Manly Council v Malouf

Manly Council appealed to the Court of Appeal of New South Wales against a decision of Shaw J, which had determined that a licence granted by the Council to Mr Malouf for the use of an outdoor area adjacent to his retail premises was subject to the *Retail Leases Act 1994* (NSW). The dispute concerned whether the outdoor area, licensed under a specific deed, constituted part of the "retail shop" for the purposes of the *Retail Leases Act*, or if its use was governed solely by the provisions of s 125 of the *Roads Act 1993* (NSW).

The central legal issue before the Court of Appeal was to determine the proper interpretation of s 125 of the *Roads Act* and its relationship with the *Retail Leases Act*. Specifically, the court had to consider whether the grant of a licence under s 125 of the *Roads Act* for the use of a public road, for purposes ancillary to a retail business, could be considered a "retail shop lease" within the meaning of the *Retail Leases Act*. This involved an examination of the principle of statutory interpretation that general provisions do not derogate from specific provisions (*generalia specialibus non derogant*).

The Court of Appeal reasoned that s 125 of the *Roads Act* specifically empowered local councils to grant licences for the use of roads for purposes such as outdoor dining or display areas, and that such licences were distinct from leases of premises. The court held that the *Roads Act* was the more specific legislation governing the use of road space, and that the *Retail Leases Act*, being a general statute concerning retail tenancies, did not override the specific provisions of the *Roads Act* in this context. Therefore, the licence granted under s 125 of the *Roads Act* was not a "retail shop lease" for the purposes of the *Retail Leases Act*.

Consequently, the Court of Appeal allowed the appeal, set aside the orders made by Shaw J, and dismissed Mr Malouf's appeal to the Supreme Court from the Administrative Decisions Tribunal Appeal Panel. The court ordered that Mr Malouf pay the costs of the proceedings before the primary judge and the appeal, with a certificate for the appeal costs under the *Suitor's Fund Act 1951* if he qualified.