Van Der Feltz v City of Stirling

[2009] WASC 142

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   VAN DER FELTZ -v- CITY OF STIRLING [2009] WASC 142

CORAM:   MURPHY J

HEARD:   13 MAY 2009

DELIVERED          :   22 MAY 2009

FILE NO/S:   GDA 1 of 2009

BETWEEN:   RIC VAN DER FELTZ

GARY BRIDLE
Applicants

AND

CITY OF STIRLING
Respondent

ON APPEAL FROM:

Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram  :MR D R PARRY (SENIOR MEMBER)

Citation  :BRIDLE and CITY OF STIRLING [2009] WASAT 62

File No  :DR 467 of 2008

Catchwords:

Leave to appeal - Town planning - Drive through take­away coffee outlet - Land use classification - Construction of planning instrument - Whether 'use not listed' - Use of expert evidence for purposes of construction

Words and phrases - 'Food'

Legislation:

City of Stirling District Planning Scheme No 2 1985

Result:

Leave to appeal granted
Appeal allowed
Matter remitted to the State Administrative Tribunal

Category:    B

Representation:

Counsel:

Applicants:     No appearance

Respondent:     Ms E M Stevenson

Solicitors:

Applicants:     In person

Respondent:     McLeods

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

Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353

BHP Billiton Iron Ore Pty Ltd v The National Competition Council [2006] FCA 1764

BP Australia Ltd v City of Nedlands [1984] WAPAT 1; (Unreported, Town Planning Appeal Tribunal, No 34 of 1982)

Bridle and City of Stirling [2009] WASAT 62

Bristol‑Myers Company Pty Ltd v Commissioner of Taxation (1990) 23 FCR 126

Central Northern Adelaide Health Service v Atkinson (2008) 252 ALR 168

Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249

Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Commissioner of Taxation v Comber (1986) 10 FCR 88

Czarniak v The Queen (1995) 118 FLR 36

Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594

Falconer v Pedersen [1974] VR 185

Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1980) 33 ALR 251

General Accident Fire and Life Assurance Corporation Ltd v Commissioner of Pay‑Roll Tax [1982] 2 NSWLR 52

Hope v Bathurst City Council (1980) 144 CLR 1

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309

Mackaness & Avery Pty Ltd, Ex parte; Re Royce (1943) 43 SR (NSW) 239

Markell v Wollaston (1906) 4 CLR 141

Maroney v The Queen (2003) 216 CLR 31

Maunsell v Olins [1975] AC 373

Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361

Pepsi Seven‑Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532

R v Registrar of Titles; Ex parte John Wolbers Constructions Pty Ltd [1973] VR 723

R v West Torrens City Corporation; Ex parte Kentucky Fried Chicken Pty Ltd [1969] SASR 545

Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511

Saraswati v The Queen (1991) 172 CLR 1

Sofi v Wollondilly Shire Council (1975) 2 NSWLR 614

Tedig Pty Ltd and City of Wanneroo [2007] WASAT 197

The Wik Peoples v The State of Queensland (1996) 187 CLR 1

MURPHY J: 

Introduction

1. This is an application for leave to appeal against a decision of the State Administrative Tribunal (the Tribunal) made 8 April 2009. Under s 105(2) of the State Administrative Tribunal Act 2004 (WA), any appeal can only be brought on a question of law.

2. The Tribunal delivered reasons for its decision on 8 April 2009 (Bridle and City of Stirling [2009] WASAT 62).

3. The decision in respect of which leave to appeal is sought concerns the proper construction of a planning instrument, in relation to the use of certain land at 3 (Lot 118) Guthrie Street, Osborne Park (the site).  The Tribunal made, in effect, the following findings in relation to the background facts ([5] ‑ [12] of its reasons).

4. Since February 2007 Mr Gary Bridle, the second‑named applicant, has operated, from a former service station located on part of the land, a business whereby customers may drive through to purchase coffee.  The site has at all material times been zoned 'Service Station' under the City of Stirling District Planning Scheme No 2 1985 as amended (the Planning Scheme).  Mr Bridle did not seek or obtain development approval under the Planning Scheme for use of the site. 

5. In July 2007 the City of Stirling (the City) considered and approved a development application for a landscape supply yard in the northern half of Lot 118.  The reporting officer noted, in a report to the City, that:

   The corner section of the site (zoned 'Service Station'), currently contains an automotive service centre, which has been in operation for many years. A drive‑through coffee shop is also located on-site. It is understood that the drive-through facility has been operating for a short period of time. However, a check of the City's records revealed that no approval has been granted. It should be noted that a coffee shop would not be permitted in a 'Service Station' zoned site, and therefore would have to be removed. This matter has been referred to the City's Compliance Unit for action [8].

6. On 14 February 2008 the City wrote to Mr Matthaus and the first‑named applicant (Mr van der Feltz), the head tenants under the lease of the land, advising them that the use of the site for a take‑away coffee business was not permitted under the Planning Scheme. 

7. On 10 April 2008, Mr Bridle applied to the City for development approval to use the site as a drive through take-away coffee outlet. 

8. On 14 November 2008 the City refused to grant development approval on the ground that the proposed development was a 'Drive Through Fast Food Outlet' which was not a permitted use in the 'Service Station' zone of the Planning Scheme.

9. On 4 December 2008 the applicants sought a review of the City's decision under s 252(1) of the Planning and Development Act 2005 (WA).

10. The Tribunal dismissed the application for review, following the determination of a preliminary issue, referred to below.  The applicants seek leave to appeal that decision. 

11. I interpolate here that under s 252(1) of the Planning and DevelopmentAct, a person may only apply to the Tribunal for review of a responsible authority's decision if, relevantly, the decision concerned the grant of any consent, permission, approval or authorisation which was 'in the discretion of' the responsible authority.

12. At the hearing on 2 April 2009, pursuant to which the Tribunal made its decision the subject of this application, neither party had legal representation.  The hearing on 2 April was in relation to an issue which, by a previous order, the Tribunal had directed should be determined as a preliminary issue.

The Tribunal's decision

1. The preliminary issue heard and determined by the Tribunal the subject of this application was whether, on the proper construction of the Planning Scheme, the proposed development was capable of approval in the exercise of the City's discretion.  In this regard, the Tribunal said:

   A preliminary issue has been identified for determination as to whether the proposed use is capable of approval under the Scheme.

   The City contended that the proposed use is properly classified as 'drive through fast food outlet' under the Scheme.  This use class is prohibited in the Service Station zone under [the Planning Scheme].  The term 'drive through fast food outlet' is defined in cl 1.1.11.2 of [the Planning Scheme] to mean:

   'a fast food outlet which includes the sale and serving of food direct to persons driving or seated in motor vehicles.  The term may or may not include the preparation of food for sale and consumption within the building, or portion thereof.'

   The term 'fast food outlet' is defined in cl 1.1.11.2 of [the Planning Scheme] to mean:

   'premises used for the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation, primarily off the premises.'

   In contrast, Mr Bridle and Mr van der Feltz contended that the proposed use is a use that is 'not listed' under the Scheme and is, therefore, capable of approval under cl 1.3.2.5 of [the Planning Scheme] [13] ‑ [16].

