Spectator Investments Pty Ltd and City of Joondalup

[2006] WASAT 232

SPECTATOR INVESTMENTS PTY LTD and CITY OF JOONDALUP [2006] WASAT 232

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 232
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:523/2005	Heard:	1 MAY 2006
Coram:	MR P McNAB (MEMBER)	Delivered:	15/08/06
No of pages:	13	Judgment Part:	1 of 1
Result:	Application for review dismissed and decision under review affirmed.
Category:	B
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Parties:	SPECTATOR INVESTMENTS PTY LTD CITY OF JOONDALUP
Catchwords:	Town planning Development application Interpretation and construction of Town Planning Scheme Video shop Whether a "shop" as defined under Town Planning Scheme Whether shop met aims and intent of Business Zone Nature of shop considered Shop properly belonged in the Commercial Zone Resolution of apparent inconsistencies or conflict between stated general and specific aims of Scheme Orderly and proper planning Application for review dismissed Words and phrases: "nature of" "shop"
Legislation:	City of Joondalup District Planning Scheme No 2, cl 3.6.1, cl 3.6.3, cl 3.6.3(a), cl 3.6.3(e), cl 3.7.1, cl 4.5.1
Case References:	Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 Goodfellow v Federal Commissioner of Taxation (1976) 10 ALR 543 at 552 (reversed on other grounds: (1977) 13 ALR 203 (HC)) Hassen v Murray Bridge District Council (1984) 35 SASR 448(at 462-463) Meccariello v Development Assessment Commission [2002] SAERDC 97 Owen v Clare and Gilbert Valleys Council [2000] SAERDC 23 R v Busselton Shire Council, Ex parte Busselton Home Entertainment Pty Ltd (1993) 83 LGERA 188 (FC) Re: An Application for a Writ of Certiorari Against the City Of Bunbury Ex Parte: Willard Pty Ltd [BC9201321] Slocock v Shire of Hastings (1993) 11 AATR 214 Smart and Byrne v Barossa Council [1999] SAERDC 29 SPB (Australia) v Town of Claremont (2003) 35 SR (WA) 32 Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (No 2) Baker v Cumberland County Council (1956) 1 LGRA 321 Cascone v Whittlesea Shire Council (1993) 80 LGERA 367 City of Swan v Taylor [2005] WASCA 88 Enoka v Shire of Northampton (1996) 15 WAR 483 Hillgrove Pty Ltd v Town of Claremont (1996) 18 SR (WA) 376 Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 7 Marscon Pty Ltd v Holroyd City Council (2003) 123 LGERA 323 North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 Shire of Perth v O'Keefe (1964) 110 CLR 529 St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378
Orders	1. The application for review is dismissed.,2. The decision under review is affirmed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : SPECTATOR INVESTMENTS PTY LTD and CITY OF JOONDALUP [2006] WASAT 232 MEMBER : MR P McNAB (MEMBER) HEARD : 1 MAY 2006 DELIVERED : 15 AUGUST 2006 FILE NO/S : DR 523 of 2005 BETWEEN : SPECTATOR INVESTMENTS PTY LTD

Applicant

AND

CITY OF JOONDALUP
Respondent

Catchwords:

Town planning - Development application - Interpretation and construction of Town Planning Scheme - Video shop - Whether a "shop" as defined under Town Planning Scheme - Whether shop met aims and intent of Business Zone - Nature of shop considered - Shop properly belonged in the Commercial Zone - Resolution of apparent inconsistencies or conflict between stated general and specific aims of Scheme - Orderly and proper planning -Application for review dismissed - Words and phrases: "nature of" - "shop"

(Page 2)

Legislation:

City of Joondalup District Planning Scheme No 2, cl 3.6.1, cl 3.6.3, cl 3.6.3(a), cl 3.6.3(e), cl 3.7.1, cl 4.5.1

Result:

Application for review dismissed and decision under review affirmed.

