Yum Restaurants International and City Of Rockingham
[2008] WASAT 136
•16 JUNE 2008
YUM RESTAURANTS INTERNATIONAL and CITY OF ROCKINGHAM [2008] WASAT 136
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 136 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:77/2008 | 29 MAY 2008 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 16/06/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application to make submissions refused | ||
| B | |||
| PDF Version |
| Parties: | YUM RESTAURANTS INTERNATIONAL CITY OF ROCKINGHAM |
Catchwords: | Planning and development Application to make submissions under s 242 Planning and Development Act 2005 Commercial and business interest Whether sufficient interest Whether entitlement to make submissions if sufficient interest established |
Legislation: | City of Rockingham Town Planning Scheme No 2, cl 6.6 Melbourne Metropolitan Planning Scheme Ordinance 1975 (Vic), cl 7 Planning and Development Act 2005 (WA), s 242 State Administrative Tribunal Act 2004 (WA), s 9 Therapeutic Goods Act 1989 (Cth), s 60 |
Case References: | Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 49 FCR 250 Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Pitt v Environmental Resources and Development Court (1995) 66 SASR 274 Shire of Augusta-Margaret River v Gray [2005] WASCA 227 US Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 |
Orders | The application by Competitive Foods Australia Pty Ltd to make submissions is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : YUM RESTAURANTS INTERNATIONAL and CITY OF ROCKINGHAM [2008] WASAT 136 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 29 MAY 2008 DELIVERED : 16 JUNE 2008 FILE NO/S : DR 77 of 2008 BETWEEN : YUM RESTAURANTS INTERNATIONAL
- Applicant
AND
CITY OF ROCKINGHAM
Respondent
Catchwords:
Planning and development Application to make submissions under s 242 Planning and Development Act 2005 Commercial and business interest Whether sufficient interest Whether entitlement to make submissions if sufficient interest established
Legislation:
City of Rockingham Town Planning Scheme No 2, cl 6.6
Melbourne Metropolitan Planning Scheme Ordinance 1975 (Vic), cl 7
Planning and Development Act 2005 (WA), s 242
State Administrative Tribunal Act 2004 (WA), s 9
(Page 2)
Therapeutic Goods Act 1989 (Cth), s 60
Result:
Application to make submissions refused
Category: B
Representation:
Counsel:
Applicant : Mr M Hardy
Respondent : Mr L Tsaknis
Applicant Third Party : Mr M Hotchkin
Solicitors:
Applicant : Hardy Bowen
Respondent : Woodhouse Legal
Applicant Third Party : Hotchkin Hanly
Case(s) referred to in decision(s):
Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 49 FCR 250
Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Pitt v Environmental Resources and Development Court (1995) 66 SASR 274
Shire of Augusta-Margaret River v Gray [2005] WASCA 227
US Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520
(Page 3)
Summary of Tribunal's decision
1 Yum Restaurants International sought a review in the Tribunal of a decision by the City of Rockingham to refuse an application to develop a fast food outlet in Patterson Road, Rockingham. The substantive hearing of that review is to take place within the next few weeks.
2 Competitive Foods Australia formerly operated a fast food outlet from a nearby site pursuant to a franchise agreement with Yum Restaurants International. That franchise agreement terminated on 19 November 2007, but Competitive Foods Australia's lease of the premises has approximately six years to run. Competitive Foods Australia sought an order under s 242 of the Planning and Development Act 2005 (WA) to make submissions in the Tribunal proceedings. It submitted that it had "a sufficient interest" for the purposes of s 242, being its commercial interest in the outcome of the proceedings. It contended that, if Yum Restaurants International were successful in gaining approval for the premises near to the Competitive Foods Australia premises, that would affect Competitive Foods Australia financially by substantially reducing any prospects of it obtaining a new franchise agreement with Yum Restaurants International, and because it would give rise to competition to any different fast food outlet which Competitive Foods Australia may choose to operate from the premises.
3 Competitive Foods Australia was unaware of the precise issues between the parties in the Tribunal proceedings. It was thus unable to identify the matters, if any, upon which it might make submissions. Rather it sought to obtain leave so that it could attend the proceedings, and at the conclusion make submissions on any of the matters arising during the proceedings. It accepted that it could not raise any additional issues in the proceedings, and that the Tribunal would retain the right to decline to hear submissions if the Tribunal formed the view that those submissions were either repetitive or would not otherwise assist.
