Woolworths Ltd v Caboolture Shire Council
[2004] QPEC 15
•7 May 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Woolworths Ltd v Caboolture Shire Council & The Warehouse Group (Australia) Pty Ltd
Woolworths Ltd v Caboolture Shire Council & Makro Warehouse Pty Ltd [2004] QPEC 015
PARTIES:
WOOLWORTHS LIMITED
ACN 000 014 675
Applicant
v
CABOOLTURE SHIRE COUNCIL
First Respondent
And
THE WAREHOUSE GROUP (AUSTRALIA) PTY LTD ACN 003 038 702
Second Respondent
WOOLWORTHS LIMITED
ACN 000 014 675
Applicant
v
CABOOLTURE SHIRE COUNCIL
First Respondent
And
MAKRO WAREHOUSE PTY LTD
ACN 087 578 578Second Respondent
FILE NO:
2346/2003; 3465/2003
DIVISION:
Planning & Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Planning & Environment Court of Queensland, Brisbane
DELIVERED ON:
7 May 2004
DELIVERED AT:
Brisbane
HEARING DATE:
27, 28 and 29 January 2004
JUDGE:
Alan Wilson SC, DCJ
ORDER:
CATCHWORDS:
LOCAL GOVERNMENT – TOWN PLANNING – INJUNCTION PROCEEDINGS – CLASSIFICATION OF USE – whether premises used as retail showrooms or shops – whether unauthorised use – whether injunctive relief ought to be granted.
Acts Interpretation Act 1954 s 14A
Integrated Planning Act 1997
Cases considered:
BCC v Bemcove Pty Ltd (1998) 104 LGERA 1
Boral Resources (Qld) Pty Ltd v Cairns City Council (1997) 2 Qd R 31
Degee v Brisbane City Council (1998) QPELR 287;
Fitzgibbon’s Hotels Pty ltd v Logan City Council (1997) QPELR 208
Foodbarn Pty Ltd v Solicitor-GeneralHarburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313
Jenkinson Pty Ltd v Caloundra City Council (2002) QPELR 527Laidley Shire Council v Friend (1997) 93 LGERA 128
Lewiac Pty Ltd v. Gold Coast City Council (1994) 83 LGERA 224
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Longhurst v Austexx Developments Pty Ltd [2003] QCA 576Luke v Maroochy Shire Council & Anor (2003) QPELR 447
Noosa Shire Council v Settlers Cove Development Pty Ltd (1996) 93 LGERA 232
Nordale Management Pty Ltd v. Maroochy Shire Council (1995) QPLR 368
Snowside Pty Ltd v Holroyd City Council (2003) 126 LGERA 279
WarehouseGroup (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270
Waringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Westfield Management Ltd v Gaz Corp Pty Ltd (2004) NSWLEC 7
Westfield Management Ltd v Pine Rivers Shire Council & The Warehouse Group (Australia) Pty Ltd, unreported (Planning & Environment Court, Britton SC DCJ, 14 November 2003, 1627/2003).
Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 241
Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd [2003] 123 LGERA 341; on appeal [2003] NSWCA 270;Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 AT 73, 75, 78;
ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd.R. 352COUNSEL:
Mr D Gore QC and Mr J Houston for the applicant in each matter
Mr C Hughes SC for the second respondent in each matter
SOLICITORS:
Mallesons Stephen Jaques for the applicants in each matter
King & Co for the first respondent in each matter
Deacons for the second respondent in each matter
The applicant (“Woolworths”) claims the second respondents in both actions (“The Warehouse” and “Makro”) have opened and operated stores at Caboolture in circumstances where their use of the premises is assessable development (each being a “shop” as defined by the Planning Scheme for the Caboolture Shire) and that the use has commenced without the necessary development permit from the Council, and seeks ancillary relief to the effect that each cease to trade until a permit for a material change of use has been obtained. Each case involves substantially the same facts and issues, the applicant and the second respondent were represented by the same counsel and solicitor in each matter and they were, by consent, heard together. The first respondent, Caboolture Shire Council, appeared through its solicitor at the commencement of the hearing and signified that it would abide the outcome, and was given leave to withdraw without opposition from the other parties.
