Freedom Furniture Pty Limited v Parramatta City Council

[1988] NSWLEC 28

Land and Environment Court

of New South Wales

CITATION:

Freedom Furniture Pty Limited v. Parramatta City Council [1988] NSWLEC 28

PARTIES:

APPLICANT
Freedom Furniture Pty Limited

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10329 of 1987

CORAM:

Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning and Assessment Act, 1979

CASES CITED:

Dowling Enterprises Pty Ltd v. Quinn, 39L.G.R.A. 202, at 204. Permewan Wright Ltd v. Attorney-General (N.S.W.);
Franklins Stores Pty Ltd, (1977);
Wright v. Edwards [1961];
Pletts v. Beattie, [1896] ;
Titmus v. Littlewood, [1916];
Mizen v. Old Florida Ltd, (1934)

DATES OF HEARING:

DATE OF JUDGMENT:

10/28/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: CaflonePty Limited is the registered proprietor of premises known as 596-608Church Street, North Parramatta ("the subject property"), and authorised Freedom Furniture Pty Limited ("Freedom") to make a development application to the Parramatta City Council for development consent to use the subject property for the purpose of warehousing, assembly, distribution, display and sale of domestic furniture. At its meeting of 9thJune, 1987 Council resolved that the application be refused for the following reasons:|CF2.|PSI

"i) The proposed use is contrary to the site's Light Industrial Zoning and the provisions of the Parramatta Planning Scheme Ordinance.

ii) Approval of the application would not be in the public's interest."|CF1.|PSO

The applicant appeals to this Court pursuant to the provisions of s.97 of the Environmental Planning and Assessment Act, 1979 ("the E.P.&A.Act") against such refusal.

The subject property is located on the eastern side of Church Street, bounded by Bourke and Seville Streets, North Parramatta, and situate within a Light Industrial 4b Zone under the Parramatta Planning Scheme Ordinance, which is a deemed environmental planning instrument. Erected on the subject property is a building which has a frontage to the three streets. The southern section has a floor area of about 1,207m2 and a smaller northern portion has an area of 278m2. Such building was erected pursuant to development approval granted to the owner on 18thFebruary, 1986 to |CF2.|PSI"accommodate a warehouse and bank"|CF1.|PSO subject to conditions.

The smaller portion of the subject property is used for the purpose of a bank and Council, at its meeting of 24thNovember, 1986 refused an application to use the larger section for the purpose of a showroom/warehouse and storage of furniture for Nick Scali Furniture.

The subject property is being used by the applicant for the purposes described in the development application, without the prior approval of Council. Iam informed that the Council threatened legal proceedings concerning such use, and that led to this application being made for development approval.

MissL.M.Ingram, franchise manager of Freedom Furniture, described the function and use by the company of the subject property. She described it as a "store" used as a showroom/warehouse, including the assembly of stock. The premises are open seven days a week from 9.00a.m. to 5.30p.m. on Monday, Tuesday, Wednesday, Friday and Saturday, 9.00a.m. to 9.00p.m. on Thursday and 10.00a.m. to 5.30p.m. on Sunday. The principle of a "Freedom" showroom is the display of complete furniture "settings"; e.g. a bedroom setting would have not only bed and wardrobes, but side tables, lamps, etc. It is said that it is not possible to conduct the business from merely a catalogue, and that the basic concept is to display an item and allow the client to select particular material from "swatches" or the catalogue. No restriction is placed upon the type of customer and the premises are open to the public generally. Only about ten per cent of customers who attend the showroom in fact make a purchase at that attendance. The sale of l

arge or what are described as "bulky goods" from the premises is eighty per cent of product sales. Ancillary items comprise the twenty per cent balance, and include lamps, cushions, rugs and blinds. Sales are also made by telephone and mail. Prices are displayed on each item and also in a catalogue and, in some cases, a reduction is made for commercial (wholesale) sales.

MissIngram explained that the subject property is also used for the receipt and dispatch of furniture. The applicant has a central warehouse from which it delivers to showrooms such as the subject property. Furniture is received from that warehouse and also direct from manufacturers, and held at the subject property until distributed to the consumer. Other goods are received from manufacturers and some unpacking and setting up of furniture takes place.

The applicant claims that a large quantity of goods ordered by customers from the showroom requires assembly. Such goods are received at the premises, assembled if required, and dispatched to the consumer. The applicant contends that the use of the subject property is |CF2.|PSI"a store where goods are placed on display (viz showroom). It is not a 'shop' nor would that terminology apply as a general description of the premises".|CF1.|PSO

It is common ground that the use of the subject property in the subject zone for the purpose of warehouse or industry is permissible with the consent of Council, but that the use thereof for the purpose of a shop, other than those in Schedule4, or commercial premises, other than banks and timber yards, is absolutely prohibited. If the proposed use is a shop, it is not one specified in Schedule4.

