Jewel Food Stores Pty Limited, Olaseat Pty Limited and P and A Christodoulou Trading As Kippax Supabarn v Bill Wood, Minister of the Environment Land and Planning [1994] ACTSC 123 (1 December 1994)

SUPREME COURT OF THE ACT

JEWEL FOOD STORES PTY LIMITED, OLASEAT PTY LIMITED AND P AND A CHRISTODOULOU
TRADING AS KIPPAX SUPABARN v BILL WOOD, MINISTER FOR THE ENVIRONMENT LAND AND
PLANNING
No. SCA60 of 1994
Number of pages - 8
Administrative Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Administrative Law - application for extension of time for judicial review - relevant considerations for extension - no reasonable prospects for success - application refused.

Land (Planning and Environment) Act 1991 (ACT)
Administrative Decisions (Judicial Review) Act 1989 (ACT)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Johns v Australian Securities Commission (1992) 35 FCR 146

HEARING

CANBERRA, 17 October 1994
1:12:1994

Counsel for the Applicants: Mr R J Arthur

Instructing solicitors: Crossin Barker Gosling

Counsel for the Respondent: Mr P Walker

Instructing solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:

The application to extend time be refused.

DECISION

HIGGINS J The applicants are seeking an extension of time within which to apply to review the decision of the respondent to permit Contis Investments Pty Ltd (Contis) to conduct a "controlled activity".

2. That permission took the form of a decision to approve, on 17 May 1994, an application by Contis and its partner, Dinach Holdings Pty Ltd (Dinach) to amend the terms of their Crown Lease in respect of Block 5 Section 31 Belconnen. The land in question is operated as a fresh fruit and vegetable market known as "The Belconnen Markets". The effect of the approval is to both increase the gross floor area available for retail activity by about 25% and also to increase the range of goods able to be sold from the premises erected thereon.

3. On 14 June 1994, the applicants purported to appeal for a review of that decision pursuant to the Land (Planning and Environment) Act 1991 (ACT) (L(PandE) Act) by the Land and Planning Appeals Board (the Board).

4. By letter dated 30 June 1994, the Registrar of the Board advised that, in his view, the applicants had no right to appeal to the Board.

5. On 13 July 1994, without prejudice to their right to pursue an appeal to the Board, the applicants filed an application for a review of the Minister's decision to approve the abovementioned application pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act).

6. That application was made outside the time limited by s10 of the ADJR Act. In the absence of a statement of reasons referred to in s10(3)(a), (b)(i) or a request for and notification of non-entitlement to a statement of reasons referred to in s10(3)(b)(ii), the application period was that commencing on the day referred to in s10(3)(b)(iii).

7. The application is, accordingly, out of time by 22 days. The grounds upon which the review was sought repeated those matters, being matters alleged to be errors of law, which had been relied upon as objections to the decision of 14 June 1994. The applicants would have raised its full range of objections before the Board had they been entitled so to do.

8. The court is empowered under s10(1)(c) of the ADJR Act, to allow further time within which to make an application under s10.

Relevant considerations in deciding whether or not time should be extended
9. The matters to be considered in determining whether and to what extent time should be extended are referred to in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. In that case, Wilcox J summarised the relevant authorities and principles. It is for the applicant to satisfy the court that the extension of time should be granted. The fact that the decision-maker remains aware from the outset that the decision is to be challenged as opposed to a situation where it appears finally concluded will favour extension of time. Prejudice to other parties occasioned by the delay will favour refusal of an extension. Public policy is relevant, particularly if the interests of third parties are affected adversely. The merits of the proposed application are relevant as are the consequences of the pursuit of the application.

10. In Johns v Australian Securities Commission (1992) 35 FCR 146, the nature and importance of the issues sought to be resolved was found to favour the grant of an extension of time.