Each application involves two central issues: first, whether the actual use of premises by the Warehouse and Makro should be properly characterised as a “shop” or, rather, as a “retail showroom” under the relevant Planning Scheme; and, if the former, whether there any proper discretionary basis for declining the relief the applicant seeks. The applications are brought in the context of commercial competition between the active parties, with a sub-text of concern and complaint from Woolworths that the respondents are allegedly, here and elsewhere in Australia, setting up these kinds of stores which are, in some respects, novel but directly compete with Woolworths by selling food[1].
[1]Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd [2003] 123 LGERA 341; on appeal [2003] NSWCA 270; Westfield Management Ltd v Pine Rivers Shire Council & The Warehouse Group (Australia) Pty Ltd, unreported (Planning & Environment Court, Britton SC DCJ, 14 November 2003, 1627/2003).
The applications involve premises at the Morayfield Super Centre at 312-344 Morayfield Road, Caboolture[2]. The Centre is a large building on the western side of Morayfield Road, south of Sheepstation Creek. The Warehouse and Makro occupy stores at either end of the building, and are the two largest tenants. Between them are a number of smaller retail businesses, some advertising themselves as selling “bulk” goods, including a bulk chemist outlet (‘Big Box Chemist’) and a bulk pet supply store (‘Pet Supermarket’).
[2]Lot 5 on RP 901611.
The site is at the southern extremity of a long strip of predominantly commercial development on both sides of Morayfield Road, a major arterial road extending north to the town of Caboolture. The commercial centre of this strip is about 1.8 km to the north, at the Morayfield Shopping Centre. Further north again (2.5km) is another shopping centre, Morayfield Market Place. The applicant operates supermarkets in both.
This Centre is clearly visible, and accessed from, Morayfield Road. The surrounding area may generally be characterised as commercial and industrial, with some residential and community land uses. The Morayfield Indoor Sports Centre is directly to the west of the site, on land currently zoned Public Open Space. A Bunnings store is located to the north at the intersection of Morayfield and Walkers Road, on land included in the Commercial Industry zone under the Caboolture Planning Scheme. To the south are a number of houses on large residential lots. Properties on the eastern, opposite side of Morayfield Road incorporate a range of light industrial and commercial activities.
The Makro store occupies the southern tenancy and has a floor area of 5,200m2, with a trading area of about 5,000m2, although this includes a separate clothing section, clearly delineated and advertised as ‘Millers Fashion Club’. The Warehouse has a smaller trading area, of about 3,100m2 . The Centre has 90 car parking spaces, for the entire complex.
A view of each store at the commencement of the hearing showed similar layouts based on large, open floor plans containing warehouse style storage and display shelving. Each is designed and operated on a self-service basis, typical of department stores and supermarkets. Merchandise is arranged in aisles where customers may inspect and select it at will and, after selection, proceed to a bank of checkouts near the exits. The merchandise offered for sale in each includes house wares, clothing and footwear, appliances, entertainment items, toys, camping and sporting goods, furniture, pet accessories, luggage, hardware and gardening and automotive products. Food and grocery items are also offered in what impressed, on inspection, as being in fairly wide variety and significant quantities.
Each store also impressed as akin to a smaller version of the well-known K Mart, Big W or Target variety stores with their wide range of personal, household, gardening, building and handyman, and leisure and sports goods. They also had, however, something of the flavour of discount variety stores like Crazy Clarks, Silly Sollys and Overflow. In short, each is a large retail premises offering a plethora of goods for sale in a large range, and in significant numbers and quantities.
The Caboolture Town Planning Scheme was gazetted on 12 March 1988, and a Strategic Land Use Plan (“ the Strategic Plan”) was introduced and gazetted on 17 December 1993. The Scheme is a transitional one under the Integrated Planning Act 1997. The Strategic Plan includes the land on which the stores are situated in the residential Preferred Dominant Land Use category, with an expression of general intent that it be used essentially for residential purposes. The Strategic Plan has a supporting Planning Study which, while not a statutory document, provides some guide as to the philosophy behind the final planning approach. In s 9.7 it considers the future retail strategy for Cabooloture and observes that:
“… Morayfield Road consists of two distinct sections, divided by Sheepstation Creek. The northern section between Sheepstation Creek and Oaklands Drive is predominantly retail … the southern section of Morayfield Road between Sheepstation Creek and the railway overbridge is an area that consists of a mix of industrial uses with some minor retail activities.”