4 The Tribunal considered whether an interest of the nature asserted by Competitive Foods Australia could amount to a "sufficient interest" for the purposes of s 242. Although the Tribunal concluded that commercial interests were not necessarily excluded from the type of interest referred to in the section, it did not consider that the indirect impact of the outcome of the proceedings on Competitive Foods Australia's commercial and business interest amounted to a "sufficient interest".
(Page 4)
5 The Tribunal dismissed whether, if a sufficient interest were demonstrated, it would have granted leave to make submissions. In view of the fact that Competitive Foods Australia had not demonstrated that it would bring anything useful to the proceedings, the Tribunal determined that leave to make submissions would have been refused, even if a sufficient interest was established.
The application to make submissions
6 Competitive Foods Australia Pty Ltd (CFA) applies to make submissions in respect to the application by Yum Restaurants International (Yum) for review of the refusal by the City of Rockingham to grant approval for a fast food outlet in Patterson Road, Rockingham. The purpose of the development is to establish a KFC restaurant and drive-through. The application is listed for two and a half days commencing on 18 June 2008.
7 Section 242 of the Planning and Development Act 2005 (WA) (PD Act) provides that:
"The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter."
8 CFA contends that it should be permitted to make submissions. The interest which it identifies is of a commercial nature.
9 In Shire of Augusta-Margaret River v Gray [2005] WASCA 227 at [139] Pullin JA considered that s 242 involved a two-stage approach. The first stage is to determine whether there is a sufficient interest for the purposes of the section. If a sufficient interest exists, the second stage is to consider whether to exercise the discretion to receive submissions. Counsel for CFA argued that that approach is not consistent with the object and purpose of s 242, and that once a sufficient interest is demonstrated, then the person with that interest should be entitled to make submissions.
10 The issues for determination are therefore:
(i) Does CFA have a sufficient interest to make submissions;
(ii) If so, does it follow that CFA is necessarily entitled to make submissions; and
(Page 5)
- (ii) If the answer to (i) is yes, and to (ii) is no, should a discretion to permit CFA to make submissions be exercised in its favour?
The nature of CFA's interest
11 CFA filed two affidavits in support of its application. The first was from Mr Stephen Paul Etheridge. Mr Etheridge is the office manager of CFA in Western Australia. He explained that CFA operates some 45 fast food outlets in Western Australia under the brand name KFC. Until 19 November 2007, one of CFA's franchises was a KFC outlet situated at 6 Patterson Road, Rockingham. Yum is the franchisor of KFC outlets. CFA has a lease of the premises from which that business was conducted which has approximately six years to run before expiration of the existing term, with three further five-year options. The franchise agreement having expired in November last year, CFA has ceased trading at the premises at the applicant's request. Mr Etheridge explained that there are ongoing negotiations with Yum to renew the franchise agreement. He "remains hopeful" that CFA's premises may eventually be reopened as a KFC restaurant. If that does not occur, then the expectation is that the premises would be used as a different fast food outlet, either by CFA or by a third party to whom CFA could assign the lease.
12 The CFA premises are approximately 500 metres from the site the subject of this application.
13 Mr Etheridge is concerned that, if the application is granted, CFA will lose substantial goodwill that it had built up at the premises over a number of years, the applicant is unlikely to enter negotiations in relation to reopening the KFC restaurant at the CFA premises, and if a different fast food restaurant were established, the competition from the premises the subject of these proceedings would adversely affect the business on the CFA premises. Mr Etheridge also expressed the view that matters such as the parking layout at the subject site might affect its competitiveness with the CFA premises.
14 The second affidavit relied upon by CFA is an affidavit of John Ernesto Castillo, a director of CFA. He deposes to the fact that, since CFA's Rockingham premises ceased trading as a KFC restaurant, CFA's KFC store in Warnbro, approximately 10 kilometres away, had experienced a substantial increase in weekly turnover. That increase is explicable only by the closure of the Rockingham store. Mr Castillo expressed the opinion that, if a new store at Rockingham is approved, then those who have travelled to CFA's Warnbro store will cease to do so, with
(Page 6)
- the effect that trading at the Warnbro store will be adversely affected. He also expressed concern that, if a different fast food outlet is established by CFA at its Rockingham premises, competition from the new KFC premises, if this application is approved, would adversely affect the trading performance of CFA's new outlet.
15 It can be seen that the "interest" identified by CFA is concerned entirely with its commercial relationship with Yum and the avoidance of competition.
