Woolworths Limited v The Warehouse Group (Australia) Pty Ltd

[2003] NSWLEC 350

>

Land and Environment Court

of New South Wales

CITATION:

Woolworths Limited v The Warehouse Group (Australia) Pty Ltd and Another [2003] NSWLEC 350

PARTIES:

APPLICANT
Woolworths Limited

FIRST RESPONDENT
The Warehouse Group (Australia) Pty Ltd

SECOND RESPONDENT
Liverpool City Council

FILE NUMBER(S):

40805 of 2002

CORAM:

Talbot J

KEY ISSUES:

Development Consent :- whether responsive to development application - whether business conducted inconsistently with development consent

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 25(3), s 76A, s 96, s 101
Evidence Act 1995 s 54
Environmental Planning and Assessment Regulation 2000 reg 124
Liverpool Local Environmental Plan 1997 cl 6, cl 10(10), cl 50(2), cl 51

CASES CITED:

Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257;
Chambers v Maclean Shire Council and Others (2003) 126 LGERA 7;
Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157

DATES OF HEARING:

17/11/2003, 18/11/2003, 19/11/2003, 21/11/2003, 28/11/2003 (written submissions)

DATE OF JUDGMENT:

12/19/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr M G Craig QC with Ms J M Jagot (Barrister)
SOLICITORS
Mallesons Stephen Jaques

FIRST RESPONDENT
Mr T F Robertson SC with Mr M L Wright (Barrister)
SOLICITORS
Deacons

SECOND RESPONDENT
Submitting Appearance

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40805 of 2002

Talbot J

19 December 2003

Woolworths Limited

Applicant
v

The Warehouse Group (Australia) Pty Limited

First Respondent

Liverpool City Council

Second Respondent

Judgment

Introduction

1 Woolworths Limited (“the applicant”) has commenced these proceedings against a trade rival, the Warehouse Group (Australia) Pty Limited (“the first respondent”).

2 The first respondent operates a sale outlet for a wide range of goods in Unit 1 No. 3 Sappho Road, Warwick Farm within the area of the City of Liverpool (“the site”). The site is located within the Industrial - Special 4(b) zone pursuant to Liverpool Local Environmental Plan 1997 (“the LEP”). Shops are prohibited in the zone whereas a bulky goods salesroom or showroom and a convenience store are uses permitted with development consent.

3 There are two aspects to the applicant’s claim. Firstly, it is alleged that the development consent No. 1937/01 granted on 6 April 2001 (“the first consent”) to which the first respondent purports to carry on business was not responsive to the development application lodged on 15 February 2001 to carry on a development described as “Clints the Warehouse” and, accordingly, had no legal effect and is a nullity. Secondly, the business as it is conducted is inconsistent with the first consent, which was granted for a “bulky goods salesroom”.

4 Development consent No. 358/02 was subsequently granted on 20 September 2001 in respect of the same site (“the second consent”). The second consent permits the use of part of the site for a convenience store. The second consent is relied upon by the applicant as evidence of the manner in which goods will be displayed and sold in order to show the true character of the overall store.

The evidence

5 The underlying facts in relation to the application for development consent, the consents granted by the second respondent, Liverpool City Council (“the council”), and the way in which goods are offered for sale are not relevantly in dispute to any significant extent. The observations on a view undertaken by the Court are evidence in the proceedings pursuant to s 54 of the Evidence Act 1995 (“the Evidence Act”). The issues between the parties arise in respect of the proper characterisation of the retail business and construction of the provisions of the LEP provided, of course, that the applicant is able to convince the Court a notice the council purported to give pursuant to s 101 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) has no application.

The relevant provisions of the LEP

6 In order to understand the true nature of the competing arguments it is necessary to set out the relevant provisions of the LEP in full.

7 Clause 6 of the LEP contains the following definition:-

“Bulky goods salesroom or showroom” means a building or place used for the sale by retail or auction, or the hire or display, of any of the following:
(a) furniture, or
(b) electrical goods, or
(c) toy and sporting equipment, or
(d) office furniture, or
(e) hardware, or
(f) outdoor products, or
(g) floor coverings, or
(h) automotive parts and accessories, or
(i) lighting, or
(j) antiques and second-hand goods, or
(k) kitchen or bathroom showrooms, or
(l) tiles (floor, ceiling or wall).