Category: B

Representation:

Counsel:

Applicant : Mr P McQueen and Mr M Etherington
Respondent : Mr C Slarke

Solicitors:

Applicant : Lavan Legal
Respondent : McLeods

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

Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453
Goodfellow v Federal Commissioner of Taxation (1976) 10 ALR 543 at 552 (reversed on other grounds: (1977) 13 ALR 203 (HC))
Hassen v Murray Bridge District Council (1984) 35 SASR 448(at 462-463)
Meccariello v Development Assessment Commission [2002] SAERDC 97
Owen v Clare and Gilbert Valleys Council [2000] SAERDC 23
R v Busselton Shire Council, Ex parte Busselton Home Entertainment Pty Ltd (1993) 83 LGERA 188 (FC)
Re: An Application for a Writ of Certiorari Against the City Of Bunbury Ex Parte: Willard Pty Ltd [BC9201321]
Slocock v Shire of Hastings (1993) 11 AATR 214
Smart and Byrne v Barossa Council [1999] SAERDC 29
SPB (Australia) v Town of Claremont (2003) 35 SR (WA) 32
Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299

(Page 3)

Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (No 2)

Case(s) also cited:

Baker v Cumberland County Council (1956) 1 LGRA 321
Cascone v Whittlesea Shire Council (1993) 80 LGERA 367
City of Swan v Taylor [2005] WASCA 88
Enoka v Shire of Northampton (1996) 15 WAR 483
Hillgrove Pty Ltd v Town of Claremont (1996) 18 SR (WA) 376
Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 7
Marscon Pty Ltd v Holroyd City Council (2003) 123 LGERA 323
North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50
Shire of Perth v O'Keefe (1964) 110 CLR 529
St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378

(Page 4)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's Decision

1 These proceedings were a continuation from earlier proceedings in the Tribunal that had determined that a video store, assuming that it was a relevant "shop" under the City of Joondalup's Town Planning Scheme, could be considered for approval in a Business Zone, although it exceeded the maximum floor space specified in the Scheme.

2 The Tribunal here considered whether the video store was in fact a shop. The Tribunal, applying cases decided by the Supreme Court of Western Australia, determined that it was a shop, but decided that such a shop was not contemplated by the Business zoning (on its proper interpretation), but properly ought to be located on land within a Commercial Zone.

3 The Tribunal, amongst other things, discussed the interpretative approaches to resolving apparent inconsistencies between generally stated and more specific aims of a Town Planning Scheme.

4 The application for review was dismissed.

Introduction

5 These proceedings concern, in effect, part II of an application for a review of a decision of the City of Joondalup (respondent) to refuse development approval for the applicant's (Spectator's) proposed alterations and additions to an existing commercial building, and for the use of that building as a video shop (or "video library" as it was later described). The enlarged building would have a total area of 334 square metres.

6 Part I of the proceedings may be found in Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299 (referred to in these reasons as the earlier proceedings or earlier decision) where this Tribunal, constituted by a Senior Member (Mr Parry), considered whether the limitation otherwise permitting a "shop" (as the proposal was for the sake of argument apparently assumed to be) in the "Business Zone", namely the "[s]hopping floor space does not exceed 200 [square metres] NLA" (cl 3.6.3(a) of the relevant Town Planning Scheme, referred to in the earlier proceedings with different numbering as "cl 3.6.3(e)") was capable of variation under that Scheme.

(Page 5)

7 Spectator argued that cl 3.6.3(a) constituted "a standard or requirement prescribed under the Scheme" for the purposes of cl 4.5.1 of that Scheme, and not an absolute prohibition on a particular type of development. The respondent submitted that cl 3.6.3(a) did not constitute a standard amenable to variation under cl 4.5.1, as it did not merely regulate an aspect of permitted development.

8 Mr Parry accepted Spectator's contentions for the reasons that he there gave. No appeal was brought from that decision. Consequently, it remains for the Tribunal to consider the substantive issues, namely whether the development was in fact a shop, and, if so, whether that power to vary ought to be exercised here, and the development otherwise approved.

Planning Framework

9 As has been foreshadowed, the relevant background, planning instrument (that is, the City of Joondalup District Planning Scheme 2 – DPS 2) and particular zoning references may be found in the earlier proceedings, in particular at paragraphs [3] - [6]; [9] - [11] of the earlier reasons. In the circumstances it is unnecessary to reproduce those matters here; this decision should also be read with the earlier decision to the extent necessary.

10 As has been mentioned, the relevant land is zoned "Business". Nevertheless, the land is known as the "Currambine Convenience Centre" (part of Lot 1020 on Plan 22100, No 10 Chesapeake Way, Currambine) and it currently is comprised of a vacant fast food outlet (the subject of this review); a Chinese restaurant; a fish and chip shop; a swimming pool store (regarded by the respondent as a "Showroom"); ATM facilities; some office tenancy and various associated car-parking bays. These are found in three separate buildings.