The Strategic Plan states, unequivocally, that for the purpose of the Plan itself:
“… retail should be maintained in the northern section”
but acknowledges that in the future the:
“… southern area will evolve more to retailing activities”.
That is, in truth, what has occurred and development within the immediate locality has obviously overridden any residential intention.
A further planning document, Development Control Plan No 6 (1995) shows the land within a section designated as Special Planning Area 1, for which the intent is:
“the Special Planning Area designation is an area of historic rural residential type development, however it is of a size and configuration where further subdivision is possible”.
It might be inferred from the DCP that the subject land was not intended to support, consolidate or reinforce a regional centre situated to the north and, overall, the planning documents point to the conclusion that the site is not intended for retailing, commercial or industrial purposes. That conclusion is belied, however, by the designation of the site in the Strategic Plan and the Development Control Plan in a zone called Commercial Industry, for which the intent is:
“The zone is intended to cater for showroom and service industry activities in high access areas outside the centre business area.”
Within the Commercial Industry zone a “retail showroom” is defined, and is a permitted development (as of right – column 3) while a “shop”, also defined, is permissible development (column 4). The relevant definitions are:
Retail Showroom – any premises used or intended for use for the purpose of displaying or offering for sale to members of the public goods of a similar type or bulky nature, not including food items, where the area of such retail showroom is at least 300m2. The term does not include a motor showroom as herein defined.
Shop -any premises used or intended for use for the purpose of displaying or offering goods for sale to members of the public. The term includes incidental storage of such goods on the same premises but does not include a garden supply centre, hotel, service station or warehouse as herein defined.
It is also relevant that the Statement of Intent for the prevailing Commercial Industry zone provides:
“This zone is intended to cater for showroom and service industry activities in high access areas outside the business area.”
The zone also permits such things as garden supply centres, motor showrooms, and retail showrooms. It was hardly surprising that the applicant’s Town Planner Mr Buckley contended that for obvious practical reasons, including the existence of the very large purpose built buildings on this site, the area will never be taken up for residential development[3]. The respondents’ Town Planner, Mr Schomburgk contended that the Strategic Plan is of little assistance in these proceedings because development within the immediate locality has overridden its apparent intention; and, the DCP provides little practical guidance, especially for developments of this kind. These conclusions meant the submissions for both parties (correctly, I thought) ultimately focused upon the two definitions, and the proper characterisation of these stores by reference to them, with little reference to other elements of the planning documents. The exception was a submission from Mr Hughes SC for the respondents that inherent uncertainty and tension within the planning documents supported a broad, rather than a narrow or pedantic construction of the definitions themselves.
[3]T 48.8-17.
Each party relied upon the evidence of a town planner and an economist/retail analyst. For Woolworths, Mr Buckley gave evidence to the effect each store is a shop, and not a retail showroom (and, under the definition of the latter, neither supermarkets nor discount department stores are included). Mr Damasi, an expert in retail markets, agreed the stores were more accurately characterised as shops while concluding they were, in fact, a type of hybrid discount department store which did not presently fit into the Caboolture retail hierarchy. The respondents’ Town Planner, Mr Schomburgk contended that they represent a modern, emerging retail trend but could properly be defined as retail showrooms, despite the fact that some foodstuffs were sold. Mr Coghlin, a retail analyst described them as comparison goods retailers which trade in a way more closely resembling that of showrooms, than shops.
At the core of the case is, then, the proper characterisation of these stores and, in particular, whether they can properly be categorised as retail showrooms because they sell goods which are of a similar type or bulky nature, not including food items. Woolworths contends that is a relatively straightforward matter, to be determined principally by reference to evidence about what each of the respondents offers for sale. The respondents, presumably perceiving that an exercise on those lines is not, at first blush, favourable to them propound what is described as a broad, practical and commonsense definition of “retail showroom” which takes into account, they say, the reality of the marketplace.
