant

AND:

FABCOT PTY LTD ACN 002 960 983

(Applicant) First Respondent

AND:

DOUGLAS SHIRE COUNCIL

(First Respondent) Second Respondent

AND:

THE RAINFOREST HABITAT PTY LTD ACN 010 778 793

(Third Respondent) Third Respondent

REASONS FOR JUDGMENT - DAVIES JA
Judgment delivered 4 June 1999

1                  The appellants, who are the Council and the proposed developer of the subject land, lot

193, appeal against a declaration of the Planning and Environment Court that the development of

lot 193 for the purposes of a supermarket is a prohibited development under the Planning Scheme

for the Shire of Douglas (the 1996 Scheme) which came into force on 20 December 1996. It was

not disputed that if that declaration should not have been made, nor should other declarations which

the Court also made.

2                  Lot 193 is situated on the Captain Cook Highway at its intersection with Port Douglas

Road. The first respondent, which is the owner of land on the opposite side of Port Douglas Road

and which wishes to develop a supermarket on its land, supports the declarations made below and

opposes these appeals. The third respondent is the owner of lot 193 and supports both appeals.

3                  Under the 1996 Scheme lot 193 is zoned Special Facilities (information centre, tea rooms,

shopping centre and speciality shops with ground floor area of 2,000 square metres). That is a

zoning applying only to lot 193. None of the terms of the description in parenthesis are defined in

the Scheme. The question whether a supermarket is a prohibited development under the Scheme

depends on whether it comes within the term "shopping centre" in that description. If it does it is

an as of right or, as the 1996 Scheme describes it, permitted development.[7] If it does not it is a

[7]The 1996 Scheme, par 6.3.1(1). All further paragraph references are to the 1996 Scheme.

[8]Par 6.3.1(4).

prohibited development[8] and the declaration was rightly made.

4                  The learned primary judge found some assistance in determining that question from one of

the development control plans, Development Control Plan 2, forming part of the 1996 Scheme.[9]

His Honour also found some assistance in some definitions which existed in the previous Planning

Scheme (the 1981 Scheme). It is common ground that a supermarket was not a prohibited

development on lot 193, but was a permitted development thereon, under the 1981 Scheme.

[9]Local Government (Planning and Environment) Act 1990 ss 2.1(a), (d), 2.5. That Act was

5                  Without the assistance of parts of the 1996 Scheme other than the zoning description or

of the 1981 Scheme I would conclude that a supermarket was a permitted development on lot 193

under the 1996 Scheme. That is because "shopping centre" on its ordinary meaning would not

exclude a supermarket. Indeed that was conceded by Mr Doyle SC who appeared for the first

respondent.

6                  However the first respondent submitted and the learned primary judge held that, in

construing the meaning and ambit of the term "shopping centre" in the zoning description of lot 193,

consideration could be given to the terms of Development Control Plan 2, relying on the principle

that a statutory provision must be construed "so that it is consistent with the language and purpose

of all of the provisions of the statute"[10] and that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals."[11] And his

Honour held and the first respondent submitted that the terms of Development Control Plan 2 made

clear that the zoning description "shopping centre" was not intended to include a supermarket.

[10]Project Blue Sky Inc v the Australian Broadcasting Commission (1998) 72 ALJR 841 at [69].

[11]Ibid at [70]. 12 Par 3.3.7.2.

7                  Lot 193 is within the area of Development Control Plan 2. Under that plan lot 193 is

contained within two designations; the tourist attraction areas designation and the Special Area 8

designation.

8                  The tourist attraction areas designation is stated in Development Control Plan 2 to be

intended to retain land in the most suitable locations to provide for the development of appropriate

secondary tourist attractions. Examples given of desirable uses do not include any of the uses

permitted in the special facilities zone on lot 193. But nor are any of those which are specified as

undesirable uses those which are permitted in that special facility zone. Then under the heading

"Implementation"12 it is said, specifically with respect to the subject land:

"(e) That parcel of land at the corner of Port Douglas Road and the Cook Highway which has also been designated as a Tourist Attraction Area is currently zoned for shopping centre development. It is subject to the provisions of Special Area 8 which seek to encourage its use for tourist attraction purposes in conjunction with shops directed primarily towards tourists".

9                  Under the heading Special Area 8,[13] which area comprises solely lot 193, appears the

[13]Par 3.3.16.9.

following:

"Intent
This designation covers the Tourist Attraction Area at the corner of Port Douglas
Road and the Cook Highway. This land is zoned Special Facilities with the
original approval providing for an information centre, tea rooms, shopping centre
and speciality shops with an approximate floor area of 2,000m2. Council wishes
to discourage the development of this land for shops which would primarily serve
residents, in favour of the proposed Residential Centre. It is preferred that any
shops developed on the land should have a predominantly tourist orientation in
association with the adjoining Rainforest Habitat and any attraction(s) which might
be developed on the subject land itself.
Implementation

(a)        A supermarket, general store, showroom or service station will not be

permitted on the land;
(b) Access to the land will only be permitted via the shared access with Rainforest Habitat from Port Douglas Road;

(c)        The gross floor area of shops shall not be permitted to exceed 2,000m2;

(d) The amended Special Facilities zoning provides for the development of

appropriate secondary tourist attractions on the land, including development in
association with the adjoining Rainforest Habitat."