8 It contains other definitions, including:-

“Shop” means a building or place used for selling items, whether by retail or auction, or for hiring or displaying items for the purpose of selling or hiring them (whether the items are goods or materials).
“Convenience store” means a shop selling a variety of small grocery goods, whether or not goods are available for hire there.
“local shop” means a shop that:

(a) operates primarily to serve the surrounding residential area, and

(b) trades principally in groceries, small goods and associated convenience items, and
(c) does not exceed 75 square metres in gross floor area,
and includes such a shop that also offers the facilities of a post office or newsagency.

9 Clause 51 of the LEP provides as follows:-

Consent may be granted for a bulky goods salesroom or showroom within the 4(b) zone only if:-
(a) the gross floor area of the part of the building used for the sale, storage and display of the following items, when added to the part of the area of outdoor display used for displaying the following items, is not less than the area shown below:
furniture 1000sqm
electrical goods 1000sqm
toys and sporting equipment 1000sqm
office furniture 1000sqm
hardware 1000sqm
outdoor products 500sqm
floor coverings 250sqm
automotive parts and accessories 250sqm
lighting 250sqm
antiques and second-hand goods 250sqm
kitchen or bathroom showrooms 150sqm
tiles (floor, ceiling, wall) 150sqm

(b) the building is located on land having a site area of not less than that shown corresponding to the number of bulky goods salesrooms or showrooms on the land:
1 0.5ha
2-5 1.0ha
6 or more 2.0ha

10 Clause 51 immediately follows the zone objectives in cl 50(2) which relevantly states the objectives for the Industrial Special - 4(b) zone to be as follows:-

(a) to set aside sufficient land to be used primarily for a broad range of industrial land uses, and

(b) to permit a range of land uses which serve the industrial areas, and

(c) to permit a range of land uses which are compatible with industrial areas, and
(d) to permit retail development only where
(i) it is ancillary to and associated with an industrial use of land in the zone, or
(ii) it services the daily convenience needs of the local workforce, or
(iii) it is for the purpose of bulky goods retailing, or

and only if it does not have an adverse impact on the viability of the business areas of Liverpool, and
(e) to promote a high standard of urban design, particularly along arterial roads.

11 Clause 10(10) of the LEP provides as follows:-

Shops in the 4(a), 4(b), 4(c) and 4(d) zones Development for the purpose of a shop may be carried out only with consent on land within the 4(a), 4(b), 4(c) or 4(d) zone if the shop serves the daily convenience needs of the local workforce.

The Planning Consents

12 A development application form was lodged with Liverpool City Council (“the council”) on 15 February 2001 under cover of a letter from Architects & Urban Designers, Douglas Sanger Pty Ltd (“Douglas Sanger”). The proposal was described as follows:-

Occupy existing Home Centre by CLINTS THE WAREHOUSE

13 The Statement of Environmental Effects submitted by Douglas Sanger supported the development application and incorporated a report from Hirst Consulting Services Pty Limited (“Hirst Consulting Services”) which described the concept of Clints the Warehouse as to provide much larger premises than the retail shops (ideally between 2,500 – 3,500m2), to store and display goods in bulk and to offer expanded ranges and increase the volume of goods in categories such as:-

…Furniture, Furnishings, Garden & Outdoor, Lighting & Lamps, Electrical Goods, Prints & Frames, Camping Goods, Car Accessories, Rugs & Floor Coverings, Hardware and Office Equipment.

14 By further letter dated 5 March 2001 Douglas Sanger submitted a copy of a new document more fully describing and illustrating the Clints the Warehouse operation. The following description appears in that document:-

The “Clints the Warehouse” format is BULKY, in all aspects of the operation and appearance :

- the minimum floor area is 2,500sqm, the present range is 2,500 to 3,500sqm

- the interior is 9 metres high

- the appearance is of a “barn” or “industrial shed”

- there is no rear storage area, merely a deliveries’ stripping area

- all storage is on the sales floor, at high level ( on the 4 metres sales racking )

- racking has wider aisles, due to the height and bulky products

- their products are purchased in bulk lots, rather than as constant/continuous stock ranges of particular items

- the range of products offer large items ( eg. Furniture, furnishings, floor coverings, kitchens & appliances, audio/visual equipment, garden & camping wares, bicycles, lighting & electrical, car accessories, office equipment, hardware items, prints & frames ) as well as smaller products in bulk

- they must have direct access to large car parking area(s), for customers to transport their purchases.
(NOTE : the above description is of the standard format; in acceptable existing buildings these standards may be nominally modified)

15 The document further makes the point that the range of products offered is not constant, reflecting purchases in bulk and that the format of retailing has an “intrinsically “bulky” appearance, nature and operational character”.