The respondent submits that the proposed use is for the purpose of a "shop", and did not call any evidence as to its merits.

The applicant submits that the use of the subject property is not for the purpose of a shop, but for that of a warehouse and furniture showroom.

The Parramatta Planning Scheme Ordinance (cl.5) defines "shop", "commercial premises" and "warehouse" as follows:|CF2.|PSI

"Shop means a building or place used for the purpose of selling, exposing or offering for sale by retail goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause, a building or place used for a purpose elsewhere specifically defined in this clause or a roadside stall."

"Commercial premises means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause or for a roadside stall."

"Warehouse means a building or place used for the storage of goods, merchandise or materials pending their sale and distribution to persons engaged in the retail trade."|CF1.|PSO

There can be no doubt that the subject property is used for business and commercial purposes. The Shorter Oxford Dictionary defines these terms as:|CF2.|PSI

"Business" includes: "Trade, commercial transactions or engagements; a commercial enterprise as a going concern."

"Commercial" includes: "Engaged in commerce; trading; of or relating to commerce or trade."|CF1.|PSO

In my opinion, it is the clear intention of the draftsman of the planning instrument that, unless specifically defined elsewhere in cl.5 of the Planning Scheme Ordinance, buildings used for business or commercial purposes come within the purview of the definition of "commercial premises". They will be excluded from that definition if used as a "shop" or a "warehouse" as respectively defined.

Whilst the applicant concedes that the subject property is used for exposing or offering furniture and associated items for sale, and for some retail selling, it submits that with the exception of the said ancillary items, its operations do not amount to nor are they for sale by "retail". Freedom claims that the dominant use of the subject property is for the display of bulky items and the selection of goods for purchase, with only a subsidiary use for retail sales. It submits that in a "shop" the dominant purpose is to enable a purchaser to pay money and receive goods and take them from the premises. In most cases, goods selected for purchase at the subject property are subject to a separate delivery direct from either the warehouse or from the manufacturer. It is only small items, such as lamp shades, pillows, and the like, that can be forthwith taken from the subject property after purchase. Freedom therefore submits that its use does not come within the purview of "shop".

The respondent submits that the facts establish that the premises have a primary purpose to effect the sale of goods by retail. It submits that the undisputed evidence is that the public are entitled to enter the subject property and inspect and purchase goods which are exposed and offered for sale. It submits that all such activities are for sale by retail and that delivery at a later time, for a fee, is irrelevant.

The meaning to be attributed to "retail" may also be found from dictionaries. The Shorter Oxford English Dictionary defines "retail" as |CF2.|PSI"the sale of commodities in small quantities"|CF1.|PSO. The Macquarie Dictionary defines "retail" as |CF2.|PSI"the sale of commodities to household or ultimate consumers, usually in small quantities (opposed to 'wholesale')"|CF1.|PSO. In Jowitt's Dictionary of English Law, 2nd ed., "retail" is defined as |CF2.|PSI"to sell goods in small parcels and not in gross"|CF1.|PSO.

The use of the words "retail" and "wholesale" in relation to a shop or business is commonplace and some of the many cases in which they have been considered have been collected in Dowling Enterprises Pty Ltd v. Quinn, 39L.G.R.A. 202, at 204. LeeJ. referred to and followed the decision in Permewan Wright Ltd v. Attorney-General (N.S.W.) ex rel. Franklins Stores Pty Ltd, (1977) 36L.G.R.A.1, wherein the Court of Appeal approved the definition of 'wholesaler' as |CF2.|PSI"a business unit which buys and resells merchandise to retailers and other merchants and/or to industrial, institutional and commercial users, but does not sell any significant amounts to ultimate consumers"|CF1.|PSO.

LeeJ. said that the business of a wholesaler:|CF2.|PSI

"... of its nature, restricts its customers to a group which does not include that indeterminate group of ultimate consumers called the general public. The retailer throws his doors open to all who will come and spend. The fact that the former sells mostly in bulk and that the latter does not, is essentially dictated by the fact that the customers of each so require. An essential characteristic of retailing as opposed to wholesaling is that, in the former, a sale is made to a purchaser who is anyone who happens to enter the retailer's place of business."|CF1.|PSO

I respectfully agree with and adopt His Honour's explanation of the nature of the distinction between "wholesaler" and "retailer".