There is good authority for the proposition that the planning schemes are not, ordinarily, documents which easily admit strict construction. The cases were helpfully collected by Britton SC, DCJ in Westfield Management Ltd v Pine Rivers Shire Council & The Warehouse Group[4] in para [18]:
[4]Supra, at pp 8-9.
“(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; Acts 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; and,
(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 (20002) QPELR 527 at 528.”
The definitions here are, however, quite straightforward and use words and phrases of no special legal art. They have, moreover, been considered by appeal courts here, and in New South Wales. The respondents are to be taken to have been aware of the relatively simple requirements they were obliged to meet to qualify as a “retail showroom” and care must be taken to ensure any impression of vagueness or uncertainty which emits from a reading of the various planning documents is not used to avoid proper compliance with those parts of it which are, comparatively, clear and certain. That is not to belittle or read down the principles or authorities referred to by Britton SC, DCJ; rather, this is a case in which general statements in verbose planning schemes cannot be allowed to cloud the proper analysis of the few, relevant words which fall to be construed.
As each of the expert witnesses said, and inspection confirmed, each store sells a wide range of goods. The respondents sought to meet the requirement in the definition of “retail showroom” that premises of that kind sell goods “of a similar type” with the proposition that a reasonable construction permits the similarity to be measured by reference to the expectation of the public about the kinds of goods found in stores of this sort. Support was garnered for the argument from the evidence of Mr Buckley[5] and Mr Schomburgk[6] that while the stores of this kind are a relatively recent phenomenon, the public now knows them and understands what they sell; and, a remark of Chesterman J in Longhurst v Austexx Developments Pty Ltd [2003] QCA 576 when his Honour referred, at para [31] to “… the test of similarity which depends upon the expectation of the public as to what they might buy at such an outlet”.
[5]T 58.42.
[6]T 73.40-74.20.
In that case (‘Austexx’) the Court of Appeal was also addressing a definition of a “retail showroom” which referred to “goods of a similar or bulky nature” and elsewhere in his judgment Chesterman J (with whom the other members of the Court agree) said[7]:
“The requirement that goods be of a similar nature is a requirement that they have some attribute or characteristic such that they can be regarded as similar by reference to everyday experience. The definition in the planning scheme contains no indication of the criteria which should be used to determine whether goods are similar in nature. It seems to me that the only appropriate test is one of purpose or functionality. Goods are similar in nature if they serve the same purpose or have the same function. There is obviously some inexactitude in such a test and one should not be too narrow in attributing a function to goods.
…
A test which looked to the physical characteristics of the goods themselves, such as size or shape or materials of manufacture, would be too restricted ….A large toy store might qualify as a retail showroom though it sells a wide variety of goods varying with the age and sex of the child for whom the object was purchased. Goods would include dolls and cricket sets as well as computer games. The similarity would come from their function: all are to amuse or entertain the young. Similarly a shop selling golfing equipment might sell hats and shirts in addition to clubs and balls, but the clothing would be of a similar nature because it was to be worn for the purpose of playing golf.”
[7]Supra at [24].
In Austexx the retailer intended selling goods of various types including clothing, footware, handbags, luggage, jewellery, cosmetics, glassware and bed linen. It advanced the proposition that all of these goods fell, in truth, into only two categories: clothing, and homewares. Chesterman J regarded this restricted categorisation as one of doubtful validity but determined, in any event, that the goods were not “similar in function or purpose”[8]. At para [30] he also rejected a test which paid attention to the manner in which the goods were to be sold rather than the goods themselves, and said[9]:
“… a retail showroom will be a specialised retail store where customers can examine and compare goods which they require for a particular purpose before choosing which to buy, rather than a place to which customers may resort to purchase goods of all sorts.” (my emphasis)
[8]Supra, at para [25].
[9]Supra at para [30].
