Westfield Management Ltd v Pine Rivers Shire Council

[2005] QPEC 15

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Westfield Management Ltd v Pine Rivers Shire Council & Anor [2005] QPEC 015

PARTIES:

WESTFIELD MANAGEMENT LTD
Appellant
v
PINE RIVERS SHIRE COUNCIL
Respondent
And
THE WAREHOUSE GROUP (AUSTRALIA) PTY LTD
Co-Respondent

FILE NO:

3174 of 2004

PROCEEDING:

Appeal

DELIVERED ON:

11 March 2005

DELIVERED AT:

Brisbane

HEARING DATES:

28 February, 1, 2, 3 and 4 March 2005

JUDGE:

Judge Brabazon QC

ORDER:

Appeal allowed.  The application is refused.

CATCHWORDS:

LOCAL GOVERNMENT – PLANNING LAW – Application for impact assessable development approved by Council – Where a “showroom” contained a shop limited to 6% of the Gross Floor Area – Appeal – Where Table of Zones shows that the land may not be used as a shop – section 4.4(5A) of the Planning and Environment Act 1990 – Whether there are sufficient planning grounds to justify approving the application despite the conflict.

PLANNING LAW – EVIDENCE – Whether the co-respondent can gain a practical advantage because of its own unlawful conduct – Whether the Court can take into account evidence of planning need arising from trading up to the present time – Whether such evidence would assist the Court in its determination.

LOCAL GOVERNMENT – PLANNING LAW – General discretion overriding planning instruments – Conditions – Application of s3.5.30 of Integrated Planning Act 1997 – Whether the local planning authority had power to impose certain conditions.

LOCAL GOVERNMENT – PLANNING LAW – Conditions – Enforcement – Uncertainty as to definition of ‘groceries’ – Whether an inability to enforce a condition and its continued uncertainty as to its definition are grounds for the condition to be set aside.

Integrated Planning Act 1997 ss 3.5.27; 3.5.30.
Local Government (Planning and Environment Act) 1990 s 4.4(5A).

Cases considered:
Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205
Curran v Brisbane City Council [2002] QPELR 58
Kouflidis v City of Salisbury (1982) 49 LGRA 17
Lewiac Pty Ltd & Anor v Gold Coast City Council [2003] QPELR 538
Mt Gravatt Bus Service v Brisbane City Council [2002] QPELR 35
Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348
Resource Management Planning Appeal; Ex parte Arkless (2003) 128 LGERA 331
Trewheellar v Council of City of Gold Coast (1981) QPLR 17
Weightman v Gold Coast City Council [2003] 2 Qd R 441
Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508

COUNSEL:

Mr John Gallagher QC and Mr Timothy Trotter
for the Appellant
Mr Andrew Skoien for the Respondent  Mr Christopher Hughes SC and Mr Michael Williamson for the Co-respondent

Minter Ellison Lawyers for the Appellant
R. D. Forbes, Shire Solicitor for the Respondent
Deacons for the Co-respondent

The Issue

1. The Warehouse Group have established a chain of stores in Australia and New Zealand.  There are now 44 stores in Queensland. One of them is to be found at 130-134 Gympie Road, Strathpine.  On a site of 1.1ha, the Warehouse occupies a purpose-built showroom building.  The building has a floor area of about 3,865m².  There are 155 open air car parking spaces.  The business can best be described as a discount department store.  This store is typical of stores in the chain.

1. The Warehouse sells food and groceries.  They are at the centre of this dispute.  The Warehouse Group wants to keep on selling the food and groceries.  The Pine Rivers Council has approved 6% of the floor area for food and groceries, and continues to support that position.  Westfield says that the Council is wrong, and that the food and groceries have to go.

The Council Approval

1. The Warehouse Group’s expansion in this country has provoked litigation brought by its competitors.  That has happened here.  The Strathpine Warehouse opened in May 2002.  Westfield then brought proceedings in this Court, for a declaration that the Warehouse Group had started assessable development without a development permit, and for restraining orders.  The sale of food and groceries was the focus of Westfield’s complaint.  It said that they occupied about 15% of the display space.  The Warehouse Group contended that about 9%-10% of floor space was for food and groceries.

