Gallway Investments Pty Ltd & Anor and City Of Rockingham - [2006] WASAT 212

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: GALLWAY INVESTMENTS PTY LTD & ANOR and CITY OF ROCKINGHAM [2006] WASAT 212

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 28 JULY 2006

FILE NO/S: DR 101 of 2006

BETWEEN: GALLWAY INVESTMENTS PTY LTD
TILLEY PROPERTIES (QLD) PTY LTD
Applicants
AND
CITY OF ROCKINGHAM
Respondent

Catchwords:

Town planning – Preliminary issue – Jurisdiction – Whether development application is capable of approval – Characterisation – Development application for consent to use of land for sale of office furniture, office equipment and office supplies – Whether office supplies fall within defined meaning of "showroom" under local planning scheme – Whether office supplies excluded as "magazines, … books or paper products"

Legislation:

City of Rockingham Town Planning Scheme No 2, cl 1.10.1, cl 3.2.1, cl 3.2.2, cl 3.2.3, cl 3.2.4, cl 6.8, Sch 1
Planning and Development Act 2005 (WA), s 214(2), s 252(1), s 255(1)
State Administrative Tribunal Act 2004 (WA), s 31(1)

Town Planning and Development Act 1928 (WA), s 8A(1), s 10AA, s 10(2)

Result:

Tribunal has jurisdiction to approve development application for consent to use of land for sale of office furniture and office equipment, but not office supplies

Category: B

Representation:

Counsel:

Applicants: Mr MJ Hardy
Respondent: Mr PD Quinlan

Solicitors:

Applicants: Hardy Bowen
Respondent: Watts & Woodhouse

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

Foodbarn Pty Ltd v SolicitorGeneral (1975) 32 LGRA 157
Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 7
Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79
Re Minister for Planning; ex parte City of Canning (1998) 101 LGERA 284

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

The parties raised preliminary issues in planning review proceedings concerning the refusal of a development application for consent to the storage, display and sales of office furniture, office equipment and office supplies.
The Tribunal determined that the development application is capable of approval, subject to a condition that the approval does not permit the storage, display or sales of office supplies. This use falls within the definition of "Shop" for the purposes of the local planning scheme, and is not, therefore, permitted. Furthermore, this use does not fall within the definition of "Showroom", for the purposes of the local planning scheme, which Use Class is permitted. However, the other parts of the development application fall within the definition of "Showroom" and are, therefore, capable of approval.
The Tribunal also determined that, as the proposed uses fall within at least one of the Use Classes mentioned in the Zoning Table, they are not capable of approval as a use not listed.

Preliminary issues

The City of Rockingham (City) and Gallway Investments Pty Ltd and Tilley Properties (Qld) Pty Ltd (applicants) have each raised a preliminary issue for determination in review proceedings which are pending before the Tribunal. The substantive proceedings involve an application brought by the applicants pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) (see now Planning and Development Act 2005 (WA) s 252(1) (PD Act)) for review of the decision of the City to refuse development approval for the use of tenancy 1A Lot 60 (Nos 3 – 9) Enterprise Way, Rockingham (site) for the storage, display and sales of office furniture, office equipment and office supplies (DA). The applicants seek approval of the DA in order to enable the operation of an Officeworks outlet. The site forms part of an existing commercial building which has on site loading facilities and car parking.
The DA was refused by the City for the following reason:
"The goods to be offered for sale by retail within the Tenancy include goods which are excluded from the Interpretation of 'Showroom' and that consequently, the use is a 'Shop' which is a use not permitted ('X') in the 'Service Commercial' zone under the provisions of the City of Rockingham Town Planning Scheme No. 2."
The City identified three preliminary issues which can be reformulated as the following issue:
1)Is the DA capable of approval under the City of Rockingham Town Planning Scheme No 2 (TPS 2 or Scheme), given that it includes the sale of office supplies and, in particular, "magazines, … books or paper products"?
The applicants identified a preliminary issue which can be reformulated as follows:
2)Is the DA capable of approval as a use not specifically mentioned in the Zoning Table and which cannot reasonably be determined as falling within the interpretation of one of the Use Classes under cl 3.2.4 of TPS 2?
The Tribunal will address the two preliminary issues in turn.

Is the DA capable of approval given that it includes the sale of office supplies and "magazines, … books or paper products"?

