Malouf t/a Fusion Point v Manly Council

[2004] NSWSC 24

CITATION:	Malouf t/a Fusion Point v Manly Council [2004] NSWSC 24
HEARING DATE(S):	04/02/04
JUDGMENT DATE:	6 February 2004
JURISDICTION:	Administrative Law List
JUDGMENT OF:	Shaw J at 1
DECISION:	1) Appeal granted;; 2) Decision of Administrative Decisions Tribunal Appeal Panel quashed; and; 3) Respondent to pay the appellants costs of the appeal.
CATCHWORDS:	appeal from Administrative Decisions Tribunal - meaning of 'premises' - Retail Leases Act 1994 (NSW) - Roads Act 1993 (NSW)
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 (NSW) Local Government Act 1993 (NSW) National Security (War Service Moratorium) Regulations and the Landlord and Tenant (Amendment) Act 1948 (NSW) Retail Leases Act 1994 (NSW), ss3, Roads Act 1993 (NSW), s125
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Bristol Waterworks Co v Uren (1885) 15 QBD 637; Conoid Pty Ltd v International Theme Park Pty Ltd [1999] NSWSC 1138; Malouf v Manly Council (No 2) [2002] NSWADT 2000; Manly Council v Malouf [2003] NSWADTAP 12; Mowena Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376; The Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126; Spilstead v Spilstead (1944) 44 SR 242; Turner v York Motors Ptys Ltd (1951) 85 CLR 55
PARTIES :	Michael Malouf t/a Fusion Point - Appellant/Plaintiff Manly Council - Respondent/Defendant
FILE NUMBER(S):	SC 30045/2003
COUNSEL:	G. Newport - Appellant/Plaintiff B. Coles QC with R. Bellamy - Respondent/Defendant
SOLICITORS:	Doyles Construction Lawyers - Appellant/Plaintiff Abbott Tout - Respondent/Defendant

LOWER COURTJURISDICTION:	Administrative Decisions Tribunal Apeal Panel
LOWER COURT FILE NUMBER(S):	015065
LOWER COURT JUDICIAL OFFICER :	Judge O'Connor, Ms M Hole, Ms B Weule

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Shaw J

6 February 2004

30045 of 2003



Michael Malouf t/a Fusion Point (Appellant/Plaintiff)

v

Manly Council
(Respondent/Defendant)

JUDGMENT

1 Shaw J: In this matter the plaintiff appeals from a decision of the Administrative Decisions Tribunal of the New South Wales Appeal Panel of that Tribunal delivered on 16 April 2003: Manly Council v Malouf [2003] NSWADTAP 12.

2 It is common ground that such an appeal can only be only on a question of law and that a question of law does arise in the context of this controversy: see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NWSLR 139 and The Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126.

3 The question which arises concerns a decision of Manly Council to grant the plaintiff a licence to occupy part of Rialto Plaza, in the Manly Corso area, in order to establish an outdoor eating area in conjunction with restaurant premises occupied by the plaintiff and described as “Fusion Point”. Those outdoor eating areas were located on part of an existing footpath and in an area described as Rialto Square, owned by the respondent.

4 It seems that the outdoor eating area, located on footpath areas, is covered by an existing and permanent awning attached to the building known as Fusion Point, and that there is a retractable awning located substantially over the eating area. It is that awning which is the subject of the current dispute and it is said by the defendant that that awning was erected without the approval required by the agreement between the parties and without prior consent pursuant to the Environmental Planning and Assessment Act 1979 (NSW).

5 The critical issue which confronted the tribunal at first instance, and which has been presented to this Court, is whether the outdoor eating areas can be relevantly described as a “retail shop” within the definition in the Retail Leases Act 1994 (NSW). If it is a “retail shop lease” in accordance with that Act, then remedies are available before the tribunal. The definition of “retail shop” is found in the Retail Leases Act 1994 within s 3 and that provision provides that a “retail shop“ means premises that:

a. are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 (whether or not in a retail shopping centre), or
b. are used for the carrying on of any business (whether or not a business specified in Schedule 1) in a retail shopping centre.”

