McMaster v Wagga Wagga City Council

[2009] NSWLEC 1237

Land and Environment Court

of New South Wales

CITATION:	McMaster v Wagga Wagga City Council [2009] NSWLEC 1237
PARTIES:	APPLICANT Alexander McMaster Trading as Bomen Agricultural Machinery RESPONDENT Wagga Wagga City Council
FILE NUMBER(S):	11090 of 2008
CORAM:	Moore SC
KEY ISSUES:	CONSTRUCTION AND INTERPRETATION - DEVELOPMENT APPLICATION :-
LEGISLATION CITED:	Wagga Wagga Rural Local Environmental Plan 1991 Environmental Planning and Assessment Model Provisions 1990 Road Transport (General) Act 2005
DATES OF HEARING:	13 May 2009
EX TEMPORE JUDGMENT DATE:	13 May 2009
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, barrister INSTRUCTED BY Commins Hendriks Solicitors RESPONDENT Mr S Simmington, solicitor Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

13 May 2009

11090 of 2008 Alexander McMaster Trading as Bomen Agricultural Machinery v Wagga Wagga City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: The applicant seeks development consent for the erection of a number of buildings at a site known as 3,934 Sturt Highway, Gumly Gumly.

2 Amongst the issues that arise between the parties is whether, on a proper characterisation of the business proposed to be conducted, the business is permitted or not within the zone where the site is located. That zoning is the Zone No. 1 (Rural) under the Wagga Wagga Rural Local Environmental Plan 1991.

3 The range of development permitted with development consent is wide and is only limited by a prohibition on the erection of residential flat buildings and shops other than small general stores. The question that therefore arises in these proceedings is whether the applicant’s business proposed to be conducted on the site can be characterised as not being a shop or whether it is characterised as a shop.

4 The Local Environmental Plan adopts a variety of definitions from the Environmental Planning and Assessment Model Provisions 1990 (the Model Provisions) that are relevant in the proceedings. It is the applicant’s contention that the operation that is proposed by the applicant falls within the definition of “motor showroom” being that a motor showroom means “a building or place used for the display or sale of motor vehicles, caravans or boats whether or not motor vehicle accessories, caravan accessories or boat accessories are sold or displayed therein or thereon” and if this is the appropriate characterisation of the business.

5 The council says that that is not the appropriate characterisation and that, because the proposal involves the selling of items of what, using the words advisedly, might constitute agricultural equipment, the proposal constitutes a "shop". It is common ground between the parties that this retail element of the proposal is not merely ancillary to the overall proposal but is the dominant or sufficiently dominant activity to warrant separate consideration as to the characterisation of the activity.

6 As a consequence of that, it is necessary for me to consider and determine what, if any, of the products proposed to be sold by the applicant constitute either a motor vehicle or a motor vehicle accessory whether displayed within the premises or on a vehicle itself.

7 In this regard, I have been given a variety of material that is of assistance in understanding how this should be approached. It includes photographs of material and equipment currently offered for sale by the applicant, material from the Macquarie Dictionary and helpful submissions by the advocates for the parties.

8 It is clear to me that the positions adopted by the parties are at what might be regarded as the ends of a spectrum of what might potentially constitute motor vehicles.

9 The more restrictive view adopted by the council is one which says, effectively, that motor vehicles constitute motor cars or motorcycles or something that is read as being very, very close to such a conveyance (being by inference something that is powered and conveys at least the operator of it).

10 The position that is adopted by the applicant is a more expansive one and, as Ms Duggan, counsel for the applicant, has said in paragraph 25 of her submissions, is effectively that conveyances propelled by motors or implements that are capable of being coupled to a conveyance that is capable of being driven on a road constitutes a motor vehicle for the purposes of a “motor vehicle showroom”.

11 There is limited utility in my view in any of the other definitions contained in the Model Provisions. I do, however, note that the definition of a “car repair station” deals with two terms and puts them in the disjunctive where it deals with the carrying out of repairs to “motor vehicles or agricultural machinery”. In my view that clearly contemplates that there are things that are motor vehicles and separate items that are agricultural machinery.

12 That, to my mind, however, does not say that there are not items which are capable of being defined as motor vehicles that are also capable of being used for agricultural purposes.

13 I deliberately used the expression “agricultural equipment” earlier because it would seem to me that agricultural equipment encompasses items that, even on the broadest description adopted by Ms Duggan, are incapable of being regarded as vehicles. An item that comes to mind is, for example, fine wool baling presses (which are in no sense mobile or able to be attached to a vehicle and taken on a public road).