Mr Schomburgk also suggested that the goods in the respondents’ stores were similar in that they were of a lower price, and served a purpose for a particular socio economic group and were of a kind customers had grown to expect in a warehouse outlet[10] but, again, the argument was rejected in Austexx. Chesterman J said[11]:
“This is to define goods by reference to the mode of business of the vendor, or the pricing structure of the goods. This, it seems to me, is to pay attention to the manner in which the goods are to be sold rather than the goods themselves. The definition of retail showroom requires the goods to be similar. On this approach all goods sold at the weekend markets which have become familiar are similar in nature. One commonly sees at such places cut flowers, plants, books, compact discs, cheap clothing and jewellery, smaller items of plumbing supplies and light fittings. Despite the great disparity in the goods and the purposes for which they are sold, the test propounded by Austexx and applied by the primary judge would treat them as similar because the public would expect to find them on sale at a market.
In my opinion this is not the similarity in nature which the definition requires.”
[10]T 80.
[11]Supra at paras [28], [29].
Nor can it be said that another aspect of Mr Coghlin’s evidence, emphasising that these stores rely to a high degree upon opportunistic sales[12], brings the respondents’ premises within the definition, having no obvious relevance to the question of characterisation. In his oral evidence Mr Coghlin also suggested that the presence of “comparison” goods (that is, goods of a similar kind but from different manufacturers) satisfies the test but products of that kind do not predominate in these stores which, as his evidence otherwise showed, sell a wide range of goods for many different purposes. Finally, it was submitted for the respondents that Austexx ought to be distinguished because the definition of “retail showroom” in the Planning Scheme considered there specifically excluded a department store, a discount department store, a variety store or the like but those exclusions do not seem to have been germane to the reasoning there which, otherwise, focuses directly on the question arising here.
[12]Mr Coghlin’s report, Ex 12.
The inescapable conclusion from the evidence, confirmed by inspection, is that a very wide range of goods from a large number of retail categories can be bought in these stores. No useful assistance in the construction of the terms used in the definition of “retail showroom” can be gained from the various planning documents and although it can be contended that some statements in them might be said to support the location of a use of this kind on the subject land it is, ultimately, impossible to avoid the conclusion that retail outlets here can only be of one of two kinds. On that construction, and applying a sensible and practical approach to the phrase “of a similar type” and comforted by the decision in Austexx it is impossible to conclude other than that neither respondent satisfies that part of the definition.
The requirement for either similarity, or bulk, is expressed in disjunctive terms so the respondents may yet qualify if they can establish that what they sell are goods of a “bulky nature”. Again, inspection of the premises showed many items of relatively large size including furniture, hardware, camping equipment, luggage, and some electrical goods and the like and Mr Walkley conceded that, at the least, 15 per cent of the floor space in the Warehouse store and 20 per cent in Makro was devoted to the sale of larger items. The respondents argued that, consonant with the commonsense approach to construction urged, in a number of cases, it was appropriate to include other non-bulky goods within the definition where they were necessarily and sensibly associated with the sale of bulky items. Examples included barbecues, with cooking utensils; furniture, and cushions; tents, and less bulky camping equipment; and, large electrical goods like refrigerators and small ones, such as hair dryers.
A similar question was considered by the NSW Court of Appeal in Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270 where, at first instance, Lloyd J found about 40 per cent of the store was occupied by bulk goods, and it was argued this was sufficient to bring the premises within the definition. Lloyd J had rejected the proposition at first instance, as did the Court of Appeal, where it was held that the wide range of merchandise sold in the store militated against the application of the definition. As the judgments point out, the opposite conclusion would make it possible to characterise any large or middle range department store as being a “bulky goods saleroom or showroom[13].
[13][2003] NSWCA 270 at paras [39], and [41].
