Joondalup Gate Pty Ltd and City Of Joondalup
[2008] WASAT 47
•29 FEBRUARY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JOONDALUP GATE PTY LTD and CITY OF JOONDALUP [2008] WASAT 47
MEMBER: MR P McNAB (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 29 FEBRUARY 2008
FILE NO/S: DR 323 of 2007
BETWEEN: JOONDALUP GATE PTY LTD
Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Town planning Development approval Preliminary question Comprehensive franchised pet supply operation proposed Proposal included sale of pet foodstuffs Proposed "showroom" use by applicant Bulky goods showroom contemplated by scheme Applicant on agreed facts otherwise meeting scheme requirements for showroom Discretionary decision yet to be made Whether prohibition on sale of "foodstuff" in scheme's definition of "showroom" breached by the sale of pet foodstuffs Equine supplies permitted under showroom definition Equine supplies contemplated sale of foodstuffs for horses Principles of interpretation Context of prohibition Tribunal determined that "foodstuff" prohibition did not apply Preliminary issue determined in applicant's favour Words and phrases: "showroom", "foodstuff", "equine supplies"
Legislation:
City of Joondalup District Planning Scheme No 2, cl 3.3, cl 3.6, Table 1, Sch 1
Interpretation Act 1984 (WA), s 18
Stock Diseases Act 1954 (NT), s 5(1)(c)
Stock Diseases Regulations 1956 (NT), reg 3(1)
Result:
The preliminary issue determined in the applicant's favour
Category: B
Representation:
Counsel:
Applicant: Mr M Hardy
Respondent: Mr P Quinlan
Solicitors:
Applicant: Hardy Bowen
Respondent: Woodhouse Legal
Case(s) referred to in decision(s):
Chubpak Australia Pty Ltd v Aristopet Pty Ltd [1999] ATMO 71
Crump and Ors v Equine Nutrition Systems Pty Limited Trading As Horsepower and Anor [2006] NSWSC 512
Czarniak v The Queen (1995) 118 FLR 36
Maroney v The Queen (2003) 216 CLR 31
Mills v Meeking (1990) 169 CLR 214
Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659
Radford v Hume City Council (2006) 150 LGERA 410
Re Northern Midlands Planning Scheme 1995 [2006] TASRPDComm 14
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This review dealt with the applicant's proposed franchise showroom in existing premises planned for Joondalup. The proposal involved the "PETstock" chain of "superstores".
The City of Joondalup had refused planning approval for the store on a number of grounds. The most significant of these grounds, which is the topic of this review, raised the issue of whether the selling of pet foodstuffs breached the prohibition on the sale of "foodstuff" contained within the town planning scheme's definition of "showroom".
If it did then, in effect, the proposed land use was not possible.
The parties, by their respective legal representatives, made comprehensive written submissions (on agreed key facts) on the question of whether pet foodstuffs were contemplated by the term "foodstuff". This question was treated as a preliminary issue or question.
The Tribunal decided, having regard to the context in which the prohibition appeared, that the clause was not intended to operate so as to prevent a pet supplies distributor (who also sells pet foodstuffs) from engaging in a land use which is otherwise properly characterised as a "showroom" under the town planning scheme.
Thus, the preliminary issue was decided in the applicant's favour.
Introduction: the preliminary issue
This matter is the determination of a preliminary question framed by the parties' arguments as follows:
Is the applicant's proposed use (namely, a franchised pet supplier, in effect, operating as a "superstore") a discretionary use within the City of Joondalup District Planning Scheme No 2 (DPS 2); that is to say, use as a "showroom"?
In particular, this question raises the issue of whether the proposed use is excluded from the definition of "showroom" in DPS 2 by reason of it including the sale of items which are alleged by the respondent City to be "prohibited" categories of sale. The prohibited item is the sale of certain "foodstuff", that is, pet foodstuffs.
If the answer to the preliminary question is answered against the applicant, then the applicant cannot, on the current facts, establish its proposed business as a "showroom" on the subject land.
The agreed facts
The parties have usefully agreed upon the essential facts (and the applicable planning controls) and have reduced these matters to writing. They are to be commended for that course, which is encouraged by the practice of the Tribunal.