16 On 6 April 2001 the first consent was issued to Colonel Clints Crazy Bargains for a proposed development described as follows:-

USE OF UNIT 1 AS A BULKY GOODS SALESROOM (CLINTS WAREHOUSE)

17 Condition 1 of the first consent is in the following terms:-

Development must be carried out generally in accordance with Development Application received 21 February 2001 and accompanying plans marked “Proposed commercial development Warwick Farm Homemaker’s Centre” dated 2 August 1999 (Ref: Plan No/s. Drawing No 97166; Sheet No H1) except where modified by the undermentioned conditions.

18 Condition 4 of the first consent, which accords with the definition in cl 6(a) to (l) of the LEP set out in [7] above, provides as follows:-

4. Occupation of the subject unit is to be undertaken in accordance with the following definition at all times:
Bulky goods salesroom or showroom means a building or place used for the sale by retail or auction, or the hire or display, of any of the following:

(a) furniture, or

(b) electrical goods, or

(c) toy and sporting equipment, or

(d) office furniture, or

(e) hardware, or

(f) outdoor products, or

(g) floor coverings, or

(h) automotive parts and accessories, or

(i) lighting, or

(j) antiques and second-hand goods, or
(k) kitchen or bathroom showrooms, or

(l) tiles (floor, ceiling or wall).

19 Condition 5 provided as follows:-

The display and sale of the following item classifications is strictly prohibited:

(a) grocery items (including cosmetic and toiletry products, foods, and beverages and domestic cleaning and household products);
(b) clothing, footware (sic) and sunglasses;
(c) manchester and linen;
(d) craft supplies;
(e) music (including CDs and audio cassettes); and
(f) confectionary.

20 On 9 April 2001 Douglas Sanger forwarded a letter to the council expressing disappointment at the prohibitions imposed by condition 5 of the first consent and providing reasons for that concern, together with arguments why the prohibition should be modified.

21 The council replied on 30 April 2001 and made the following observation:-

It is Council’s observation, from inspection of new ‘Clints Warehouse’ operations, that many of the items referred to in condition No. 5 are not merely ‘ancillary’ or ‘incidental’ to the principal retail activity being undertaken, but are significant enough to serve as ‘draw cards’ in their own right.

22 Following receipt of legal advice the council again wrote to the applicant’s representative on 6 July 2001 and explained the legal advice it had received as follows:-

“In accordance with the consent, anyone wishing to sell, hire or display items other than those listed in Condition No. 4, can only do so if the sale, hire or display of those items is ordinarily ancillary to and dependent upon the sale, hire, or display of the items listed in Condition No. 4.”

23 On 13 July 2001 Douglas Sanger made an application to modify the development by deleting condition 5. The council subsequently modified the first consent pursuant to s 96 of the EP&A Act on 20 September 2001 by amending condition 5 (“the modified consent”).

24 Condition 5 of the consent as modified provides as follows:-

The sale by retail or auction, or the hire or display on the premises of any item which is not ancillary to and dependant upon the sale by retail or auction, or the hire or display of any item listed in the definition of “bulky goods salesroom or showroom” in Condition 4 is prohibited”.

25 The determination of an application to modify the consent by deletion of condition 5 and substituting an alternative condition drafted by the council would appear to offend the principles established by Stein J in Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257, namely that there is no jurisdiction or power to modify a consent other than in the terms applied for by the applicant. Having regard to later findings in these reasons it is not necessary to prove that matter in the present case except to note the decision has been the subject of doubt expressed by the President of the Court of Appeal. Prima facie, the condition is a re-statement of well-established existing legal principle.