2. In the Tribunal, evidence was given on behalf of the applicants for review that take‑away coffee constituted 72% ‑ 75% of the turnover of the business, that the sale of soft drinks constituted 5%, and that the remaining 20% of turnover was due to the sale of biscuits, muffins, pies and sausage rolls.  The Tribunal accepted that evidence and found (at [20]) that the dominant land use in the proposed development was for the sale of coffee, and that the sale of food was not an independent dominant use of the land, but rather was ancillary or incidental to the sale of take‑away coffee.

3. In considering the preliminary issue, the Tribunal noted the submission by the applicants that 'food' is defined in The Macquarie Dictionary (4th ed, 2005) as:

   1. what is eaten, or taken into the body, for nourishment. 2. more or less solid nourishment (as opposed to drink).

4. The Tribunal said, however:

   The context in which the terms 'fast food' and 'food' appear in this case is a town planning context. In particular, these terms are found in the definition of a land use class used in the zoning table for the purpose of regulating development in the Scheme area [23].

5. The Tribunal also referred to the judgment of Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 [28], and the observations of Kirby J in Maroney v The Queen (2003) 216 CLR 31 [63] ‑ [64], in relation to the importance of context in statutory interpretation.

6. The Tribunal also referred to town planning evidence given by a town planner of the City in relation to the kinds of town planning considerations which would be relevant to any drive through business, whether it was one selling coffee or one selling other items that might be thought to accord more with an ordinary meaning of 'food'. 

7. The Tribunal said:

   Ms Paola di Perna, a town planner and the City's Coordinator Planning Approvals, gave evidence on behalf of the City.  Ms di Perna said that, as a matter of town planning, there is no distinction between a drive through takeaway outlet selling coffee and one selling items that accord with the ordinary meaning of the noun 'food', namely, something which is eaten or is, more or less, solid nourishment.

   Ms di Perna explained that each of these activities gives rise to common town planning considerations reflected in the land use class 'drive through fast food outlet', namely, traffic movements, facilitating safe access and egress, and parking.  She said that, from a town planning perspective, the substantive issue is not whether the item purchased for human consumption is solid or liquid, but rather the fact that it is sold directly to persons driving or seated in motor vehicles.  This substantive issue gives rise to the same planning considerations.

   Having regard to Ms di Perna's evidence, the Tribunal considers that the Scheme intends to regulate the sale and service of both solid and liquid items for human consumption by persons driving or seated in motor vehicles through the land use class 'drive through fast food outlet'.  Relevantly, in the definition of this land use class, the terms 'fast food' and 'food' are intended to include both food, according to its ordinary meaning, and drink.  Thus, the proposed development is a 'drive through fast food outlet' under the Scheme, which is not capable of approval in the Service Station zone [24] ‑ [26].

8. The Tribunal then said that if the proposed development did not fall within the definition of 'Drive Through Fast Food Outlet', it was a 'Shop', which was another prohibited land use under the Planning Scheme. 

9. The Tribunal said:

   If the proposed development did not fall within the definition of 'drive through fast food outlet' under the Scheme, it would fall within the definition of 'shop' under the Scheme, which is another prohibited land use in the Service Station zone under [the Planning Scheme].  Clause 1.1.11.2 of the Scheme defines the land use class 'shop' to mean:

   'premises used to sell goods by retail, or hire goods, but does not include a showroom or fast food outlet.'

   A 'good' is 'an item of merchandise' (The Macquarie Dictionary page 611).  Take-away food and drink accords both with the ordinary meaning of 'goods' and, as Ms di Perna said, with its use in a town planning context.  As the Supreme Court of South Australia held in R v City of West Torrens; ex parte Kentucky Fried Chicken Pty Ltd (1960) 20 LGRA 388 at 409, the sale of fast food involves the sale of 'goods' in a 'shop'.

   However, cl 1.3.2.3 of [the Planning Scheme] states that where, in the zoning table, a particular use is mentioned, 'it is deemed to be excluded from any use class which by its more general terms would otherwise include such particular use'.  In the present case, therefore, although the proposed development would otherwise fall within the definition of the land use class 'shop', it is deemed to be excluded from that use class, because it also falls within a more particular use, namely, 'drive through fast food outlet'.

   As the proposed development falls within the definition of 'drive through fast food outlet', it is not an unlisted use under the Scheme [27] ‑ [30].

10. The Tribunal noted two other arguments before it.  The first was that the proposed development was capable of approval as a non‑conforming use or as a change of use from a former non‑conforming use to another non‑conforming use.  In this regard the Tribunal said:

    However, at the time when the current use of the site commenced in February 2007, it was prohibited in the Service Station zone, and was therefore unlawful, as it fell within the then applicable land use definition of 'take-away/fast food'.  This term and definition was removed from the Scheme when the term and definition 'drive through fast food outlet' was inserted in August 2008.

    Furthermore, while Mr Bridle and Mr van der Feltz said that the current use replaced a former shop, as noted earlier, use of the site as a shop is also prohibited, and therefore unlawful, in the zone.  Mr Bridle and Mr van der Feltz did not present evidence to show that the shop which replaced the service station on the site commenced lawfully, as a matter of planning law, and that the use had not been abandoned at the time when the current use commenced.  The proposed development is, therefore, not capable of approval as a change of use from a non-conforming use [32] ‑ [33].

11. The second concerned equitable principles.  The Tribunal noted that equitable principles such as estoppel, fiduciary relations and waiver had been referred to by the applicants.  The Tribunal said (at [34]) that those principles had no relevance to the proper classification of the proposed development as a matter of planning law. 

12. Accordingly, the Tribunal concluded that the proposed development was properly classified as 'Drive Through Fast Food Outlet' within the meaning of the Planning Scheme and that the City's decision to refuse development approval for a drive through take‑away coffee outlet should be affirmed.

The Planning Scheme

1. Clause 1.1.4 of the Planning Scheme deals with the Planning Scheme's objects.  It provides, inter alia, that the general objects of the Planning Scheme are to zone the Planning Scheme area for the purposes in the Planning Scheme described, to set aside land for use for recreational, public and local authority purposes, and to make provisions as to the nature and location of buildings and the size of lots when used for certain purposes, and to make provisions for other matters necessary or incidental to town planning or housing.

2. Clause 1.1.5.1 refers to the division of the Planning Scheme into five parts.  Relevantly, Part 1 deals with 'General Provisions', Part 3 deals with developments in 'Commercial Zones', and Part 4 deals with developments in 'Industrial Zones'. 

3. Clause 1.1.5.2 provides that 'the provisions in each Part of the Scheme shall be read in conjunction with the rest of the Scheme and shall not be deemed to limit or otherwise prejudicially affect any other Part'.

4. By cl 1.1.11.2 of the Planning Scheme, the terms set out in that clause have their defined meaning unless the context otherwise requires.  The relevantly defined terms are discussed further below.

5. Clause 1.3 deals with zones.  By cl 1.3.1.1, 18 zones are created for the purposes of the Planning Scheme including, relevantly, a 'Service Station' zone. 