1. This court found that the offering of food and grocery lines was not trivial, nor was it a use which was incidental to the use of the site as a “showroom”.  The judge could not say that the offering of food and that grocery items was on an infrequent or occasional basis.  He came to the conclusion the extent of the use was such that the whole operation was a “shop”, as that term was defined.  An order was made on 16 December 2003, that the Warehouse Group be restrained from selling food and groceries.  That order has been suspended, pending this appeal.

1. The land is in the Commercial zone.  A “showroom” does not need the consent of Council.  However a “shop” is a prohibited development.  The Warehouse was declared to be a shop because the definition of “showroom” contains a vital exception, that the goods offered for sale do not include food or groceries, other than fresh fruit and vegetables.

1. The Warehouse Group was faced with taking away the food and groceries, or asking the Council for approval to make lawful their sale.  That meant an application for an impact assessable development.  The application was lodged in January 2004.  It was notified by signs and advertisement.  The application was opposed by Westfield and Woolworths, who lodged objections.  The Warehouse Group wanted 10% of the floor area for food and groceries.  They told the Council they would not appeal the Council’s decision, if a condition limited food and groceries to 7%. 

1. On 15 July 2004 the Council’s Strategic and Planning Committee resolved to approve the application for a shop, subject to some conditions.  Their resolution is reflected in the Development Permit, issued on 19 July 2004. The key conditions are these:

(a)        The use shall be limited to a total of 6% of the floor area of the existing premises for the sale of food and groceries.  This area is to be delineated by means of a painted line on the floor of the premises that clearly separates the “shopping” component from the rest of the “showroom” use.

(b)        The food items that shall not be sold from the premises shall consist of all refrigerated goods, milk, bread, refrigerated meat products, and alcoholic beverages.

1. Council resolved to make a notation on the Transitional Planning Scheme to reflect the inconsistent approval pursuant to s 3.5.27 of the Integrated Planning Act – “the notation shall state ‘shop – limited to 6% of GFA’ ”.

1. This Court has to decide if the Council’s decision was correct.  The 6% line is still painted on the floor.  The percentage of sales revenue generated by food and groceries may be towards 14%.  Can that situation continue?

The Legal Framework

1. The Warehouse Group has the burden of showing that its application should be allowed.

1. This is a fresh hearing.  The duty of the Court is to take into account the evidence before it, and to give an impartial decision on the merits of the case.  It is not bound in any way to accept or be influenced by the decision of Council.  As in many appeals, the Court has before it more information than would have been available to Council and its officers.

1. This Court is not a planning authority.  That is the responsibility of Council.  The court is bound to take into account the planning strategies adopted by Council.

1. The existing town planning scheme is now called a “transitional scheme” under the Integrated Planning Act 1997. The appeal is to be decided as if the former Local Government (Planning and Environment) Act 1990 had not been repealed.

1. Under the P&E Act, this would have been an application for rezoning.  That is because the Table of Zones shows that the land may not be used as a shop, in any circumstances.  While the provisions of IPA require such a prohibition now to be taken as an expression of policy, that does not remove the need to consider the former P&E Act criteria, to which significant attention should still be given. 

1. The Council, and now this Court, has to consider any objections duly made, the “balance of zones in the planning scheme area as a whole or that part of the area within which the relevant land is situated and the need for the proposed planning scheme amendment”, and “such other matters, having regard to the nature of the application, as are relevant”.

1. Section 4.4(5A) of the P&E Act says that the application must be refused if:

(a)        the application conflicts with any relevant strategic plan or Development Control Plan; and

(b)        there are not sufficient planning grounds to justify approving the application despite the conflict.

1. As the Queensland Court of Appeal observed in Weightman v Gold Coast City Council [2003] 2 Qd R 441, in order to determine whether or not there are sufficient planning grounds to justify approving an application despite the conflict, the decision maker should:

(a)        examine the nature and extent of the conflict;

(b)        determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme, and if the conflict can be justified on those planning grounds;

(c)        determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.

1. As the transitional scheme requires a rezoning, it follows that the prohibition in the Table of Zones is not conclusive, quite apart from its status as a matter of policy.  A rezoning avoids the very prohibition which faces an applicant.  The application cannot be controlled by the express words of the existing Table of Zones.

1. This application is to regularise an existing use of land.  It has to be decided in accordance with the planning evidence.  It is not a prosecution, and no question of punishment or preferment should arise.  The conduct of the Warehouse Group is not the subject of investigation here.  The merits of the application do not depend upon an understanding of exactly how the present situation developed, and who was responsible for it.