That document, edited for the sake of consistency of style and clarity and in respect of some immaterial matters, provides the foundation for the issue to be decided in these terms:
1)The land the subject of this application is Tenancy 95 "Joondalup Gate", 93 Joondalup Drive, Edgewater (subject land).
2) The subject land is situated in the north‑western corner of the intersection of Joondalup Drive and Ocean Reef Road, Edgewater.
3)The subject land forms part of a substantial complex of buildings including various tenancies in a number of separate buildings. The tenancy (that is, the subject land) comprises a gross floor area of 813 square metres.
4)The subject land is zoned "Business" by DPS 2.
5)The objectives of the "Business Zone" are set out in cl 3.6 of DPS 2 as follows:
"3.6.1.The Business Zone is intended to accommodate wholesaling, retail warehouses, showrooms and trade and professional services, and small scale complementary and incidental retailing uses, as well as providing for retail and commercial businesses which require large areas such as bulky goods, and category/theme based retail outlets, that provide for the needs of the community but which due to their nature are generally not appropriate or cannot be accommodated in a commercial area."
6)Under the "Zoning Table" (Table 1 to DPS 2) the use class "showroom" is a permitted use in this particular Zone, and if the use proposed by the applicant is found to be within the use class "shop" it will be a prohibited use.
7)In Sch 1 to DPS 2, the term "shop" is defined to mean:
"Premises where goods are kept, exposed or offered for sale by retail or hire, but the term does not include a Showroom, Drive Thru Food Outlet or a Restricted Premises."
8)The term "showroom" is defined to mean (emphasis added):
"Premises providing large floor space used for the displaying of goods and which may involve the sale by wholesale or retail, or hire of such goods, being goods generally of a bulky nature and without limiting the generality of the foregoing including automotive parts and accessories, camping equipment, electrical light fittings, equestrian supplies, floor coverings, furnishings, furniture, household appliances, party supplies and second hand goods. The term does not include the sale of foodstuff, liquor or beverages, items of personal adornment, magazines, books, newspapers, paper products and medicinal or pharmaceutical products."
9)Unlisted uses are dealt with under DPS 2 by cl 3.3, which provides:
"If the use of the 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 categories the Council may:
(a)determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted; or
(b)determine that the proposed use may be consistent with the objectives and purpose of the zone and thereafter follow the procedures set down for an 'A' use in clause 6.6.3 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."
10)On 18 May 2007, the planners Peter Webb & Associates, in the name of the owner of the land, but on behalf of the franchise known as "PETstock", sought the approval of the City for a proposed change of use for the land.
11)The application for approval was completed by the owner of the land, the applicant.
12)The use to which the land is proposed to be put by the applicant is the display and sale by wholesale and retail of goods generally associated with the keeping of animals, including domestic pets. In addition to the display and sale by wholesale and retail of goods, it is intended to offer veterinary consulting and pet grooming services.
13)The uses "veterinary services" and "pet grooming" are considered by the respondent City to be minor in nature but are considered by the applicant to be part of its overall retail operation. The parties agree that these uses are not capable of identification as separate identifiable uses in these circumstances.
14)The range of goods intended to be offered includes bulky goods such as equestrian supplies and kennels, and includes foodstuffs (although only foodstuffs intended for animals, not humans and including bulky foodstuffs such as baled hay). The parties agree that the use proposed to be made of the land is for "bulky goods" for the purposes of DPS 2.
There are no planning controls which are relevant to the particular review which have not been referred to above in the agreed statement of facts. This is despite an original reliance by the respondent upon aspects of the City's Policy 3-3 Centres Strategy, which is referred to in the City's reasons for refusal of planning approval. (These are reproduced below.) That document may, however, become relevant if any discretionary decision is to be made in relation to the applicant's proposal.
Additional facts: What is "PETstock"?
It is worth recording that the website of the franchisor (PETstock) suggests the following services may be available from selected stores in the franchise: "Puppy Kinda [sic] school" (presumably a form of obedience training for dogs); pet tag engraving; pet washing; pet grooming; and a "PET Vet". A wide variety of animal companions is referred to, including animals in the following categories: equine; canine; feline; birds; fish; rabbits; guinea pigs and rats. (It is not suggested that such animals are to be stocked in store; nor is it suggested that the subject land will cater for all such services or interests, if planning approval were to be given.)
