Woolworths Limited ACN 000 014 675 v Townsville City Council

[2004] QPEC 92

DISTRICT COURT OF QUEENSLAND

CITATION:

Woolworths Limited ACN 000 014 675 v Townsville City Council & Ors [2004] QPEC 092

PARTIES:

BD495 of 2004

WOOLWORTHS LIMITED
ACN 000 014 675
(Applicant)

AND

TOWNSVILLE CITY COUNCIL
(First Respondent)
AND

THE WAREHOUSE GROUP (AUSTRALIA) PTY LTD
ACN 003 038 702
(Second Respondent)
AND

LANDEL PTY LTD AS TRUSTEE OF THE LANCINI FAMILY DISCRETIONARY TRUST
ACN 101 998 193
(Third Respondent)

AND

BD1007 of 2004

WOOLWORTHS LIMITED
ACN 000 014 675
(Applicant)

AND

TOWNSVILLE CITY COUNCIL
(First Respondent)
AND

MAKRO WAREHOUSE PTY LTD
ACN 087 578 578
(Second Respondent)
AND

DALRYMPLE TOWNSVILLE PTY LTD.
ACN 086 989 291
(Third Respondent)

FILE NO/S:

BD495/04 & BD1007/04

DIVISION:

Planning and environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court of Queensland

DELIVERED ON:

17 November 2004

DELIVERED AT:

Townsville

HEARING DATE:

18, 19 and 20 October 2004

JUDGE:

PACK D.C.J.

ORDER:

First application of BD 495/04 I order pursuant to Sections 4.3.25 and 4.3.26 of the Integrated Act that the Second Respondent be directed to stop its use of premises at the subject site for the purpose of other development until further order. From paragraph 60(3).

Second application of BD 1007/04 I order pursuant to Sections 4.3.25 and 4.3.26 of the Integrated Act that the Second Respondent be directed to stop its use of premises at the subject site for the purpose of other development until further order. From paragraph 61(3).

I adjourn the further hearing of the applications and suspend the operation of paragraphs 60(3) and 61(3).

CATCHWORDS:

PLANNING LAW – INJUCTION PROCEEDINGS. CONSTRUCTION OF PLANNING SCHEME – whether use permitted under planning scheme. Use and definition of ‘showroom’. Interpretation and construction of planning scheme. Administration of scheme by Local Government. Ascertaining ‘Legislative intention’ of scheme.

Cases considered:

Westfield Management Ltd –v- Pine Rivers Shire Council, unreported (PEC, 14 November 2003, 1627/2003)
Warehouse Group (Australia) Pty Ltd –v- Woolworths Ltd [2003] NSWCA 270
Woolworths Ltd –v- Caboolture Shire Council and The Warehouse Group (Australia) Pty Ltd [2004] QPEC 15
Woolworths Ltd –v- Caboolture Shire Council and Makro Warehouse Pty Ltd [2004] QPEC 15
Woolworths Ltd –v- Caboolture Shire Council and The Warehouse Group (Australia) Pty Ltd [2004] QPEC 26
Woolworths Ltd –v- Caboolture Shire Council and Makro Warehouse Pty Ltd [2004] QPEC 26
Woolworths Ltd –v- The Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 31
Woolworths Ltd –v- Toowoomba City Council and Makro Warehouse Pty Ltd [2004] QPEC 66

Counsel:Mr D. GORE QC and Mr J D HOUSTON for the Applicant in 495/04 and 1007/04

Mr MJ BURNETT for first Respondent 495/04 and 1007/04

Mr RS LITSTER for the second Respondent 495/04 and 1007/04
Mr PJ LYONS QC for the third respondent in 495/04

Solicitors:  Malleson Stephen Jacques for the Applicant
  Townsville City Council for first Respondent
  Deacons for the second Respondent
  Suthers and Taylor for the third Respondent

1. In this matter the Applicant, Woolworths Ltd (“Woolworths”) initially sought relief in the following terms against the Warehouse Group (Australia) Pty Ltd (“Warehouse”) as follows:

“1. A declaration pursuant to section 4.1.21 of the Integrated Planning Act 1997, that the Second Respondent has started assessable development (being a use characterised under the planning scheme for the Shire of Townsville (‘Planning Scheme’) as a ‘Major Shopping Development’, ‘Shopping Centre’ or another use under column 4 in section 7.3 of the scheme (‘Other Development’) on land situated at 216-230 Woolcock Street, Currajong and described as Lot 1 on SP 125898 (‘Subject Site’), without a development permit for the development;

2.        A declaration pursuant to section 4.1.21 that the Second Respondent   has and is continuing to unlawfully use premises at the Subject Site for   a ‘Major Shopping Development’, ‘Shopping Centre’ or ‘Other   Development’.