1. The parties do not agree about the status of evidence about such things as the planning need that may be revealed by trading up to the present time.  Westfield says that the Warehouse Group can gain no practical advantage because of its own unlawful conduct.  That submission is based upon a passage to be found in the South Australian case of Kouflidis v City of Salisbury (1982) 49 LGRA 17. There, the Chief Justice and Mohr J put the matter this way:

“The unlawful user of the land should gain no advantage from having established an unlawful use.  Any argument based either directly or indirectly upon the unlawful use should be firmly rejected.  For instance, the argument put in the present case that the patronage given the unlawful business by the public indicates a local demand for the facility and is a consideration in favour of planning consent, should be rejected as an attempt to gain an advantage from the unlawful use by erecting an argument on the basis of that unlawful use.”

1. On the other hand, it was submitted for the Warehouse Group that the settled practice in Queensland is to investigate the facts up to the present time, including any unlawful use.  For example, see the decisions in Trewheellar v Council of City of Gold Coast (1981) QPLR 17, Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205 at 208, and Mt Gravatt Bus Service v Brisbane City Council [2002] QPELR 35 at 36.

1. In my opinion, it is appropriate to look at all factual matters, even those created by a period of unlawful use.  They may be for or against the application.  To consider them is not to give an applicant a benefit because of improper conduct.  Rather, it is to use the best available information about the present merits of the application.  The real principle is to ensure that such an applicant receives no benefit merely because the use is already in place.  Likewise, hardship to an applicant will usually be irrelevant.

1. It does not matter that Westfield is a competitor in the Strathpine business area. The identity of an objector makes no difference to the merits of the appeal.

The Notification

1. The development application requested approval for a “shop”.  Then, in a letter of 30 April 2004, the applicants asked for an approval for material change of use for “a shop (discount retail warehouse)”.

1. The later signs and newspaper advertisement adopted that description.

1. It may be remembered that IPA does not require the notice to set out particulars of the application.  It requires a shorthand description for the proposed development, sufficient to alert a person who has an interest in that land in particular, or the area in general, as to the overall nature of the development and a description of the land on which it is to occur and the identification of the place at which the application itself can be viewed.  That is to enable any member of the public to have access to the detailed information available to the assessment manager.  An interested submitter would frame a submission, not from the information in the public notice, but on the basis of an examination of the details of a proposed development held at the Council offices.  (See Curran v Brisbane City Council [2002] QPELR 58 at 61, and the Queensland Court of Appeal in Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348.)

1. It must be kept in mind that, at the time of the notification, the warehouse operation was in business, and could be visited by any member of the public.  An inspection of the papers of the Council would have revealed references to the Court’s decision about a “showroom” and “shop”.  The papers also would reveal a town planning report in support of the application, architectural drawings, Council’s information request and the letter which suggested the change of description on behalf of the Warehouse Group.  Those things (not a complete description of what could be found at the council office) make it clear that there is nothing in this objection.  The proposal was duly notified.  The expression “discount retail warehouse” is something likely to be understood by members of the public.  That gave a fair description of the sort of shop for which approval was being sought.

The Conflict

1. It was accepted that the application was in conflict, particularly with Development Control Plan No 8.

1. The background to the conflict lies in the Strategic Plan.  An objective is to provide shire residents with a full range of retailing, administrative and commercial activities.  To do that, Council has adopted the concept of a hierarchy of business centres.  That planning principle has also been applied in the DCP.  Rezoning applications not in accordance with the principle will not be approved by Council, unless they accord with other specific provisions of the Strategic Plan or a DCP.  Then follows a significant provision in this case:

“The Strathpine Business Area is the subject of a detailed DCP.  This plan embodies Council’s intentions for consolidation and expansion of this area as a sub-regional centre and a Major Employment Centre.  Council will encourage the establishment within this area of a full range of retail, administrative and commercial uses including government offices, to serve part of the Shire and adjacent areas in the City of Brisbane.  In addition the area will provide lower order retailing, administrative and commercial uses to serve the demand from localities adjacent to this business area.”  (see p 256)

1. The Strategic Plan goes on to set out another objective – “to promote consolidation which each of the three levels of the hierarchy of shopping/commercial centres within the Shire.”