The website of the franchisor makes the following further claims (emphasis added):
"Founded in 2002 in Ballarat, Victoria, PETstock is the nation's leading retail supplier of products, services and solutions for the lifetime needs of pets. The company operates more than 50 superstores across Australia as a large pet and livestock supply business. PETstock leads the market in providing high-quality, affordable pet supplies.
At PETstock, our vision is to create a fun and exciting shopping experience, for our customers and their pets by offering a complete selection of pet-related products and pet services.
We understand that our customers are pet lovers, not just pet owners. They view their pets as members of the family and believe they deserve the same level of care and comfort. We invite our customers to shop at our stores with their pets. This makes purchasing the right product easier and a lot more fun!"
Consistent with this ebullient theme is the notion of the establishment of the "PET café" (subtitled: "doggy latte's [sic] and treats"). Whilst it is said that "[t]his concept is still in development" it is eventually intended that "this will allow customers and their pets to have a rest while in store to enjoy a latte or bowl of milk". No such proposal forms part of the current application. As the discussion below concerning "foodstuff" indicates, such a future use of the land may be problematic. It is, however, unnecessary to say any more about this topic as pet cafés appear to be something for the future.
None of this material from the franchisor is inconsistent with either the agreed facts or the basis of the applicant's case. It does, however, perhaps assist in giving a clearer picture of the scope of the use of the land under the operation of the proposed franchise.
Procedural history
On 29 August 2007, the respondent City notified the applicant of its refusal in respect of its application for planning approval of 5 June 2007, for the following reasons:
"(1)The proposed use is a shop, which is an X (not permitted) use in the Business Zone;
(2)The proposed development does not meet the conditions set out in Clause 3.6.3 of the City of Joondalup District Planning Scheme No.2;
(3)The proposed development is not in the interests of proper and orderly planning for the area, as it is contrary to the City's Policy 3-3 Centres Strategy, which provides a clear hierarchy for the provision of retail floor space throughout Joondalup and limits the floor space of shops in the Business Zone to 200 [square metres] [nett lettable area]."
The applicant sought a review of that decision in this Tribunal on 25 September 2007 upon the following grounds (emphasis added):
"(1)By an application dated 21 May 2007 the Applicant made application to the Respondent [City] for approval to change the use of the land the subject of this review ('the Land') from 'showroom' to an unlisted use pursuant to clause 3.3 of [DPS 2] ('the Scheme').
(2)The use proposed is as a 'Petstock' franchised outlet which effects sales of a range of products associated with pets and animals generally, including, amongst other things, veterinary supplies, animal foods, bulky goods, other products and the provision of a pet grooming service.
(3)The Land forms part of an existing commercial complex and the proposed use was to replace a prior showroom use selling camping products and outdoor equipment.
(4)The Land falls within the Business Zone designated by the Scheme.
(5)The proposed use is not appropriately categorised as either a 'Shop' or 'Showroom' as those terms are defined by the Scheme.
(6)The proposed use is consistent with the objectives of the business zone at clause 3.6.1 of the Scheme.
(7)The range of activities contemplated by the proposed use do not mean that this use will be inconsistent with the application of the Respondent's retail strategy [presumably a reference to the City's Policy 3-3 Centres Strategy referred to in the notice of refusal].
(8)Alternatively, the proposed use may be appropriately categorised as a Showroom for the purposes of the application of the Scheme.
(9)The decision of the Respondent to categorise the proposed use as a Shop is incorrect."
Applicant's case
Mr Hardy, counsel for the applicant, argues as follows.
The objectives of the "Business Zone" (reproduced above in the agreed facts) are satisfied by the proposal in that:
"(a)the sales intended to be effected are wholesale or retail warehouse style retail;
(b)the proposed outlet requires large areas for bulky goods; and
(c)the proposed outlet is a 'category/theme based retail outlet';
as each of those terms is used in [cl] 3.6.1 of DPS 2."
It is then asserted on behalf of the applicant that it is common ground "that in its material trading aspect, the proposed use to be made of the land [by the applicant] accords with the objectives for the zone". It is noted that in the "Business Zone", the use class "showroom" is a permitted use.