26 On 16 July 2001 Douglas Sanger submitted the further development application to the council seeking consent to the use of 100m2 of the site as a convenience store.

27 The use in the second consent is described as follows:-

CONVENIENCE STORE WITHIN A BULKY GOODS SALESROOM (CLINTS WAREHOUSE)

28 If the applicant is successful in its claim that the first consent is invalid then the modified consent will have no effect.

29 The first respondent submits that even if the applicant is entitled to challenge the development consent, notwithstanding the publication of a privative notice pursuant to s 101 of the EP&A Act, the applicant’s case nevertheless fails on its factual claim that the approved use and the actual use is for a shop. However, even if the Court is satisfied that the use, properly characterised, is for a shop the first respondent relies upon cl 10(10) of the LEP as an alternative source of power so that shops are not prohibited in the Industrial 4(b) zone and are permissible with consent.

The section 101 notice

30 Section 101 of the EP&A Act is in the following terms:-

101 Validity of development consents and complying development certificates
If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

31 The relevant regulation referred to in s 101 is reg 124 of the Environmental Planning and Assessment Regulation 2000 (“the Regulation”), which provides as follows:-

124 What are the public notification procedures for the purposes of section 101 of the Act?
(1) The granting of a development consent is publicly notified for the purposes of section 101 of the Act if:
(a) public notice in a local newspaper is given:
(i) by the consent authority, or

(ii) if the consent authority is not the council, by the consent authority or the council, and

(b) the notice describes the land and the development the subject of the development consent, and

(c) the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours:
(i) at the consent authority’s principal office, or
(ii) if the consent authority is not the council, at the consent authority’s office or the council’s principal office.
(2) Nothing in this clause confers a right or entitlement to inspect, make copies of or take extracts from so much of a document that, because of section 12 (1A) of the Local Government Act 1993, a person does not have the right to inspect.

32 On 16 May 2001 and 31 October 2001 the following notice appeared in the Liverpool City Champion and the Liverpool Leader respectively:-

SCHEDULE OF DEVELOPMENT CONSENTS (Section 101A of the Environmental Planning and Assessment Act, 1979)
The following Development Consents have been granted pursuant to Section 80 of the Environmental Planning and Assessment Act, 1979.
…
A1937/01 Usage By Clints The Warehouse
DP 788368 Lot 10 1 – 3 Sappho Rd,
Warwick Farm 6-Apr-01

33 Public notification is an important element in the process that leads to the serious privative consequences contained in s 101.

34 A combination of the following facts, therefore, render the notice of no effect for the purposes of s 101 as they demonstrate a failure to comply with the mandatory nature of the provisions of the Regulation:-

(a) The reference to s 101A is incorrect;


(b) The land is not fully described by reference to Unit 1 as required by reg 124(1)(b);

(c) The development is not described. Only the name of the developer appears. That is not an adequate response to reg 124(1)(b) that the notice describe the development; and

(d) No part of reg 124(1)(c) is complied with as the notice is silent about public inspection.

35 The terms of s 101 and reg 124 must be strictly complied with. Accordingly, the notice is invalid and it does not have the effect that the consent cannot be questioned in the proceedings.

The proposal in the development application for the conduct of the business

36 It is the applicant’s case that the documents lodged in support of the development application, and in particular the supporting material provided by Hirst Consulting Services, is indicative of a type of retailing inherent in the concept, format and operational aspects of Clints the Warehouse typified by the description taken from the document referred to in [13] and [14] above. A brochure was produced to the council in support of the development application. The brochure described Clints the Warehouse as the “Bulk Retail Division of another “Clints Crazy Bargains””, which provides:-

§ Furniture

§ Furnishings

§ Garden & Outdoor

§ Lighting & Lamps

§ Electrical Good

§ Prints & Frames

§ Camping Goods

§ Car Accessories

§ Rugs & Floor-coverings

§ Office Equipment

§ Hardware

Plus All the general range of product that has made “Clints” stores such a popular destination for shoppers for so long”

37 Various photographs taken from existing stores are included to demonstrate and illustrate the format, the sale/storage racking and display and the general appearance of stores in Shellharbour, Villawood and in New Zealand locations. In addition to the items listed above, the photographs depict signage identifying kitchenware (including laundry detergent), bedding and décor, games, personal care, photo albums and giftware items.