11 The nearby shopping centre (the Currambine Market Place) is zoned "Commercial" in a surrounding sea of mainly Business and Residential zoning. The explanation appears to be, in part, that the earlier zoning of the subject land was pursuant to a previous Town Planning Scheme whereby the zoning was originally for "Mixed Business" (where shops were not permitted), subsequently amended for an additional use, including a "Take Away Food Outlet" for the subject land. No question of non-conforming use rights arises, and it is unnecessary to go further into this historical background.

(Page 6)

12 The expansion of the proposed "shop" is to takeover and enclose the drive way (drive through) of the former fast food outlet. To this extent there would be no actual expansion of the total area in fact occupied in respect of the former premises, although the drive way was apparently originally allocated for parking. The respondent appears to concede that no real amenity issues of substance are raised by the physical "expansion".

Is the proposed use a "Shop"?

13 A shop is defined in DPS 2 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 Through Food Outlet or a Restricted Premises".

14 Notwithstanding a rather sophisticated argument to the contrary, presented by Mr McQueen for the applicant (and partly based upon expert planning evidence), there can be no real doubt that, as a matter of law, a video store hiring and selling DVDs, games and video tapes, amongst other things, is a shop (and not a "Showroom" or a "Use Not Listed") within the meaning of DPS 2. Cf Re: An Application for a Writ of Certiorari Against the City Of Bunbury Ex Parte: Willard Pty Ltd [BC9201321] Supreme Court of Western Australia Full Court, Rowland, Nicholson and Walsh JJ, 20 February 1992, where their Honours quashed an approval given to a video store to operate in a zone where shops were prohibited. The City there, for whatever reason, had unlawfully classified the shop as a "Showroom/warehouse". See also, R v Busselton Shire Council, Ex parte Busselton Home Entertainment Pty Ltd(1993) 83 LGERA 188 (FC).

15 With all respect to both Mr Barnett and Mr Auret, town planning experts called by the applicant, their opinions on these matters, while informative, illuminating and well argued, must give way to the legal conclusion reached above, influenced as it is by decisions directly on point of the highest courts of this State.

The Business Zone

16 The intent of the Business Zone and its objectives are set out in cl 3.6.1 as follows (emphasis added):

"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

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category/theme based retail outlets that provide for the needs of the community but which due to their nature are generally not appropriate to or cannot be accommodated in a commercial area.

The objectives of the Business Zone are to:

(a) provide for retail and commercial businesses which require large areas such as bulky goods and category/theme based retail outlets as well as complementary business services;

(b) ensure that development within this zone creates an attractive façade to the street for the visual amenity of surrounding areas."

17 For completeness, some mention should be made of the "Commercial Zone". Its objectives under cl 3.7.1 are to:

"(a) make provision for existing retail and commercial areas that are not covered by an Agreed Structure Plan;

(b) provide for a wide range of uses within existing commercial areas, including retailing, entertainment, professional offices, business services and residential."

18 Unsurprisingly, "Shops" are prima facie permitted in the "Commercial Zone".

Issues arising

19 Putting aside, for the moment, the effect (if any) of cl 3.6.3, the primary questions therefore appear to the Tribunal to be whether the proposed shop is:

(1) a small scale complementary or incidental retailing use, that is complementary to "wholesaling, retail warehouses, showrooms and trade and professional services"; or

(2) a relevant retail or commercial business (that is, one contemplated by the provision) "which require[s] large areas such as bulky goods and category/theme based outlets".

20 As to (1), there is no evidence whatever to suggest that the proposed shop is relevantly complementary of or incidental to any wholesaling,
(Page 8)

retail warehouse, showroom or trade or professional service. The Tribunal does not understand it to be otherwise contended.

21 As to (2), in summary it was submitted that a large area was needed for display purposes; that a video store was a category or themed based outlet; that current commercial premises cannot practically accommodate this proposal; and that the needs of the community (defined in effect as the immediate locality) would not be met if the store were to be relocated further away.

22 One point of Mr Barnett's evidence should be mentioned here: namely, "that the average size of video libraries [that is video shops] is over 200 [square metres]". So too, for Mr Auret, but with more detailed research on his part.