6 If we are dealing with “premises”, then it seems to be clear that the provisions of the statute that I have cited combined with Schedule 1 of that Act, are ample to accommodate this particular area of activity and to allow the tribunal to grant appropriate remedies. I say that because Schedule 1 of the statute includes “restaurants, cafeterias, coffee lounges and other eating places”. It seems to me that the relevant area over which the awning was erected was an eating-place within the provisions of the statute.

7 Similarly, it is indisputable, and as I understand it common ground, that there was an agreement between Manly Council and Mr Malouf constituted and tendered by a deed made on 5 December 2000. That deed stated in preparatory paragraphs, in accordance with s 125 of the Roads Act 1993 (NSW) that the Council has agreed to grant the plaintiff a licence to occupy a specified part of the Corso at Manly. The deed goes on to detail as to the particular area of the Corso, which was designated as an outdoor eating area, to be occupied by the plaintiff. The deed provides a description of the business, involving table service within the restaurant or the consumption of food on the specified area and explicitly indicates that the licensee agrees to extend table service to the outdoor eating area. That deed was approved by the General Manager of Manly Council and also signed by Mr. Malouf. The deed also had annexed a diagram of the area the subject of the agreement. There was, clearly, an agreement between the parties with respect to this area involving 6 tables and 24 chairs, being the outdoors café section of an established restaurant.

8 The real question is whether, and having due regard to the decisions of the Administrative Decisions Tribunal in this respect, we are dealing with what the law would describe as “premises”.

9 This might seem to some degree a rather arcane consideration in what is a relatively commonsense area of discourse. In Sydney, over the last 2 decades, it is clear that there has been a development of dining “al fresco”. Meagher JA, in his forward to Sir Frederick Jordan’s chapters on equity, the sixth edition of which was published in 1947 and later compiled into a series of essays in 1983, refers to a well known observation of Sir Jordan’s concerning “al fresco activities”: Spilstead v Spilstead (1944) 44 SR 242 at 245. The former Chief Justice’s definition, however, may not be applicable to the facts in question here.

10 It is established law that when a court is determining the purpose of a lease, that court looks to the use reasonably contemplated by the parties when they entered into the lease, except when they have varied that intention. Furthermore, if the lease actually states the use, that is conclusive: Mowena Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376 at [49]. In that case the Court of Appeal was referring to the observations of Sir Own Dixon in Turner v York Motors Pty Ltd (1951) 85 CLR 55 at 75 when his Honour said that:

the word “premises” is no doubt a vague one but in legislation of this sort there are great advantages in a test of its application which is objective and consistent of readily ascertainable physical facts.

11 Having regard to the history of the provision and the dictionary meaning of the word “premises”, I think that we should adhere to the rule laid down that bare land, without buildings, if let for the purpose of occupation as bare land does not constitute “premises”. It is clear that the term “premises” is not a precise word. I am of the view that the observations of Dixon J have to been seen in the context of the National Security (War Service Moratorium) Regulations and the Landlord and Tenant (Amendment) Act 1948 (NSW). On their face, these words do not represent a conclusive or universal view of what are “premises” in all of the possible legislative meanings of that term. Black’s Law Dictionary (7th edition) indicates that “premises” means “a house or building, along with its ground…” It has been held that “premises” include a pleasure garden occupied with a dwelling house for the purpose of rating for water supply: Bristol Waterworks Co v Uren (1885) 15 QBD 637. In that case, the English court took, what seem to me to be a practical view that a dwelling house with appurtenances may be regarded as a single entity.

12 In this instance, I am of the view that it is artificial to hold that the outdoor area of this particular restaurant in Manly is not a “premises” for the relevant purposes.