3. An enforcement Order pursuant to sections 4.3.25 and 4.3.26 of the Integrated Planning Act 1997, that the Second Respondent be directed to stop its use of premises at the Subject Site for the purpose of a ‘Major Shopping Development’, ‘Shopping Centre’ or ‘Other development’ until a development permit for that use has been obtained;

4.        Such further or other Orders or relief as the Court may deem fit.”

1. In the second application “Woolworths” seeks a declaration against Makro Warehouse Pty Ltd (“Makro”) in identical terms with respect to each of the above paragraphs except with regard to the land description which in the second application in paragraph 1 referred to “land situated at 153-163 Duckworth Street, Garbutt and described as Lot 1 on SP 148252 (“the subject site”) without an effective development permit for the development;”

1. I referred to the relief being “initially claimed” above because on the hearing of each application it was not contended that in either application that the Second Respondent’s business activity should be regarded as a “major shopping development”.  Whilst there is some doubt about whether the Warehouse site is in the “commercial” as distinct from the “light industry” zone, the applications have been conducted on the basis the subject lands are zoned “commercial” and any difference is not material to the outcome.

1. At issue is whether the use in each case is properly classified as a “showroom”, and if not, whether relief should be granted.

1. Each site is located in Townsville.  The Warehouse site is located at 11 Keane Street, near the intersection of Woolcock and Hugh Streets.  On 6 June 2002, the Council approved a development permit for a material change of use - code assessment for showroom purposes.  The Warehouse is located as one of three tenancies, a large building of 6,771m² the relevant tenancy towering an area of 3169.6m².  

1. The conditions of approval for the Warehouse included in condition 5(d):

“The use of the premises is restricted to a showroom as defined in the City of              Townsville Planning Scheme.  Where it is intended to use the premises for   purposes  other than a showroom, then the development must comply with   the requirements of the Planning Scheme.”

1. The development approval for building work was granted by Council on 12 September 2002 with an inconsequential change in the area.

1. The Makro site is part of stage 2 of development at Duckworth Street, Garbutt.  Stage 1 development had been approved by Council on 20 December 2002, with stage 2 being approved on 12 June 2003.  The Makro tenancy is also one of a number of tenancies with the development plan for the Makro tenancy being described as showroom number 1 with an area of 4,000m². 

1. The Third Respondents in each application are the lessors to Warehouse and Makro respectively.

1. Each of the applications raise similar issues primarily because each store conducts a similar business.  The wide variety of items which are displayed and sold is canvassed in the evidence of Mr Walkley, Mr Dimarsi, Mr Buckley and Mr Schomburgk with respect to the Warehouse operation and the first three named witnesses with respect to the Makro operation.  Mr Walkley defined 25 product categories with respect to the Warehouse operation and 31 with respect to the Makro business.  The stores each have similar layouts involving open floor plans but the merchandise including clothing, footwear, appliances, entertainment items, toys, camping and sporting goods, knick knacks, pet foods and accessories, furniture, luggage, and hardware and gardening products.  Foodstuffs of a limited kind are sold as are detergents and softdrinks and in the Makro case foodstuffs include milk and bread.   The goods mentioned above give a general indication of the wide variety of products sold.  The dominant use of floor space, and sales come from a variety of goods dissimilar to those listed in (a) to (f) in the showroom definition.  It will be seen the focus of attention is upon that definition.

1. The product range is not as extensive as one might find in competitors particularly in the sense of better known brands might be found at Kmart, Big W or Target stores and the no frills lay out combination with sale of lesser known brands no doubt assists in keeping prices lower and/or creates that impression.   In the Makro store a discreet area with a separate cash register of 400m² is set aside for clothing under the Millers’ brand.  There is a separate cash register in that area.  There is no suggestion that it is conducted as a separate business.  The businesses are self-service with payment at cash registers near the exit at the Warehouse, and with the exception of the Millers’ clothing component at Makro, all payments are made at checkouts near the exit.

1. I propose now to turn to the definitions which are to be found in s. 22 of the Townsville City Council Town Planning Scheme:

“Shop - premises comprising a gross floor area of less than 600 square   metres, used for the purpose of displaying or offering goods for sale to   members of the public and may comprise one or more than one retailer or   occupiers.  The term includes pet and pet supplies sales, hot bread shop,   video hire shop, liquor sales outlet (where not on the same site as an hotel)               and the incidental storage of such goods on the same premises.