38 The Court agrees with the first respondent that the definition of a bulky goods salesroom or showroom in cl 6 does not define the permissible items by direct reference to their shape, weight or size. Although some items such as furniture can be bulky, others such as toys and hardware are not, in the main, bulky by nature.

39 If cl 51(a) of the LEP is to be construed so that the gross floor area of the part of the building used for the nominated category of items is to be regarded as distinct for each category, then the site on its own does not contain sufficient area to accommodate the simultaneous use of the different categories described in the development application. The development application form merely identified the use by reference to Clints the Warehouse whereas the accompanying material and supporting documents subsequently lodged with the council prior to the grant of consent specifically referred to, inter alia, furniture, garden and outdoor, lighting, electrical goods, floor coverings and hardware, all of which are designated in cl 51(a) for the purpose of calculating a minimum gross floor area. On a literal construction of cl 51(a) these items alone demand at least 4,250 m2.

40 A submission by the first respondent that the council was entitled to take into account other uses within the Homemakers Centre outside the site to make up any deficiency of floor area is rejected. The only evidence of an application for a bulky goods salesroom or showroom considered by the council at the relevant time is the subject development application. The Court has no evidence that the other uses in the centre are approved or for what purpose.

41 The Court accepts that the actual areas used may be spread around the total area of a site in the sense that they do not have to be contiguous. Nonetheless, the proposal could not satisfy the requirements of cl 51(a) as applied to the site with its limited total floor area of 2,666m2 if all categories of items relied upon are to be stocked or displayed at any one time.

42 The first respondent seeks to rely upon an argument that scores of items to be offered for sale are ancillary to one of the categories in cl 51(a) and are therefore legitimately part of the latter. The applicant suggests, however, that notwithstanding conditions as modified, the specificity of the definition in cl 6 of the LEP leaves no room for ancillary items to be accepted as falling within the type of goods to be offered for sale. Moreover, because the claimed ancillary items are the dominant element, they cannot, in truth, be regarded as ancillary. In other words, the ancillary items cannot be used to justify a use for the primary purpose.

43 Taking the common sense approach to the construction of cl 51(a), it precludes the grant of consent unless there is compliance with its terms. Whether the area specifications are development standards or not, they must be applied strictly, unless the dispensing power provided by SEPP 1 is engaged.

44 The material lodged with, or in support of, the development application did not attempt to rationalise the way in which the floor space would be organised or used except to the extent of the examples used at other sites for existing development. Although the development application did not stipulate that the site would be used for the purposes of a bulky goods salesroom, the submission was capable of being interpreted as a use that could comply with the provisions of the LEP. The council was careful to grant consent to Clints the Warehouse as a bulky goods salesroom and to reinforce its intention by ensuring the first respondent had to comply with the definition in cl 6 of the LEP by making an express provision to that effect, namely in condition 4.

45 It can be readily understood from the development application and submissions in support of it that the range of products stocked from time to time would not be constant, depending to a large extent on opportunistic job lot bulk purchases by the retailer.

46 The Court is satisfied, on the balance of probabilities, that the development consent was an appropriate response to the application. Properly understood, it allowed the first respondent to carry out the use of a bulky goods salesroom catering for goods and items specified in the definition, subject to the proscription in condition 5.

47 Implicit in the consent is the satisfaction of the council in respect of the area specification in cl 51 of the LEP. Although the proposed development was capable of being construed as a shop, it nevertheless was open to constrain the use to the type of shop that rendered it permissible as a bulky goods salesroom use.

48 In the whole of the circumstances, the council had jurisdiction to receive, consider and determine the development application so that the issues determined in Chambers v Maclean Shire Council and Others (2003) 126 LGERA 7 do not arise.

The actual use of the premises

49 As I have already pointed out, the Court has the benefit of a view and that pursuant to s 54 of the Evidence Act the Court proposes to rely on what it saw or otherwise noticed during the inspection. Various witnesses have given evidence in respect of their observations and a copy of a recent store inventory has been tendered and accepted as an exhibit. It is not disputed that clothing and footwear items are no longer sold from the site and the first respondent recognises that there is no entitlement to do so in the present circumstances.

50 Andrew Phillip Duggan is a Town Planner who swore affidavits on 2 April 2003 and 5 September 2003 in support of the applicant’s case for the purpose of relating the observations he made in respect of the layout of the site on 10 March 2003, 15 March 2003 and 21 August 2003. In a later affidavit sworn on 6 November 2003 he identifies material obtained from the first respondent’s website. Mr Duggan observed signs in the store adjacent to or above aisles containing shelves. The signs displayed in the store, as confirmed on the view, identified the following categories of goods for sale:-

Giftware Baby Pet Care
Laundry Craft Toys
Kitchenware Manchester Gallery
Furniture Luggage Automotive
Hardware Camping Gardening
Electrical Party Supplies Convenience Store
Stationary

51 The signs, in a general sense, are indicative of the range of goods on display and offered for sale in the general area of the individual aisles. In addition to the goods displayed in the aisles and on shelves, crates containing various other items for sale are scattered throughout open areas in the store. The goods on offer range from small ornaments and trinkets of no great value such as artificial flowers, party supplies, puzzles, pens and picture frames through plant seeds, toys, sheets, pillows, books and tools to larger and more expensive items such as electrical appliances, large toys and paint. The Court also observed that various items of furniture were for sale, including futons, computer desks, plastic chairs, blinds and curtain fixtures.

52 During his inspections on 10 and 15 March 2003, Mr Duggan made observations of shelving units, stands and crates which held goods that, in his opinion, were within the bulky goods categories specified in condition 4 of the first consent. During that same inspection he observed other goods (outside the convenience store section of the store) and calculated that the total number of shelving units and crates holding these latter items were as follows:-

(a) 101.5 large shelving units (38% of large shelving units in the Store);

(b) 11 medium shelving units (79% of medium shelving units in the Store);

(c) 24 small shelving units (60% of small shelving units in the Store) and

(d) 8 crates (28% of crates in the Store).

53 In addition he estimated that three large shelving units of stationary occupied approximately 22m2 of the floor area of the store and that units containing such items as cushions, sheets, blankets, vases, cotton throws and pillows occupied approximately 148m2 whereas 16 small shelving units of video tapes, cassettes, CDs and DVDs and three medium shelving units of audio visual accessories and batteries represented approximately 41m2 of the floor area of the store. In his opinion, the floor area occupied by the categories of goods permitted to be sold by condition 4 of the first consent are as follows:-

(a) Furniture 273 sq m
(b) Electrical Goods 122 sq m
(c) Toys and Sporting Equipment 303 sq m
(d) Office Furniture 43 sq m
(e) Hardware 109 sq m
(f) Outdoor Products 324 sq m
(g) Floor Coverings 22 sq m
(h) Automotive Parts and Accessories 50 sq m

54 The above areas do not include areas occupied by items that Mr Duggan might regard as un-ancillary to the categories identified by reference to condition 4. If he had included those items, which he described as potentially ancillary to the categories of goods permitted to be sold by condition 4, an additional area of 649m2 would have been included in his calculation.

55 It is not in dispute that the warehouse store occupies 2,666m2 of floor space in total.

56 Another Town Planner, Neil Ingham, carried out an inspection on 21 March 2003 and observed that included in the product categories sold from the store were:-

…read and write items, craft items, giftware, pet supplies, picture frames, laundry accessories, cards and wrap, personal care items, shoes, clothing, sunglasses, food items outside the convenience store, manchester, CDs and videos.

57 The only other expert relied upon by the applicant is Martin Andrew Meade Hill, a Land Economist and Property Consultant, who made an attempt to establish the proportion of bulky goods sold from the premises against the proportion of non-bulky goods for sale using an estimate of turnover based on a national average turnover for all goods sold at the store by multiplying the floor areas dedicated to the sale of each category of bulky goods by an applicable turnover rate. The evidence of Mr Hill does not assist the Court to make any relevant finding.

58 None of the applicant’s expert witnesses were cross-examined. Their evidence, in so far as observations regarding the operation of the business, required no special expertise and did no more than confirm what the Court observed for itself on the view.