14 So it would seem to me that there are, as a range, categories of equipment that are agricultural equipment that are not capable of being vehicles of any description and may not be agricultural machinery in the sense that it is contemplated by the Model Provisions.

15 Equally, it seems to me, that there are, as I indicated, items that are potentially motor vehicles that are used dominantly or exclusively for agricultural purposes. It is in that context that I turn to the definitions that have been provided to me, by Ms Duggan, from the Macquarie Dictionary – mindful, as I am, that one cannot be blindly bound by words in a dictionary as if they were binding words contained in a statute or statutory instrument.

16 The definition of “motor vehicle” is “a road vehicle driven by a motor usually an internal combustion engine such as a motor car, motorcycle or the like”. Ms Duggan invites me for reasons that she has advanced to interpret the final words of that definition “or the like” as being expansive. She took me to the definition of “motor”, the second element of which is “any self-powered vehicle”.

17 I am satisfied, in the context of taking a purposive approach (including a contemplation of the definition of “motor vehicle” contained in the Road Transport (General) Act 2005 (the Act) to which Ms Duggan has drawn my attention [being that a motor vehicle means “a vehicle that is built to be propelled by a motor that forms part of a vehicle”]) that, for example, a tractor in this context does constitute a motor vehicle for the purposes of the definition of a “motor showroom”.

18 As a consequence, I am satisfied that tractors and accessories for tractors that form part of the tractor if attached to them do constitute motor vehicles for the purposes of characterisation of a business which sells such tractors or accessories for them.

19 It is clear, however, that this range of products – even taking the most generous interpretation of the words “propelled by a motor that forms part of the vehicle” – does not adequately encompass the range of the other larger machinery that would otherwise be used for agricultural purposes and drawn around a property by a tractor.

20 It is in this context that Ms Duggan asks me to take a further element (being a definition of “a registrable vehicle”) within the Act to draw a conclusion that, continuing to take a purposive approach in these proceedings, I should include such additional equipment within the definition of what would constitute a motor vehicle. The definition of “registrable vehicle” means:

“(a) Any heavy vehicle or other motor vehicle; or
(b) Any trailer; or
(c) Any other vehicle prescribed by the regulations”;
that latter provision being, as I understand it, irrelevant in the present proceedings.

21 As a consequence of this further definition, Ms Duggan invites me to agree that any trailer or anything that is capable of being drawn behind something that I accept is a motor vehicle is capable of forming part of that vehicle.

22 The fallacy, in my view, is that, even assuming that most expansive view that one can take from the language of the Act, a trailer will become a vehicle, but a trailer does not necessarily become a motor vehicle. It only becomes a motor vehicle for the purposes of the Act if the trailer itself is “built to be propelled by a motor that forms part of the vehicle”.

23 In this instance, machinery may derive its motive power by way of a driveshaft from a tractor, but in my view it does not, merely by that, become propelled by that motor or form part of the tractor for the purposes of characterisation.

24 The consequence of that is that I am satisfied that tractors and all those items of equipment that are accessories to tractors or indeed what might be regarded as accessories to accessories to tractors (such as the teeth to be used to repair or be replaced on augers that form part of an accessory to a tractor) would constitute motor vehicles or accessories for them.

25 It is not necessary in my view that a tractor be registered for the definition of “motor vehicle” to encompass it, although I do note that a wide range of tractors are regularly registered for the purposes of driving on a public road. Registration is not a necessary element of that which I am saying could be encompassed by motor vehicles.

26 I am of the view, for example, that items such as quad bikes or small six wheeled all-terrain vehicles (that are not likely under some circumstances to be capable of registration) would nonetheless fall within the definition of “motor vehicle” for the purposes of considering what was a “motor showroom” in the terms of the Model Provisions.

27 As I understand that the conclusion that I have reached – on instructions that Ms Duggan has received – is insufficiently wide for her client to wish to have the application proceed on the remainder of its merits, I will accede to her invitation to me that, had I reached the conclusion that I have now reached, I should regard it as constructive dismissal of the application and thus dismiss the application.

28 The consequence is that the orders of the Court are:

1. The appeal is dismissed;
2. Development Application DA08/0368 for the erection of a variety of buildings and the sale, repair and service of agricultural machinery and products at Lot 2 DP 829057, being 3,934 Sturt Highway, Gumly Gumly, is determined by the refusal of development consent; and
3. The exhibits, other than exhibit A, are returned.

Tim Moore
Senior Commissioner