The evidence also showed the Warehouse, at least, does not regard itself as a showroom specialising in the sale of bulky goods and rather describes its business as “retailing and general merchandise through 74 chain stores and 116 in Australia as well as a 32 store stationery chain” with the New Zealand parent company being a “general merchandise retailer”[14]. Lloyd J said:
“Although the respondent is displaying and selling bulk quantities of small products, that does not constitute the display or sale of bulky goods. The respondent’s business seems to me to be the retailing of a range of general merchandise which involves the display of items in a bulk manner, where the goods require the convenience of a warehouse building to be handled, stored and displayed. The storage and display of goods in a bulk manner, however, does not come within the definition of ‘bulky goods sales room or showroom’. In another way, it seems clear to me that the vast majority of the goods are clearly not bulky goods, and those which are bulky goods comprise such a small proportion of the total merchandise on display for sale as to be merely incidental to the respondents business, being the selling of general merchandise. At its highest the respondents use of the premises might be described as a form of small discount department store.” [15]
[14]Ex 4, p 3.
[15][2003] 123 LGERA at 341.
The ordinary, dictionary definition of “bulky” is “of great and cumbersome bulk or size”[16]. Mr Schomburgk’s proposition that the display and sale of small products in quite large quantities, as occurs in various places in these stores, constituted “bulk” within the proper meaning of this part of the definition was specifically rejected by Lloyd J, and the NSW Court of Appeal[17]. Even on the most generous view of the range and kind of goods sold in these stores it is impossible to conclude bulky goods predominate or, indeed, constitute some significant proportion (whether measured by floor space or some other criterion) of the products offered for sale. The actual proportion is obviously much less than half and, in my view, closer to the 20 per cent or thereabouts calculated by Woolworths’ witnesses. Certainly, the 47 per cent propounded by the respondent’s planner, Mr Schomburgk was not supported on the occasion of the inspection, and plainly involves a strained construction of the term. The passage from the judgment of Lloyd J set out earlier applies quite precisely to the respondents’ stores, albeit with the added element that a minority of items offered for sale might individually be described as “bulky”. Nevertheless, the reasoning of Lloyd J and the NSW Court of Appeal remains attractive and relevant and should be applied here.
[16]Macquarie Dictionary, 3rd Ed, p 287.
[17][2003] 123 LGERA at 345; [2003] NSWCA 270 at para [31] per Foster HAA.
The further consideration is the requirement in the definition that the goods sold from the premises not include “food items”. I accept that, as Mr Coghlin said, the Warehouse does not sell fresh products such as fruit and vegetables, or bread and milk, and the mix of food items is weighted to “discretionary” purchases like confectionary and snacks and other non-essential or “impulse” items, and soft drinks. Makro also sells some milk and bread, but in small quantities. At the same time, the proportion of these goods to total sales is not minor, nor trivial. Mr Walkley estimated the proportion of display space occupied by food at 10 per cent; Mr Coghlin calculated the relevant proportion of total turnover (at the Warehouse) was 10.7 per cent; Mr Dimasi said that “supermarket” items (including personal care items, which are not food) are counted for 14.3 per cent of total Warehouse store sales; and, Mr Schomburgk said the total floor area for food and confectionary items was up to 5 per cent.
Food is “… what is eaten, or taken into the body, for nourishment”[18]. Inspection of the stores showed the ready availability of a large range of food items, albeit with some emphasis on things like confectionary and biscuits (although everyday food items were also available). The respondents contended, nevertheless, that a purposive approach to construction of this part of the definition revealed that its real emphasis was upon the “dominant” use of the site and a subordinate or ancillary use (for the sale of food) might be, in essence, ignored. Some support for the argument can be found in the judgment of Glass JA in Foodbarn Pty Ltd v Solicitor-General[19] but a different conclusion was reached by Britton SC, DCJ in Westfield Management Ltd v Pine Rivers Shire Council & The Warehouse Group[20]:
“Having regard to all of the evidence as to the offering for sale by Warehouse of food and grocery lines at the subject site and even on the view of the evidence most favourable to Warehouse in terms of floor space occupied or turnover generated, the offering of food and grocery lines is not trivial nor is it a use which is incidental to the use of the site as a showroom. There is no basis for concluding that the offering for sale of food and grocery lines is necessarily associated with the use of the site as a showroom and therefore ancillary”.
[18]Macquarie Dictionary, 3rd Ed, p 823.
[19](1975) 32 LGERA 157, at 161.
[20]Supra, at paras [51], [52].