The use may include, as an ancillary activity, the preparation and sale of   foods for immediate consumption and the installation and use of up to three               entertainment machines, but does not include a fast food outlet, restaurant, an   hotel, a service station or warehouse;

Shopping Centre - any shop or group of shops in one or more than one   building, having a minimum gross floor area of 600 square metres,   functioning as an integrated unit and comprising separate areas of   occupation and other areas used in connection therewith where:-

(a)       each of those separate areas, were it not part of a shopping centre,   would be:-

(i)        a shop;

(ii)       an arts and craft centre;

(iii)      commercial premises;

(iv)      a restaurant;

(v)       a fast food outlet;

(vi)      indoor entertainment (theatres only);

(vii)     landscape supplies;

(viii)     a medical centre;

(ix)      a public building or a public purpose;

(x)       a showroom;

(xi)      a surgery; or

(xii)     part of premises used for the purpose of a service industry; and

(b)       the extent to which those separate areas of occupation, where they are   not part of a shopping centre, would be a shop or shops is not in the   circumstances insignificant or nominal.  Provided that any shop   situated within a Local Shopping Zone shall be deemed to be part of a   shopping centre, irrespective of its floor area;

Showroom - means a use requiring a large floor area where the gross floor   area to be used for that purpose is not less than 400 square metres, for the               display or offering for sale by retail of goods being one or more of the   following uses, or other uses of a like nature requiring large floor spaces as                 determined by Council:-

(a)       floor coverings and wall tiles;

(b)       furniture;

(c)       domestic appliances being washing machines, dishwashers, clothes   dryers, refrigerators, hot-water systems, air-conditioning systems and   the like;

(d)       domestic fittings and electric appliances;

(e)       building and construction materials;

(f)        sporting goods;

Where more than three (3) showrooms exist in one or more than one building                   and function as an integrated unit they become a shopping centre.”

1. The table of development for the commercial zone appears in section 7 of the Planning Scheme at section 7.3.  It shows that a shop or a showroom is permitted development and at a shopping centre its permissible development is suggested here that if Warehouse and Makro operations have not appropriately been classified as a showroom and also are inappropriately described as a shop or a shopping centre that the use should be regarded as an innominate use.  I mention that a major shopping development is also permissible development.  It is accepted that if either the Warehouse or Makro operation does not qualify under the scheme as a “showroom” it should be regarded as prohibited development with reference to section 7.3 of the Scheme.  The Applicant submits that should a conclusion be reached that the Warehouse and Makro business activity in each case cannot fit within any one of the definitions set out above it should be regarded an “innominate use”.  Since uses are no longer prohibited under the Integrated Planning Act (section 6.1.2 of that Act …..       dominance of the Act over the Planning Scheme) it is assessable development.

1. Because the definition of “shop” refers to a floor area of less than 600m² it is not surprising that no party contends that the business activity should be appropriately defined as permissible development as a “shop”. 

1. The reference to “shop” at the outset of the definition of “shopping centre” at first blush is in conflict with the definition of shop because the definition soon afterwards refers to “having a minimum gross floor area of 600m²”.   

1. Sub-paragraph (b) of the definition of shopping centre includes “it is provided that any shop situated within a local shopping zone shall be deemed to be part of a shopping centre, irrespective of its floor area”.  “Local shopping zone” is not defined separately. I think a floor area of above or below 600 m² is inconsequential as a shop within shops in a shopping centre.

1. The definition is complicated however because it refers to any shop or group of shops in one or more than one building and their having a minimum gross floor area of  600m² providing in sub-paragraph (b) as I have mentioned that the shop situated within a local shopping zone shall be deemed to be part of a shopping centre irrespective of its floor area but it is the building or buildings that must function as an integrated unit, in turn comprising separate areas of occupation.

1. I have been referred to a number of principles which have application in the interpretation of Planning Schemes.

1. As His Honour Judge Wilson S.C., D.C.J. commented in Woolworths Ltd v Caboolture Shire Council and The Warehouse Group & Ors. the authorities were helpfully compiled in Westfield Management Limited v Pine Rivers Shire Council & The Warehouse Group (Australia) Pty Ltd by Judge Britton SCDCJ upon whose judgment I accept for the purposes of this matter that principles which apply to the construction of Planning Schemes are as follows:

“(a) They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd.R. 352 at 360; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313 at 318.

(b)       They should be construed as a whole (Luke v Maroochy Shire Council   & Anor (2003) QPELR 447.