10                The learned primary judge relied primarily on (a) above, inferring from it that "shopping

centre" in the zoning description was not intended to include a supermarket. It is the correctness

of that conclusion which is the main point of this appeal.

11                It may be said at the outset that it would have been easy to exclude a supermarket from

the zoning description. It is a defined term in the 1996 Scheme.[14] A comparison may be made with

"service station", one of the other uses which, by (a) "will not be permitted on the land". A service

station was included in the Special Facilities zone for lot 193 under the 1981 Scheme but was

excluded in the 1996 Scheme. By contrast, the phrase "shopping centre and speciality shops with

an approximate gross floor area of 2,000 sq metres" in the 1981 Scheme was altered in the 1996

Scheme only by substituting for the phrase "an approximate" the word "a". Nevertheless it must be

accepted that, because it is not clear whether the term "shopping centre" in the 1996 Scheme was

intended to include a supermarket, regard may be had to other parts of the Scheme to assist in

resolving that question.

[14]Par 13.3.

12 However in order to determine what help may be derived from Development Control Plan
2 it is necessary to look at the purpose which development control plans serve in the Scheme. By

s 2.5 of the Local Government (Planning and Environment) Act 1990:

"A development control plan is to include -

(a)        a map or series of maps that indicate the intentions for the future development of designated parts or the whole of a planning scheme area;

(b)        statements of the intent of the development control plan;

(c)        criteria for the implementation of the plan."

13                So a development control plan is concerned primarily with intentions for the future, not

existing rights. That is not to say that a development control plan cannot itself confer use rights.

Section 4.3(2)(e) of the Local Government (Planning and Environment) Act implies that it can.

The question here is whether Development Control Plan 2 was intended to say anything affecting

existing rights.

14                In the introduction to Development Control Plan 2 it is stated that it "indicates the detailed

intentions of the Council for the future development of Port Douglas, Four Mile Beach, Craiglie and

their environs".[15] It is stated that it comprises the following elements:

"The Aim and Objectives of the Plan ... which shows the preferred land use for the areas in the DCP-2 Area, during the life of the Plan; the intent for the various land use designations on the DCP-2 map together with the implementation criteria ... ; the intent for townscape ... ; and special development requirements applying to the DCP-2 Area."[16]

"The DCP shows the preferred pattern of development and establishes criteria which will be used by Council to assess applications for development in the DCP Area and also includes requirements for such development. It applies to all types of development, whether or not application is required under the Planning Scheme. Development in the DCP Area shall not be carried out except in accordance with the provisions of this DCP."17

[15]Par 3.1.1.1.

[16]Par 3.1.1.2. 17 Par 3.1.1.3. 18 Par 3.1.1.4.

Finally it is said that Development Control Plan "does not confer or remove any rights to use land";

that "Such rights are established under Parts 6.0 and 7.0 of the Planning Scheme".18 These

statements are repeated in similar but slightly different words in the notation on the Development

Control Plan 2 Map.

15                The above provisions were under the heading "Scope" in the introduction to Development

Control Plan 2. Under the heading "Guide to Users" in the introduction it is said that "DCP-2 is

intended to provide guidelines for development in Port Douglas. The DCP-2 Map shows the

preferred types of development in the various parts of the DCP-2 Area, and Section 3.3 specifies

the intent and implementation provisions for land shown on the Map and designated in a particular

way".[19] The relevant intent and implementation provisions for the tourist attractions areas and the

Special Area 8 have been set out above.

[19]Par 3.1.4.1.

16                In the part headed "General" in section 3.3 it is said that "Council's intent for the future

development of the DCP area, as designated on the DCP-2 Map, is described in the following sub-

sections. Development which is not in accordance with the expressed intent for the respective

designations shall not be supported".[20]

[20]Par 3.3.1.

17   All of these provisions of Development Control Plan 2 tend to indicate that its provisions are not directed to existing permitted development but rather to the intent for future preferred development. If that is so it would follow that the provisions referred to earlier with respect to intent

and implementation of Development Control Plan 2 in the areas relevant to this land must be

construed in that light; that is, of an intention to apply only to the obtaining of approval for future

development not to development already permitted.