6. Clause 1.3.2 deals with zoning tables and symbols.  Clause 1.3.2.1 provides that Table 1 indicates, subject to the provisions of the Planning Scheme, the uses permitted in various zones.  By cl 1.3.2.2, various symbols in the table signify uses which may, or may not, be permitted in the different zones.  Clause 1.3.2.2 also provides that 'where no symbol appears it means that the use is not permitted'. 

7. By cl 1.3.2.3, where in the zoning table a particular use is mentioned, it is deemed to be excluded from any use class which by its more general terms would otherwise include such particular use. 

8. Clause 1.3.2.4 provides:

   Subject to the provisions of Clause 1.3.2.5, if a particular use or purpose is not mentioned in the list of use classes or is not included in the general terms of any of the use classes or is not normally part of the conduct of any of the use classes, such use or purpose shall, unless it is permitted by the subsequent provisions of the Scheme, be deemed to be a use not listed, provided further that such use or purpose is not a combination of two or more listed use classes or part of the conduct of two or more listed use classes or any combination thereof.

9. By cl 1.3.2.5, a 'use not listed' is deemed to be a use not permitted by the Planning Scheme, but the City may determine in which zone or zones if any, the use may be considered.  The clause goes on to apply cl 1.3.5.3 if the City considers the use may be considered in a zone, and provides that if approved, the City may impose conditions.

10. By cl 1.3.5.1(a), subject to certain provisions not immediately relevant, all use of land zoned under the Planning Scheme requires the prior approval of the City. 

11. Clause 1.3.5.3 provides, inter alia: 

    Before making a final determination in respect of an application for the Council's approval where the application is:

    …

    (b)To use land for a purpose which is not listed in or included in the general terms of the use classes listed in Table 1 - Zoning Table (use not listed) …

    …

    the Council shall, if it resolves that the use, development or change of use in question may be considered appropriate in the circumstances of the application, ensure that one or more, as determined by the Council, of the provisions specified hereunder are invoked …

    The 'provisions specified hereunder' in cl 1.3.5.3 concern notice and advertising.

12. Clause 1.3.5.5 provides, in effect, that the City may grant planning approval to a use or development already commenced, but any development unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except the granting of planning approval, and the continuation of the development unlawfully commenced is taken to be lawful upon the grant of planning approval.

13. Amendment No 492 to the Planning Scheme was originally gazetted on 29 August 2008 and was gazetted with corrections on 21 October 2008 (Amendment No 492).  Prior to then, the Planning Scheme contained a definition of 'Take‑Away/Fast Foods' in cl 1.1.11.2 as follows:

    Take‑Away/Fast Foods:  means a building or portion of a building wherein food is prepared and offered for sale for consumption principally off the premises and includes in the case of industrial zones, a lunch shop.

14. The term 'lunch shop' was not defined.

15. Prior to Amendment No 492 there was no symbol appearing against the 'Service Station' zone in Table 1, in relation to 'Take‑Away/Fast Foods'.  Accordingly, by cl 1.3.2.2, that use was not permitted.  In relation to the zone designated 'General Industrial', the 'Take‑Away/Fast Foods' use was designated 'AA' which meant, according to cl 1.3.2.2, that use was not permitted unless approval was granted by the City following a period of advertising in accordance with certain specified requirements.

1. Amendment No 492 introduced a number of amendments, including as follows.  In the definitions clause in cl 1.1.11.2, it deleted the definition of 'Take‑Away/Fast Foods' and 'Shop'.  It added new definitions of 'Drive Through Fast Food Outlet', 'Fast Food Outlet', 'Shop' and 'Lunch Bar'.  It also altered the designation of the uses permitted and prohibited within the 'General Industrial' and 'Mixed Business' zones.  After the commencement of Amendment No 492, uses within the use class 'Drive Through Fast Food Outlet' were prohibited in both the 'Service Station' and 'General Industrial' zones.  Uses within the classes 'Lunch Bar' and 'Fast Food Outlet' were also prohibited in the 'Service Station' zone:  cl 1.3.2.2, Table 1.

2. The Planning Scheme also contains definitions of 'Restaurant' and 'Tavern' which were not altered by Amendment No 492.  Clause 1.1.11.2 defines 'Restaurant' as:

   Restaurant:  means a building or portion of a building wherein food is prepared solely for sale and consumption within the building or portion thereof and the expression shall include a licensed restaurant, café or nightclub, and also includes a restaurant at which food for consumption outside the building, or portion thereof, is sold where the Council is of the opinion that that forms only a minor part of the business.

3. The Planning Scheme contains, in cl 1.1.11.2, a definition of 'Corner Store/Service Shop'.  This refers to 'the sale of daily grocery needs principally to persons resident within the immediate locality but does not include a Local Convenience Store'.  (The latter term is defined by reference, inter alia, to the sale to the public of a range of goods comparable to that offered by a supermarket.)  A 'Corner Store/Service Shop' is a permitted use in a 'Service Station' zone, subject to the provisions of Part 3 of the Planning Scheme.  Clause 3.3.9.1 in Part 3 provides, inter alia, that the City may permit a 'Corner Store/Service Shop' to operate from a 'Service Station' provided it is incidental to the predominant use of the lot as a 'Service Station'. 

4. With the exception of cl 3.3.9.1, the provisions referred to above are all contained in Part 1 of the Planning Scheme, designated in cl 1.1.5.1 as 'General Provisions'.  By cl 3.2.1.1, which is contained in Part 3 of the Planning Scheme, a 'Service Station' zone is one of the 'Commercial Zones'.  Part 4 of the Planning Scheme is designated 'Industrial Provisions'.  By cl 4.2.4 of Part 4, in a 'General Industrial Zone' a person may offer for sale, inter alia, 'goods or produce' by retail or wholesale to the public, subject to certain provisions.  One of those provisions is contained in cl 4.2.4.3, which is in the following terms, relevantly:

   The goods or produce sold are not foodstuffs, liquor or beverages; … unless such goods are manufactured on the lot.

5. Amendment No 492 did not amend cl 4.2.4.3, but it did amend the opening words of cl 4.2.4 to delete the term 'Special Garden Industrial Zone' which had previously been included in the opening words of that clause.  It also added a new cl 4.2.4.4 in relation to goods 'of a bulky nature'.

6. The Planning Scheme has effect as if it were enacted by the Planning and Development Act: s 68. It is, accordingly, subsidiary legislation within the meaning of s 5 of the Interpretation Act 1984 (WA).

Principles concerning application for leave to appeal and alleged errors of the Tribunal

1. In Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361, the Court of Appeal provided detailed analyses of the principles relevant to the grant of leave to appeal (at [16] ‑ [18]), and what constitutes a question of law for the purposes of s 105 of the State Administrative Tribunal Act (at [53] ‑ [57]).  I gratefully adopt those analyses. 

2. The first‑named applicant provided written submissions dated 5 May 2009 (AWS), and contended therein that the Tribunal erred in a number of respects.  The first‑named applicant also provided supplementary written submissions dated 9 May 2009 (SAWS).  The second‑named applicant, in effect, adopted the first‑named applicant's submissions.  I have had to interpret what I understand to be the substance of the submissions, in light of the applicants' oral submissions.  The applicants also relied upon their written submissions to the Tribunal, which largely elaborate upon the applicants' written and oral submissions in this application.