The site is zoned "Service Commercial" under TPS 2. Clause 3.2.1 of TPS 2 provides, in the conventional manner, as follows:
"Table No. 1 – Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme Area in the various zones. The permissibility of any uses is determined by cross reference between the list of Use Classes on the left hand side of the Zoning Table and the list of Zones at the top of the Zoning Table."
The cross-reference in the Zoning Table between the Use Class "Showroom" and the "Service Commercial" zone is designated by the symbol "P", whereas the cross-reference between the Use Class "Shop" and the "Service Commercial" zone is designated by the symbol "X".
Clause 3.2.2 of TPS 2 provides that the symbol "P" "means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme", and that the symbol "X" "means a use that is not permitted by the Scheme".
Clause 1.10.1 and Sch 1 of TPS 2 provide that the words "Shop" and "Showroom" used in the Scheme have the following meanings:
"Shop: means premises used to sell goods by retail, hire goods, or provide services of a personal nature (including a hairdresser or beauty therapist) but does not include a showroom or fast food outlet."
"Showroom: means premises, or part thereof, used or intended for use for the purpose of displaying or offering for sale by wholesale or retail, automotive parts and accessories, camping equipment, electrical light fittings, equestrian supplies, floor coverings, furnishings, furniture, household appliances, party supplies, swimming pools, hardware supplies or goods of a bulky nature but does not include the sale by retail of foodstuffs, liquor or beverages, items of clothing or apparel, magazines, newspapers, books or paper products, china, glassware or domestic hardware, or items of personal adornment."
The word "retail" is defined by clause 1.10.1 and Sch 1 of TPS 2 as follows:
"Retail: means the sale or hire of goods or services to the public."
As noted earlier, the DA includes the storage, display and sales of office supplies. Moreover, it is common ground that the DA includes the offering for sale of magazines, books and paper products.
The first issue turns on whether any of the three types of goods proposed to be sold from the site, namely office furniture, office equipment and office supplies, fall within one or more of the types of goods referred to in the first part of the definition of "Showroom" in TPS 2 and do not fall within one or more of the types of goods referred to in the second part of the definition.
The Tribunal finds that office supplies do not fall within any of the types of goods referred to in the first part of the definition of "Showroom". Furthermore, the Tribunal finds that office supplies include books and paper products, which are expressly excluded from the definition of "Showroom". As Mr PD Quinlan, counsel for the City submits, "'office supplies' would naturally include pens, ink, folders and other stationery [which] do not fall within the genus of products contemplated by a 'Showroom'".
Office supplies are goods which fall within the definition of "Shop" in TPS 2. It follows that, subject to the second preliminary issue, the part of the DA which involves the storage, display and sales of office supplies is not capable of approval under TPS 2.
However, the Tribunal finds that the part of the DA which involves the storage, display and sales of office furniture falls within the first part of the definition of "Showroom" as it involves the displaying or offering for sale by retail of furniture and does not involve the sale by retail of any of the types of goods referred to in the second part of the definition. The Tribunal also finds that the part of the DA which involves the storage, display and sales of office equipment falls within the first part of the definition of "Showroom" as it involves the displaying or offering for sale by retail of goods of a bulky nature and does not involve the sale by retail of any of the types of goods referred to in the second part of the definition.
Mr Quinlan submits that, "as in the case of Makro Warehouse Pty Ltd and City of Mandurah [[2005] WASAT 7], there is no contest … that the applicants' proposal involves offering for sale 'magazines, … book or paper products', products which expressly prevent the proposed use from being characterised as a 'showroom'".
Mr Quinlan submits that "where goods in the 'prohibited' categories are offered for sale, the use will be excluded from the classification 'showroom', whatever may be the scope of the applicants' other proposed commercial activities on the [site]". In support of this submission, Mr Quinlan relies in particular on the following paragraphs in Makro Warehouse Pty Ltd and City of Mandurah at [31]‑[33]:
"With respect to Mr Hardy, his argument appears to pay insufficient attention to the actual words of TPS 3 under consideration. In the Tribunal's view, the definition of 'showroom' and its presence in Table 6 of TPS 3 is tolerably clear: it was intended by the Respondent – and manifested with sufficient clarity – that showrooms which retail goods in any of the classes specified in the showroom definition were to be prevented from establishing themselves in the Industry zone.
The material before the Tribunal, which is not contested, shows that on the subject land goods are sold by retail in most of the prohibited categories, whatever may be the precise scope or characterisation of the Applicant's other commercial activities on the subject land. Questions of 'incidental' use, agitated by both parties, do not relevantly arise.
