Warehouse Group (Australia) Pty Ltd v Woolworths Ltd - [2003] NSWCA 270

No judgment structure available for this case.

Reported Decision:
137 LGERA 115

Court of Appeal

CITATION: Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270

HEARING DATE(S): 19/09/2003

JUDGMENT DATE:
19 November 2003

JUDGMENT OF: Mason P at 1; Santow JA at 2; Foster AJA at 3-51

DECISION: 1. That the Appeal be dismissed.; 2. That the Orders of Lloyd J be confirmed.; 3. That the Appellant to pay the respondent's costs of the appeal.

CATCHWORDS: Appeal against two decisions made and declarations and orders made re stock available for sale in warehouse which was in breach of EPA Act.

LEGISLATION CITED: Environmental Planning & Assessment Act

CASES CITED: Sutherland Shire Council v Telope Pty Ltd (1993) 85 LGERA 103.
Council of Sutherland Shire v Michael Bassett Tijuana (No. 15) Pty Ltd, unreported, 22/2/1994.

PARTIES :
Warehouse Group (Australia) Pty Ltd
Woolworths Ltd

FILE NUMBER(S): CA 40303/03

COUNSEL: Mr S Rares SC with M. Wright - Appellant
Mr J. Gleeson SC with J. Jagot - Respondent

SOLICITORS: Deacons - Appellant
Mallesons Stephen Jaques - Respondent

LOWER COURTJURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LE 40243/01

LOWER COURT
JUDICIAL OFFICER : Lloyd J

MASON P
SANTOW JA
FOSTER AJA
WEDNESDAY, 19 NOVEMBER 2003

THE WAREHOUSE GROUP (AUSTRALIA) PTY LTD v WOOLWORTHS LIMITED & ANOR

Judgment

1 MASON P: I agree with Foster AJA.

2 SANTOW JA: I agree with Foster AJA.

3 FOSTER AJA: This is an appeal from orders made by Lloyd J on 28 March 2003, in the Land and Environment Court of New South Wales. His Honour gave two decisions in the proceedings, the first, on 17 February 2003, and the second, on 28 March 2003. At the conclusion of the latter decision his Honour made the following declarations and orders:-

Environmental Planning and Assessment Act 1979.

Fairfield Local Environmental Plan 1994).

(4) An order that the respondent, The Warehouse Group (Australia) Pty Ltd, abstain from using the property in breach of condition 10 of development consent No. 992/2000 granted by Fairfield City Council on 24 July 2000.

(5) An order that orders (3) and (4) above be postponed for a period of twenty eight (28) days from today.

(6) An order that the respondent pay the applicant’s costs.”

4 In the proceedings before his Honour the present respondent, Woolworths Limited (“Woolworths”), as applicant, sought declarations and orders against the present appellant, The Warehouse Group (Australia) Pty Limited (“Warehouse”), resulting from its occupancy and use of certain premises known as “The Warehouse”, being Units 5, 6 and 7 of a building at Nos. 824-850 Woodville Road, Villawood, being the land described as Lot 3 in DP 877672. These were situated near Villawood Railway Station and were part of a group of newly built buildings, in an industrial/warehousing development. Warehouse was purporting to use these premises in accordance with a development consent granted to it by Fairfield City Council (“the Council”), on 24 July 2000. It was the contention of Woolworths that Warehouse’s use of the premises constituted a contravention of condition 10 of the development consent, so granted by the Council, and also constituted a use which was prohibited under the relevant environmental planning instrument, the Fairfield Local Environment Plan 1994 (“the LEP”). Consequential relief, by way of appropriate injunctions and costs, was also sought.

5 His Honour approached the resolution of the case by posing and answering the following questions: (1) whether the respondent’s current use of the premises was permitted by the zoning, and (2) whether the respondent’s current use of the premises was contrary to the development consent. As his Honour indicated, the resolution of these questions depended upon a determination by him as to the actual nature or type of the respondent’s business, as it was, in fact, being carried on in the premises.