3. First it is alleged that the Tribunal erred in not addressing the 'grounds of our appeal' or 'questions of law raised by the City, the City's lawyer and us, although Justice Barker and Justice Chaney did require these to be considered': AWS [4] ‑ [5]. The applicants also said that, having decided the preliminary issue adversely to the applicants, the Tribunal should have addressed 'all the grounds of the appeal': SAWS [1] ‑ [2] and [9].

4. In relation to this ground, there is no evidence before me that the Tribunal did not address the issues that were raised for preliminary determination in the application for review. The Tribunal's reasons appear to me to appropriately state the nature of the hearing of the preliminary issue before it, and to record and address the parties' submissions in relation to the issues raised in that regard. If the proposed development was not one capable of approval within the exercise of the City's discretion, there was no reviewable decision under s 252(1) of the Planning and Development Act and, it seems to me, nothing left for the Tribunal to do.  On one view of the applicants' submissions, the applicants' real complaint, in substance, is that the Tribunal should not have ordered the determination of the preliminary issue.  That order, however, preceded the determination and decision the subject of this application.  For these reasons, in my view, no error of law has been disclosed and this first ground does not warrant the grant of leave to appeal.

5. The second ground raised by the applicants is that the Tribunal 'incorrectly answered the question of law about the classification of a drive through coffee shop as fast food drive through': AWS [6], SAWS [3] ‑ [8] and [11]. This ground does involve an issue as to an error of law: Hope v Bathurst City Council (1980) 144 CLR 1, 7. I deal with this ground later in these reasons.

6. The third ground relied upon is that there is the possibility of a new planning scheme, District Planning Scheme No 3, under which the coffee drive through might be allowed:  AWS [7] ‑ [9].  In my opinion, this ground does not raise an alleged error of law and does not assist the applicants in this application.

7. The fourth ground is that the closure of the coffee shop would cause severe hardship: AWS [10]. That submission was supported by the first‑named applicant's affidavit of 30 April 2009. Again, in my opinion, this does not raise an error of law, although it may be relevant to broad discretionary considerations, if any material error of law were shown.

8. The fifth ground relied upon is that the current zoning of the 'Service Station' zone is 'very restrictive': AWS [11]. In my opinion, this does not raise an issue of an error of law and does not assist the applicants.

9. The next and sixth ground is in these terms:

   Special circumstances apply, especially in relation to the letter of 26 March 2008 from Mrs Pam Holland of the City of Stirling (stating the use complies and just Development Approval is required) and as the City of Stirling at all times only stated the use complied and stood by for over two years knowing that we were developing and operating the Coffee Drive Through: AWS [12].

10. In relation to this ground, the City's letter is in fact dated 27 March 2008.  It is addressed to Mr Bridle and is, relevantly, in these terms:

    Dear Gary

    RE:  UNAUTHORISED BUSINESS (TAKE AWAY COFFEE) 3 GUTHRIE STREET OSBORNE PARK

    Further to my site visit yesterday and our conversation, I have enclosed a Development Application Form and a Schedule of Fees so that you can submit your application to the Approvals Department. 

    I have checked District Planning Scheme No 2, and Take Away food premises are allowed in Industrial zones, but the application will require notification to adjoining neighbours as part of the approvals process.

    Accompanying the Application Form, you will need to submit a site plan (showing parking, drive through, seating area, etc), details and number of employees, hours of operation and the application fee.

    You must also contact the City's Health Department to ascertain what approvals you will need as a food premises (eg registration, food handler's license, etc).  You will be able to make your applications, but any requirements from Health will not be issued until your Approval to Commence Development has been issued by Planning. 

11. In my opinion, the terms of this letter do not reveal an error of law by the Tribunal.  If the letter by its terms encouraged Mr Bridle to lodge the development application in the belief that approval could be expected, subject to notifying neighbours, that matter was not one arising on the proper construction of the Planning Scheme.  Also, the question of whether the City 'stood by for over two years knowing that [the applicants] were developing and operating the Coffee Drive Through' involves, in my view, questions of mixed fact and law, rather than pure questions of law, and in any event was not the subject of the Tribunal's preliminary determination which concerned the proper construction and application of an instrument.  This ground does not, accordingly, in my view, assist the applicants in the application for leave to appeal. 

12. The seventh ground is that the respondent could 'tolerate' a non‑conforming use of the site, until at least there was a change of zoning (AWS [13] ‑ [14]).  In my view, this ground raises no error of law.

13. The eighth ground raises an issue as to whether Mr Bridle's coffee drive through has the characteristics of fast food outlets such as Hungry Jacks, Red Rooster and the like (AWS [15]).  In my view, this ground raises questions of fact which, accordingly, does not assist the applicants in the resolution of the current application. 

14. Next, the applicants point to a number of matters which, in substance, address the merits of whether the premises should continue to be allowed to be used as a coffee drive through (AWS [16] ‑ [21]).  Again, this ground does not, in my view, raise any questions of law for the purposes of this application.

15. The next ground contends that there were 'ample reasons to consider our application under [the Planning Scheme] before amendment 492 as explained in [the applicants] chronological account' (AWS [22]).

16. As I understand it, the applicants do not contend that the provisions of the Planning Scheme as at the date of the determination did not apply as a matter of law:  see Sofi v Wollondilly Shire Council (1975) 2 NSWLR 614; R v Registrar of Titles; Ex parte John Wolbers Constructions Pty Ltd [1973] VR 723. Rather, as I understand it, it is alleged that well prior to Amendment No 492, the respondent misled or failed properly to inform either or both applicants about the need for, and nature of, any development application and that had a development application been made earlier, it would have been granted. These matters also involve questions of fact, and do not assist the applicants in this application.

17. The next ground (SAWS [10]) is that the Tribunal's statement to the effect that the application of equitable principles such as estoppel, fiduciary relations and waiver had no bearing on the question of the proper construction of the Planning Scheme, was contradicted 'by previous decisions … For example:  Tedig Pty Ltd and City of Wanneroo [2007] WASAT 197'. In my view, the Tribunal correctly stated the legal position as applicable to the determination of the preliminary issue, and the Tedig decision does not, in any event, assist the applicants.  In that case the Tribunal said:

    Here, where there is an accepted breach of the planning legislation, I do not accept that it is reasonably arguable that an estoppel can lie to restrain the local authority from enforcing its town planning scheme and ensuring adherence to the conditions of the development approval. To suggest that an estoppel can be used to preserve an ongoing unlawful use seems to me to be a proposition which is not supported by the passage to which I was referred, and it is contrary to a well-accepted principle [21].

18. The applicants, in oral argument, also referred to a document entitled 'District Planning Scheme No 2, Amendment No 492, To Introduce a "Mixed Business" Zone into the City's Industrial area of Balcatta and to revise the Industrial Scheme Provisions and Standards'.  It refers to various aims, strategies and recommendations for the City but, in my view, does not ultimately assist on the question of construction.

19. It can be seen from the foregoing that the only issue which requires further consideration in relation to the application for leave to appeal is the ground which raises the proper construction of the Planning Scheme.