Consequently, Mr Hardy submits that the issue to be determined "is whether the proposed use is permissible" because of its "categorisation as a 'showroom' … being a permissible use in the zone" or, alternatively, that "the proposed use constitutes a use not listed which ought to be permitted, having regard to its congruity with the specified objectives for the zone in which it is situated".
On the "showroom" point, Mr Hardy argues that the "proposed use complies with the material elements of the term 'showroom' as defined … with one qualification, namely that the term is expressed to exclude the sale of (relevantly) foodstuff". He submitted that in that term's "ordinary sense", the term is defined to mean "substance used as food", with the correlative term "food" defined as a substance to be taken into the body to maintain life and growth (citing the Concise Oxford Dictionary). It was Mr Hardy's submission that the term "must be read down so as to apply only to foodstuff intended for human consumption".
He particularly drew attention to the collocation "the sale of foodstuff, liquor or beverages" which appears in the list of "proscribed" items. He argued that "[t]here is a reasonable assumption which can be made that the phrase 'liquor or beverages' is and can only be intended to mean liquids intended for human consumption". It followed that the use of "foodstuff" as "one of the three proscribed elements should be construed as limited to the class of which it forms part, in accordance with the ejusdem generis approach". That was, he submitted, "consistent [also] with the purposive approach to be adopted in relation to the interpretation of Statutes generally". He cited s 18 of the Interpretation Act 1984 (WA) and Mills v Meeking(1990) 169 CLR 214.
The underlying purpose or object identified by Mr Hardy was:
"… the exclusion from the relevant category of food for human consumption. By so doing, it renders it unnecessary for the Respondent to seek to distinguish between the various forms of wholesale or retail sale of food for human consumption (such as takeaway restaurants, licensed restaurants, supermarkets and the like). The multiplicity of uses applicable to the sale of human foods are inapplicable to the sale of animal foods."
The Tribunal means no disrespect to Mr Hardy for not summarising his detailed argument on the alternative limb of his case, namely on the question of a "use not listed", but in light of the firm conclusion reached by the Tribunal on the main argument dealing with "showroom" it is unnecessary to canvass that issue.
The respondent's case
Mr Quinlan, of counsel, in comprehensive written submissions argued as follows in support of the decision under review (internal numbering omitted, emphasis added):
"[1].The 'use' classes 'showroom' and 'shop' are mutually exclusive, inasmuch as 'Shop' is defined in such a way as to exclude a 'Showroom'. The breadth of the definition of 'shop' would otherwise have included those uses included within 'showroom'. Other than to exclude 'showroom', the definition of 'shop' is such that it will include any 'premises used to sell goods by retail' … It cannot be suggested that the proposed use is an unlisted use. The definition of 'shop' (other than the exclusion for 'showroom') applies to all retail sale[s] and is in no way dependent on questions of style, size or manner of presentation.
[2].Leaving aside the exclusion for showrooms, the use of the Land for the 'display and sale by wholesale and retail of goods generally associated with keeping animals, including domestic pets' is plainly a shop. There is no room for the application of clause 3.3 ([that is], unlisted uses). The only issue is whether the Applicant's proposal can be brought within the definition of 'showroom'. [He cited Gallway Investments Pty Ltd & Anor and City of Rockingham [2006] WASAT 212 at [36]-[37]. Mr Quinlan continued:]
[3].The definition of 'showroom' in Schedule No. 1 to the Scheme, is clear: it was intended by the Scheme that premises which retailed any of the goods specified in the 'showroom' definition after the words 'but does not include' are prevented from being established in the Business Zone.
[4].The Respondent accepts, insofar as the inclusive part of the definition of 'showroom' is concerned, that the proposed use involves the sale of goods 'being goods generally of a bulky nature'. The only issue, therefore, is whether the proposed use is excluded from the definition of 'showroom' by reason of it including the sale of items in the second sentence of the definition of 'showroom' (the 'prohibited' categories of sale).
[5].Where goods in the 'prohibited' categories are offered for sale, it is submitted that the use will be excluded from the classification 'showroom.