In particular, the Tribunal does not accept the argument made on behalf of the Applicant that there can be identified an approved use of the subject land which has a 'genus' to which these retail activities are merely incidental."
Although the definition of "Showroom" in TPS 2 includes additional types of goods to those included in the equivalent definition in the planning scheme considered in Makro Warehouse Pty Ltd and City of Mandurah, the two definitions are substantially similar in their pattern, namely a list of types of goods which are included followed by a list of types of goods which are excluded. The statement in the first paragraph of the extract from Makro Warehouse Pty Ltd and City of Mandurah set out at par [20] above is equally applicable in relation to TPS 2: subject to incidental use, "Showrooms" which retail goods in any of the classes specified in the second part of the definition are not capable of approval in the "Service Commercial" zone. In this case, the applicants do not contend that any of the three categories of goods in the DA is incidental to any other.
However, Makro Warehouse Pty Ltd and City of Mandurah is not authority for the proposition advanced by the City, that the inclusion in the DA of the proposed sale of goods which do not fall within the first part definition of "Showroom", or which are excluded by the second part, precludes the grant of development approval to the sale of other goods proposed in the DA, which are included within the definition of "Showroom" and which are not excluded from the definition.
In order to appreciate this point, three important differences between the facts and circumstances of Makro Warehouse Pty Ltd and City of Mandurah and the present case should be borne in mind.
First, unlike the present substantive application, which involves a review of the refusal to grant development approval, Makro Warehouse Pty Ltd and City of Mandurah involved an application for review under s 10AA of the TPD Act (see now PD Act s 255(1)) of a decision to give a direction under s 10(2) of the TPD Act (see now PD Act s 214(2)) to stop and not recommence the use of land undertaken in contravention of a planning scheme.
Second, unlike the DA which proposes the storage, display and sale of office furniture, office equipment and office supplies, the development approval which the Tribunal found Makro Warehouse Pty Ltd had contravened was for a "showroom development": see [12] and [17]. Moreover, the direction which the Tribunal affirmed required Makro Warehouse Pty Ltd to stop and not recommence the use of the land other than for the purpose of displaying or offering for wholesale or retail sale the six types of goods referred to in the relevant definition of "Showroom".
Third, unlike the present case, in which one part out of three parts of the DA involves the sale of goods of a type which do not fall within the first part of the definition of "Showroom" and which include goods which are excluded from the definition in the second part, the Tribunal found that Makro Warehouse Pty Ltd sold by retail "as a significant part of its operations" goods which fell within a number of categories expressly excluded from the definition of "Showroom": at [10]; see also [32].
In an often quoted statement of principle, Glass JA, with whom Samuels and Hutley JJA agreed, held in Foodbarn Pty Ltd v SolicitorGeneral (1975) 32 LGRA 157 at 161 as follows:
"Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged."
Thus, in Re Minister for Planning; ex parteCity of Canning (1998) 101 LGERA 284, Anderson J held at 295 as follows:
"When an application is made for multiple uses on the same land some of which are discretionary or permitted uses and some of which are not, there is no reason in principle not to give consideration to the application as it relates to each of the different uses. On a true analysis, the application in question is in this category. Although there was a single development application it was really an application for different and distinct uses on the one site. See BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110 at 114. In my opinion, this is how the application ought to have been treated once it was determined that a use of the land for the purposes of the pharmacy was a use which was not incidental to the dominant use. Consideration ought to have been given to the grant of approval for use and development as proposed but excluding the pharmacy." (See also Murray J at 290 – 291.)
Similarly, in this case, the DA is in substance for consent under TPS 2 for three uses on the site which are capable of operating independently, namely the storage, display and sales of:
(i)office furniture;
(ii)office equipment; and
(iii)office supplies.
Subject to the second preliminary issue, the first and second uses proposed in the DA are capable of approval, as they fall within the Use Class "Showroom" as defined in TPS 2. The third use proposed in the DA is not capable of approval as it does not fall within the Use Class "Showroom" as defined in TPS 2, but rather falls within the Use Class "Shop" as defined.
Moreover, cl 6.8 of TPS 2 provides as follows:
"Planning approval may be granted:-
(a)for the use or development for which the approval is sought;
(b)for that use or development, except for a specified part or aspect of that use or development; or
(c)for a specified part or aspect of that use or development."
The Scheme, therefore, expressly contemplates partial approval of a development application, even where it is of a specified part or aspect of a single land use for which approval is sought.
It follows that the DA is capable of approval, subject to a condition that the approval does not permit the storage, display and sales of office supplies.