(c)       They should be construed in a way which best achieves their apparent  purpose and objects (Luke v Maroochy Shire Council & Anor (supra);   Nordale Management Pty Ltd v Maroochy Shire Council (1995)   QPLR 368 at 370; Act Interpretation Act 1954 s 14A;     

(d)       In the light of the proscription against prohibiting development   contained in IPA (s 6.1.2(3));

(e)       Statements of Intents or Aims or Objectives are intended to provide   guidance for the task of balancing the relevant facts, circumstances   and competing interests in order to decide whether a particular use   should be rejected as inappropriate (Degee v Brisbane City Council   (1998) QPELR 287;

(f)        A Strategic Plan sets out broad desired objectives and not every   objective needs to be met before a proposal can be approved (Lewiac   Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 at 230;

(g)       A Strategic Plan should be read broadly and not pedantically (Yu   Feng Pty Ltd v Maroochy Shire Council (supra);

(h)       Although planning documents have the force of law they are not   drawn with the precision of an Act of Parliament;

(i)        A conflict alone may not have the effect of ruling out a particular   proposal (Fitzgibbon’s Hotels Pty Ltd v Logan City Council (1997)   QPELR 208 at 212;

(j)        Implementation Objectives must be read sensibly and in context.  They   are but a function of the principle objective.  The purpose of the   objective is better understood by reading all of the implementation   objectives and understanding the strategy that is inherent (Jenkinson   Pty Ltd v Caloundra City Council (2002) QPELR 527 at 528.”

1. Mr Lyons QC who appeared for the Third Respondent in the Warehouse application also referred me to Cooper Brookes (Wollongong Pty Ltd) v FCT (1980) 147 CLR 297 at 320 to which bear similarity to the principles discussed in Luke v Maroochy Shire Council & Anor. (supra) placing some additional weight to the established principle as a task of statutory construction, the aim is to ascertain the “legislative intention” by reference to the language of the instrument viewed as a whole.

1. Mr Lyons QC also referred me to Pearce & Geddes Statutory Interpretation in Australia (5th Ed) at (5.16), Gifford, Town Planning Law and Practice para (7-24-2) and Re LDCM Investments Ltd & Newcastle (1975) 8 OR (2d) 504 is authority for the proposition that there is a presumption that legislation does not interfere with proprietary interests and any doubt in the construction of a Planning Scheme is to be resolved in favour of the landowner.

1. In the expert evidence in the case there was some passing reference to provision in other Planning Schemes.  I record that I am aware that different provisions apply in the Planning Schemes in the matters determined by Judges Britton SC and Wilson SC and that as a matter of principle, planning controls administered by one local government are not to be interpreted by reference to planning controls administered by other local governments.  Although exhibit 22 which includes reference to definitions from Planning Schemes of quite a number of local authorities was admitted in evidence, that was done only because it may have served to provide some explanation for the foundation of expert opinion.  In the final analysis there were no submissions from any party were based upon content of any scheme extract in exhibit 22 and I will not be making reference to that exhibit in the course of this determination.

1. Mr Gore Q.C. on behalf of the Applicant, cited Russell v Pine Rivers SC (1996) QPELR 214 at 244, R v The City of Teatree Gully ex parte Concrete Systems Pty Ltd (No 2) (1986) 65 LGRA 67 at 73 and 74, a decision of the Full Court of South Australia and Craig v Burnside (1986) 65 LGAR 77, 79 as authority for proposition that planning decisions by councils which are made by councils cannot be allowed to stand if they are plainly wrong.  The last mentioned authority also supports the proposition that if a council falls into error of law if it asks itself the wrong question, or relies on irrelevant material, council decisions should be similarly regarded.

1. The Applicant, relying on Buck v Bavone (1973) 1 CLR 110 at 118 and Foley v Padley at 184, 154 CLR 349 at 353, that the council’s classification of the Second Respondent’s businesses as a showroom is so unreasonable that no reasonable council could properly have arrived at it and accordingly that the Applicant is in each case entitled to relief. Being mindful that it is also significance in construction to consider provisions of the Planning Scheme in their context then it is appropriate to have regard to the whole of the table of development, I propose now to turn to the question of whether the Second Respondents’ businesses in each case should be appropriately described as a “shopping centre” or a “showroom” and whether the activity best fits one classification or the other if such a fit is possible.

1. As to the “Shopping Centre” definition, the Respondents point to the fact that the definition includes “… functioning as an integrated unit and comprising separate areas of occupation and other areas used in connection therewith.  They submit there are no separate areas of occupation, that there is no element of integration, there are no other areas used in conjunction.  It is submitted that in accordance with one’s common understanding of a shopping centre by reference to the definition that it could not have been intended to apply to a single tenancy.  In support the Respondents refer to the definition of “showroom” and submit that definition is more appropriate to a single tenancy.

1. The Respondents also point to the fact that the Applicants here do not rely on the existence of any other adjoining or nearby tenancies in support of the proposition that the Second Respondent’s businesses would be defined as a shopping centre.  It is submitted on behalf of the Respondents that the reference to the shopping centre definition being within a building or a number of buildings within which the integrated unit must function.  In a single building there must be separate areas of occupation.  It was pointed out that this is what one commonly finds in a suburban shopping centre where a building shared by a number of tenants.

1. The Applicant’s submission includes that the definition of shopping centre is not well drafted.  It refers to the definition including reference to a shop having a minimum gross floor area of 600m²  whereas shop definition supplies a gross floor area of less than 600m² also refers to the definition of shopping centre including “any shop … in … one building having a minimum gross floor area of 600m² functioning as an integrated unit and comprising separate areas of occupation and other areas used in connection therewith …”  The Applicant points to a definition not, it is submitted, excluding tenants such as a supermarket.  Shopping centres it said have a capacity to expand and anchor tenants can become larger.  Shopping centres often pick up Discount Department Stores and mini majors and department stores.  It is submitted that a shop definition is inappropriate for an anchor tenant, because of the floor space limitation.

1. It may be possible to take the view that words “functioning as an integrated unit” refers to the internal function of a shop; “comprising separate areas of occupation”  refers to layout of goods in defined areas; “other areas used in connection therewith” refers to loading bays or storage.  Such a construction in the “shopping centre” definition it does not rest easily with one’s general understanding of a “shopping centre” despite the fact that each of the Second Respondents have well-planned layouts for a large variety of goods are displayed in separate areas.  As mentioned Makro do have a separate area of 400m² selling clothing with a separate cash register under the Millers’ banner.

1. It is not essential to this determination to decide whether either of the Second Respondents’ businesses should have been classified as a shopping centre.  I do not think they should have been so classified or that “best fit” principles apply after considering the extent of incompatibility with the definition. 

1. With respect to the “showroom” definition the Respondents point to a number of matters which it is said reference to the definition of “showroom” supports the proposition that in each matter the First Respondent council has appropriately classified the Second Respondents’ business activity as a showroom”. 

1. Firstly, it is pointed out that the Second Respondents’ businesses do require large floor space.  The First Respondent has determined business activity is a use or use of a like nature.  It is submitted that focussing on categories of goods is an inappropriate approach.  The activities are commonly included in a commercial zone.  If not a “showroom” they would become prohibited development taken under the scheme, despite having no perceptible adverse town planning impact.  It is said that although there are many product descriptions that should be of no assistance to the Applicant because sub-paragraphs (a) to (f) refer to uses and it is suggested that the focus of attention should be upon the purpose to which the premises are put rather than product categories.  It is submitted the words “the following uses” should be read to mean “the following categories or following classes” on the basis that such a characterisation represents a practical and common sense approach when assisted by analysis of the scheme as a whole.

1. Attention was also focussed upon “offering for sale by retail of goods” and “requiring large floor spaces … being one or more of the following uses or other uses”.  It is submitted that the 400m² requirement is really of no assistance to any of the parties because nothing in the Scheme supports what was called a themed usage.  It was pointed out that there are only two retail definitions in the Scheme being “shop” and “showroom”.  It was submitted that there would be a significant constraint on retail activity outside the definitions in the scheme with the narrow interpretation contended for by the Applicants.  It was submitted that supermarkets and department stores would not fit although experts Mr Brown and Mr Schomburgk said orally in evidence that they subject businesses and supermarkets and department stores would fit the showroom definition.  It was submitted that the (a) to (f) description should be read merely as examples of uses requiring large floor spaces.

1. It was pointed out that the definition does not caveat uses by reference to bulk or quantity. 

1. Mr Lyons QC who appeared for the Third Respondent on the first application admitted that there was an obvious drafting error in the definition of “showroom” in the Planning Scheme.  He submitted that whilst the expression “being one or more of the following uses” is plainly intended to refer to the matters listed in sub-paragraphs (a) to (f) those matters were not “uses”.  Rather they identify categories of goods.  He submitted that substitution of “following classes” for the following uses could be found to be attractive because it is a sensible reading of the definition on the basis that classes of goods are identified.

1. Mr Lyons QC anticipated the Applicant would submit “classes” should replace “uses” where the definition makes reference to “or other uses of a like nature”.  Whilst that submission was not in fact made on behalf of the Applicant a number of reasons were advanced as to why that should not be the result.  I set out Mr Lyons QC’s submission in that regard because I think it is worthy of consideration and the submission also sets out why it is said the definition in this context should be applied.