11. In this case, the delay is not excessive, the respondent and all other interested parties have been aware of the active intention of the applicants to challenge the decision. The Crown Lessees have taken no steps, nor has the decision maker, to implement the decision. No third party interests would be adversely affected by consideration of the applicants' case. Indeed, the issue is important to the maintenance of public confidence in the process of consideration of the variation of Crown Leases consistently with the Territory Plan. If the applicants' contentions are correct, then the Minister's decision would be contrary to the Plan thus undermining public confidence in its implementation according to law. A definitive ruling for the guidance of the planning process would then seem to be called for.

12. In my view, no factor in the present case weighs against allowing an appropriate extension of time provided that there is a reasonably arguable case for relief.

13. The applicants are within the class of persons who may apply for judicial review: s3(4) ADJR Act.

Has the application any reasonable prospects for success?
14. The sole ground upon which the applicants base their claim for relief is that the decision made by the Minister is contrary to the Territory Plan. If that is so, the decision would be rendered unlawful by virtue of s8 of the L(PandE) Act. That section provides as follows:

(1) Subject to subsection (2), the Territory, the Executive, a
Minister or a Territory authority shall not do any act, or approve the
doing of any act, that is inconsistent with the Plan.
(2) Subsection (1) does not apply in relation to the approval pursuant
to the Buildings (Design and Siting) Act 1964 of a proposal for the
development of land involving an aspect of external design and siting
where -
(a) the application for approval of the proposal was made pursuant to
that Act before 18 October 1993;
(b) the Authority did not refuse to approve the application before that
day; and
(c) the proposal is consistent with the Plan as in effect on 17 October
1993.

15. It may be noted that subsection (2) has no application to an application for approval to carry out a "controlled activity".

16. Section 4 defines a "controlled activity" as, relevantly (Schedule 4 Item 2) "The execution of a variation of a lease of Territory Land".

17. The original application, dated 16 July 1993, proposed:

To vary the lease to permit a half case retail outlet to operate
from the premises; to increase the maximum gross floor area to 3300
square metres and to vary the lease boundary to include Block 3
Section 31 Belconnen.

18. At some point prior to 17 May 1994, Contis and Dinach agreed to amend their application so as to delete the proposal to include Block 3 Section 31 Belconnen.

19. The original proposal otherwise to vary the Crown Lease sought to amend clauses 3(c) and (e) of the Crown Lease. Clause 3(c) provided:

To use the premises only for the purpose of a market for the storage
and retail sale of the following only:
i) fruit and vegetables;
ii) bakery products (including bread pastries cakes and biscuits)
confectionery meat poultry seafood delicatessen goods and natural health
foods;
iii) foodstuffs (other than those specified in paragraph (ii) of
sub-clause (c) of this Clause) groceries beverages and domestic
household goods;
iv) food prepared on the premises for immediate consumption off-the
premises and ancillary thereto on-site dining facilities;
v) pets foods accessories and medicines for animals animal skins and
hides;
vi) cosmetic and health care products plants flowers seeds fertiliser
farm produce and ancillary thereto garden accessories;
vii) smokers requisites newspapers and magazines; and
viii) arts crafts rugs coins stamps wall hangings antiquarian books
Australian souvenirs educational wooden puzzles and toys gifts minor
household goods and utensils but EXCLUDING furnishings electrical
appliances and general hardware supplies.

20. It was proposed to add:

ix) foodstuffs groceries beverages and domestic household goods in
half case lots.

That proposal was ultimately approved without amendment.

21. Clause 3(e) originally provided:

That the gross floor area of the premises shall not exceed 2500
square metres PROVIDED ALWAYS THAT -
i) not less than 12% of the gross floor area of the premises shall be
used for the purpose of storage being the storage of goods on the
premises prior to the removal of the goods to another part of the
premises for the purpose of retail sale; and
ii) not less than 33% of the gross floor area of the premises permitted
for retail purposes shall be used for the purpose of the retail sale of
fruit and vegetables; and
iii) not more than 200 square metres of the gross floor area of the
premises shall be used for the purpose as specified in paragraph (iii)
of sub-clause (c) of this Clause provided that of the maximum 200 square
metres the area used for the sale of alcoholic beverages shall not
exceed 80 square metres; and
iv) not more than 100 square metres of the gross floor area of the
premises shall be used for the purpose of the retail sale of food
prepared on the premises for immediate consumption off the premises and
ancillary thereto on-site dining facilities; and
v) not more than 50 square metres of the gross floor area of the
premises shall be used for the purpose of the retail sale of smokers
requisites newspapers and magazines; and
vi) not more than a total of 40 square metres of the gross floor area
of the premises shall be used for the purpose of the retail sale of arts
crafts rugs coins stamps wall hangings antiquarian books Australian
souvenirs educational wooden puzzles and toys gifts minor household
goods and utensils;