Principles of construction

1. In Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389, 398, the court referred with approval to the following statement of Lord Simon of Glaisdale in Maunsell v Olins [1975] AC 373, 391:

   Statutory language, like all language, is capable of an almost infinite gradation of 'register' - ie, it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants etc).  It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction).  In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.

2. Dictionaries may assist in identifying the popular meaning of words.  It remains important, however, to 'interpret the phrase as used in its context, assisted as it may be, but not necessarily bound, by one of a variety of dictionary definitions':  Falconer v Pedersen [1974] VR 185, 187.

3. It is important to note what context means for the purposes of statutory interpretation.  Context means the words used in the instrument and their development within it, the legislative history, the statutory context furnished by legislation in pari materia, and the existing state of the law in which the statute was enacted, including the then understanding of equity and the common law:  K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 315; The Wik Peoples v The State of Queensland (1996) 187 CLR 1, 171; Saraswati v The Queen (1991) 172 CLR 1, 21; and Central Northern Adelaide Health Service v Atkinson (2008) 252 ALR 168 [83].

4. An instrument or statute must be construed by reference to the language of the instrument as a whole, so that the construction of any particular provision is consistent with the language and purpose of all its provisions:  Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 ‑ 382.

5. By s 18 of the Interpretation Act, in the interpretation of a 'written law', which includes 'subsidiary legislation', a construction that would promote the purpose or object underlying the written law (whether stated in the written law or not) should be preferred to a construction that would not promote that purpose or object.  The provision is not directed to a construction which 'will best achieve' the object of the Act, but is rather directed to a choice between a construction that would promote the underlying objects or purposes of the Act, and one which would not:  Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, 262.

6. In Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353, 361, the Privy Council said, when considering whether mining activities should be regarded as an 'existing use' of land for the purposes of a planning ordinance, that 'a broad and businesslike approach had to be adopted'.

7. With those principles in mind, I turn to consider the proper construction of the relevant provisions of the Planning Scheme.

The proper construction of the Planning Scheme

1. As noted earlier, the definition of 'Restaurant' was not altered by Amendment No 492.  The definition of 'Restaurant', referred to earlier, gives emphasis to food 'for sale and consumption within the building' (emphasis added).

2. In the version prior to Amendment No 492, the definition of 'Take‑Away/Fast Foods' gave emphasis to the preparation and sale of food 'for consumption principally off the premises' (emphasis added).  It included, in an industrial zone, a 'lunch shop'.  The latter term was not defined.

3. Amendment No 492, whilst retaining the definition of 'Restaurant', refined and elaborated upon the descriptions of the nature of premises used for the sale of food for the purposes of the Planning Scheme, particularly food for consumption off the premises.  It did so, relevantly, by deleting the former definition of 'Take‑Away/Fast Foods' and creating four new definitions.  They were 'Lunch Bar', 'Fast Food Outlet', 'Drive Through Fast Food Outlet', and 'Shop'.

4. The new definitions have their own ambiguities. For example, the definition of 'Lunch Bar' refers to 'take‑away food', which is not a defined expression.  The definitions of 'Drive Through Fast Food Outlet' and 'Shop' refer to a 'fast food outlet', but not a 'Fast Food Outlet', which term (ie with capital letters) is defined.

5. As a matter of construction, in seeking to achieve a harmonious interpretation of the provisions as a whole, it seems to me that the following observations may be made. 

6. First, in each of the four new definitions, there is a degree of commonality.  The provisions deal with 'food', which is in a 'form', which is 'ready' to be 'consumed' or 'eaten', 'without further preparation'.  The last‑mentioned term means, in my opinion, without further preparation by the customer.  These elements are made express in the definitions of 'Lunch Bar' and 'Fast Food Outlet' and are picked up in the definitions of 'Drive Through Fast Food Outlet' and 'Shop' in the manner explained in the next point below.

7. Secondly, whilst the definitions of 'Drive Through Fast Food Outlet' and 'Shop' refer to 'fast food outlet' (rather than 'Fast Food Outlet'), as the four definitions were introduced at the one time and are clearly intended to be related, in my view the term 'fast food outlet', where it appears, is intended to refer to the definition of 'Fast Food Outlet'. 

8. Thirdly, a 'Fast Food Outlet' means, in effect, premises in which food is prepared, sold and delivered to customers, in a form ready to be eaten primarily off the premises, and without further preparation by the customer.

9. Fourthly, whilst the term 'fast food outlet' in 'Drive Through Fast Food Outlet' refers to the defined term 'Fast Food Outlet', there are two other aspects of the definition of 'Drive Through Fast Food Outlet' which should be noted when construing that defined term as a whole.  The first, an obvious point, is that it involves or includes the sale and service of food directly to customers driving or seated in motor vehicles.  The second is this:  in the definition of 'Fast Food Outlet', the food is 'primarily to be eaten off the premises'.  No doubt, as a practical matter, that would commonly be the effect of a drive through sale of the kind contemplated in the definition of 'Drive Through Fast Food Outlet'.  However, the last sentence in the definition of 'Drive Through Fast Food Outlet', whilst somewhat cumbersome in structure, seems to me to envisage premises in which a level of consumption of food within the building may be more than that contemplated in the definition of 'Fast Food Outlet', where food is to be consumed 'primarily' off the premises.

1. Fifthly, it remains to consider what the words 'food' and 'eaten' mean in the context of the term 'Fast Food Outlet', which term is picked up in the definition of 'Drive Through Fast Food Outlet'. 

2. No doubt the word 'food', in common parlance, although depending on context, is often used in contradistinction to the word 'drink'.  The question arises as to whether the Planning Scheme uses the word 'food' in that way.  In my opinion, the dictionary definitions do not compel the distinction to be drawn.  The Macquarie Dictionary definition includes 'what is … taken into the body, for nourishment'.  The first definition of 'food' provided in the New Shorter Oxford English Dictionary (4^th ed, 1993) is 'substance(s) [to be] taken into the body to maintain life and growth, nourishment'.  The word 'eat' has a related meaning.  In the Macquarie Dictionary, the first meaning of 'eat' includes 'to take into the mouth and swallow for nourishment' and in the Shorter Oxford it is 'consume for nutriment'. 

3. Furthermore, in the context of the Planning Scheme, in relation to the word 'food', the word 'eaten' appears to be used interchangeably with the words 'consumption' or 'consumed'.  In the definition 'Drive Through Fast Food Outlet' itself, the word 'consumption' is used.  The word 'consumption' also appears in the definition of 'Restaurant', and the word 'consumed' appears in the definition of 'Lunch Bar'.  Both in its ordinary dictionary meaning, and in the context of these related provisions in Part 1 of the Planning Scheme, the word 'eaten' in the definition 'Fast Food Outlet' signifies, in my view, 'consumption'.

4. However, the applicants contend that the Planning Scheme uses the words 'food' and 'eaten' in their narrower meaning, to exclude liquids for human consumption.  In this regard they place particular emphasis on cl 4.2.4.3, in Part 4, which, in the context of 'goods or produce sold' in a 'General Industrial Zone', expressly delineates between 'foodstuffs', 'liquor' and 'beverages'.