6 His Honour considered, first, the zoning question. The premises, being situated within Zone 4(c) Special Industrial under the LEP, were subject to the development control table for that zone, as follows:-

“ Zone 4(c) Special Industrial

1. What are the objectives of the zone?

The objectives of the zone are:

(a) to encourage the establishment of a broad range of light industrial and warehouse activities and a limited range of business and retail activities compatible with nearby residential areas to generate employment and contribute to the economic development of the City of Fairfield,

(b) to allow community uses to serve the needs of the nearby industrial workforce, and

(c) to allow retail development only:

(i) where associated with, and ancillary to, light industrial purposes on the same land,

(ii) for the display and sale of bulky goods,

(iii) where it primarily serves the daily convenience needs of the local industrial workforce, or

(iv) for motor orientated activities,

and only if the proposed development will not detrimentally affect the viability of any nearby business centre.

2. What is permitted without development consent?

Nil.

3. What is permitted only with development consent?

Any purpose other than a purpose included in item 4.

4. What is prohibited?

Abattoirs, aged and disabled persons’ housing, amusement parks, animal establishments, brothels, business premises, camping grounds and caravan parks, dwelling houses (except caretakers’ dwelling houses), entertainment facilities, extractive industry, forestry, gaming taverns, generating works, group homes, hazardous industry, hazardous storage establishments, health consulting rooms, helicopter landing sites, heliports, home businesses, hospitals, hostels, hotels, industry, institutions, intensive agriculture, junkyards, medical centres, mines, multi-unit housing, offensive industry, offensive storage establishments, residential flat buildings, roadside stalls, sawmills, serviced apartments, shops (except take-away food shops), stock and sales yards, transport depots.”

7 As will be seen, a major question in the case was whether Warehouse was using the premises as a “shop”, in which case it would have been engaging in a prohibited use, or whether it was engaging in a retail operation in the premises “for the display and sale of bulky goods”, which use could be permitted through Council’s grant of development consent.

8 The development consent, as set out in his Honour’s judgment, granted by the Council on 24 July 2000, for the use of the premises, therein described as “Clint’s Warehouse Outlet”, was subject to certain conditions. Condition 1 required that “Development shall take place in accordance with the approved plans excepting as modified by the following conditions”. The relevant condition was condition 10, which provided as follows:-

“ 10. RESTRICTION ON USE

Fairfield Local Environmental Plan 1994

“ Bulky goods salesroom or showroom ” means a building or place used for the sale by retail or auction or the hire or display of items (whether goods or materials) which are of such a size, shape or weight as to require:

(a) a large area for handling, storage or display; or

(b) direct vehicular access to the site of the building or place by members of the public for the purpose of loading items into their vehicles after purchase or hire, but does not include a building or place used for the sale of foodstuffs or clothing.”

9 His Honour then referred to the “approved plans” which had been attached to the Notice of Development Consent. His Honour summarised the contents of the plans, in respect of which consent had been given, as follows:-

“furniture:, “lamps”, “manchester”, “soft furnishings”, “personal care” (

“sound and vision”, “cards”, “giftware”, “clothing”, “footwear”, “confectionary”, “grocery”, “household”, “kitchen”, “electrical”, “read and write”

“seasonal”

“craft”, “flowers”, “toys”, “sporting goods”, “camping outdoors”, “auto”, “hardware”, “garden”, “gallery”

“a tall watch showcase”.

10 His Honour remarked that “the connection between many of the goods identified on the floor plan and the display and sale of bulky goods seemed to be somewhat tenuous.” However, Council’s consent to those plans was expressly subject to condition 10, which required that the premises be operated as a “bulky goods sales room or showroom, as defined in the LEP.” I comment, at this stage, that, obviously enough, this cast upon Warehouse the obligation of operating the business in the premises in a manner which conformed to this definition, even though the approved plan indicated that it was intended to sell, retail, from the premises some items of merchandise which were not in themselves bulky goods and which, as a general proposition, would more readily be found in a “shop” business. Her Honour stated that it followed from condition 10:-

“..that the floor plan is modified by, relevantly, condition 10, which restricts the use to a bulky goods salesroom and showroom as defined in the Fairfield LEP.”