13 Accordingly, I disagree with the decision of the tribunal as to the lack of its jurisdiction to deal with this matter. I acknowledge the carefully considered reasons of the tribunal delivered on 16 April 2003. The decision helpfully crystallizes the relevant question by referring to the acceptance between the parties that, as a result of the agreement between Mr Malouf and Manly Council, the Council did grant a right of occupation of paved land, owned by it for the purpose of using it, to conduct a business that falls within the list of shop uses to which the Retail Leases Act applies and that the critical question was whether, having regard to the definition of “retail shop lease” within that legislation, the land could be described as “premises” within the meaning of the statute.

14 This is the point at which I differ from the appeal panel and prefer the decision at first instance of the Administrative Decisions Tribunal. It is true that s 125 of the Roads Act 1993 provides an express provision giving approval to use a footway for restaurant purposes. The section empowers a council to “grant an approval that allows a person who conducts a restaurant adjacent to a footway of a public road … to use part of the footway for the purposes of the restaurant.” That legislation preceded the enactment of the Retail Leases Act 1994. However, it seems to me that it is unlikely that the Legislature intended that that provision meant that such a footway restaurant was not part of the premises for the purposes of a retail shop lease within the meaning of the 1994 statute. The Legislature could have excluded such areas from the broad definition of retail shop lease under the 1994 legislation but it did not do so. I do not perceive any repugnancy or difficultly in construing the broad and subsequent definition in the 1994 Act of “retail shop lease” as comprehending an outdoor area which is adjacent to an established restaurant or other eating facility. In my opinion the Retail Leases Division of the tribunal was correct in its primary decision: Malouf v Manly Council (No 2) [2002] NSWADT 2000.

15 But with great respect, I think the appellate level of that tribunal erred in holding that the relevant land was not or could not reasonably be described as “premises” within the meaning of the statute.

16 I note that Simos J adopted a broad view of what constituted “premises” in Conoid Pty Ltd v International Theme Park Pty Ltd [1999] NSWSC 1138: A kombi van was regarded as “premises” in that case. However, it is true to say that his Honour’s focus on the issue of what was a “shop” involved concepts of fixed structures, roof and walls being relevant criteria of what constituted a building or a room. His Honour did point to the relevance of a room with a roof and walls, in this context of determining whether or not the room constituted “premises”. And in finding that the business or area constituted a “shop”, his Honour did refer to “enclosed places.”

17 However, I regard that analysis as directed to the facts and circumstances of that particular case as distinct from a general ruling that “premises” must have a room and walls.

18 As the Appeal Panel rightly concluded, there is no uniformity of view as to what is covered by the term “premises”. As the tribunal acknowledged, there are decided cases in particular statutory contexts where ships, vessels, vans and even open land have been characterised as “premises”.

19 I appreciate the difficulties that the appellate tribunal was faced with, in that the relevant legislation does not define the word “premises”. It is true that dictionary definitions and case law often equate “premises” with a building or some form of built structure. And it is true also that the meaning of the term ”land” is broader than premises; land obviously includes open space.

20 This is beneficial legislation designed to provide rights to the citizens to agitate issues before the relevant tribunal. Although it also encompasses the possibility of penalties, it is my view that it should be given a broad construction by the courts.

21 In this context, the critical question is whether the outdoor eating areas can be described as a definable area which are part of “premises”. I think they can. The definition of “premises” in other statutes do not govern this particular case. However, I observe in passing that in the Local Government Act 1993 (NSW) the definition of premises includes land, whether land built on or not.

22 It seems to me that any ambiguity in the use of that term should be resolved in favour of giving the possibility of a remedy before a tribunal rather than to deny it, and accordingly I would uphold the submission that the tribunal does have appropriate jurisdiction to hear and determine on its merits the claim brought by Mr Malouf.

23 I would propose to order that:

1. the appeal to this Court be upheld;
2. the costs of the appeal should be paid by the respondent;
3. the orders made by the Administrative Decisions Tribunal Appeals Panel dismissing the claim of the appellant for want of jurisdiction should be quashed.

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Last Modified: 02/06/2004