5. There would, in my opinion, be merit in the argument were it not for the operation of cl 1.1.5.2.  Clause 1.1.5.2 provides, in effect, that different parts of the Planning Scheme are to be read in conjunction with each other, and that the provisions in one part shall not limit or otherwise prejudicially affect the provisions of another part.  In my opinion, in the light of cl 1.1.5.2, the terms of cl 4.2.4.3, which apply to 'Industrial Zones' may not be used to limit the meaning of 'food' where it appears and is applied in the operation of the provisions in Part 1 of the Planning Scheme.

6. It seems to me, therefore, that the word 'food' may include at least some kinds of 'liquid' for the purposes of the definitions of 'Drive Through Fast Food Outlet', 'Fast Food Outlet', and 'Lunch Bar' in cl 1.1.11.2 of the Planning Scheme.  It would not, having regard to the overall context of those provisions, in my opinion, include liquid in the form of alcohol.  The question remains whether the word 'food' can denote liquid in the form of coffee.  The answer to that, in my opinion, is no, for the reasons explained by Lockhart J in Bristol‑Myers Company Pty Ltd v Commissioner of Taxation (1990) 23 FCR 126, 130:

   'Food' is what is eaten or taken into the body for nourishment, to maintain life and growth.  What constitutes foods does not admit of any absolute definition because different societies accept and use different substances as food.  Foods which maintain a defined shape are generally referred to as solids and, by contrast, foods which are not 'solid' but which take up the shape of the container in which they are placed are either liquid foods or paste.  Most beverages are foods, though tea is one notable exception.  Tea is certainly a beverage and a drink but is not generally accepted as a food because it is not nutritious; it is a stimulant:  see Hinde v Allmond (1918) 87 LJKB 893; Sainsbury v Saunders (1918) 88 LJKB 441, especially per Darling J (at 445) and Diet Tea Co Ltd v Attorney‑General [1986] 2 NZLR 693.

7. Whilst that case concerned the proper construction of a different statute, the above observations addressed, relevantly, the ordinary English meaning of 'food'.  There is, in my opinion, no material difference between tea and coffee for present purposes. 

8. For these reasons, in my opinion, on conventional principles of construction, the word 'food', when used in the relevant definitions of the Planning Scheme, does not include liquid in the form of coffee.

9. I note, however, that the Tribunal reached its conclusion on the proper construction of the Planning Scheme by relying upon the expert evidence of a town planner.  Unfortunately, neither the applicants (for obvious reasons), nor the respondent, provided submissions on the legal principles relevant to the basis upon which the Tribunal decided the matter of construction.  Without the assistance of informed debate, or research by counsel, I make the following observations. 

10. The general rule is that words used in a statute must be taken to have been used in their ordinary meaning.  If it is contended that the word has some commercial or other special meaning, there must be evidence as to that, and then it is for the court to determine whether the legislature has used the word in its ordinary signification, or in the special sense:  Markell v Wollaston (1906) 4 CLR 141, 150. The technical meaning of a word is a question of fact, although whether the legislature intended to use the technical meaning is a question of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287.

11. The word 'food' is an ordinary English word.  It is well established that the courts will not admit expert evidence as to the meaning of a word used in its ordinary English sense in a statute of general application, and one not dealing with a particular locality or the practice of a particular trade:  Czarniak v The Queen (1995) 118 FLR 36, 38 ‑ 39 (where the Court of Criminal Appeal of Western Australia applied the principle in relation to the use of the word 'foods' in a statute); General Accident Fire and Life Assurance Corporation Ltd v Commissioner of Pay‑Roll Tax [1982] 2 NSWLR 52, 54 ‑ 55; Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1980) 33 ALR 251, 272 ‑ 273; and Pepsi Seven‑Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289, 296 ‑ 297.

12. Whilst s 32(2) of the State Administrative Tribunal Act provides that the Evidence Act 1906 (WA) does not apply to its proceedings and that the Tribunal is not bound by the rules of evidence, that provision, in my view, is concerned with the nature, quality and sources of the evidence received. It does not, in my opinion, alter the legal rules relating to the proper construction of a statutory instrument.

13. On the other hand, expert evidence may, at least in certain cases involving a specialist subject matter, be admissible for construction purposes to enable the policy and objectives of the statute to be discerned with a greater and more reliable appreciation of the possibilities.  In Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511, Parker J (with whom Malcolm CJ and Anderson J agreed), in relation to a statute in which competition considerations were relevant, and having said that expert evidence was admissible on other bases, said:

    Further, the expert evidence provides an appreciation of the nature and objectives of competition policy in the field of economics, and, in particular, of the regulation of essential infrastructure, so that the policy and objectives of the Act can be discerned with a greater and more reliable appreciation of the possibilities [107].

14. That approach has been followed in BHP Billiton Iron Ore Pty Ltd v The National Competition Council [2006] FCA 1764 [173] ‑ [175].

15. However, if, as I think, expert evidence could be permissibly used for that limited purpose in relation to such a statute using non‑technical words in their ordinary English meaning, it could only, in my view, be used to assist in identifying which of two or more constructions available from a consideration of the language used in the statute promoted its underlying object or purpose.  It could not be used to arrive at a meaning which the word, being on this hypothesis used in its ordinary English meaning, was incapable of bearing.  That, in my opinion, would be tantamount to using expert evidence to contradict the terms of the statute:  cf Mackaness & Avery Pty Ltd, Ex parte; Re Royce (1943) 43 SR (NSW) 239, 244.

16. In this case, it is not abundantly clear how and for what purpose the Tribunal applied the expert evidence.  On balance (and I understand that after some hesitation this was accepted by counsel for the respondent), it appears to me that the Tribunal did not find that the word 'food' has some specialist or technical meaning, different from its ordinary English meaning, when used in the field of town planning.  Rather, the Tribunal seems to have used the expert evidence to apprise itself of town planning considerations which could elucidate the objectives of the Planning Scheme, in relation to drive through businesses.  I gather this from the way it expressed itself at reasons [24] ‑ [26], and in particular the references to 'safe access', 'egress' and 'parking'.  On the other hand, the Tribunal seems to have found that the word 'food', when used in its ordinary English meaning, would not include 'liquid'.  I gather this from the Tribunal's reasons at [2], [17] ‑ [19] and [24].  Absent a finding that the word 'food' has a specialist or technical meaning, it seems to me that the Tribunal has impermissibly used the expert evidence to contradict the ordinary meaning of the word 'food'.

17. For these reasons, in my opinion, the Tribunal erred in concluding that as a matter of construction, the word 'food' included liquid in the form of coffee, and that the term 'Drive Through Fast Food Outlet' was apt to apply to Mr Bridle's coffee drive through business.

18. I now turn to consider the Tribunal's alternative finding.  That finding was that if Mr Bridle's business did not fall within the definition of 'Drive Through Fast Food Outlet', it would fall within the definition of 'Shop'. 

19. The Tribunal referred to the passage in the decision of R v West Torrens City Corporation; Ex parte Kentucky Fried Chicken Pty Ltd [1969] SASR 545, 567 ‑ 568. That case accepted that the word 'goods', when used in the context of a description of the popular or ordinary meaning of 'shop', included take‑away food some of which is cooked on the premises. The development application in that case referred to the relevant use as a 'shop'. The case, with respect, does not seem to me to offer great assistance on the proper construction of the definition of 'Shop' in cl 1.1.11.2 of the Planning Scheme.

