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Warehouse Group (Australia) Pty Ltd v Woolworths Ltd & Anor [2005] NSWCA 269 (8 September 2005)

CITATION: The Warehouse Group (Australia) Pty. Ltd. v. Woolworths Ltd. & Anor. [2005] NSWCA 269

FILE NUMBER(S):

40007/05

HEARING DATE(S): 16 and 17 May 2005

JUDGMENT DATE: 08/09/2005

PARTIES:

The Warehouse Group Pty. Limited - appellant

Woolworths Limited - 1st respondent

Liverpool City Council - 2nd respondent

JUDGMENT OF: Handley JA Hodgson JA Basten JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40805/02

LOWER COURT JUDICIAL OFFICER: Talbot J

COUNSEL:

Mr. T. Robertson SC with Mr. M. Wright for appellant

Mr. M. Craig QC with Ms. J. Jagot for respondents

SOLICITORS:

Deacons, Sydney for appellant

Mallesons Stephen Jaques, Sydney for 1st respondent

Marsdens, Campbelltown for 2nd respondent

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING - Development applications - Planning schemes - Bulky goods salesroom - Whether application a nullity - Whether purported consent was "to" the application - Requirement of Local Environmental Plan as to areas for specified use - Whether applied at time of consent or thereafter - Whether SEPP 1 applied - Whether Council could have been satisfied as to requirement - Whether consent valid.

LEGISLATION CITED:

Environmental Planning & Assessment Act 1979 ss.4, 76A, 76B, 78A, 79A, 79C, 80, 80A, 96.

Environmental Planning Assessment Regulation 2000

State Environmental Planning Policy 1

Liverpool Council Environmental Plan 1997

DECISION:

1. Cross-appeal allowed. 2. Order 2 made on 3 February 2004, Order 2 made on 8 June 2004, and Order 1 made on 13 December 2004 (as amended on 12 January 2005) set aside. 3. Declare that purported consent 1937/01 granted by the second respondent on 6 April 2001 was not a valid consent, and that the application pursuant to which that consent was purportedly granted has not been determined. 4. Order that the appellant be restrained from carrying out, causing, or permitting or suffering the use of the premises known as "The Warehouse" at Unit 1 in Lot 10 in DP 788368 as 1-3 Sappho Road, Warwick Farm for the purposes of a bulky goods salesroom or storeroom or for the purpose of a shop (in both cases as defined in the Liverpool Local Environmental Plan 1997 (as amended)), except pursuant to a valid consent granted under the EPA Act. 5. Order 4 stayed for a period of 28 days. 6. The appellant to make any application to the Land & Environment Court for an adjournment of the proceedings and any further stay of Order 4 within 7 days of the date of these orders. 7. Appeal dismissed. 8. Appellant to pay the respondents' costs of the appeal and cross-appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40007/05

LEC 40805/02

HANDLEY JA

HODGSON JA

BASTEN JA

Thursday 8 September 2005

THE WAREHOUSE GROUP (AUSTRALIA) PTY. LIMITED V. WOOLWORTHS LIMITED & ANOR.

Headnote

FACTS

1 On 6 April 2001, the second respondent (the Council) granted consent 1937/01 pursuant to the Environmental Planning & Assessment Act 1979 (the Act) to the appellant (Warehouse) for a proposed development described as a “bulky goods salesroom”, subject to conditions including a condition that occupation at all times be in accordance with the definition of bulky goods salesroom in the Liverpool Local Environmental Plan 1997 (the LEP).

2 The first respondent sought the following declarations in the Land & Environment Court: that consent 1937/01 was invalid, and/or that Warehouse’s use of the subject premises was in breach of the EPA Act and consent 1937/01.

3 On 19 December 2003 Talbot J determined that consent 1937/01 was valid, but that Warehouse was using the relevant premises in breach of the consent. Following a time period during which Warehouse had the chance to bring the use “into line” with the consent, on 13 December 2004 Talbot J determined that Warehouse’s use of the premises was still in breach and made consequential orders.