In that case food sales were at a much higher level but, even in the smaller proportions here, the respondents’ submissions founder when they are examined with reference to the definition of “use” in cl 1 of the Planning Scheme which restricts the extended meaning of the word to a case which is:
“… incidental to and necessarily associated with the use of the land in question”.
In two decisions the Court of Appeal has said that the phrase “necessarily associated with” means the use must be “unavoidably” or “inevitably” involved, connected and associated with the principle activity[21]. In one of them (Boral Resources) the Court of Appeal specifically distinguished the decision of Glass JA cited earlier[22] and the decision of the High Court in Lizzio v Ryde Municipal Council (1983) 155 CLR 211 in which Gibbs CJ had referred to the judgment of Glass JA, with approval, because those cases were not considering a statutory provision which included a test requiring activity which was “necessarily associated with” the primary use.
[21]Boral Resources (Qld) Pty Ltd v Cairns City Council (1997) 2 Qd R 31, at 35; BCC v Bemcove Pty Ltd (1998) 104 LGERA 1, at 3(5); and, see Noosa Shire Council v Settlers Cove Development Pty Ltd (1996) 93 LGERA 232, at 244.
[22]Foodbarn Pty Ltd v Solicitor General.
The respondents also adduced evidence that other “showroom” style retailers sold some food items (Bunnings, and Office Works) and it was said[23] that the definition of “retail showroom” in this Planning Scheme is now outmoded, and can be explained by changes which occurred in the 1980/90s in Queensland when bulk retailing stores like Jack the Slasher and Chandlers appeared, and became popular; and, some local authorities responded by seeking to differentiate between these bulk food stores and other bulky showrooms to avoid conflict with traditional supermarkets.
[23]By Mr Schomburgk, Ex 11, para 5.2.3.
The first contention is irrelevant in that the definitions here are specific to this local authority and different requirements will apply to different showrooms, and different types of them, operating in different areas. Indeed in New South Wales Bunnings, despite attempting to describe itself as involved in the sale of “general merchandise” has been held to be a “shop”[24]. As to the second contention, the definition here is specific and does not leave grounds for justification for the quantum of the respondent’s food sales.
[24]Snowside Pty Ltd v Holroyd City Council (2003) 126 LGERA 279.
I am satisfied both respondents trade in a way which offends the relevant parts of the definition of “retail showroom”. I am also satisfied that, in truth, their activities fall precisely within the definition of “shop”. That conclusion is not diluted by the fact that, in ordinary usage, “shop” might be said to connote smaller premises because the form of definition in this Planning Scheme means that is the only term which can reasonably be applied to large retail facilities including a department, a discount department store, and a supermarket.
Apprehending, perhaps, adverse findings of this kind the respondents raised a further argument to the effect that both premises, if “shops” were also, simultaneously, “retail showrooms”. Certainly, the two definitions in the Planning Scheme are not on their face mutually exclusive, and there is authority that two uses may be carried out upon the same premises[25]. Mr Buckley conceded that in light of the definition of “retail showroom” there may be “some argument that it is both a shop and a retail showroom”[26] although, as he went on to say, the integrated nature of the layout of the premises and the manner in which sales were conducted, in a practical sense, suggested there was only one use being conducted in these stores and that was as a shop.
[25]Foodbarn Pty Ltd v Solicitor-General (supra).
[26]Ex 4, p 10; Ex 5, p 9.
The arguments also contradicts cl 3 of the Planning Scheme[27] which provides that where the same building or land is being used for two separate purposes then it is deemed to be used (or intended to be used) for each of them and one may yet, then, give offence. Arpedco v Beaudesert Shire Council (1980) Qd R 88 (FC) is an example: fuel tanks associated with the operations of a farm might have qualified as a separate fuel depot if relevant definitions were viewed separately but, as Dunn J said in delivering the judgment of the Full Court, provisions of this kind envisage separate purposes viewed as entities and the tanks, which were required to fill tractors for agricultural use, were a separate entity[28]. Here, the sale of food is not a separate entity but an essential part of each of the respondents’ retail businesses. To put the matter another way, each is one operation – a retail premises - which should either be characterised as a shop, or a retail showroom.