Is the DA capable of approval as a use not mentioned?

Clause 3.2.4 of TPS 2 provides as follows:
"If the use of land for a particular purpose is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the Use Classes, the Council may:-
(a)determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted;
(b)determine that the proposed use may be consistent with the objectives and purposes of the particular zone and thereafter follow the advertising procedures in clause 6.3 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted."
Mr MJ Hardy, counsel for the applicants, submits that the Use Class "Convenience Store", which is defined in TPS 2 as premises used for the retail sale of convenience goods, "indicates that premises which are used for 'retail sale' do not of themselves necessarily fall within one or the other of the two definitions referred to by the [City, namely 'Shop' and 'Showroom']". Mr Hardy submits that "the contemplation by the Scheme of varying styles of operation for the sale of goods by retail means that it is the nature of the sale which will determine how categorisation is to occur", and that "the nature of the use and the provisions of the Scheme which contemplate a variety of forms or styles of operation as subsets of the generic term 'shop' contemplates a variety of uses which must be given particular consideration prior to categorisation".
However, as Mr Quinlan submits, leaving aside the permissibility of "Showrooms", the use of the site for the storage, display and sales of office furniture, office equipment and office supplies "is plainly a shop" as defined in TPS 2. As the proposed uses fall within the defined meaning of the Use Class "Shop", and as two of the proposed uses fall within the Use Class "Showroom", cl 3.2.4 has no application in this case.
Finally, the fact that a particular land use falls within two or more Use Classes under TPS 2 does not give rise to any difficulty in interpretation or application of the Scheme. Clause 3.2.3 provides that "[w]here a specific use is mentioned in the Zoning Table, it is deemed to be excluded from any other Use Class which by its more general terms might otherwise include such a particular use".

Conclusion

Although the DA was submitted to enable the operation of an Officeworks outlet, planning law "is concerned with the use of land – not with the identity of the user": per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. In substance, the DA seeks consent for three uses capable of operating independently, none of which is said to be incidental to any other, namely the storage, display and sales of:
(i)office furniture;
(ii)office equipment; and
(iii)office supplies,
on the site.

The first and second land uses proposed are capable of approval under TPS 2, as they each involve goods of the type referred to in the first part of the definition of "Showroom" and do not involve goods of the type referred to in the second part of the definition. The third proposed use is not capable of approval under TPS 2, as it involves the sale of goods by retail, within the definition of "Shop", does not involve goods of the type referred to in the first part of the definition of "Showroom", and involves, at least in part, the sale of magazines, books and paper products, which are excluded from the definition of "Showroom" by the second part of the definition.
However, the fact that only part of the DA is capable of approval under TPS 2 does not have the result that the whole of the DA is incapable of approval under the Scheme. Rather, the DA is capable of approval, subject to a condition that the approval does not permit to the storage, display or sales of office supplies.
It follows that the parts of the DA which involve office furniture and office equipment should proceed to a merits determination. However, the applicants may not wish to proceed with the DA in light of the Tribunal's determination. Furthermore, given that the City has not considered the merits of the DA in relation to office furniture and office equipment, in the event that the applicants decide to pursue the application, the City should be invited to reconsider its decision under s 31(1) of the State Administrative Tribunal Act 2004 (WA) so that it has an opportunity to consider the merits in place of or before a merit assessment by the Tribunal.

Orders

The Tribunal makes the following orders:
1.The preliminary issues identified at par [6] and par [7] of the Tribunal's reasons for decisions delivered on 28 July 2006 are answered as follows:
(i)Yes, but not in relation to the storage, display and sales of office supplies.
(ii) No.
2.The proceedings are adjourned to a directions hearing at 12.00 noon on 4 August 2006 to consider further conduct and inviting the respondent to reconsider the decision.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER