Woolworths Ltd v Toowoomba City Council
[2004] QPEC 66
•5 November 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Woolworths Ltd v Toowoomba City Council & Anor [2004] QPEC 066
PARTIES:
WOOLWORTHS LTD
(ACN 000 014 675)
Appellant
v
TOOWOOMBA CITY COUNCIL
First Respondent
and
MAKRO WAREHOUSE PTY LTD
(ACN 087 578 578)
Second RespondentFILE NO:
1390 of 2004
DIVISION:
Planning & Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning & Environment Court of Queensland, Brisbane
DELIVERED ON:
5 November 2004
DELIVERED AT:
Brisbane
HEARING DATE:
23, 24 and 25 August 2004
JUDGE:
Alan Wilson SC, DCJ
ORDER:
IT IS DECLARED THAT:
1 the Second Respondent has started assessable development at premises on the land situated at 227-231 James St Toowoomba without a development permit;
2 the Second Respondent has used and continues to use the said premises unlawfully.
IT IS ORDERED THAT:
3 the Second Respondent stop its unlawful use of the said premises until it has obtained a development permit for such use: and
4 the operation of the order in paragraph 3 above is suspended for a period of 3 months from the date of this order.
CATCHWORDS:
PLANNING LAW – CONSTRUCTION OF PLANNING SCHEME – whether use permitted under planning scheme - meaning of phrase ‘household items’
Integrated Planning Act 1997
Cases considered:
Boral Resources (Qld) Pty Ltd v Cairns City Council (1997) 2 Qd R 31
Hope Island Resort Holdings v Bridge Investment Holdings Pty Ltd (2004) QPEC 003
Longhurst v Austexx Developments Pty Ltd (2003) 131 LGERA 443
Shire of Perth v O’Keefe (1964) 110 CLR 529
Westfield Management Ltd v Pine Rivers Shire Council, unreported (PEC, 14 November 2003, 1627/2003)
Woolworths Limited v Caboolture Shire Council & Anor [2004] QPEC 015
Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244
Woolworths Ltd v Warehouse Group (Australia) Pty Ltd (2003) 123 LGERA 341COUNSEL:
Mr G Gibson QC and Mr J Houston for the applicant
Mr C L Hughes SC and Mr E Morzone for the second respondentSOLICITORS:
Malleson Stephen Jacques for the applicant
Macdonnells for the first respondent Deacons for the second respondent
The applicant (Woolworths) applies under s 4.1.21 of the Integrated Planning Act 1997 (IPA) for declarations that the second respondent (Makro) has started assessable development at premises in Toowoomba without the necessary development permit and is, therefore, using those premises unlawfully. The first respondent Toowoomba City Council (Council) appeared by its solicitor who signified, on the first morning of the hearing, that his client did not wish to take an active part and would abide the order of the Court and was, thereafter, excused.
Woolworths also seeks an order under IPA ss 4.3.25 and 4.3.26 that Makro be directed to stop its present use of the premises. The issues in the matter arise in the context of Council’s planning schemes, ie its 1989 Scheme (“the old Scheme”) which was superseded by the introduction of a new IPA-based Scheme on 11 April 2003 (“the new Scheme”). Because Makro claims that its entitlement to lawfully use the premises in their current fashion arose pursuant to a rezoning under the old Scheme, the focus of the dispute was primarily upon it.
Makro has operated since April 2003 from premises at 227-231 James Street, Toowoomba in a building known as the “Chandler Centre” which also houses other retail tenants including Pillow Talk, and Carpet Choice. The Makro store contains 4,034 m2 and has a familiar layout, of the kind seen in large discount department stores like Kmart or Big W where a wide range of goods is displayed in aisles, and bins and pallets, from which customers choose and then take their purchases to a checkout for payment. The range of products includes general merchandise, clothing and food, and Woolworths alleges many of them are outside the range of goods permitted by a Condition attached to the rezoning approval.
Under the old Scheme the site was zoned a combination of Light Industry, Residential A and Special Facility (Motor Sales) zones. In December 1997 the site was rezoned to the Special Facility (Retail Warehouse) zone. The Strategic Plan for the old Scheme announced objectives for Retail Warehouse Areas:
To provide for the development of retail warehouses in appropriate locations in the city
and included an implementation provision, which imposed a restriction in these terms:
Retail warehouses may be individual premises or an aggregation of premises used or intended for the purposes of sale directly to the public of goods of a similar nature, household or bulky items, which may include the storage, display or sale of goods and ancillary offices. The types of goods sold at retail warehouses is generally limited to the following:
° floor and wall coverings
° furniture and furnishings
° electrical and gas appliances
° musical instruments
° lighting
° kitchenware, Manchester and bedding
° plumbing and roofing supplies
° paint and paint supplies
° sporting goods and accessories
° swimming pool equipment and chemicals
° kitchen and bathroom furnishings
° landscaping equipment and supplies
° video/cd hire and sales
° leisure and recreational goods
° other uses that are considered to be ancillary to the predominant use of the land for retail warehouse purposes. (emphasis added)
Council’s approval of the rezoning application was given subject to Condition 34 which, relevantly, stated:
The proposed retail warehouses are to be used solely for the purposes of sale directly to the public of goods of a similar nature, household or bulky items, which may include the storage, display or sale of goods and ancillary offices. The types of goods offered for sale within the development are limited to the following:
floor and wall coverings;
furniture and furnishings;
electrical and gas appliances;
musical instruments;
lighting;
kitchenware, manchester and bedding;
plumbing and roofing supplies;
paint and paint supplies;
sporting goods and accessories;
swimming pool equipment and chemicals;
kitchen and bathroom furnishings;
landscaping equipment and supplies;
video/cd hire and sales;
leisure and recreational goods;
other uses that are considered by Council to be appropriate to the use of the land for retail warehouse purposes. (emphasis added)
Makro contends that its present use satisfies this Condition – ie, that (on the proper construction of the Condition) it sells goods of a similar nature or household or bulky items and everything it offers for sale falls within one or more of those categories. Woolworths disputes that contention.
The evidence established Makro does not sell some of the items listed in Condition 34, and does sell a number of products in categories which are not listed including food and grocery, health and beauty, and clothing products. The parties agree the relevant phrase containing the three categories (goods of a similar nature, household items or bulky items) is to be read disjunctively, but then part as to its meaning and effect. Matters relevant to the construction of the Condition include that the term “retail warehouse” was not specifically defined in the old Scheme but “shop” was defined, relevantly, to mean “… any premises used or intended for use for the display and sale of goods by retail …”; and, that the process of construction should be undertaken in a broad and common sense, rather than unduly restrictive way[1].
[1] Shire of Perth v O’Keefe (1964) 110 CLR 529 AT 535; and see, generally, the judgments collected by Britton SC, DCJ in Westfield Management Ltd v Pine Rivers Shire Council, unreported (Planning & Environment Court, 14 November 2003, 1627/2003) at para [18].
It is clear from the decision of the Court of Appeal in Longhurst v Austexx Developments Pty Ltd (2003) 131 LGERA 443, a case concerned with the question whether a proposed development was a “retail showroom” as that term was defined in a planning scheme (the governing definition requiring that the premises be used for the sale of goods “… of a similar or bulky nature”), that to satisfy the Condition all (or, at least, most) of the goods sold by Makro must fall within one or more of the three categories. While the relevant definition in Austexx specifically excluded department stores, discount department stores and discount variety stores it does not appear from the reasons of Chesterman J (with whom McMurdo P and McPherson JA agreed) that the distinction was germane to his Honour’s analysis of the relevant terms, which is otherwise of assistance here.
I am satisfied the range of goods offered for sale are not “of a similar nature” or “bulky items”. Although a witness called by the appellant, Mr Walkley, categorised about 30% of the goods as “bulky”[2] that description seemed to be the product of a comparative exercise, rather than a reference to the ordinary, dictionary meaning of the word[3]. Nor, on any view, do they exhibit the similarity explained by Chesterman J in Austexx at para [24], ie that they “… serve the same purposes or have the same function”.
[2]Ex 6, p 82.
[3] See the dictionary definition cited in Woolworths Limited v CabooltureShire Council & Anor [2004] QPEC 015, at para [29].
The term “household” is not defined in the old Scheme[4]. The Macquarie Dictionary defines the word, relevantly, as:
of or pertaining to a household, domestic: household furniture … used for maintaining and keeping a house.
It is plainly a word of wide and variable meaning. Some of the expert witnesses ventured definitions of it by reference to the retail industry and, indeed, a schedule produced by Makro tended to support the view that it would not ordinarily include a number of items it sells; but the dictionary definition, with its emphasis on products or things ordinarily essential to a house, or used for its maintenance suggests the word would not usually encompass such things as books, lollies, clothing and footware, giftware, or products used for health and beauty purposes. That construction is supported by the list of items in Condition 34, which are predominantly of a durable kind (save for the last two) and refer more strongly to items associated with the structure and permanent features of a house[5] than consumables, or non-durable items.
[4]It is defined in the new Scheme, but in terms which provide no assistance here: Ex 4, s 3.4 at p 2.
[5]And, see, the examples given in the definition in the New Shorter Oxford English Dictionary.
I am satisfied many of the goods sold by Makro do not fall within any of those categories. Many are properly described as consumables whereas most of those in the list, with the possible exception of swimming pool chemicals, do not embrace that idea of products and items for immediate use or consumption. Nor do I think foodstuffs and the like fit the usual, dictionary meaning.
But that does not exhaust Makro’s arguments about the Condition: it also contends that its activities are saved by the last phrase in Condition 34, ie “… other uses that are considered by Council to be appropriate to the use of the land for retail warehouse purposes” which should be read, it says, in the context of the definition of “shop” in the older Scheme so that “other uses” might reasonably be construed as “goods” which should not, the argument goes, be read down to exclude such things as food or clothing.
Condition 34 is, however, comprised of two principle elements: the introductory sentences, and the list of goods, and the final phrase does not contain a third element but is simply the last item in the list of the kind of goods which may be offered for sale at the premises. That list is plainly intended to limit, not expand, the range of goods described in the introductory sentences, with their three categories. As Chesterman J explained in Austexx, the list is one containing examples, but it does not expand the categories. Hence, any other goods that might be added to the list under the final phrase would still be required to fall within one of the categories[6] and the phrase does not, therefore, operate to expand the nature of the goods which can be sold to include those which otherwise offend the three categories.
[6]Supra, at para [23].
That is not the end of the matter. Makro also contends that, by dint of correspondence exchanged with Council in April 2003, the latter accepted that Makro’s operations were (by reference to the last phrase in Condition 34) “… appropriate to the use of the land for retail warehouse premises”. Ms Miles, a town planner acting on behalf of the owner of the premises wrote to Council’s principal planner on 4 April 2003 enclosing a schedule of goods Makro wished to sell. Her letter:
(a) noted that there was no definition of “retail warehouse” in the old Planning Scheme and suggested a definition which should apply was that of “shop”;
(b) asserted that the approval previously granted under the rezoning was in fact for a “shop” of a particular variety, namely a retail warehouse;
(c) stated that in her view Makro’s operations would “represent a shop occupying existing approved vacant shop space” meaning, in her opinion, that there was “no material change of use occurring in relation to this property” and “the use would occupy the building without the need to apply for a material change in use approval from Council”;
(d) stated that Makro required confirmation that this was also Council’s view and that it would be appreciated “… if you could please advise in writing of Council’s view on whether Council is of the opinion that a material change in use is occurring in this instance”.
On 9 April 2003 Council’s principal planner replied, saying:
Based on this information, which indicates that the majority of the floor space will be for the sale of bulky goods, it is considered that the proposed use falls within the existing approved use of the site as contained in the conditions of development approval dated 24 June 1997 (emphasis added)
It is common ground that this letter was written at the principal planner’s own behest, and without reference to a Council meeting or its Planning Committee. Regardless, there are compelling reasons why the correspondence does not avail Makro in this application. First, evidence from expert witnesses shows, and I accept, that Makro’s use did not constitute a “retail warehouse” within the apparent meaning of that term as is used in the old Scheme so, arguably, a rezoning would have been necessary to accommodate the use. (An alternative view is that, if its use did not comply with Condition 34 then that use constituted “assessable development” under the transitional provisions of IPA[7], which do not include mere correspondence but, rather, compliance with the detailed IDAS procedure.)
[7]Ch 6.
Under the old Scheme the rights conferred by the 1997 rezoning are established, by reference to the Scheme Map, as “Special Facilities (Retail Warehouse)” which, insofar as it is mentioned, appears in a form closest to an actual definition in the clause from the Strategic Plan set out earlier[8]. That clause contains phrases very like Condition 34, with the final phrase permitting other uses “ancillary to the predominant use of the land for retail warehouse purposes”. For reasons expounded in other decisions involving the same parties, there is simply no basis for concluding the wide range of goods offered for sale by Makro represents an “ancillary” use[9].
[8]Ex 3, p 98.
[9] Woolworths Limited v Caboolture Shire Council (supra) at [33], and footnote 21; Boral Resources (Qld) Pty Ltd v Cairns City Council (1997) 2 Qd R 31 at 35.
It follows that Makro’s current use could only be lawfully affected by approval of an application for a change of the condition attached to the 1997 rezoning approval which expanded it to include the range of goods it now sells (a procedure for which IPA provides: s 3.5.33) or an application under the IDAS procedure. Neither conclusion denies Condition 34 a sensible basis for operation albeit, for the reasons explored earlier, necessarily a narrow one.
The terms of the correspondence itself, and the identity of the author of Council’s letter also militate against Makro’s contentions. All that was sought by the town planner on the owner’s behalf was Council’s “view” and “opinion” so the reply of 9 April should not be seen as more. It may have additional legal implications for the correspondents, but they are not relevant here. I am also satisfied, from Council documents tendered by the applicant, that its principal planner did not have the authority to grant approval for an actual material change of use[10].
[10]See, Ex 2, tab 22.
The letter of 9 April also appears to attach a condition, by way of presumption, to the favourable opinion it expresses: that “the majority of the floor space will be for the sale of bulky goods”, a premise shown to be mistaken. Even if the evidence of Mr Walkley that just under 30% is used for “bulky products” is accepted, that does not on any view constitute a majority. In fairness to Ms Miles, she made no representation of that kind and the reliance upon “bulky goods” seems to be the Council officer’s own work. It must however, detract from whatever efficacy is claimed for the letter.
It is not in dispute that the conditions of the 1997 zoning approval attached to and remain with the premises. Makro sought to attach a degree of formality to the exchange of letters by categorising it as an exercise of the discretion arising under Condition 34 within the terms of the rezoning approval but, again for the reasons explored earlier, the proposition does not fit with any reasonable construction of that Condition, or the terms of the letters themselves. Certainly, Council’s own records did not suggest any special authority or approval had been granted by the letter of 9 April 2003[11].
[11]See the Town Planning Certificate obtained by Mr Buckley, Ex 17 which does not mention the matter.
Makro also raised a number of matters said to warrant refusal of the relief sought, on a discretionary basis. Each of them was relied upon and rejected in an earlier, not dissimilar case involving the same parties[12] and they are not compelling here, where I am satisfied there is a significant breach of planning controls[13].
[12]Woolworths v Caboolture (supra).
[13] See Hope Island Resort Holdings v Bridge Investment Holdings Pty Ltd (2004) QPEC 003, and the cases cited there by Skoien SJDC: Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244, and Woolworths Ltd v Warehouse Group (Australia) Pty Ltd (2003) 123 LGERA 341.
In particular, the fact that a commercial competitor seeks the relief is not a bar to the orders sought and, if they are otherwise appropriate, is of little moment. There is no overriding public benefit even though, as I accept, Makro’s premises are apparently well patronised; factors of that kind must be balanced against the need to ensure planning controls are upheld. Makro also submitted that, ultimately, its present use was an appropriate one but as Mr Schomburgk, the town planner it called, conceded it is certainly discordant with the new Planning Scheme under which it would most probably require impact assessment[14].
[14] The current Planning Scheme for these premises expressly excludes department stores, discount stores and discount variety stores, and Mr Schomburgk agreed Makro’s use fell within the last of these.
The question of potential hardship to employees is always troubling but I accept the evidence of Mr Dimasi, an expert in retail operations, that there appear to be good opportunities for alternative employment in Toowoomba. Nor is there any basis for concluding hardship to any members of the public.
Some emphasis was also placed upon the exchange of letters, and the proposition that Makro relied upon it in good faith. That may be relevant for other purposes but, in any event, the lease between Makro and the landlord contains a specific warranty from the latter in terms indicating Makro was alert to protect its interests. The letter itself, which is annexed to the lease, might also be thought sufficient to alert Makro to potential problems: it referred to the majority of the floor space being used for the sale of bulky goods, something which Makro must have known was, on any view, wrong. I am not persuaded that any of the grounds advanced constitute a discretionary shield for Makro against Woolworths’ application.
Because (as in Woolworths v Caboolture Shire Council (supra)) the relief sought is immediate I will hear submissions about the question whether it should be suspended for some period.
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