11 His Honour then considered the actual use being made of the premises. Obviously, this consideration was fundamental to a determination whether the zoning was being infringed and also whether condition 10 of the consent was being complied with. His Honour had, with the consent of the parties, an extensive view of the premises, which was accepted as forming part of the evidentiary material in the case. In this regard he made the following findings of fact:-

“The evidence shows that there is a wide range of products and goods on display for sale, generally of the type identified in the floor plan attached to the Notice of Development Consent. The amount of space occupied by the various categories of goods does not, however, correspond to that shown on the floor plan. Many of the goods are small and easily portable and do not require a large area for handling, storage or display. Neither do such goods require direct vehicular access to the premises by members of the public for the purpose of loading items into their vehicles after purchase. The evidence, confirmed by a view of the premises taken with representatives of the parties, shows that such goods comprise the vast majority of goods on display. The total percentage of linear shelving occupied by truly bulky goods is only about 32 per cent. Almost 40 per cent of the display space is occupied by goods that could never be considered bulky. The remaining about 30 per cent of the display space is occupied by categories of goods of which some may be considered as bulky, such as sporting goods and camping goods. Apart from the furniture, however, most items of the latter category which were seen on display were not bulky. Furniture, which may be considered truly bulky, occupies only about 9.9 per cent of the display space.”

12 His Honour also noted that Mr L M Fletcher, a town planner, who gave the only evidence on behalf of Warehouse, “said that the vast majority of products on display are not bulky”. It was also noted that the non-bulky goods included “many convenience items of a kind that one would find in places such as Villawood Shopping Centre”.

13 In light of this evidence, his Honour made the following further findings:-

bulky goods salesroom or showroom”.

14 His Honour then considered the judgment of Gleeson CJ in Sutherland Shire Council v Telope Pty Ltd (1993) 85 LGERA 103, in which Mahoney and Clarke JJA concurred, where there was discussion of the definition of “bulky goods, sales room or show room,” comprised in a similar environmental planning instrument. I shall refer to the judgment later in these reasons.

15 After setting out and considering the relevant portions of this judgment, his Honour noted that it was necessary to “focus…on the nature or type of business in question.” The findings that he had already made, in this regard, indicated that “the number of items that could be described as bulky goods were such that their sale must be regarded as merely incidental to the business and their availability would not relevantly characterise the use of the premises.” He held that the nature of the business, being in the “form of a small discount department store”, required a finding that the premises were being used as a “shop”, which use was prohibited in the zone and was also a breach of condition 10 of the development consent.

16 Under the heading of “Discretionary Considerations” his Honour went on to consider whether and what consequential relief should be granted. It is convenient to defer discussion of this aspect of his Honour’s judgment and consider, at this stage, the appeal in relation to his Honour’s primary findings of breach of the zoning requirements and consent conditions. This will involve, in the first place, the construction of the relevant provisions of the LEP and of the development consent.

17 I have already set out the relevant provisions of the LEP and the development consent. In considering their construction, it is necessary, also, to have regard to the definition of “shop” in the LEP, which is as follows:-

“ Shop means a building or place used for the purpose of retail sale, auction sale, hire or display for the purpose of sale or hire of goods, materials and merchandise, but does not include a building or place elsewhere defined in this plan.”

18 “Bulky goods, salesroom or showroom” is defined as in condition 10 to the development consent, set out above. “Warehouse” is also defined. The definition was referred to in argument but has no apparent relevance to any issue in the case.

19 It may be noted that the validity of the development consent was not in issue before his Honour. Accordingly, it may be taken that in construing it, a construction should be adopted which does not lead to its invalidity. This is important because, under objective 1c of Zone 4(c) special industrial, retail development is allowed only “(ii) for the display and sale of bulky goods”. Such development is permitted “only with development consent”.