[6].[T]here is no real doubt … that the Applicant's proposal involves offering for sale a 'prohibited' category of goods, namely 'foodstuffs' [sic]; goods which expressly prevent the proposed use from being characterised as a 'showroom'. [Mr Quinlan then set out certain relevant passages from what he submitted was a 'comparable case', namely Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 7, at [31]-[33], passages which it is presently unnecessary to reproduce. Mr Quinlan continued:]
[7].Moreover, the proposed use by the Applicant does not include a number of separate uses capable of operating independently, some of which may be excluded so as to bring the proposed use within the definition of 'showroom'.
[8].In this regard the case may be distinguished from the decision of Gallway Investments. In that case the proposed use included the sale, independently, of (i) office furniture, (ii) office equipment, and (iii) office supplies. It was clear that the 'office supplies' fell within the prohibited categories of goods. [Mr Quinlan then set out certain relevant passages from Mr Parry's decision in that case, at [39]-[40]. Mr Quinlan continued:]
[9].It is not suggested by the Applicant that it seeks approval to conduct its use, subject to a condition that the approval does not permit the storage, sale or display of 'foodstuffs' [a reference back to Gallway Investments]. Indeed, the proportion of the use associated with food belies such a suggestion.
[10].The only issue which could relevantly arise in relation to the application of the exclusion of the sale of 'foodstuffs' [sic] from the definition of 'showroom' is whether the (agreed) fact that the foodstuffs are 'intended for animals' is capable of taking those foodstuffs out of the definition. That is, the only way in which the Applicant could avoid the conclusion that the exclusion applies, would be if 'foodstuffs' [sic] were read down to mean 'foodstuffs intended for human consumption'.
[11].In this regard, 'food' and 'foodstuff' are to be given their common and ordinary meaning. [He cited Czarniak v The Queen (1995) 118 FLR 36 per Ipp J (Malcolm CJ and Kennedy J agreeing) at 38-39, which includes the following passage:
'In the present case it was not suggested that "food" was used otherwise than in accordance with its ordinary meaning in the English language, and nor could it have been so suggested. That meaning was a matter for the jury to decide without evidence and without definition. Accordingly, at trial, the Crown was required to establish beyond reasonable doubt that each of the products was not a food within the ordinary meaning of that word.'
[12].[DPS 2] contains no definition of 'foodstuff'. According to the Shorter Oxford English Dictionary (5th Edition) the word 'foodstuff' means 'an item of food, a substance used as food'. Accordingly, the meaning of 'food' will be determinative.
[13]. Again, the Shorter Oxford English Dictionary, defines 'food' to mean:
'1substance(s) (to be) taken into the body to maintain life and growth, nourishment; provisions, victuals [b] one's livelihood [c] an article of food; a type of food [d] solid nourishment, as opposed to drink.'
[14]. Further meanings given are:
'4That which is fed or nurtured; a child, a creature, a person. S Nutriment absorbed by a plant from the earth or air.'
[15]. The dictionary meaning, it is submitted, compels the conclusion that foodstuff is an item of food and that food is a substance or nourishment and this will be so whether that which is being nourished or fed is a person, an animal or a plant.
[16]. Previous decisions on the meaning of 'food' in other statutory context [sic] are of little assistance, as they arise where the statutes are expressly limited to food 'for human consumption' or 'for use in humans' (see, [for example], Bristol-Myers Company Pty Ltd v Commissioner of Taxation (1990) 23 FCR 126; Czarniak v The Queen (1995) 118 FLR 36). Indeed, the fact that Parliament uses such words of limitation when it is intends to confine 'food' to humans, suggests that the unqualified use of "foodstuff' in [DPS 2] cannot be so limited.
[17].Nor is there anything in the context of the definition of 'showroom', or [DPS 2] generally, to suggest that 'foodstuff' should be restricted to food which is for consumption by humans rather than and not include food for consumption by animals including dogs, horses or pets.
[18].As noted above, the expression 'foodstuff' appears in the exclusionary sentence of the definition of 'showroom' which reads:
'The term does not include the sale of foodstuff, liquor or beverages, items of personal adornment, magazines, books, newspapers, paper products and medicinal or pharmaceutical products.'
[19].While some of the items in that list would normally only be associated with humans, ([that is], liquor, items or personal adornment, magazines, books and newspapers), others (including medicinal and pharmaceutical products), are also associated with animals or the care of animals. The list of excluded items, as a whole, does not reveal a genus which restricts the list to goods used of, or by, humans.