1. Implementation:

   (i)         Council will favour development within business centres which will consolidate and compact the centre rather than expand the area in a linear fashion, or otherwise create a sprawling effect.

   (ii)       To assist in the consolidation of district and sub-regional level shopping centres, Council will only support applications for “Commercial” rezoning on the fringe of the core retailing area”.

2. It is helpful to notice the intent of the Commercial zone in the Table of Zones:

“The intent of the Commercial zone is to accommodate activities which complement the Central Business zone, but for which a central or shopping centre location may not be essential, and may not in some cases be desirable. … The zone is not intended to accommodate core retailing activities, such as grocery shopping, but does allow for retailing of non-food items in premises with large floor areas. The Commercial zone is intended to contain activities which directly serve the general public.  Accordingly, showrooms, “retail warehouses” and, hardware centres and car yards are all permitted in this zone. … It is intended that Council will consent to a warehouse or service industry only where directly associated with retailing. …” (emphasis added).

1. DCP No 8, adopted in December 1997, is the significant planning document in this case.  It is a part of the Consolidated Planning Scheme approved in May 1998.  That Scheme includes the Strategic Plan and the Table of Zones.  The Planning Schedule does go back to 1988, but contains some 1998 revisions.

1. Map 2 shows the Central Business Area.  The dark blue areas are located only in the Strathpine business area.  They include areas which are either developed for sub-regional retail, office, other business, entertainment and community purposes.

1. The Warehouse is found in a Commercial area.  As the DCP puts it,

“These areas are shaded light blue on the maps and indicate land zoned or developed for retail showroom/warehouse, office, other business, entertainment and community purposes … .  The areas are mostly located immediately adjacent to Main Roads … .

1. The Warehouse is in a particular commercial area which is called Precinct S8.  A comparison could be made between S8 and the Business Centre, which is Precincts S2 and S5.  The intent with respect to Precinct S2 (which includes the Westfield Shopping Centre) is this:

“This precinct is intended to be the retail core of the Strathpine business area and to serve a sub-regional function.  The development of a range of shopping, office and non-retail and commercial uses will be encouraged.  Uses which are pedestrian orientated are preferred to this precinct as it is intended to facilitate concentration of a compact, commercial centre which is accessible by and attractive to pedestrians … other uses which primarily attract vehicular access will not be favourably considered.”

1. It can be seen that the other precincts show that a “shop” has varying degrees of acceptability.  Then one reaches this Precinct S8:

“This precinct is intended to be used primarily for commercial activities requiring frontage to and access from the main road including showrooms, hardware shops and like uses.  Shops and other pedestrian orientated uses are inappropriate” (emphasis added).

1. Some precincts are designed for further expansion of the retail core.  For example Precinct S5 (presently a vacant parcel of land owned by Westfield) is the preferred site for initial expansion of the retail core concentrated in Precinct S2.  Likewise, Precinct S11, which is across the highway from S2, relates to the conceptual and long term expansion of the Strathpine business area’s retail core.

1. Considerable attention was paid at the hearing to the study which preceded the DCP.  It was interesting to see that the expressions “showroom” and “retail warehouse” are used synonymously. Only “showroom” is defined in the Planning Schedules:

“Showroom” – Any premises used for the hire of videos, computer games or similar articles or for the sale, or the displaying or offering of articles for sale, by retail, where:-

(a)  the goods offered for sale do not include food or groceries other than fresh fruit and vegetables;

(b)  any articles displayed or stored on the premises are fully enclosed within a building;

(c)  any building, or sole occupancy unit within a building, so used has a gross floor area greater than 300 square metres;

the term includes, the use of the premises for ancillary storage, or any other purpose ancillary to such use of the premises, but does not include an hotel and/or contractor’s depot.”

1. With respect to commercial facilities, in para 3.4 the study says this:

“The Town Planning Scheme establishes a commercial zone … .  Shops are a prohibited use in the zone but retail warehouses, which come under the definition of “showrooms” are a Column B use in the Town Plan schedule.  Retail warehousing has been undergoing dynamic change during recent years as new trends in retailing have become evident.  These trends have produced considerable change in the nature and location of commercial areas.  … it should be noted that the Town Plan uses the term “showroom” to describe retail warehousing activities.  A definition of showroom is included in the Town Plan.”