18                However Mr Doyle SC for the first respondent points to the fact that the above provisions

refer to future development not merely future applications and that future development may include,

on the broad definition of "development" in the Planning Scheme,[21] the erection of buildings on land

for a purpose which is already a permitted use. That seems to me a rather strained construction of

the provisions just referred to and one which seems inconsistent with the way in which the term

"development" is used in par 6.3.1 of the 1996 Scheme.[22]

[21]Par 13.2.2.

[22]See also the definition of "Permitted development" in par 13.2.2.

19                Turning from these general provisions to the more specific provisions, par (a) under the

heading "Implementation" of Special Area 8, like par (b) and par (c) under that heading, is

expressed in terms of futurity: "will not be permitted". Such a phrase seems to imply a future

application for permission to develop the land for that purpose and seems inconsistent with an

intention to affect a development already permitted. I would not accept that these provisions could

apply to a development on the land which is a permitted development unless they could have no

sensible application to developments which were not already permitted developments.

20                Before turning to that question it is necessary also to consider the provisions of Planning

Studies for Development Control Plan 2 which, as Mr Doyle correctly pointed out, although they

do not form part of the Planning Scheme,[23] are referred to in it[24] as part of the "conceptual basis of

the DCP for Port Douglas including the planning objectives for the area" and are therefore

documents to which regard may be had in construing the Development Control Plan. The

Development Control Plan Planning Study provides:[25]

"The existing approval on the land at the corner of Port Douglas Road and the Highway provides for the development of an information centre, tea rooms, shopping centre and speciality shops with an approximate floor area of 2,000m2. This is not large enough to provide for the required development under either growth scenario. Also, because of its location that approval would more appropriately serve tourists to a greater degree than residents. The potential floor space of that site has therefore been included as part of the potential tourist retail development (see Section 18.3 of the SPPS).

It is also intended to prevent the development of that site for purposes which primarily serve residents, eg a supermarket, general store or showroom, to avoid dislocation of the 'residential' retail floor space."

[23]Local Government (Planning and Environment) Act 1990 ss 2.1, 2.7.

[24]Par 3.1.4.1.

[25]Par 4.5.4.

21                Whilst these provisions may undoubtedly be used to assist in construing the Development

Control Plan, whether they can be used to assist in construing other parts of the Planning Scheme,

in particular zoning descriptions, depends on whether statements in the Development Control Plan

itself as to what is intended and what will not be permitted on land were intended to affect the
meaning of such zoning descriptions.

22                Paragraphs (a), (b) and (c) under the heading "Implementation" of Special Area 8 sensibly

apply to, and in my view are intended to apply only to future development of lot 193, that is future

applications for such development, not development already permitted by its zoning. Thus the

statement that a supermarket will not be permitted on the land means no more than that, if an

application were made to change the zoning, for example to increase the total floor area of the

shopping centre to permit a supermarket, such development would not be permitted. Similarly

paragraph (c) means that if an application were made to change the zoning to permit a gross floor

area of shops[26] of more than 2,000 square metres such a development would not be permitted.

These provisions can plainly be given a sensible application to developments other than a permitted

development. It follows that they should be construed so as to apply only to such developments.

[26]"Shop" is defined as "Any premises not elsewhere defined herein used or intended for use for the

23                Unlike his Honour I derive no assistance, in the construction of the 1996 Scheme, from the

provisions of the 1981 Scheme. It is true that, in the case of ambiguity in construing statutory

provisions some assistance may be gained by looking at provisions which those provisions replace.[27]

However, assuming ambiguity here in the meaning of "shopping centre" under the 1996 Scheme,

the provisions of the 1981 Scheme nevertheless do not, in my view, assist. The 1981 Scheme did

have a definition of "shopping centre" as "Any shop or group of shops having a minimum gross floor area of 650m2".[28] But the only consequence of that is that, as it is under the 1996 Scheme, without

any further assistance from the context of that Scheme, a shopping centre which included a

supermarket was permitted on the subject land zoned in the way in which it was then zoned.[29]

[27]Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 at 85 - 86; Pearce and

[28]Part 1 Definitions.

[29]Unlike the 1996 Scheme, the 1981 Scheme did not define either "shop" or "supermarket".

24                For the reasons already given I would allow the appeals and set aside each of the

declarations made. Each of the appellants and the third respondent should have their costs of the

appeals against the first respondent.

repealed on 30 March 1998 by the Integrated Planning Act 1997 but the Planning Scheme is a "former planning scheme" under the Integrated Planning Act (s 6.1.1) and continues to have force and effect (s 6.1.2(1)).

sale or displaying or offering goods for sale by retail"; and "supermarket" is defined as "Any premises with a gross floor area of greater than 120m2 which are used or intended for use for the sale by retail of goods, primarily groceries". The words "Any premises not elsewhere defined herein" makes the definitions of "shop" and "supermarket" mutually exclusive.

Geddes, Statutory Interpretation in Australia, 4th ed, par 3.18.