22. The original proposal was to amend clause 3(e) to read as follows:

That the gross floor area of the premises shall not exceed 3300
square metres PROVIDED ALWAYS THAT -
i) not less than 900 square metres of the gross floor area of the
premises shall be used for the purpose of storage being the storage of
goods on the premises prior to the removal of the goods to another part
of the premises for the purpose of retail sale; and
ii) not less than 725 square metres of the gross floor area of the
premises permitted for retail purposes shall be used for the purpose of
the retail sale of fruit and vegetables; and
iii) not more than 200 square metres of the gross floor area of the
premises shall be used for the purpose as specified in paragraph (iii)
of sub-clause (c) of this Clause provided that of the maximum 200 square
metres the area used for the sale of alcoholic beverages shall not
exceed 80 square metres; and
iv) not more than 100 square metres of the gross floor area of the
premises shall be used for the purpose of the retail sale of food
prepared on the premises for immediate consumption off the premises and
ancillary thereto on-site dining facilities; and
v) not more than 50 square metres of the gross floor area of the
premises shall be used for the purpose of the retail sale of smokers
requisites newspapers and magazines; and
vi) not more than a total of 40 square metres of the gross floor area
of the premises shall be used for the purpose of the retail sale of arts
crafts rugs coins stamps wall hangings antiquarian books Australian
souvenirs educational wooden puzzles and toys gifts minor household
goods and utensils;
vii) not more than 200 square metres of the gross floor area of the
premises shall be used for the purpose of the sale of foodstuffs and
household goods in half case lots.

23. The effect of that proposal was to increase the storage space from 12% of the gross floor area to 27% thereof (900m2 is 27% of 3300m2). The balance would be available to be used for retail purposes. The minimum area which was to be used for "fruit and vegetables" was to be slightly reduced to 725m2 or 30% of the gross floor area permitted for retail purposes.

24. Maximum areas permitted for the retail sale of certain foodstuffs, groceries, beverages and domestic household goods (200m2), retail sale of food for immediate consumption (100m2), tobacconist and newsagency purposes (50m2), arts crafts etc (40m2) remained unchanged.

25. It was also proposed that an additional area be permitted for the sale of foodstuffs and household goods in "half case lots".

26. The proposal was further amended at the request of Contis and Dinach after negotiations between them and officers of the Territory responsible to the Minister. The effect of those amendments was to vary the proposal so that the minimum area for retail sale of fruit and vegetables would be increased to 825m2 or 34% of the gross floor area permitted to be used for retail purposes. The phrase "foodstuffs and household goods" in the proposed clause 3(e)(vii) was to be expanded to include "groceries and beverages". The apparent purpose of that latter amendment was so that proposed clause 3(e)(vii) would more closely reflect the proposed additional clause 3(c)(ix).

27. The only other relevant alteration proposed was that the storage area associated with the half case retail use was to be physically separated from any adjacent retail area.

28. It is that amended proposal which was approved on 17 May 1994 and which is alleged to be inconsistent with the Territory Plan.