1. I quote from the written submissions as follows:-

“Any submission to this effect should be rejected, on the following grounds:-

(a)       there is no obvious error in the expression.  Rather, the change is an   attempt to have the Court redraft the definition;

(b)       this part of the definition sits comfortably with the part which   precedes it.  The part which precedes the expression, ‘or other uses of   a like nature requiring large floor spaces as determined by Council’ is   an alternative to the ‘use’ referred to in the part of the definition   which precedes it;

(c)       the change to ‘goods’ does not make sense in the context of the   expression, ‘or other uses of a like nature requiring large floor spaces   as determined by Council’.  Goods (in isolation) do not require large   floor spaces; rather it is the use of premises for the sale of such goods   which may require a large floor space;

(d)       the substitution of the word ‘goods’ for ‘uses’ in the expression, ‘or   other uses of a like nature requiring large floor spaces…’ does not   make sense, in the context of the classes of goods identified in sub-  paragraphs (a) - (f).  Those classes do not have a common feature   which enables the identification of other goods of a like nature;

(e)       the purpose of the definition is to identify uses.  It is therefore more   likely that the draftsperson, in the expression, ‘or other uses of a like   nature requiring large floor spaces as determined by Council’ is   seeking to identify a range of uses.

21.      It appears from the Applicant’s opening that it may recognize the difficulties              inherent in the approach which has just been referred to.  It seems that the   Applicant seeks to treat the matters set out in paragraphs (a) - (f) of the   definition of “Showroom” as a list of uses.  That, plainly, cannot be correct.    One does not speak of any of the matters referred to in paragraphs (a) - (f) as                    a use of land.  It is plain that they are a list of goods.  It would be an   extraordinary departure from the common usage of language to describe   those matters as lists of uses.

22.      There is no need to make that departure.  Nor is there any reason to think that                  was the intention.  In a phrase (‘being one or more of following uses’) which   immediately follows the word ‘goods’ the draftsperson’s plain intention was             to identify categories of goods, the sale by retail of which was intended to   come within the first part of the definition of showroom”.

1. With respect to that part of the definition which included “one or more of the following uses” Mr Lyons QC submitted that the words gave an indication that there was an intent to have the definition operate “widely”.  He then drew attention to the second part of the definition referring to uses of a like nature requiring large floor spaces, as determined by council”.  He submitted that it would be wrong to conclude the natural reading of the definition means that there must be something about the goods that requires a large floor area.  The definition refers to “where the gross floor to be used for that purpose” floor area should be identified by reference to a use for a purpose rather than reference to goods of a particular kind.  It was submitted the definition intends “to refer to a requirement arising out of the way the use is carried out.  In other words the definition is intended to refer to a requirement of the style of operation.” 

1. The Applicant acknowledges that the definition of showroom contains two limbs, each focussing on “a use requiring a large floor area”.  It is submitted the presence of the word “use” indicates that the intention is that a showroom will be a specialised retail outlet which offers for sale goods appropriate to a specialised use rather than a range of goods suitable to a wide variety of uses.

1. The Applicant points to the definition including:-

(a)       the words “the … floor area to be used for that purpose …”

(b)       the description of “uses” defined in the six categories.

(c)       the specialised nature of the six identified “uses”.

(d)      the distinction drawn between “goods and uses” (the first limb essentially                   going to the sale by rental of goods for one or more of the specified uses).

1. On behalf of the Applicant it is submitted that the definition has in mind a specialised retail store which is capable of being described in a generic fashion.

1. I was referred to the authority of Sutherland SC v Taleope Pty Ltd (1993) 85 LGERA 103 at 106 (Court of Appeal NSW) it is submitted that goods not requiring large floor spaces will not qualify. This authority refers to an instance where the word “require” appeared in the Scheme being a case in which it was found that goods ancillary to “bulky goods” as described were also appropriately included as an appropriate use.

1. It was submitted that when goods of a particular kind are described “use” should be regarded as defining goods of a particular type.  It was submitted that guidance should be gained by reference to the history of showrooms, such a use is quite unlike and inconsistent with that of a supermarket or a discount department store.  It was pointed out that the six listed categories require large floor spaces caused by the minimum area of 400m².   It is on this basis that other goods do not qualify if they do not require large floor spaces.

1. It is submitted that the intensive racking and display of goods at the Second Respondents’ business premises is at odds with the traditional view of a showroom pointing out that the definition does not contemplate a single store of 400m² which can sell all of the products in each category and in addition the goods approved by council.  Attention was drawn to the inclusion of the deeming provision which creates a shopping centre when three or more store rooms exist in one or more buildings.

1. It is pointed out that many of the goods sold in the Second Respondents’ businesses are frequently found for sale in small shops, and it is suggested that it is offensive to common sense to have a minimum area apply to specified categories of goods and at the same time have no limitation on area with respect to unspecified goods.  Mr Gore QC on behalf of the Applicants included in his written submission:

“25.     A similar issue arose with the same operator in Woolworths Ltd v The   Warehouse Group (Australia) Pty Ltd, where the Court (Lloyd J) said:

‘The connection between many of the goods identified on the floor   plan and the display and sale of (permitted) goods seems to be   somewhat tenuous.’