23 In Meccariello v Development Assessment Commission [2002] SAERDC 97 at [44 mention was made of a written development control principle which referred to a "shop involving the sale of large goods which are of a size and shape as to require large areas for handling, storage or display or which require easy and direct vehicular access to enable their collection by customers after sale …". The Tribunal considers that the large area referred to here, however, could be read as referring to accommodating display size (and not just be read as limited to large goods and the space needed to accommodate them for a retail operation). The Tribunal also considers that a video store of the usual suburban type here contemplated could well be a "category or theme-based outlet".

"Due to its nature"

24 Where the Tribunal concludes that the applicant's argument falls down is on the requirement concerning the provision of a retail outlet in a Business Zone that provides for the needs of the community "but which due to [its]nature [is] generally not appropriate to or cannot be accommodated in a commercial area" (emphasis added).

25 Sheppard J in Goodfellow v Federal Commissioner of Taxation (1976) 10 ALR 543 at 552 (reversed on other grounds: (1977) 13 ALR 203 (HC)) suggested that "nature", means "the essential quality or fundamental character" of the thing being considered or compared. This accords with one of the Oxford English Dictionary meanings, as follows:

(Page 9)

"The inherent or essential quality or constitution of a thing; the inherent and inseparable combination of properties giving any object, event, quality, emotion, etc., its fundamental character. In later use also more generally: kind, type." (Oxford English Dictionary, draft revision, 2003).

26 In planning law it is reasonably common to find references contemplating these definitions. Thus, in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (No 2) (2002) 122 LGERA 288 at 294 there is mention of the Sutherland Shire's Local Environmental Plan's Development Control objective (d), which provided for: "Other uses that are compatible with the industrial areas but due to their nature are difficult to locate in other areas (emphasis added)".

27 Assuming (without deciding) that provision is made for the needs of the community, there is nothing in the inherent or essential quality of either a, or this particular, video store (even allowing for the floor area that might be needed) which means that it is not generally appropriate to be located in the Commercial Zone. Moreover, there is nothing in its nature that suggests that it cannot be accommodated in a Commercial Zone. Even if the word "nature" has a narrower meaning limited simply to kind or type (which the Tribunal doubts), the same result would seem to follow.

28 The Tribunal does not consider that any of the applicant's expert evidence relevantly rebuts or relevantly throws doubt on that central proposition.

29 It follows that the Tribunal does not accept the applicant's contentions which, with respect, tend to dismiss the key words which direct attention to the nature of the proposed retail operation itself and its incompatibility with or unsuitability in the particular zoned area. Thus, whether at a particular point of time or not there may be some practical problem with accommodating a particular video store in a Commercial Zone is nothing to do with the nature of the store (as defined), but rather something external to its nature.

30 Thus, on its face, the objective of the Business Zoning would not be met by granting planning approval for this shop to be located in the Business Zone.

(Page 10)

The "Shop" proviso: cl 3.6.3

31 Notwithstanding that this objective might not be met, DPS 2 appears, nevertheless, to permit some shops being established in the Business Zone, as cl 3.6.3 added in 2003 provides, so far as is relevant, as follows:

"A shop may be permitted in the Business Zone, subject to Council’s discretion … provided the following conditions have been met:

(a) Shopping floor space does not exceed 200 [square metres] NLA; …"

32 As has already been mentioned, both the respondent and on review this Tribunal, have power to vary the standard set out in cl 3.6.3(a) to accommodate the excess of NLA in the current proposal.

33 There are several difficult questions of interpretation that consequently arise.

34 The first is the extent to which the results of the application of the intent and objectives set out above, when applied independently of cl 3.6.3, should "control" or otherwise influence by limitation the interpretation or application of cl 3.6.3. Alternatively, does the use of the word shop "liberate" the apparent restrictions otherwise appearing in the clause? Related to these issues is whether "shop", in any event, should be considered to be limited or restricted to shops which are "small scale complementary and incidental retailing uses". For the present, we can assume that it does not.