59 According to the first respondent’s witnesses, and confirmed on the view, there are currently 22 separate tenancies of the Homemakers Centre within which the warehouse store is located. The first respondent occupies the greatest amount of floor area and commenced trading in about September 2001. The category of goods sold by retail by tenants at the Homemakers Centre include furniture, electrical goods, kitchen and bathroom showrooms, outdoors products and automotive parts and accessories. Other tenants specialise in apparel and there are fast food outlets as well as a restaurant and café.

60 Some tenants occupy multiple areas but there are 33 individual units which the owner of the centre regards as being within one building. 27 of the individual units are connected by a common roof structure. Unit 1, occupied by the first respondent, is enclosed by individual walls which are not common to any other unit although the roof extends across adjacent walkways and covers other units within the complex.

61 The Regional Manager of the first respondent, Michael David Schneider, describes the nature of the business conducted by the first respondent as follows:-

13. The fundamental of The Warehouse Group business model is to establish a warehouse format which has a large area for the handling and display of various goods.

…

15. The Warehouse Group aims to supply to the market most of the goods listed in the definition. The exceptions to this are antiques and second hand goods and ceiling tiles. Additionally, The Warehouse Group’s stores are not kitchen or bathroom showrooms.

16. However, from time to time the store may not have one or other of the goods listed in the definition. The supply to the market of goods referred to in the definition will depend on what The Warehouse Group buyers have been able to source for display and sale. Accordingly, The Warehouse Group’s actual inventory of goods within the categories set out in the definition fluctuates.

17. When a line of product becomes available then that is advertised in the weekly catalogue and usually the product is heavily discounted (which is sometimes a reflection of the fact that the goods are end of range, end of season or surplus stock). The sales catalogue’s are not store specific and it is important to The Warehouse Group’s business that items advertised in the brochure are available in each store…

18. As a retailer The Warehouse Group analyses its customer base and makes predictions about what it can sell. In so doing we track the purchases that are made both in terms of the customer base but also the traffic through the store. Looking at the performance of the stores in my area of supervision I am able to say that there is a correlation between the busiest trade days and the release to the market of the catalogue. There is a “spike” in business of about 35% on the first day after the release of The Warehouse Group catalogue….Mostly, the goods which are advertised are the non core, opportunistic lines of product…

…

21. Goods are stocked on the shelves from floor to ceiling, thus the whole inventory is stored and is on display for sale including two racks of storage. The dimension of the main aisles is approximately 16.90 metres long by 1.75 metres wide by 3.6 metres high.

22. The goods sold by The Warehouse Group are either “core lines” or opportunistic purchases. Core lines are goods that are available for sale every day whereas opportunistic purchases are goods that are not regularly stocked (for instance seasonal goods) or stock which is never repeated (for instance “one offs”, end of line type goods).

62 The eclectic collection of goods presented as a mixture of items ranging over innominate and, in some cases, well defined categories is not, in the Court’s opinion, a reflection of the approved use as a bulky goods salesroom.

63 When the council determined the development application it did so on the basis that the use would answer the definition in the LEP and the proscription on the grant of consent contained in cl 51. If it had not been so satisfied then there was no warrant to determine the application by approval. The consent granted in those terms carries with it the implicit requirement that the use will be carried on in accordance with cl 51. Otherwise, the clause operates as an injunction against the approval of a bulky goods salesroom use.

64 The conclusions reached by the Court are based upon the observations made on the view corroborated by the evidence of Mr Duggan and Mr Ingham. The evidence of Mr Schneider provides no answer to the challenge. It is entirely feasible that the store could be brought into a state of compliance but the evidence before the Court does not disclose that the store has been operating as a bulky goods salesroom or that the observations made by the Court and the witnesses were of an aberration. There is no unique or particular characteristic of the use that distinguishes it from the conduct of the business of a general shop selling a wide variety of goods.

65 For the reasons explained above it is not sufficient for the first respondent to show that it is selling some goods within the categories listed in cl 51 requiring a minimum floor area and then rely upon the total available gross floor area of 2,666m2 to satisfy the respective standards set by cl 51. Taking a common sense approach to the ordinary meaning of the words used in cl 51, they stipulate minimum areas that must be actually used for the sale, storage and display of the specified items. This interpretation would, in my view, best meet the aims and objectives stated in cl 50(2) of the LEP, which the Court is entitled to take into account pursuant to s 25(3) of the EP&A Act if, contrary to the Court’s opinion, cl 51 is genuinely capable of the different interpretation relied upon by the first respondent.