20 It is plain that the LEP contemplates that a building or place where such retail development may be permitted must qualify as a “Bulky goods salesroom or showroom”, as defined in the LEP. Accordingly, “a building or place used for the sale of foodstuffs or clothing” could not be made the subject of development consent in Zone 4(c), as a bulky goods salesroom or showroom, these uses being specifically excluded from the definition.

21 Consequently, in construing the development consent in the present case, it must be assumed that it did not embrace permission to use the premises for the sale of foodstuffs or clothing.

22 As already noted, the Notice of Development Consent required, by condition 1, that the “Development shall take place in accordance with the approved plans, excepting as modified by the following conditions”, the relevant condition being condition 10, as set out above. The submissions of the appellant focused largely upon the approved plans, it being asserted that, as a matter of construction, the Council would not have sought to remove, by the imposition of the condition, uses which, on the face of the plans were, apparently, the subject of permission. Accordingly, submissions were made based upon the contents of the plans.

23 At page 201 of Blue appeal book, volume 1, there appears, attached to the reproduced Notice of Development Consent, a copy plan, described as “Development Consent Approved Plans” and bearing the endorsement of Development Consent No. 992/2000. The accuracy of the copy was not in dispute. However, at page 656 of Blue appeal book, volume 3, there appears what was described in argument as being a “blown-up” version of the approved plan. In fact, it is an enlarged photo-stat of the plan previously referred to. The significance of the difference in size is that the smaller plan, attached to the development consent, contains markings upon it, which are illegible. On the blown-up plan, these markings can be read, in some cases with considerable difficulty. Legibility has been enhanced by the addition of handwritten translations in a number of cases. Both plans are, basically, layout plans for the floor area of the building. They contain representations of the positions of shelving and other storage facilities together with checkout facilities. The shelving and storage areas are labelled, in the manner just described, with the descriptions of the goods intended to be stored or displayed in them.

24 It appears that, at the hearing before Lloyd J, there was objection to the introduction into evidence of the blown-up plan. However, the plan became an exhibit and it is clear that his Honour had regard to it, in formulating his decision. Although complaint was made about this, by the respondent, in argument before this Court, I do not consider that it can affect the outcome of this appeal. Although there may well have been some difficulty occasioned to relevant officers of the Council in interpreting the plan, when considering whether approval should be granted to the proposed use of the building, it would seem that, in the course of discussion between the relevant officers and those acting on behalf of Warehouse, an understanding was reached as to the way in which the proposed layout was to be utilised in the business.

25 No evidence was given by any Council officer in the proceedings. However, some correspondence and internal memoranda were received in evidence. I am satisfied that these documents cannot be used in the construction of the development consent, which must be interpreted with regard only to the documents forming part of it. However, they provide an indication that the question whether the proposed development was one which could properly be described as a “Bulky goods salesroom or showroom” was an important question for the Council officers, when considering the appropriateness of approval. It would appear that initial objections on the part of town planning personnel were met by the production to them of information, which satisfied them that the use of the building would conform to the definition. There was no evidence as to the content of this information, which appears to have been supplied in discussion.

26 It is difficult to determine what significance should be accorded to the approved plans, as forming part of the relevant development consent. They clearly enough demonstrate an intention to conduct a retail type business, through the display of goods for sale in the fixtures and storage areas depicted in the plan. The layout of the fixtures and display areas within the floor space, would, of course, be important for the determination of health and safety issues relevant to Council’s consent. However, the reference in the plan to the intended contents of the shelving, fixtures and display areas, could hardly have been intended to fix for all time, as part of the consent, these particular uses. Were this so, any changes in the use of the shelving and display areas, as shown on the plan, by way of alteration of their prescribed contents, would be a breach of the development consent. As the consent operates in rem this would, obviously, be an absurd situation. Moreover, any approval of the plan and its contents would necessarily have to conform to the zoning.

27 It is clear that his Honour, when considering his decision, had regard to the descriptions of the proposed contents of the shelving. I have already set out above his findings as to what the plans showed. It is clear that, as a result of his view of the premises and a consideration of other evidence in the case, relating to the contents of the shelving and display areas, he observed some disconformity between the plans and the actual use to which the shelving and the fixtures were being put, in the conduct of the appellant’s business.