20. The definition of 'Shop' in cl 1.1.11.2 includes a reference to the sale of goods by retail.  The word 'goods', in its ordinary meaning, includes items of merchandise.  The language is broad and would, in my opinion, include items of take‑away coffee.  In this matter, some assistance as to the meaning of the word 'goods' can also be derived from cl 4.2.4.3 of the Planning Scheme.  Clause 4.2.4.3 does, in my view, indicate that the word 'goods' includes beverages.  Clause 4.2.4.3 is, in my view, available as an aid to the contextual construction of the definition of 'Shop' in cl 1.1.11.2, as it illustrates the amplitude of the word 'goods'.  In serving to illustrate the amplitude in meaning of the word 'goods', cl 4.2.4.3 is not, in my opinion, being used, contrary to cl 1.1.5.2, to limit or otherwise prejudicially affect the scope of its meaning in a provision in Part 1.  Accordingly, I would accept that 'goods' in the definition of 'Shop' in cl 1.1.11.2 includes 'beverages'.  (It is not necessary to consider whether the Tribunal permissibly applied the town planner's evidence referred to in reasons [28] in reaching the same result in light of this conclusion.)

21. It remains to consider whether the definition of 'Shop' includes the characterisation given by the Tribunal to Mr Bridle's business, namely a drive through take‑away coffee outlet ([3], [4], [10], [20], [35] and [36] of the Tribunal's reasons).

22. The term 'Shop', as defined in cl 1.1.11.2, expressly excludes 'fast food outlet'.  Although not expressly mentioned as exclusions, the term 'Shop', despite its apparent width and generality, also excludes 'Drive Through Fast Food Outlet', 'Corner Store/Service Shop', 'Lunch Bar', 'Restaurant' and 'Tavern':  cl 1.3.2.3.

23. The real issue, to my mind, is whether the term 'Shop' also excludes, as a matter of construction, a drive through take‑away coffee outlet.  As a matter of common parlance the collocation of words 'premises used to sell goods by retail, or hire goods', would not, I think, ordinarily connote a drive through take‑away outlet.  In order to consider this question of construction further, it is appropriate to view more generally how the Planning Scheme operates in relation to permitted and non‑permitted uses concerning a 'Shop'.

24. According to the zoning table, a 'Shop' is a permitted use in zone 5 (business) and zone 9 (town centre).  In each of those zones a 'Drive Through Fast Food Outlet' is not a permitted use.  It would, in my opinion, be incongruous with the legislative scheme if a 'Drive Through Fast Food Outlet' was not a permitted use in those zones, but a drive through take‑away coffee outlet, under the guise of a 'Shop', was a permitted use.  That result would seem to me not to promote the underlying objects of the Planning Scheme, which include, in my opinion, considerations of orderly planning and consistency.  Accordingly, having regard to the connotation which the collection of words used in the definition would ordinarily convey, and the incongruity referred to above, it seems to me that the defined term 'Shop' does not include a drive through take‑away coffee outlet.  Moreover, the town planner's evidence elucidating the objects of the Planning Scheme, relied upon by the Tribunal at reasons [24] ‑ [25], would confirm that construction.

25. For these reasons, I consider that the drive through take‑away coffee outlet does not fall within the definition of 'Shop' in cl 1.1.11.2 of the Planning Scheme.  I regret to say that it accordingly seems to me that the Tribunal made an error of law in that regard.

26. Counsel for the respondent submits, however, that the Tribunal still ultimately reached the correct result in dismissing the applicants' application in that the drive through take‑away coffee outlet is in any event precluded from being a 'use not listed' having regard to the permutations in cl 1.3.2.4.  Apart from considering the term 'Shop', the Tribunal did not deal with this point in its reasons.  The issue arises now because it is submitted that even if the Tribunal's decision is affected by error of law (as I have found), the error will be immaterial to the applicants' position unless it can be shown that the drive through take‑away coffee outlet is a 'use not listed', and is thereby capable of being the subject of an exercise of discretion in favour of the applicants under cl 1.3.2.5.

27. In particular, counsel for the respondent submits that one or more of the elements of cl 1.3.2.4 operate so that, having regard to the definitions of 'Drive Through Fast Food Outlet', 'Fast Food Outlet', 'Lunch Bar' and 'Shop', the drive through take‑away coffee outlet is not a 'use not listed'.

28. Again, regrettably, there have been no submissions providing any legal analysis of cl 1.3.2.4, its purpose, history or operation, including its operation in the context of cl 1.3.5.3(b).

29. Clause 1.3.2.4 and cl 1.3.5.3(b) both deal with the approval of a 'use not listed'.  The former is a 'deeming' provision and deems certain uses as uses not listed, subject to the proviso in that clause.  The latter contains in effect a definition of a 'use not listed'.  Both provisions, from my research, have been in the Planning Scheme since its inception, although in the case of cl 1.3.5.3(b) the clause appeared as a different clause number, and it first took its current form as a result of an amendment (relevantly Amendment No 22, gazetted 31 October 1986). 

30. Before considering these provisions further, at the outset it is appropriate to recall the general observations of the Town Planning Appeal Tribunal in BP Australia Ltd v City of Nedlands [1984] WAPAT 1; (Unreported, Town Planning Appeal Tribunal, No 34 of 1982) in relation to the utility of discretionary powers in relation to the uses of land not listed in a use class table:

    It is, in the Tribunal's opinion, entirely appropriate that a town planning scheme should contemplate that there will be uses of land not listed in a use class table, even in a table containing a much more comprehensive list of uses than that contained in the respondent's scheme.  It is, in the Tribunal's opinion, highly desirable that provision be made under schemes for use classes not falling within those expressly dealt with in the scheme.  However, a discretion like that under cl 3.3 should be exercised with care.  It will often be desirable that it not be exercised without advertisement enabling objections to be raised and appropriately considered (11 ‑ 12).

31. As indicated earlier, in my view, cl 1.3.5.3(b) provides, in effect, a definition of a 'use not listed' to land which is used 'for a purpose which is not listed in or included in the general terms of the use classes listed in Table 1 - Zoning Table'.  That definition is, in my view, consistent with the evident purposes of the Planning Scheme, in that if a use is listed, or included in the general terms of a class use, the class use in which it is listed, or the class use containing the general terms within which it falls, will apply, and there would be no reason for such a use to be regarded as a 'use not listed'.

32. If the proposed use in a development application met the definition of a 'use not listed', the discretionary powers in cl 1.3.2.5 would be applicable.

33. In relation to cl 1.3.2.4, although the language is somewhat different, the first two aspects of use enumerated in that clause (leaving aside for the moment the proviso in that clause) are to the same effect.  They refer to a use not 'mentioned' in the list of use classes, and not 'included in the general terms' of any of the use classes.  The third aspect of use enumerated in cl 1.3.2.4 may also, arguably, produce at least a similar effect (again, subject to the proviso).  It refers to conduct 'not normally part of the conduct' of any of the use classes.  If conduct were normally part of a listed use class, the application for approval of the use would presumably be dealt with under that listed use class.  There would, again in that instance, be no need to regard it as a 'use not listed'.  However, the third aspect of use enumerated in cl 1.3.2.4 uses language different from the first two aspects, and different from the language in cl 1.3.5.3(b).  The third aspect of cl 1.3.2.4 is presumably intended to have a wider or different ambit than either of its first two aspects, or cl 1.3.5.3(b).  As I have said, there has been no debate about its scope.