[20].Accordingly, it is submitted, that premises which sell items of food, whether those items are for consumption by humans or animals, cannot properly be regarded as a 'showroom'.
[21]. Accordingly, it is submitted, that the use is an 'X' or prohibited use in the relevant zone of [DPS 2]."
The parties' counsel have exchanged further responses to each others' arguments. So far as is relevant, Mr Quinlan makes the following additional submissions in direct reply to those of Mr Hardy:
"[22].The Applicant would appear to accept that the literal meaning of the word 'foodstuff' would include food intended for animals, inasmuch as the Applicant contends that the words must be 'read down' ([that is], given something other than their literal meaning) by reference to the 'purpose' of the definition.
[23].In this regard the Applicant submits that the underlying purpose [of the provision] is the 'exclusion from the relevant category of food for human consumption'. It is at this point that the Applicant's submissions, with respect, become circular and should be rejected. In particular it asserts the relevant purpose rather than deriving it from the statutory context. As submitted [by the respondent - see above] there is in fact no genus revealed by the list of excluded items, as a whole, which restricts the list to goods used for, or by, humans.
[24].It cannot therefore be demonstrated that the 'purpose' of the exclusion relates to goods used for, or by, humans. The disparate list of goods in the exclusion is such that the only safe approach to construction is the literal one; see Avel Pty Ltd v Attorney General (NSW) (1987) 11 NSWLR 126 per Kirby P at 127 'A "purposive" approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes'."
As the agreed facts and the exchanges set out above indicate, the case, as it presently is, essentially turns upon the scope of the exclusion of "foodstuff" in the DPS 2 definition of "showroom". Thus, if the applicant's argument is correct and the exclusion only applies to foodstuffs intended for human consumption, then the applicant has a land use which otherwise (upon the agreed facts) falls within the definition of "showroom".
Scope of "foodstuff"
In the Tribunal's view, as the dictionary definitions cited by both parties indicate, "foodstuffs" are primarily, but not exclusively, directed towards food for consumption by humans but can include food for consumption by other (that is, non-human) animals.
Thus, to take an example, under s 5(1)(c) of the Stock Diseases Act 1954 (NT), reference is made to "fat, milk, whey, cream, butter, cheese, eggs or other food or foodstuffs derived from stock"; the Stock Diseases Regulations 1956 (NT) thereunder (see reg 3(1)) define "foodstuff" to mean "foodstuff intended to be fed to stock". So, a 1999 trademark case dealing with pet food companies, Chubpak Australia Pty Ltd v Aristopet Pty Ltd[1999] ATMO 71, noted that certain registrations "cover[ed] pet foods and foodstuffs for animals in [the relevant] class".
In the law, it has often been said that "context is everything". In Maroney v The Queen (2003) 216 CLR 31 at 51, Kirby J wrote that (footnotes omitted, emphasis added):
"[63]Ultimately, context is all: However that may be, different judicial approaches to statutory construction appear to be influenced by differing attitudes to the perception of context. As Lord Steyn said in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at 548 [28]: 'In law context is everything.' Where the lens of interpretation is narrowed to particular words, so as to derive meaning from those words, the result will often be different from that which follows where the lens is broadened and the words are seen in a wider field of perception. Generally speaking, the trend of courts in recent times has been away from purely textual interpretation, towards contextual or purposive interpretation. Each of these approaches, at different stages of legal history, has enjoyed judicial favour.
[64]With respect to those of a differing view, I favour the contextual approach. I do so because I regard it as the way that the human mind normally unravels problems expressed in language. In statutory interpretation (which is in issue in this appeal) this approach can invoke additional support. It is an approach more likely to achieve the overall legislative and social purposes of the lawmaker than one that confines the judicial interpreter to words and text. Moreover, it is one more likely to lead to clearer and simpler laws - generally a desirable objective for judicial activity."
See also the discussion in Pearce DC and Geddes RS, Statutory Interpretation in Australia (2006, 6th ed) LexisNexis at 132-134.
What is the context here?