1. The study’s description of the present land may also be noted. The forerunner of Precinct S8 is called Area 1 in para 3.10.1. It is a frame area, rather than a core area. In para 3.10.4, the conclusions show that a consolidation of core uses on the eastern side of Gympie Road, with retail nodes at Westfield Shopping Centre and Strathpine Plaza, is a preferred option. That is to be contrasted with the concentration of frame uses, particularly showrooms, on the western side of Gympie Road (this case).

1. The intention of the DCP is clear.  The Warehouse operation includes the sale of food and groceries, and that makes it a shop.  Shops are strongly discouraged.  The absence of food and groceries would make it a showroom/retail warehouse, which is encouraged in the commercial area.

1. The Council’s intent for the Central Business zone is set out in the Planning Schedule:

“The Central Business Zone is primarily intended to allow for the establishment of all the commercial activities it would be appropriately located in the main business centre of the Shire.  The Central Business zone is intended to be located only at Strathpine in the existing established centre, or elsewhere in the Shire in accordance with the strategic plan or a development control plan.  Retailing and office developments of most kinds will be permitted in this zone … .  The zone will accommodate commercial, entertainment and recreational facilities that operate at night.  The Central Business zone is intended to form the core of the centres upon which will focus the retailing, business, entertainment and cultural activities of the districts in which they are located. …”

1. So, there is a substantial conflict with the Strategic plan, the DCP and the Planning Schedule. The Warehouse’s sale of food and groceries is encouraged only in the Central Business area as it is a “core retail activity”. It is not intended to be in the Commercial zone.

The Planning Grounds

1. It must be kept in mind that this is a contest about the continued existence of the food and grocery department.  It is not a contest about the continuation of the Warehouse operation on this site.  That is to say, there is no evidence that the removal of the food and grocery department would cause the business to close.  Accordingly, any questions of need, economic impact, and the like, have to be kept in perspective.  The relatively small size of the food and grocery area has to be kept in mind.

1. It should be accepted that there is a demonstrated town planning need that the Warehouse, including this department, serves for the benefit of the people of Strathpine.  The Warehouse has been operating since May 2002 and attracts about 5,000 people a week.  It has yearly sales of about $8,000,000.  While other businesses in Strathpine sell every type of produce that the Warehouse sells, it does offer some benefits in competition, choice, and cheaper prices.  At the present time, both the quality of its goods and their prices tend to be lower than elsewhere.  While some people will shop there simply because it presents another choice that they find attractive, to others it may satisfy some real need.

1. Competition, price and variety itself may be seen to be aspects of planning need.  Likewise, the location of this store can be seen to offer a practical alternative to the people of Strathpine.  Parking is easy.  The evidence shows that a Warehouse operation can be successfully conducted either as part of a centre, or as a stand alone operation, to which customers drive their cars. That is this case.

1. Evidence was given about the economic impact of the Warehouse on the retailers who are tenants at the Westfield Centre.  It is true that the figures before and after May 2002 do not demonstrate any particular adverse economic impact on those tenants.  There is no suggestion that any of them is failing because of the Warehouse.  The Myer department store is not doing well, but that may well be attributable to other reasons. There are no reasons to doubt Mr Leyshon’s evidence.   From an economic point of view the most that can be said is that the $8,000,000 a year that is spent at the Warehouse would otherwise be spent elsewhere, including the Strathpine central business area. From a planning perspective, it can be significant. Mr Dimasi was correct in saying that economic damage was being done to the core retailing of the CBD, particularly because about 76% of its sales were general merchandise or food and groceries – that is, sales in direct competition with the CBD retailers. He thought it highly desirable that such a store be located in the CBD, even though its economic impact was not great.

1. A significant planning ground is the question of whether or not the Warehouse could have been located elsewhere in the Business Area.  Is there other land in the Central Business zone which could be used for such a business?

1. The evidence on the point is brief.  Some attention was paid to the question when Mr N J Ryan, an officer of Westfield, was giving evidence.  He has had considerable experience in the development of shopping centres.   Paragraph 16 of his statement said this:

“Westfield does not seek that the Warehouse be located in its premises at Strathpine but that uses, such as the current Warehouse operation, should be located in the Strathpine CBD.  There are numerous other appropriately zoned sites, other than Westfield, along Gympie Road.”