There are conflicting estimates as to the apportionment of floor space used for the various activities. However, the manner in which the subject property is physically used is not really in issue. Correspondence has passed between the Council and the applicant in this regard, and there has also been inspection of the subject property and the purchase of goods therefrom by officers from the Council. It is not necessary to set out details of such inspections or purchases, and it appears clear to me that almost the whole of the ground floor area is used for the exposing or offering for sale of furniture and associated items, and is open to the public generally during the said business hours. No attempt is made to identify the type of purchasers, and sales may be made to any member of the public, including clubs, industries and even those engaged in the retail trade. The limited amount of storage and assembly of goods for distribution to the consumer is, in my judgment, a minor and subsidiary use of the showroom.

The evidence does not establish to my satisfaction any real use of the subject property for storage of goods pending sale and distribution to persons engaged in the retail trade, and therefore is not a "warehouse" within the said definition.

The applicant relies for its submission that the proposed use is not as a "shop", upon the decision of Wright v. Edwards [1961] S.A.S.R.267, wherein Wright appealed against a conviction of |CF2.|PSI"retailing, compounding or dispensing of drugs on doctors' prescriptions"|CF1.|PSO.

Wright conducted premises selling cosmetics, baby food, patent medicines, stationery, jewellery and small gifts. She was not registered, and merely received prescriptions on behalf of the owner who was a registered pharmaceutical chemist. If they required compounding or dispensing it would be done by him at other premises and collected there by the customer or delivered to the home. The Magistrate was satisfied that she was "retailing", and held that the receipt of the prescription by Wright was the acceptance of a contract by the pharmacist to supply the drug prescribed. The Full Court disagreed for the reason that the receipt of the prescription by Wright was only an offer which the pharmacist was entitled to accept or reject. However, it was also said, at p.282, that:|CF2.|PSI

"Ithink that the natural meaning of 'retail' is 'sale of commodities in small quantities'. From time to time, a retailer may, no doubt, enter into executory contracts to sell, but, in the natural meaning of the word, I think that it imports 'sale and delivery'. I think that, in this enactment, where it is found in the collocation 'retail compound or dispense', it must take its colour from the context, and, when it becomes necessary to determine where a sale is made, I think that, in the natural sense of the English language, an article is sold where and when the property passes. (Pletts v. Beattie, [1896] 1Q.B. 519; Titmus v. Littlewood, [1916] 1K.B. 732; Mizen v. Old Florida Ltd, (1934) 50 T.L.R. 349.)

There is no doubt a sense in which an individual may be said to be carrying on his business, whenever he does any act in aid or furtherance of his trade, but, in this section, the prohibition is directed to carrying on the business of retailing &c. 'in the shop', or of managing the 'shop or business', as the case may be, and it seems to me that the receipt of prescriptions or orders may be incidental to the business of retailing, as the delivery of the article would be, but it is not, in my opinion, the transaction of retailing."|CF1.|PSO

In my opinion, whilst that decision applies the accepted dictionary meaning of "retail", it relates to a different statutory context and is of little assistance to the applicant in these proceedings. It ultimately turned upon the question of the authority of the person in the branch shop to bind an employer to supply what was described in the prescription, and whether in any way she promised or offered that he would do so.

In my judgment, there can be no doubt on the evidence that the subject property is used for the exposing or offering of goods for sale in small quantities to ultimate consumers who are members of the general public. In this matter not only is the legislation different from that considered in Wright's case, but there is no question of the authority of employees of Freedom Furniture to accept offers to buy and arrange delivery of the goods of the type on display. There is also no question of Freedom reserving the right to accept or reject the orders placed by customers, after acceptance by its employees at the subject property. In my judgment, in addition to such offering and exposing of goods for sale by retail, everything is done at the subject property to create the contract of "retailing".

In my opinion, the proposed development is for the purpose of selling, exposing and offering furniture for sale by retail, and the purpose for which development consent is sought in the subject application is that of a "shop", and is prohibited in the relevant zone.

The applicant, however, seeks to gain advantage of the circumstance that the lawfulness of sale direct to consumers in wholesale or warehouse premises has been a matter of controversy and consideration in New South Wales for many years. In fact, the need in some localities for large, spacious premises for the retailing of "bulky" goods such as the proposed use is recognised by the Department of Planning, and appropriate provision for such outlets has been made in some environmental planning instruments. The respondent Council has similar proposals under consideration, and Iam prepared to assume that many unlawful uses similar to this use have not been restrained by Council in its area. However, in the face of mandatory provisions of the environmental planning instrument prohibiting such uses in the subject zone, Ihave no discretion to rely upon such matters to enable me to grant approval to the proposed development.

The orders of the Court will be:

1. Appeal dismissed.

2. Development consent refused.

3. Exhibits may be released.

4. No order as to costs.