‘… it seems clear … that the vast majority of the goods are clearly not   (permitted) goods, and those which are (permitted) goods comprise   such a small proportion of the total merchandise on display for sale as   to be merely incidental to the Respondent’s business, being the selling   of general merchandise.  At its highest the Respondent’s use of the   premises might be described as a form of small discount department   store.’

26.      In the same matter, on appeal, the Court distinguished TWG’s use from   ‘specialised selling areas’ (such as premises used for the sale of electrical   goods, bedroom furniture, or paint, wallpaper and home decorating items).

27.      TWG appears to have foreshadowed the rather general submissions that an                operator’s method of marketing can give rise to the need for a large floor   area and that, with its operation, the large range of product, and the method                   of racking storage and display, require a large floor area.

28.      Any such submissions should be rejected, because -

(a)       they ignore the requirement of the definition that the use offer for sale   goods for one of the six specified uses or uses of a like nature;

(b)       as has already been said by the Courts in respect of similarly general   submissions in respect of TWG, on that approach, it would be possible   to characterise any large store (such as a department store or a DDS)   as a showroom;

(c)       the Court of Appeal has rejected the notion that, with a definition of   this kind, it is appropriate to define goods by reference to the mode of   business of the vendor or to pay attention to the manner in which the   goods are to be sold, rather than the goods themselves.

29.      Had it not been for a late development during the hearing, the treatment of   this issue in these submissions would have ended here.  However, it emerged   that both Mr Brown and Mr Schomburgk shared a common view about the                interpretation of the second limb of the definition that had the consequence   not only that TWG’s use constituted a ‘showroom’, but also that all major   conventional retail outlets (supermarket, DDS, department store, etc) did as               well.  This is an extraordinary proposition, which was not foreshadowed in   their reports, or elsewhere, and it is convenient to deal with it in the context             of the ‘shopping centre’ definition.”

1. It has been noted that the definition includes reference to “other uses of a like nature as determined by Council”.  The determinations had been by an officer of the Council. That was evidently recognised as potentially problematical and, during the course of the hearing, the Council made a determination with respect to both applications in terms shown in exhibit 25.  The determination in each case was “that the use … is a use requiring a large floor area for the display or offering for sale of goods like the uses listed in the showroom definition at items (a) to (f)”.  It appears the determination was made, without the competing arguments being highlighted, on the Director of Planning’s recommendation.

1. It will be noted that there was apparently very little information provided with regard to the first application by Mr Dance, Town Planner on behalf of the Third Respondent prior to the Town Planning Department classifying the development as a showroom on 26 March 2002.  That information indicated that the Second Respondents’ operation was very similar to a Crazy Clarks’ store which one can infer had earlier been approved as a “showroom”.  Before the Council made the determination on 20 October 2004 the director of the Planning and Development Services had provided a brief memorandum to Council.  He prepared a memorandum dated 18 October 2004 (part of Ex. 25) which was to the effect that after considering expert reports of the parties in these proceedings he said:

“I remain of the opinion that the uses are ‘uses of a like nature’ within the                 showroom definition.”

1. Local knowledge no doubt encouraged Planner, Mr Dance on behalf of the Third Respondent in the first application to limit his input with respect to the “showroom” classification as the Council had already applied the classification to a Crazy Clark’s store.  I make no relevant criticism of such an approach.  It is somewhat inconsistent with the approach of the Planner in the second application who so far as I know does not have an office in Townsville.  It could be said broadly that that Planner displayed some concerns about whether the proposal fitted the “showroom” definition.  The Director of Planning who provided the memorandum I have mentioned above, as disclosed from exhibit 14 wrote to PRM Pty Ltd (the Second Respondent’s Planner) in the second application on 23 January 2003 and said in that letter:

“… tenancies are to be of a minimum of 400m² and sell bulky goods or goods                   of a like nature that require large floor space.”   

and later in the same letter said:

“… the City Plan does however require showrooms to be a minimum of 400m²                  with a pre-requisite for the sale of bulky goods.”

1. The definition as has already been noted makes no reference to the bulk of goods.

1. I should mention that the strategic plan at 2.16.4 indicates hierarchy intent for development making reference to “with the city centre as the dominant commercial and retail centre”.  I think the intention is to limit, rather than expand the range of goods to be sold.