34. There are also two obvious differences between cl 1.3.2.4 and cl 1.3.5.3(b).  First, cl 1.3.2.4 is a deeming provision and to the extent, if any, to which it extends the defined meaning in cl 1.3.5.3(b) of a 'use not listed', it should be construed strictly and not as extending, by implication, beyond its strict application:  Commissioner of Taxation v Comber (1986) 10 FCR 88, 96. Secondly, cl 1.3.2.4 is subject to a proviso. A proviso is, according to Pearce D C and Geddes R S, Statutory Interpretation Australia (6^th ed, 2006) [4.48], a practice long disparaged by good drafters and the bane of all correct composition. 

35. In cl 1.3.2.4 the proviso seems to qualify what would otherwise be deemed to be a 'use not listed' through the operation of at least the third of the first three criteria in cl 1.3.2.4.  The proviso, on one view of it, is extremely wide.  Indeed, insofar as it might be thought to mean that despite the application of the first three criteria, a proposed use is still not deemed to be a 'use not listed' if it involves part of the conduct of any combination of the listed use classes, the width of the proviso could hardly be greater.  There are over 70 use classes, some of which contain their own different sub‑sets of uses.  It is difficult to conceive how any proposed use could not fall within the net of the proviso if that is its meaning.  Such an interpretation would in effect rob the term 'use not listed' of any meaning capable of application, and lead to incongruity or absurdity. 

1. Whatever may be the scope of the proviso as it applies to the deeming provision in cl 1.3.2.4, in my view, it does not purport expressly to apply to the definition of 'use not listed' in cl 1.3.5.3(b), and it should not be extended by implication to apply to cl 1.3.5.3(b).  Also, I note that cl 1.3.2.5 refers in terms to a 'use not listed', and not to a use 'deemed to be a use not listed'.  Nor, in my view, could the words in cl 1.3.5.3(b) be regarded as irrelevant surplusage to the meaning of the term 'use not listed', because the definition appeared in the original version of that provision in the Planning Scheme, and the provision, with the definition, takes its current form following an amendment to that clause.  There has, on the other hand, been no change to cl 1.3.2.4.  Accordingly, the proviso in cl 1.3.2.4 should not, in my view, be construed so as to rob the definition of 'use not listed' in cl 1.3.5.3(b), and the application of that term in cl 1.3.2.5, of any sensible meaning. 

2. It follows, in my opinion, that the drive through take‑away coffee outlet is a 'use not listed' within the meaning of cl 1.3.5.3(b) and cl 1.3.2.5.  It is not mentioned in the list of use classes.  I have already found that it is not included in the definition of 'Drive Through Fast Food Outlet' because coffee is not 'food' for the purposes of that definition.  Similarly, in my view, it does not fall within the general terms of 'Fast Food Outlet' and 'Lunch Bar', which also have 'food' as their subject matter.  I have further found that it does not fall within the general terms in the definition of 'Shop'. 

3. If I am wrong in applying cl 1.3.5.3(b) in that way, I am also of the view that the drive through take‑away coffee outlet is a 'use not listed' within the meaning of cl 1.3.2.4.  I have already, in effect, dealt with the first two elements of cl 1.3.2.4.

4. As to the third element, there was no evidence before me that the sale of take‑away coffee to customers in vehicles is 'normally part of the conduct' of any of the use classes relied on by counsel for the respondent.  Also, that is not a matter in respect of which, in my opinion, I should properly take judicial notice.  Even if knowledge of the nature of the products sold and the circumstances of sale in the other uses relied upon by counsel for the respondent were widespread, that in itself would not be sufficient.  Those with such knowledge may, for example, be in a particular demographic group.  In Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594, the majority, in referring to knowledge of existence of a tobacco product called 'Winfield', said:

   Evidence tending to establish a connexion between the performance televised and the product which the performance was alleged to promote was relevant.  The existence of that product and the fact that it was sold in red and white packets bearing the name 'Winfield' were not matters of which judicial notice could have been or was taken.  Knowledge of those facts may have been widespread but they could not have been said to be notorious or even matters of common knowledge.  They were, therefore, facts to be proved in the ordinary way (598 ‑ 599).

5. I now turn to the first limb of the proviso in cl 1.3.2.4.  This involves a consideration of whether a drive through take‑away coffee outlet is a combination of two or more listed uses.  It might arguably be thought to be a combination of a 'Shop', which can include the sale of beverages, such as coffee, and a 'Drive Through Fast Food Outlet' for the sale of food to drive through customers.  That argument, however, is in my view unsustainable.  What is required under the first part of the proviso is that the relevant use 'is' a 'combination' of other uses.  A combination of the two would, in my view, be a 'Shop' which sells coffee, combined with an outlet in which take‑away food is sold to drive through customers.  In my opinion, a drive through take‑away coffee outlet is not such a combined use.  The first part of the proviso does not apply.

6. The second part of the proviso would require that the drive through take‑away coffee outlet is part of the conduct of two or more listed use classes or any combination of them.  I have indicated earlier that a wide construction of this part of the proviso would in effect sterilise the potential application of cl 1.3.2.5.  In my opinion, the use of premises as a drive through take‑away coffee outlet can be regarded as part of the conduct of a 'Shop' selling coffee.  It is not, however, in my view a part of the conduct of a 'Drive Through Fast Food Outlet'.  The conduct the subject of that use involves conduct expressly defined by the sale of fast food to drive through customers.  The drive through component is intrinsically associated with the sale of food.  The sale of coffee for reasons expressed earlier, could not be regarded as part of the sale of food.  Similarly, it cannot be regarded as part of the composite conduct of the sale of food to drive through customers.

7. It follows, in my opinion, from the foregoing that the proposed use also falls within the term 'use not listed' in cl 1.3.2.4.  For this reason too I accept the applicants' submission that Mr Bridle's business should be characterised as a 'use not listed'. 

Disposition of application for leave to appeal and appeal

1. Considerations relevant to leave to appeal include the importance of the question of law sought to be raised, whether there is sufficient doubt about it to justify leave, and whether it would impose substantial injustice to allow any error to go uncorrected, although when the order below is final, injustice will often be more readily discernible.

2. In my opinion, the second ground identified by the applicants, regarding the proper construction of the Planning Scheme and in particular the definitions of 'Drive Through Fast Food Outlet' and 'Shop' raised serious questions of law.  In my view, the Tribunal erred in law.  Further, the order of the Tribunal is a final order and would have the effect of precluding the development application the subject of review from being dealt with, under the Planning Scheme, on its merits. 

3. For the reasons indicated in the preceding section of this judgment, in the end I consider that Mr Bridle's drive through take‑away coffee outlet is a 'use not listed', and is accordingly a use capable of approval under the Planning Scheme.  Accordingly, I would allow the application for leave to appeal and allow the appeal.  The matter should be remitted to the Tribunal for further consideration in the light of these reasons.