28 I am satisfied that, having regard to the fact that the Council could only grant approval in accordance with the zoning and to the fact that the plan itself could not, by incorporating descriptions of goods to be sold, extend the range of permitted uses, Council would see it as both proper and necessary to approve the plans, subject to an overriding condition that the use of the premises should conform to the relevant LEP definition. This is precisely what the Council has done in its Notice of Development Consent. Accordingly, I do not agree with the appellant’s submission that particular significance should be attached to the fact that the plans were described as “approved”. They were “approved” only in so far as they complied with the zoning requirements.

29 From what I have said so far, it is clear that I respectfully agree with the approach taken by his Honour, when he said, as indicated above, “that the floor plan is modified by, relevantly, condition 10, which restricts the use to a “Bulky goods sales room and showroom as defined in the Fairfield LEP.”

30 The next question, therefore, is the determination of the nature and extent of the restrictions imposed by the requirements of condition 10.

31 At the outset, it may be noted that there was no dispute that the sale of a number of small items which, as a matter of convenience, might “be packaged for a particular customer for ease of taking them away from the premises” does not, relevantly, amount to “bulky goods” retailing (see per Pearlman J, The Council of Sutherland Shire v Michael Bassett Tijuana (No. 15) Pty Limited, unreported, 22 February 1994). In this regard, it is clear from the evidence and his Honour’s findings, that there were, indeed, a very large number of small items for sale in the appellant’s premises. The packaging of them into bulky parcels in the course of an individual purchase, could not bring the business within the definition.

32 As his Honour indicated, the scope and content of the definition depended upon principles considered in Sutherland Shire Council v Telope Pty Limited, (1994) 85 LGERA 103. It is the contention of the appellant that the principles enunciated in that case are capable of reasonable extension, so as to bring within the LEP definition and condition 10 the business it conducted in the subject premises, as it was described in his Honour’s findings. As so described, it was contended that it was not a “shop”, but was a “bulky goods salesroom or showroom.”

33 In Telope, the respondent had sought development approval from the Council for the construction of a building, which was to comprise three retail showrooms and associated parking. The local environmental plan permitted “bulky goods salesroom or showrooms, provided that development consent had been obtained.” The relevant definition of “bulky goods salesroom or showrooms” was identical with the one being considered in this case.

34 The learned primary judge, Stein J, considered the contentions of the Council that at least two of the three proposed showrooms did not fall within the definition. He did not uphold these contentions but granted consent to the development on various conditions. The Council, in an appeal to this Court, which was limited to questions of law, submitted that Stein J had erred in his interpretation of the definition. It is convenient to set out the facts as they were stated in the judgment of Gleeson CJ, as follows( at p 104):-

“Stein J had before him detailed evidence of the use that was proposed to be made of the three showrooms. The plans for the development of the site provided for direct vehicular access to each showroom.

The largest of the three showrooms, comprising 971 square metres, was to be occupied by Brash’s Ltd, and was to be used for the retail sale of television sets, sound systems, video recorders, radios and microwave ovens. The range of goods to be sold would include items (such as large television sets, microwave ovens, or sound systems) that would ordinarily be regarded as bulky, and other items (such as small television sets, or radios), that would not individually be so regarded.

The second showroom, comprising 495 square metres, was to be occupied by a business trading under the name of Sleep City, and was to be used for the display and sale of bedroom furniture. It does not seem to be in dispute that this showroom, if considered alone, would fall within the definition.

The third showroom, comprising 250 square metres, was to be used by Bristol Paints for the storage, sale and display of paint, wallpaper and associated home decorator items. The evidence showed that more than 50 per cent of sales of accessories and paint were to trade customers, whereas most of the wallpaper sales were by way of retail. Once again, some of the items to be sold would ordinarily be regarded as bulky and others not. There was evidence as to the size and weight of the goods in question.”