1. I have considered the competing submissions.

1. I think that any reasonable person looking at the relevant definition in the Scheme would conclude that the nature of the goods sold is a material factor.  Having regard to the nature and variety of the goods sold, the dominant use of the floor space relates to the sale of goods which do not to my mind fit within the definition of goods of a “like” nature.  To take any contrary view I think it would be necessary to ignore the classification of goods.  Having regard to the use requiring a minimum of 400m², and the further deeming provision which makes 3 showrooms a “shopping centre” I think the definition can only be sensibly read to mean that each defined or approved use requires a floor area minimum of 400m².  I am satisfied that many of the goods sold and the manner of selling does not appropriately fall within the showroom definition.  The use is best defined as innominate.  I conclude that the Council’s determination that business activities of the Second Respondents’ businesses as a “showroom” has no legal effect.

1. I turn now to discretionary considerations.

1. The Respondents acknowledge that it is an importance in upholding planning law in the broad public interest.

1. In Westfield Management Ltd v Pine Rivers Shire Council & The Warehouse Group (Australia) Pty Ltd I note that the facts included that Council had written to the owner of the premises making specific reference to Council’s contention that in selling food and groceries, the premises fell within the definition of a shop and that that information had been brought to the attention of Warehouse who in turn sought advice and elected not to make an application or develop a permit to enable the premises to be used at her shop.

1. The point has been made that in these applications each Second Respondent has submitted to and obtained approval from the Council to proceed with the businesses under the “showroom” classification.  It was submitted that Judge Wilson SC in Woolworths Limited v Caboolture Shire Council & The Warehouse Group & Makro Warehouse Pty Ltd in that part of the decision of 17 June 2004, had said that the Council’s neutrality in those matters was a neutral factor in determining what relief ought to be given.  This matter it submitted that the Council’s participation should assist the Second Respondents as to the question of whether or not relief ought to be granted.

1. The Council’s interests in this matter differ somewhat from those of the Second Respondents.  I have concluded that Council’s participation in seeking to resist the applications is not something which should be given any significant weight when determining whether the relief sought should be granted. 

1. The Court has been asked to note the obvious inconvenience which would be attendant  upon granting of relief; the absence of complaints in the neighbourhood; the fact the activity was not causing damage; that in the first application the business had been carried on for almost two years; that the application had been brought by a private Applicant competitor.  Neither was aware of any potential illegality before these applications were made.

1. I have also been asked to take into account that language used in the definition in the Scheme can be seen to create some difficulties in interpretation.  Each Second Respondent also had of course the support of the Council.  Neither did anything inappropriate in seeking Council’s consent.  Each employs a significant number of people.  Operations are in a commercial zone where retail activity selling good such as are sold should generally be expected.  It is also pointed out that there are no adverse amenity impacts for residents.  Security of employment is of concern.

1. Considerations of this nature have been raised in other matters involving the same parties, when the Court has been asked to grant discretionary relief.  It is possible to distinguish this matter from the other matters in that the schemes or conditions of approval contained specific prohibitions against specific commercial activity.  Nonetheless, it is important that there be compliance with the planning scheme.  Having found the Second Respondents’ businesses do not fit within the planning scheme, I decline to grant discretionary relief.  The relief sought is immediate.  I will adjourn the further hearing for further submissions to be made in that context and make the following orders:-

1. (1) As to BD 495 of 2004, a declaration pursuant to Section 4.1.21 of the Integrated Planning Act 1997, that the Second Respondent has started assessable development (being uses under the planning scheme for the city of Townsville being another use under column 4 in Section 7.3 of the scheme) on land situated at 216-230 Woolcock Street, Currajong as described as Lot 1 on SP 125898, without a development permit.

(2) A declaration pursuant to Section 4.1.21 that the Second Respondent has and is continuing to unlawfully use premises at the subject site.

(3) I order pursuant to Sections 4.3.25 and 4.3.26 of the Integrated Act that the Second Respondent be directed to stop its use of premises at the subject site for the purpose of other development until further order.

1. (1) As to BD 1007 of 2004, a declaration pursuant to Section 4.1.21 of the Integrated Planning Act 1997, that the Second Respondent has started assessable development (being uses under the planning scheme for the city of Townsville being another use under column 4 in Section 7.3 of the scheme) on land situated at 153-163 Duckworth Street, Garbutt and described as Lot 1 on SP 148252, without a development permit.

(2) A declaration pursuant to Section 4.1.21 that the Second Respondent has and is continuing to unlawfully use premises at the subject site.

(3) I order pursuant to Sections 4.3.25 and 4.3.26 of the Integrated Act that the Second Respondent be directed to stop its use of premises at the subject site for the purpose of other development until further order.

1. I adjourn the further hearing of the applications and suspend the operation of paragraphs 60(3) and 61(3).