The issues in the principal proceedings
16 A review of the Statement of Issues, Facts and Contentions filed by the parties of the proceedings reveals that the issues between the parties relate to various matters arising under policies which fall for consideration under the requirements of the City of Rockingham Town Planning Scheme No 2 (DPS 2). In particular the issues raised concern crossovers, the provision of a drive-through facility, setbacks to Patterson Road, signage and parking. It is obvious that the commercial interests of CFA have no relevance to the issues upon which the Tribunal is to be called upon to decide.
Sufficient interest
17 In Shire of Augusta-Margaret River v Gray, Pullin JA, with whom Le Miere AJA agreed considered at [139] that the expression "sufficient interest" means that the Tribunal must be satisfied that the applicant had an interest which would give standing for judicial review and which would pass the test for standing approved by the High Court in Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493. In that case, Mason J said at 547:
"a plaintiff will in general have a locus standi where he can show actual or apprehended injury or damage to his property or propriety rights, to his business or economic interests (as to which see NSW Fish Authority v Phillips (1971) NSWR 725) and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi …"
18 CFA asserts that it has a "business or economic" interest sufficient to satisfy that test.
(Page 7)
19 The applicant contended that the evidence before the Tribunal was not sufficient to demonstrate any detrimental impact on CFA from approval of the proposed development.
20 On the basis of the affidavits of Mr Etheridge and Mr Castillo, it may be assumed that, if Yum is successful in this application, that will affect CFA's bargaining position with Yum, and in that sense, its financial and business interests. It can also be accepted that if, as proposed, a KFC store opens on the site, it will provide competition to any new fast food outlet established by CFA on its Rockingham site. Having made those assumptions, the question becomes whether an effect of that nature is a relevant "sufficient interest" so as to enliven the discretion under s 242.
21 The applicant submits that an interest of the nature claimed by CFA is not capable of mounting to a "sufficient interest" for the purposes of s 242. It relies on Kentucky Fried Chicken Pty Ltd vGantidis (1979) 140 CLR 675. That case concerned an application for a permit under cl 7 of the Melbourne Metropolitan Planning Scheme Ordinance 1975 (Vic). That clause required the responsible authority to have regard to "the primary purpose for which the land is zoned, the orderly and proper planning of the zone, and the preservation of the amenity …". Barwick CJ (at 681) said that "economic competition feared or expected from a proposed use is not a planning consideration within the terms of the planning ordinance governing this matter".
22 Stephen J (at 687) explained the relevance of competition to existing businesses to planning cases in the following way:
"If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration."
(Page 8)
23 As each of those passages identifies, the relevance of economic competition as a planning consideration must be assessed in light of the particular planning instrument governing the exercise of the discretion. In this case, the relevant planning instrument is TPS 2, and the policies referred to in it. Clause 6.6 of TPS 2 identifies the matters to be considered by council. Some 28 matters are referred to. Matters of competition from, or economic impact of, proposed developments are not possibly relevant to the vast majority of those factors. The remaining factors include; any social issues that have an effect on the amenity of the locality; preservation of the amenity of the locality; the potential loss of any community service or benefit resulting from the planning approval; and any other planning considerations the council considers relevant. It is conceivable that the consequences of a development referred to by Stephen J in the passage set out above may be relevant to considerations of that nature.
24 It is clear, however, that in this case none of the issues for determination by the Tribunal can be informed by commercial issues of the nature raised by CFA. There is no suggestion in these proceedings that the grant of an approval to Yum might lead to any loss of community facilities or benefits, or result in an impact on any nearby business services or facilities in a detrimental way. For the reasons explained in Gantidis, those commercial factors are simply irrelevant to the Tribunal's decision.
25 Section 242 of the PD Act requires that there be demonstrated "a sufficient interest in the matter" (emphasis added). The "matter" is the controversy as to the planning merits of the particular proposal, and the potential use and enjoyment of the subject site. The controversy involves questions of a planning nature. The interest of CFA relates to its commercial relationship with Yum as a former and potential franchisor or as a competitor, and its competitive position in the Rockingham fast food industry. It has no direct interest in the proposal. The outcome of the application may indirectly affect the commercial interests of CFA, but in my view that is not sufficient to create an interest "in the matter".