35 The main question in the case was the meaning of the word “require”, where used in the definition, it being contended by the Council that it was equivalent, in meaning, to “necessitate”. This argument was rejected. Gleeson CJ, in a passage concurred in by the other members of the Court, said (at page 106):-

The definition presently in question, in its practical application, turns upon either or both of two specified consequences which may result from the size, shape, or weight of goods being sold (or hired or displayed) at particular premises. One consequence is that there is a requirement for a large area for handling, storage or display. The other consequence is that there is a requirement for direct vehicular access to the site by members of the public for the purpose of loading items into their vehicles after purchase.

That does not mean that the definition can only be satisfied if it can be shown that it would be impossible to carry on the business without either a large area for handling, storage or display or direct vehicular access for the purpose mentioned. Rather, what is meant is that either or both of those features should be dictated by the business end to which it is directed. In the present case, for example, all three showrooms are provided with direct vehicular access so that members of the public may load items into their vehicles after purchase. The question is not whether this is an absolute physical necessity. The question is whether the provision of such vehicular access is dictated by the nature of the business to be carried on in the premises is plainly adapted to the needs of the business, and is, therefore, relevantly required by the business.”

36 Stein J had held that, in order to meet the definition, the major proportion of the goods on sale in each of the premises should properly be characterised as bulky goods. Gleeson CJ did not agree that this was a pre-requisite. His Honour said (at p. 106):-

It has not been suggested that each and every item available for sale at any of the three showrooms would be a large item, or of such size, shape or weight as to require either a large area or direct vehicular access to the showroom. Thus, for example, Bristol Paints would have available for sale by retail, to ordinary members of the public, some individually and relatively small tins of paint. Some of the radios and other items, and even some of the television sets, to be sold by Brash’s would be relatively small in size and easily portable. Equally, however, it is not in dispute that a substantial number of the items on sale at both of those places would be very large, and the same is even more obvious in relation to Sleep City.

It was submitted on behalf of the appellant that, at least in relation to the Brash’s and Bristol Paints showrooms, even if the definition were not given the strict interpretation contended for, there would be two uses of the premises, one for “bulky goods sales room or showrooms”, which is permissible with consent, and the other for “shops”, which is a use for which consent cannot be given.

Where a trader has for sale a range of goods, varying in size from small to large, and having available such a range is an ordinary incident of the type of business in question, it is normally inappropriate for a purpose such as the present to regard the trader as carrying on two independent activities one of selling small items and one of selling large items: cf Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157. Suppose, for example, that we were simply concerned with a shop that specialised in selling television sets. Some television sets are very bulky indeed, and other are small and portable. It may be assumed that it is an ordinary incident of such a business for a retailer to carry a comprehensive range of sizes. In such a case the carrying on of the business would dictate the keeping of a comprehensive range of goods, of all shapes and sizes, including a substantial number of large items, and the use of the premises would satisfy the definition for they would be used for the sale by retail of items of such a size, shape or weight, as to require (for example) direct vehicular access to the site by members of the public for the purpose of loading items into their vehicles after purchase. Provided a substantial number of such items were available for sale, so that their sale could not be regarded as merely incidental to the business, their availability would relevantly characterise the use of the premises.

It was, therefore not essential for the respondent to demonstrate that the major proportion of the goods to be offered for sale were bulky goods, although Stein J’s finding of fact to that effect made his conclusion easier to reach.”

37 It is Warehouse’s contention that these passages justify a finding in its favour in the present case, it being submitted that, as the trial judge had found that about 40% of the display shelving and areas were occupied by goods which could properly be described as “bulky”, this was sufficient to bring the use of the premises within the definition. This submission had been rejected by the trial judge, who, as already indicated, had found that the business could only properly be characterised as “shop” and was therefore prohibited under both the zoning and the consent. `

38 It was also contended on behalf of the appellant that his Honour erred in finding, as determinative, that the vast majority of the goods on display in the premises were non-bulky, being, relevantly, small and portable. This, it was said, was of no significance provided that it could be said that the number of bulky goods for sale rendered their presence as being more than merely incidental to the conduct of the business. Reliance was, therefore, placed upon the roughly 40% occupation of shelving and display space by goods that could properly be characterised as “bulky”. It was submitted that this, in itself, was sufficient to require that the business be appropriately characterised as a “bulky goods salesroom or showroom”, notwithstanding that the bulky goods were small in number in comparison with other items of merchandise.