[27]Ex 1, p 1374
[28]Arpedco, at p 94
Finally, the respondents also contended that the application of ordinary principles of construction meant the “wide” definition of “shop” should be read subject to the “specific” definition of “retail showroom”, vide the decision of the Court of Appeal in Laidley Shire Council v Friend[29] which involved definitions of “animal husbandry” and “kennel” and the precise definition of the latter was held to prevail over the more general language used to describe the former. Here, however, while the verbiage of the definitions does overlap, each is quite discrete and plainly intended to refer to a different entity, and it is not the case that one is a more precisely defined version of the use carried on under the other.
[29](1997) 93 LGERA 128
For these reasons, I am satisfied the businesses carried on by each respondent are not retail showrooms, but shops. It remains only to consider appropriate relief. The respondent contends that these factors weighed in favour of the Court exercising its discretion to refuse the relief claimed:
(a) the relief is sought by a commercial competitor;
(b)the relief is not sought by the local government, nor by any other person or entity which might properly be regarded as representing the public interest;
(c)Woolworths delayed in filing the application for relief, electing to stand by and do nothing while the Warehouse entered into commercial arrangements, including contracts of employment, which gave rights and expectations to third parties;
(d)the relief sought is not an appropriate town planning response to the matters pleaded in the Originating Application even if they are established;
(e)the applicant cannot establish any overriding public benefit in limiting the operations of the Warehouse;
(f)the use of the premises involves no unacceptable town planning impacts and even if the use was properly characterised as a “shop”, its trading characteristics, and therefore town planning impacts, are those of, or close to those of, a “retail showroom”;
(g)the definitions of “shop” and “retail warehouse” are not mutually exclusive, and the Warehouse can be both a “shop” and a “retail showroom” at the same time pursuant, to the relevant planning scheme;
(h)the extent of any trade in food, grocery items and clothing is subordinate to and ancillary to the main trade of the Warehouse use and, therefore, is not sufficient to determine the character of the use or to found the relief sought in the Originating application;
(i)granting the relief sought in the Originating Application (particularly the injunction restraining the use of the premises as a “shop” until a development permit has been obtained) involves hardship to the Warehouse, to employees of the Warehouse at the premises, and to the members of the public who enjoy the shopping facilities provided at the premises – in circumstances where such hardship is not offset by any overriding public benefit.
Against these matters, the applicant presses the importance of upholding planning law[30]. I am not persuaded that the fact Woolworths is a commercial competitor is a bar to the relief claimed[31], nor that the applicant delayed, in any meaningful sense, in seeking relief. It is also a matter adverse to the respondent Warehouse that, in response to an information request dated 30 June 2002 issued by the Council it provided information which, having regard to its subsequent retail operation, failed to properly describe the nature and extent of the goods to be sold at the premises[32].
[30]Waringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-340; Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 241 at 261; Woolworths Ltd v The Warehouse Group (2003) 123 LGERA 341, at 347-8; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2003) NSWCA 270 at p 19 [48]; Westfield Management Ltd v Gaz Corp Pty Ltd (2004) NSWLEC 7 at p 8 [20].
[31]Woolworths Ltd v Campbells Cash & Carry, supra at 261; Westfield v Pine Rivers, supra at [60].
[32]Ex 8, vol 1, p 10.
As to the respondents’ contentions touching such things as planning issues, public benefit and the like the relevant definitions are, for the reasons already set out, quite clear and it does not sit comfortably for the respondents to attempt to use those matters as a shield, even against a commercial competitor[33]. Their activities are a clear and significant breach of the relevant terms of the planning scheme, and it is ultimately for the local authority to decide whether or not they should be permitted. The applicant has, I am satisfied, established grounds for injunctive relief.
[33]Warringah Shire Council v Sedevcic, supra per Kirby P, who noted that if unlawful exceptions and exemptions are condoned the equal and orderly enforcement of a planning scheme may be undermined.
At the same time some matters including, in particular, potential hardship for the respondents’ employees (who number over 150) make it appropriate to accede to their request that, before an order imposing injunctive relief is granted they have the opportunity to be heard on the width of those orders, and other matters.
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