First, the definition itself permits or contemplates the sale of "equestrian supplies" in a "showroom". Such supplies would ordinarily extend to foodstuffs for such animals (Cf Crump and Ors v Equine Nutrition Systems Pty Limited Trading As Horsepower and Anor [2006] NSWSC 512 at [111]: "Colleen Boyce, the plaintiffs' friend, worked at a produce store that sold equestrian supplies and BC and Mrs Boyce on occasions purchased feed …").
Thus, the commonly understood meaning of "equestrian supplies" suggests that "foodstuff", appearing later in the clause, must be confined solely to foodstuffs intended for human consumption.
Secondly, the phrase here, in full, is as follows:
"The term ['showroom'] does not include the sale of foodstuff, liquor or beverages, items of personal adornment, magazines, books, newspapers, paper products and medicinal or pharmaceutical products."
Such a collocation immediately suggests, read in an ordinary and natural way, items intended for human or household use and consumption. Such an interpretation is consistent with the view taken that "[w]ords take their colour from the context in which they are used.": see, Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 at 669.
In general, the planning context here is the need to prevent supermarket and similar retail operations from burgeoning in zones that cater for business and commercial uses, and not run of the mill retailing operations and shops.
The consequential prohibition on the sale of foodstuffs in showrooms and analogous centres is, of course, not limited to Western Australia town planning schemes. Thus, in Re Northern Midlands Planning Scheme 1995 [2006] TASRPDComm 14, for example, the Tasmanian planning authority there dealt with a planning scheme amendment in these terms (emphasis added):
"For the purposes of this clause, Homemaker/Bulky Goods Centre means any land used for the sale or hire of merchandise of a kind used predominantly in the building, renovation, fitting out landscaping and use of homes and gardens. 'Merchandise' includes, but is not limited to, furnishings, furniture, hardware, whitegoods, homewares, household appliances, landscape and gardening supplies, building supplies, automotive parts and accessories, camping equipment, computer equipment, electrical supplies, entertaining equipment, equestrian supplies, office supplies, protective clothing, party supplies, sporting goods, swimming pools and travel goods. 'Merchandise' does not include the sale of fresh or packaged foods, general purpose or fashion clothing, pharmaceuticals or chemist supplies, or similar day to day consumables. This use includes activities of an ancillary nature including provision for meals or refreshments for staff and visitors of the Homemaker/ Bulky Goods Centre."
The drafter's use of the expression "or similar day to day consumables" similarly indicates consumables for human use.
Finally, in Radford v Hume City Council (2006) 150 LGERA 410 the Victorian Civil and Administrative Tribunal (Deputy President Gibson) dealt with a proposed use described as "pet supplies distribution". The proposed use was to be:
"a retail and wholesale outlet for bulky goods including equestrian supplies, kennels and pet bedding, aquariums and associated supplies, bulk pet foods (primarily equine, dog, cat and bird etc) and pet health products. It [was] also proposed that there [would] be a small component of manufacturing sales (dog kennels) and pet grooming."
Although the definitions and planning controls in that case were different from those employed here, the Tribunal found that the proposed use was better characterised as "retail premises" as opposed to a "shop" (the latter being a prohibited activity).
The Tribunal also said, at 411:
"[2]I have taken the view that when characterising uses that may fall within two or more definitions it is necessary to have regard to the structure, context and purpose of the planning scheme provisions at the time of interpreting the land use terms. It is also necessary to have regard to the 'big picture' to ensure that the purposes of planning and the objectives that the planning scheme seeks to achieve are not frustrated by unduly restrictive interpretations of land use terms."
Conclusion and orders
Notwithstanding Mr Quinlan's considerable efforts to the contrary, the Tribunal is of the view that Mr Hardy's contentions ought to be accepted. Read in context, the prohibition is not intended to operate so as to prevent a pet supplies distributor (who also sells pet foodstuffs) from engaging in a land use which is otherwise properly characterised as a "showroom" under DPS 2.
The preliminary issue will therefore be determined in the applicant's favour.
For the reasons given above, the orders of the Tribunal are:
1.The preliminary issue is determined by the Tribunal in favour of the applicant.
2.The matter is to be listed before the Tribunal, as presently constituted, within 21 days of the date of this order for directions as to the final disposition of the matter.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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