39 I do not accept this submission. I consider that it misunderstands the true import of the reasoning in Telope. It must be borne in mind that the premises under consideration in Telope could be properly characterised as specialised selling areas. They were premises to be used, respectively, for the sale of electrical goods, bedroom furniture, and paint, wallpaper and home decorating items. None of the proposed uses, in respect of which development consent was sought, contemplated the wide extent of merchandising, approval for which was sought in the present case. In my opinion, the reference in the reasoning in Telope to the existence of ranges of goods for sale, in which bulky items would be included along with small and portable items, is of paramount significance. In regard to such a range, the presence of small portable items would not prevent its characterisation as being one for the sale by retail of bulky goods, provided only that such bulky goods were not merely incidental to the range. In other words, it was necessary that the range could properly be characterised as one for the sale of bulky goods, in which the associated small and portable goods, however numerous, could properly be regarded as ancillary to the bulky goods.

40 Consequently, provided that, in the case of the electrical goods shop, there was a substantial number of bulky goods, such as large television sets, the fact that the range also contained small and portable electrical goods would not prevent an overall characterisation of the business as being one for the sale by retail of bulky goods; provided, of course, that it was appropriate in the conduct of the business that there be relevantly large handling areas and/or vehicular access. The same reasoning applied to the sale, for instance, of paints, where large bulky containers of paint constituted a significant part of the merchandise, even though, in association with them, there was offered for sale a range of small tins of paint, which did not need display and handling areas of the same size and which were transportable without the use of vehicular access.

41 I am quite satisfied that the principles enunciated in Telope cannot rationally be extended to cover a situation where the conduct of a business in premises involves, in addition to the display for sale of one or more ranges of goods which could, consistently with Telope be described as ranges of bulky goods, the display of other ranges of merchandise which contain large numbers of small portable goods but no significant quantity of bulky goods. A business, so conducted in my opinion, could not properly meet the definition of a bulky goods saleroom or showroom. In my view, it was correctly submitted, on behalf of the respondent, that if Telope were extended in this way, it would be possible to characterise any large or middle range department store as being a bulky goods saleroom or showroom. This would, quite clearly, be contrary to the obvious policy of the zoning, which was to keep out of industrial areas businesses of this kind, which were appropriate to ordinary shopping areas. In this regard, the attention of this Court has been drawn to evidence in the case pointing to what, in my view, is this obvious policy. It was not referred to by his Honour and, for my part, I find no need to refer to it in these reasons.

42 Accordingly, I am quite satisfied that his Honour’s description of the business currently conducted in these premises, as set out in his Honour’s reasons and referred to above, required that it be characterised, not as a bulky goods showroom or salesroom but simply as a shop, in which the business of general merchandising was being carried on.

43 As a matter of construction, therefore, the requirements of the zoning under the LEP and of the restrictions imposed by condition 10 could not permit of the present mode of conduct of the appellant’s business in the subject premises.

44 It follows, as his Honour found, that the present conduct of the business was an impermissible use and also a breach of the provisions of condition 10 of the Notice of Development Consent. The appeal in respect of these aspects of his Honour’s decision, in my opinion, must necessarily fail.

45 I turn then to the appeal in respect of the relief granted by his Honour.

46 It was contended on behalf of the appellant that, even if the use of the premises by the business was in contravention of the zoning and condition 10, it was nevertheless inappropriate that his Honour should have granted the declaratory and injunctive relief that he did. It was submitted that, notwithstanding the findings that had been made, the proceedings should have been dismissed. The main arguments put in favour of this result, both before his Honour and in this Court, were as follows.