Interpreting cl 3.6.3

35 The duty of the interpreter of statutes and legislative rules is to read the amended instrument in a coherent way as a combined statement of the will of the legislature: Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463. In Hassen v Murray Bridge District Council (1984) 35 SASR 448(at 462-463) Wells J said (emphasis added):

"The conflicts, ex facie, between principles of greater generality and those of less ought, in my judgment, to be resolved rather in this way. First, the more general principles ought to be applied, provisionally, to the proposed development, and to the circumstances immediately affecting it, and affected by it. The issues to be determined that would arise from that application, if

(Page 11)

the general principles stood alone, should then be formulated. The less general principles should then be reviewed, and if they or one or some of them provide a clear resolution of those issues or some of them, then those principles should be adopted for the purpose of that resolution. If an issue or some issues remain unresolved, the more general principles may then be brought into play … ."

36 Wells J's approach was followed in Owen v Clare and Gilbert Valleys Council[2000] SAERDC 23 the Court there saying (at [31]): "As we construe the comments which fell from His Honour … it was his view that the zone provisions should be given primacy. This is the approach we have taken".

37 Here, the provisional application of the general principles leads to a conclusion that a video store is not contemplated by the Business Zone's textual objectives and stated intent, quite apart from the more general issues raised by questions of orderly and proper planning. The application of the analogous "less general" principle is of course the reference to the possibility of admission to the zone as a "shop" under the specific amendment. Notwithstanding that the NLA may be varied, the application of the discretionary criteria, prima facie concerning a relatively small or average-sized shop, does not in the Tribunal's view provide sufficient clarity in resolving, in the applicant's favour, the following matters.

38 The first is that such a decision approving a video store would tend to undermine the reasonably clearly stated intent of the zone, as discussed above.

39 Secondly, and related to the first point, such a decision would also not be consistent with notions of orderly and proper planning. The learned authors of Planning & Environment Victoria (Butterworths Looseleaf Service) at [2.2.1] cite Slocock v Shire of Hastings (1993) 11 AATR 214 at 220 for the following proposition (emphasis added):

"In deciding whether or not a use is appropriate in a zone, the basis for the decision is embodied in the primary purpose of the zone. Uses which are regarded as clearly inconsistent with the zone are usually prohibited. However, discretionary uses may be appropriate in the zone having regard to such factors as the scale and intensity of the use, locational considerations etc.

(Page 12)

Discretionary uses can be uses ancillary to uses closely related to the primary purpose of the zone, such as a milk bar in a residential zone, or they can be uses which do not have a close relationship to such a primary use but which do not in a positive way compromise the primary purpose of the zone."

40 Here, on the view that the Tribunal has taken, it could not be said that establishing a video store in a "Business Zone" (which does not have a relevantly "close relationship") would not tend to "compromise the primary purpose of the zone". And, the fact that by accidents of history there are possibly some existing lawful uses of the land in either the same or a similar category elsewhere does not provide the applicant with any comfort, for as the Court observed in Smart and Byrne v Barossa Council [1999] SAERDC 29 at [9]:

"Trite as it may be to say so, 'two wrongs do not make a right', or to put it another way, the Court cannot use existing bad examples of development as justification for proposals which are contrary to a Plan's provisions."

41 Thus, Mr Slarke, for the respondent, drew attention to the exhortation, in effect, in SPB (Australia) v Town of Claremont (2003) 35 SR (WA) 32, at 64, on the need for decision makers and the Tribunal not "[to depart] too far from the relevant planning instruments".

42 It follows that even if the Tribunal were found to be wrong on questions of characterisation of use under this zone, any discretionary answer to the issue of whether this particular retail operation should be permitted in the Business Zone would nonetheless lead to the same negative conclusion arrived at because of concerns about compromising the underlying objectives of the zone. So too, generally speaking, about the size of the variation to NLA subsequently sought (greater than 50%), but that need not be further considered in the light of the conclusions already reached.

43 The various local and State policies and strategies referred to by Mr Barnett and to a lesser extent by Mr Auret, do not, with respect, shed much light on the intent of the various zonings or the questions under review. Again, the expert evidence, while interesting, does not cause the Tribunal to doubt that DPS 2, on its proper construction, intended a broad dichotomy as between the Business and Commercial Zones and that shops (such as the one that we are considering) were generally favoured for the Commercial Zone.

(Page 13)

Conclusions and Orders

44 Consequently, it follows that for the reasons the Tribunal has expressed above the application for review must be dismissed. The Tribunal makes the following orders:

1. The application for review is dismissed.

2. The decision under review is affirmed.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR P McNAB, MEMBER