29. The relevant portion of the Plan was tendered. Block 5 Section 31 Belconnen is located within "Precinct "c" - Mixed Services Area". The Plan provides as follows at p76:

Objectives
(a) to make provision for a range of conveniently located service and
relatively low rent commercial activities
(b) to accommodate retail-related uses requiring large floor areas
(c) to provide for a wider range of commercial development in the Mixed
Services precinct, provided that this development does not undermine the
function of the retail cores and business areas of the town centres and
the viability of the commercial hierarchy.
Controls
(a) Building Height
The height of buildings shall not exceed 2 storeys.
(b) Plot Ratio
The maximum plot ratio shall be 1:1.
(c) Internal Malls
Internal retail arcades or retail malls shall not be permitted.
(d) Land Use Restrictions
Shop - The maximum gross floor area of a supermarket or other shop
selling food is 200m2 per lease.
Service station - Retail sales (excluding the sale, hire or display of
automotive goods): Maximum gross floor area shall not exceed 150m2 (see
also clause 3 - Public Notification and Third Party Appeal).
Produce Market - The primary land use on Belconnen Section 31 block 5
and Greenway Section 2 block 5 shall be produce markets for the sale of
fresh fruit and vegetables.

30. The applicants contend that if Contis and Dinach give effect to the amended provisions of clause 3(c) and (e) the "primary land use" on Belconnen Section 31 block 5 would cease to be "produce markets for the sale of fresh fruit and vegetables".

31. In one respect, of course, a variation to the Crown Lease, as proposed, would change nothing. Indeed, without structural expansion of the premises, the lease would (assuming maximum provision currently has been made) require 1,725m2 to be used for storage and retail sale of fresh fruit and vegetables. Only 775m2 would be available for ancillary purposes. Presently, it is open to the Crown Lessees to use 390m2 for purposes referred to in cl.3(e)(iii) to (vi), but 784m2 would then either be vacant or be allocated for use only in accordance with cl.3(e)(i) and (ii). If the amendment to the Crown Lease was to be made as approved, a further 200m2 of that unallocated space could be used, additionally, for the half case retail facility.

32. It may be assumed, however, that the Crown Lessees may well take advantage of the higher maximum gross floor area and the additional permitted ancillary uses.

33. If so, it can be observed that the lease would then enable 590m2 to be used for non fruit and vegetable retail purposes out of the remaining 1,575m2 not mandated for storage and for the retail sale of fruit and vegetables. That would leave 985m2 unallocated. The unallocated space must be used either for storage or for the retail sale of fresh fruit and vegetables. The net result could be an increase in "non-produce" uses from 15.6% to 17.9%.

34. However, if it be accepted that the concept of "primary land use" contemplates other uses being concurrently made of the land, it is difficult to see how, if retail floor area is any indication, the usages envisaged by cl.3(e)(iii) to (vii) could, whether individually or collectively, prevent the sale of fresh fruit and vegetables from being regarded as the "primary land use". Even if the unallocated areas are all used for storage and none for sale of produce, the original lease allocated not less than 726m2 to the primary retail use whilst ancillary uses could be allocated no more than 390m2 (a ratio of approximately 1.9:1). Under the amended lease provisions as proposed, not less than 825m2 is allocated to the primary retail use and ancillary uses can be allocated not more than 590m2 (a ratio of approximately 1.4:1). That does increase the ratio of non produce areas but not, in my view, so much as arguably to alter the primary land use.

35. However, the applicants argue that if the 1,885m2 of space not allocated to retail use (900m2 of that space must be used for storage of goods) is predominantly used for storage of goods other than fresh fruit and vegetables, then the primary land use would be those other uses so that the primary land use would cease to be the retail sale of fresh fruit and vegetables.

36. It must be said that this seems an unlikely practical outcome. However, if the primary land use requirement is satisfied by the original lease, as I accept that it is, it is possible under that lease for only 726m2 of the gross floor area to be dedicated to the retail sale of fresh fruit and vegetables. It is possible under that lease for most of the unallocated 1,384m2 to be used for the storage of goods for retail purposes other than for the retail sale of fresh fruit and vegetables.

37. It seems to me, therefore, that the proposed changes do not threaten to alter the primary land use as that term is understood in its context. Such an outcome is not arguably open in any serious or realistic sense.

38. Accordingly, it seems to me that the application enjoys no reasonable prospects for success.

39. The application to extend time is refused.

40. I will hear the parties as to costs.