1. The accuracy of that statement was not explored, though he did admit that his evidence was partly speculative. 

1. A shortage of other appropriately zoned land can be a strong factor in favour of a rezoning.  The evidence here does not allow the conclusion to be reached, that there is a shortage of such land.  There can be no conclusion which is positively in favour of this application.  There is no evidence to the effect that the decision to go to the present site was made because there was a shortage of appropriately zoned land.  The evidence does show that it pays a lower rent, compared to its CBD competition, and that it is likely to have been a decisive factor in choosing the present location.

1. It is true that the planning documents show support for retail commercial activity on this site, in particular that to be found in a retail warehouse.  However, it cannot be forgotten that such encouragement does not extend to retailers of food and groceries.

1. Apart from the discouragement shown in the DCP, the effect of ignoring the planning scheme should be considered.  It is an accepted principle that integrity of town planning schemes should be preserved.  That is, the efforts of those who have started operations in an appropriate zone should not be undermined by those who take opportunities to go elsewhere for there own personal reasons, such as a search for lower rents.  That is why the planning documents here place an emphasis on the need to maintain a compact central business area.  The first reason for that is the convenience of shoppers, who may do much of their shopping as pedestrians in one place.  The second reason is to support the expectations of those who have spent money on establishing a business in a CBD, which may be expected to have higher land values and rents.  To go elsewhere, contrary to the scheme, is to tilt the level playing field away from the CBD.  Mr Buckley thought that such a planning ground was significantly against the regularising of this operation.  His evidence should be accepted.  It is consistent with the Strategic Plan, the DCP, and the Planning Schedule which aim for a consistent hierarchy of CBD and fringe areas.

1. It is true that planning principles do not seek to protect traders from competition.  If anything, competition would usually be seen as a benefit to the community.  However, provided that there is adequately zoned land, competition should be in places allowed by the planning scheme.  The competition offered by the Warehouse should not be seen as a planning ground in its favour, in this case.

1. Mr Schomburgk and Mr Clapham, both planners, thought that there were sufficient planning grounds to justify the approval, despite the conflict. Overall, it can be seen that their opinions were based on close attention to the impacts actually caused by the sale of food and groceries. Even if those impacts were minimal, they were still not approved by Council’s declared intentions.

1. Overall, it can be seen that much of the evidence was designed to show that the food and groceries department had only a small impact on other CBD businesses. That is hardly a positive ground for an approval. Bearing in mind all the evidence, it is quite clear that there are no sufficient planning grounds to justify this application.

The Conditions

1. Westfield submits that the approval, and its conditions, is invalid.  If not invalid, then the difficulty in enforcing it should see it set aside, in any event.

1. The attack on the approval was based on a number of decided cases, three of which may be mentioned here.  They are the decision of this court in Lewiac Pty Ltd & Anor v Gold Coast City Council [2003] QPELR 538, the decision of the Supreme Court of Tasmania in Resource Management Planning Appeal; Ex parte Arkless (2003) 128 LGERA 331, and the decision of the Court of Appeal of NSW in Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508. Those cases illustrate that some conditions will be unlawful. If they are unlawful, and cannot be severed from the approval, then the approval itself is unlawful and ineffective.

1. In Lewiac, the applicant wished to expand a sub-regional shopping centre.  An attempt was made to suggest a condition which would limit the use that might be made of the new shops:

“The 10,000m² of shop identified the Plan of Development are to function as outlet stores.  For the purpose of this condition, outlet stores are defined to mean premises primarily or substantially used for the sale of surplus, end or out-of-season or discontinued, seconds, end of run, superseded, outlet specific, factory direct, discounted or like merchandise.”

1. It was held that such a condition was invalid.  Earlier cases provided several different reasons for that conclusion.  The rezoning cases pointed out that rezoning meant rezoning for all purposes, and that attempts to limit the use of the rezoned land to a certain limited use would be unsuccessful.  Secondly, attention was paid to cases where a condition would effectively nullify the grant of the very thing that was the subject of the application.  Attention was also paid to the consideration that the consent of the applicants did not make lawful a condition which would otherwise be unlawful.  Such a condition could also be set aside at any time, upon application to the court.  For those reasons, the court found that the proposed condition was invalid and should be set aside.