26 It does not, in my view, follow that in all cases a "business or economic interest" is incapable of amounting to a sufficient interest for the purposes of s 242. Each case requires an examination of the relationship of the interest to the matter before the Tribunal. It would, in my view, be an error to exclude particular categories of interest as a general rule applicable to all cases. As Mason J said in Australian Conservation Foundation v Commonwealth of Australia, "there is
(Page 9)
- nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi".
27 I do not consider that the decision Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 49 FCR 250, requires, as Yum argued, a different conclusion. That case concerned the expression "a person whose interests are affected" which appears in s 60 of the Therapeutic Goods Act 1989 (Cth). Status as "a person whose interests are affected" under that legislation gave rise to an entitlement to reconsideration by the Minister of the Minister's initial decision. Davies J adopted the opinion of the Full Federal Court in US Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 529 where the court said:
"The nature of the interest required in a particular case will be influenced by the subject matter and content of the decision under review."
28 The court concluded that the interest of the respondent, which was purely a competitive or economic interest in protecting its market share and profitability was not an interest which the Therapeutic Goods Act 1989 (Cth) recognised for the purposes of s 60. The court considered that the interest which a competitor may have in delaying or hindering the introduction of a drug into the market is not an interest relevant to the process which the Act establishes and was, in fact, in conflict with the interests that the Act promotes.
29 The purposes of the PD Act include the provision of an efficient and effective land use planning system in the State, and the promotion of the sustainable use and development of land in the State. It cannot, in my view, be said that a recognition of a purely commercial interest as a "sufficient interest" for the purposes of s 242 is necessarily inconsistent with those objects. For example, in the type of case referred to by Stephen J in Kentucky Fried Chicken Pty Ltd v Gantidis, where economic factors might be a proper consideration as a matter of town planning, the perspective of a person with a commercial interest might assist the Tribunal to reach the correct and preferable decision. That is not, however, the case in this matter.
A two-staged process
30 In view of my conclusion as to the absence of a sufficient interest, it is not strictly necessary to consider the submission made by CFA that, once a sufficient interest is established, there should necessarily be an entitlement to make submissions subject only to the Tribunal's capacity to
(Page 10)
- decline to hear submissions which might be repetitive or irrelevant to the issues before the Tribunal. It may, however, be helpful to observe that, if I were wrong as to my conclusion as to CFA's sufficient interest, I would not accept its submission on this point. The contention is directly contrary to what was said by Pullin JA (with whom Le Miere AJA agreed) in Shire of Augusta-Margaret River v Gray at [139] His Honour concluded that a "sufficient interest" must be shown before the Tribunal's discretion is enlivened, but continued:
"That is not to say that if the jurisdiction is enlivened that the Tribunal is then obliged to exercise the discretion in favour of the applicant. Factors such as those referred to in Pitt's case would then be taken into account in deciding whether to permit a person, not a party, to make submissions."
• the contribution which the interested party is likely to be able to make to the proper disposition of the issues before the Tribunal;
• whether the interest which the interested party represents and the material to be advanced by that person will be adequately dealt with by the parties already before the Tribunal;
• the impact on the proceedings of permitting submissions to be made;
• the interests of the parties before the Tribunal as of right and the public interest in the prompt and efficient dispatch of proceedings; and
• any other factors particular to the case.
32 The approach to s 242 in the context of the objectives and procedures of the State Administrative Tribunal is entirely appropriate. The objectives set out in s 9 of the State Administrative Tribunal Act 2004 (WA) require the Tribunal to achieve resolution of questions according to the substantial merits of the case, to act as speedily and with as little formality and technicality as practicable, and minimise the cost to parties.
33 I do not accept that the Tribunal should approach applications to make submissions under s 242 any differently from the manner identified in Shire of Augusta-Margaret River v Gray, that being the manner in which the Tribunal has always approached such applications since it commenced its operation.
(Page 11)
The exercise of discretion
34 Similarly, in light of the conclusion as to the nature of CFA's interest, the third issue raised in the proceedings, being whether the discretion should be exercised in CFA's favour, does not arise for consideration. Suffice to say that, in the absence of any indication as to the matters upon which submissions are sought to be made, and thus with no opportunity to assess the extent to which submissions may assist the Tribunal, I would not have considered there is any basis to exercise to the discretion in CFA's favour, had the question arisen for determination.
Conclusion
35 For the foregoing reasons, the application by CFA to make submissions pursuant to s 242 of the Planning and Development Act2005 should be dismissed.
Order
36 The application by Competitive Foods Australia Pty Ltd to make submissions is dismissed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT
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