66 Even accepting the first respondent’s contention that the site itself forms part of a larger building, the development consent applies only to Unit 1. The first respondent is not entitled to rely on uses of other parts of the composite building comprising the Homemakers Centre to make up any deficiency in the areas of its own use.

67 The first respondent, by its own admission confirmed by the evidence, is selling goods including furniture, electrical goods, toys and sporting equipment, office furniture and hardware. The evidence is that the available floor area does not facilitate a compliance with cl 51.

68 The provision of condition 5 as modified is of no assistance to the first respondent. Taking account of ancillary items does not overcome the overall flaw identified as a non-compliance with the designation of minimum areas. Arguably, the selling of many of the claimed ancillary items is independent from any legitimate designated category in cl 51. It is not necessary nor possible on the evidence to make a final determination as to whether or not the so-called ancillary items are being sold in an independent way that is not merely incidental to a nominated category in the sense identified in Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157. However, as I have already said, if they were all treated as ancillary the evidence of Mr Duggan confirms that the requisite minimum gross floor area is not physically being used for a permissible purpose. If the uses are independent uses then the extent of non-compliance is further compounded.

69 The applicant queries whether the definition of a “bulky goods salesroom or showroom” contained in cl 6 of the LEP contemplates the sale or display of any items other than those listed. Although assessment of extent and degree will always play a part in defining whether a use is independent or ancillary, my tentative view it that the clause is not so specific that the introduction of ancillary items is not permissible. On the present facts, the issue of non-compliance can be determined on the accepted evidence without having to finally decide that question.

70 The finding that the current use is not in accordance with the definition does not demand that the Court determine what the actual use is, except for the purpose of dealing with the argument raised by the first respondent that if the use is a shop then it is authorised under the alternative source of power contained within cl 10(10) of the LEP. However, having decided that the consent granted by the council achieves what it states on its face, namely to approve the use of the site as a bulky goods salesroom it is not necessary to delve into the effect of cl 10(10) as an alternative source of power to grant development consent. The development consent does not authorise the use of the site as a shop except for the specific type of shop defined as a bulky goods salesroom. Obviously, the actual use is as a shop of some kind but the first respondent does not have consent to carry out development for the use of the site as the species of a shop described in cl 10(10) even if that is what in fact it proves to be.

71 It is not readily apparent to me how the items referred to in condition 4, which sets the parameters for the range of goods to be sold from the site, could be regarded as serving the daily convenience needs of the local workforce. These needs presumably could be satisfied by the convenience store that operates pursuant to the second consent.

72 The facts in this case show that on the balance of probabilities the source of power relied upon by the council when it granted the first consent was contained in cl 9. Clause 9 prescribes distinct conditions precedent to those for exercise of power pursuant to cl 10(10). The conditions of the first consent point inexorably to the exercise of power to grant consent under cl 9. Moreover, cl 10(10) appears as a matter of construction to be a limitation on the power to grant development consent for the species of a shop which is a convenience store, namely to grant consent only if the convenience store serves the daily needs of the local workforce. Curiously, the same logic might be applied to the bulky goods salesroom or showroom use if that use is to be regarded as a shop for the purpose of cl 10(10). I hasten to add that no such argument has been raised in relation to the bulky goods salesroom or showroom use, presumably because cl 51 applies specifically to that use.

Determination

73 The Court determines that the development consent No. 1937/01 granted by the council on 6 April 2001 is a valid consent.

74 The Court further determines that the first respondent is using the premises, Unit 1 No. 3 Sappho Road, Warwick Farm otherwise than in accordance with the development consent contrary to s 76A of the EP&A Act. If the use is not brought into compliance then it will continue to be prohibited development carried on in breach of the EP&A Act.

75 Mr Robertson SC, who appears on behalf of the first respondent, has requested that in the event of such a finding the first respondent be given the opportunity to bring the use into line within a reasonable time before formal orders are made. I propose, therefore, to adjourn the matter for mention at a convenient date to the parties and the Court not later than the beginning of February 2004.