1. Secondly, as the Tasmanian Supreme Court put it:

“Section 51(3A), whilst permitting the imposition of conditions, does not elevate the power to that unconstrained by the relevant planning instrument.  The power to impose a condition does not permit its use to allow for an altered purpose or to create a new or different use.  Conditions must relate to the application and confirm with a planning purpose …  The condition cannot be used as a vehicle for permitting an otherwise unlawful purpose … although a condition properly imposed might effectively constitute prohibition … significant differences … achieve through a condition would deprive a developer, objector or planning body of the right of procedural fairness …”  (Slicer J at para 22).

1. Thirdly, the core of the NSW Court of Appeal’s decision can be put this way:

“In essence, the principle is that where a condition has the effect of significantly altering the development or to leave open the possibility that the development carried out in accordance with the condition would be significantly different to that applied for, then it is not a consent to the application.  If the consent leaves for later decision an important aspect of the development which will alter it in a fundamental respect, the consent cannot finally determine the application …”(Stein JA at para 207).

1. Here, it is difficult to accept the submission that the approval is invalid, for the above reasons.  The application was for a material change of use for a shop (discount retail warehouse).  Approval was given for a shop.  The condition then reflected the considerations which led to the application.  The approval would indeed be for a shop even though it constituted, in fact, a small proportion of the actual use of the premises.  So much had been decided in this Court, and was the reason for the application.  That decision pointed out that the entire use was as a shop, rather than a showroom, because of the sale of food and groceries.

1. It is true that Special Condition S1 may be thought to overlook that finding, and to regard the “shop” component as being clearly separate from the rest of the “showroom” use.  However, bearing in mind the background to the approval, it can be seen that the condition is talking about actual uses, so that the actual sale of food and groceries can be limited to 6% of the floor area.  The premises remain approved for use as a shop, even though the actual activity which led to that approval will remain only on 6% of the floor area.

1. The condition does not totally prohibit the very activity which is an essential part of the definition of “shop”. It is not a rezoning, but rather an approval for a particular material change of use. As unusual as the condition may be, it was difficult to see that it was beyond Council’s power to oppose it. (The power is to impose conditions which are relevant or reasonable – s 3.5.30 of IPA.)

1. The submission about uncertainty is on surer ground.  During the hearing of the appeal, expert witnesses familiar with discount department stores and supermarkets, disagreed about the meaning of the expression “groceries”.  There has already been some difficulty in this store about deciding which items on the shelves are within or without the true meaning of that expression.  Mr Thorne, the manager, had to ask his superiors for advice about its meaning. While the effect of the painted line on the floor may be easy enough to understand, it does require constant supervision.  Even if the Warehouse Group makes a concerted effort to see that the restriction is obeyed, there will inevitably be difficulties with the understanding of staff members, many of whom are casuals and who will come and go from the store.

1. The difficulties in enforcing the condition, and the uncertain scope of the expression “groceries”, means that it is likely to impose an unreasonable burden upon Council, and to be unworkable.  As has been said before:

“The real enforcement problem lies in the case of continuing conditions – conditions which apply day by day whilst a particular building or parcel of land continues to be used for the approved purpose.  The difficulty is not a legal one; it seems clear that failure to abide by the conditions is an offence of that, if persisted in, the failure will entitled the Council to obtain an injunction restraining the owner from using the building or land except in accordance with the conditions.  Rather, the problem is one of policing the conditions:  a problem rendered more difficult where the individual breaches, although cumulatively important, are of minor significance.  The gathering of satisfactory evidence of breaches may occupy the time and energies of Council’s servants to an extent to which the Council cannot afford, especially where it is necessary to make inspections at inconvenient times or in a remote part of the Council’s area.  In such a situation there is a strong temptation upon a Council to turn a blind eye to the breaches – a temptation only likely to be resisted where the persons adversely affected by the breaches are sufficiently numerous, influential or vociferous.  Perhaps for these reasons the NSW Land & Valuation Court has, in recent years, displayed an increasing reluctance to impose conditions regulating the day-to-day conduct of approved developments – a development only acceptable on such terms should be refused.” (The Law of Land Development in New South Wales, The Law Book Company 1967, by Wilcox at 399-400.)

1. At least as an exercise of a discretion, the condition should not have been imposed.

1. The rejection of the conditions will inevitably mean that the approval must also be set aside.  The condition is so fundamental to the approval that it cannot be severed from it.  Severance of the conditions would lead to a blanket approval for use as a shop, and that was never intended.

Disposition

1. The appeal should be allowed.  The application is refused. If any other orders are required, counsel may make further submissions about them.