47 The Council, it was submitted had, at least inferentially, approved of the display and sale in the premises, in the course of the appellant’s business, of the range of merchandise referred to in his Honour’s findings. It may be noted that these included ranges of foodstuffs and clothing which, in themselves were expressly prohibited. In this regard reliance was placed upon the fact that the Council, after development consent had been granted, indicated in a letter which was introduced into evidence, that it had no objection to the sale of clothing and foodstuffs. Plainly, the Council had no power to give such permission, which was contrary to the zoning requirements. Moreover, I can see no substance in the submission made by the appellant that the Council, in approving the plans, had also approved the display and sale of collections of merchandise which, in themselves, could in no way qualify as ranges of “bulky goods”. The permission granted in relation to the plans was, quite obviously, subject to the overriding requirements of condition 10. Also, as his Honour found, on the evidence in the case and as a result of his view, there was significant lack of correspondence between the proposed display of goods in the plan and the display as actually to be seen in the layout of the business. In my view, these considerations could not have operated as an impediment to the relief granted by his Honour.

48 It was also put that, because the Council had not itself taken proceedings to enforce the requirements of the zoning and condition 10, and had, at least in some broad way, consented to the use of the premises, the relief granted was inappropriate. As a corollary, it was submitted that regard should be had to the fact that the complainant was not the Council but Woolworths, which was a competitor of the appellant. It was emphasised, in this regard, that Woolworths had not sought to demonstrate that its commercial interests were in any way affected by the appellant’s business being conducted in breach of the relevant zoning and conditions. Woolworths had no retail outlet in the area. I am not persuaded by this argument. Planning law is of considerable public importance. Obviously, both the zoning and the relevant conditions were intended to achieve a public purpose of considerable significance, being orderly town planning and the implementation of government policy in this regard. The breaches by the appellant, if allowed to continue, would, in effect, nullify the relevant zoning. It would, in my view, have been entirely inappropriate that the infringing use be allowed to continue.

49 It was also submitted that, as the evidence indicated, the conduct of the appellant’s business provided worthwhile employment in the area and, in itself, enhanced the attractiveness to the buying public of the retail area in which it was situated. Accordingly, it was put that orders should not be made which prevented the conduct of the business. The simple answer to this, in my view, is that the business is not, in itself, prevented by the orders that his Honour made. The only result of those orders is that the business must be conducted in accordance with the relevant zoning and condition 10. In other words, it cannot be conducted, as his Honour found, as a “shop”. With some necessary reorganisation of its merchandising, it can be brought into conformity with the requirements of a “bulky goods salesroom and showroom”, as expounded in Telope.

50 I am satisfied that no case has been made out for the alteration of the orders made by his Honour.

51 Accordingly, I propose the following orders:-

1. That the Appeal be dismissed.

3. That the Appellant to pay the respondent’s costs of the appeal.

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Last Modified: 11/19/2003

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Citations

Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270

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CITATION:	Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270
HEARING DATE(S):	19/09/2003
JUDGMENT DATE:	19 November 2003
JUDGMENT OF:	Mason P at 1; Santow JA at 2; Foster AJA at 3-51
DECISION:	1. That the Appeal be dismissed.; 2. That the Orders of Lloyd J be confirmed.; 3. That the Appellant to pay the respondent's costs of the appeal.
CATCHWORDS:	Appeal against two decisions made and declarations and orders made re stock available for sale in warehouse which was in breach of EPA Act.
LEGISLATION CITED:	Environmental Planning & Assessment Act
CASES CITED:	Sutherland Shire Council v Telope Pty Ltd (1993) 85 LGERA 103. Council of Sutherland Shire v Michael Bassett Tijuana (No. 15) Pty Ltd, unreported, 22/2/1994.
PARTIES :	Warehouse Group (Australia) Pty Ltd Woolworths Ltd
FILE NUMBER(S):	CA 40303/03
COUNSEL:	Mr S Rares SC with M. Wright - Appellant Mr J. Gleeson SC with J. Jagot - Respondent
SOLICITORS:	Deacons - Appellant Mallesons Stephen Jaques - Respondent

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LE 40243/01
LOWER COURT JUDICIAL OFFICER :	Lloyd J