4 Warehouse appealed from both decisions, and Woolworths cross-appealed against the decision that consent 1937/01 was valid. The following issues were raised on appeal: the definition of a “bulky goods salesroom”; whether clause 51(a) of the LEP imposed a mandatory requirement on the minimum areas of floor space for specific uses; whether the application was a nullity as not being for use as a bulky good salesroom or for lack of compliance with cl.51(a); whether consent 1937/01 was consequently invalid; and whether the use was brought into conformity with clause 51.

HELD

(1) To qualify as a bulky goods salesroom, premises must be used for the sale of goods in the categories specified in clause 6 of the LEP, and apart from items ancillary to these goods, not for the sale of goods outside those categories.

(2) Although some of the material accompanying the application indicated that the use would not qualify as a use of a bulky goods salesroom, nor comply with cl.51(a) of the LEP, the possibility of amending the application to overcome these defects meant that the application itself was not a nullity. Non-compliance with cl.51(a) did not make an application a nullity: Poynting v Strathfield Municipal Council [2001] NSWCA 270.

(3) The condition requiring the use to conform to the definition of “bulky goods salesroom” was not such an alteration that the consent was not a consent to the application.

(4) Cl. 51(a) operates at the time of consent and requires that consent be granted only if the proposed use conforms to its requirements.

(5) Thus, the granting of consent was contrary to the terms of cl.51(a), and was invalid because (per Handley JA) compliance with cl.51(a) was a jurisdictional fact or because (per Basten JA) the Council acting properly could not have considered that the requirements of cl.51(a) were met.

**********

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40007/05

LEC 40805/02

HANDLEY JA

HODGSON JA

BASTEN JA

Thursday 8 September 2005

THE WAREHOUSE GROUP (AUSTRALIA) PTY. LIMITED V. WOOLWORTHS LIMITED & ANOR.

Judgment

1 HANDLEY JA: In this appeal and cross-appeal I have had the benefit of reading the reasons for judgment of Hodgson JA and Basten JA in draft. I agree that the cross-appeal should be allowed, the appeal should consequentially be dismissed, and that the other orders proposed by Hodgson JA should be made.

2 The relevant provisions of the Local Environmental Plan of the Liverpool Council are in an unusual form. The subject land is zoned “Industrial 4(b)” and bulky goods salesrooms or showrooms are permissible in that zone with consent, while other shops apart from convenience stores are prohibited. A bulky goods salesroom or showroom is defined in cl 6 as a building or place used for sale of any of the goods listed in paras (a) to (l). The definition contains no quantitative restrictions and does not prohibit the sale of other goods as well.

3 Clause 51 of the LEP provides:

“Consent may be granted for a bulky goods salesroom or showroom within the 4(b) zone only if:

(a) the gross floor area of the part of the building used for the sale, storage and display of the following items, when added to the part of the area of outdoor display used for displaying the following items, is not less than the area shown below:

furniture 1000 sqm

electrical goods 1000 sqm

toys and sporting equipment 1000 sqm

office furniture 1000 sqm

hardware 1000 sqm

outdoor products 500 sqm

floor coverings 250 sqm

automotive parts and accessories 250 sqm

lighting 250 sqm

antiques and second hand goods 250 sqm

kitchen or bathroom showrooms 150 sqm

tiles (floor, ceiling, wall) 150 sqm

(b) the building is located on land having a site area of not less than that shown corresponding to the number of bulky goods salesrooms or showrooms on the land:

1 0.5 ha

2-5 1.0 ha

6 or more 2.0 ha

4 The quantitative restrictions in cl 51 are not incorporated into the general definition of bulky goods salesroom or showroom and the clause has no continuing operation after a consent is granted unless it is expressly incorporated by a condition. Its sole function, in terms, is to prohibit a grant of a consent unless the consent complies with its requirements. The LEP does not prohibit the use of a bulky goods salesroom or showroom in the zone which does not meet the quantitative requirements of cl 51.

5 Although the Clause only deals with the grant of consent, it refers to areas “used” for the sale and display of particular goods. The verbal infelicity is addressed by cl 6(2)(a) which provides that a reference to a building used for a purpose includes a reference to a building “proposed to be used for the purpose”.

6 Although nothing turns on the point in this case, because the consent is invalid on either view, it seems to me that cl 51 imposes a condition precedent to the existence of the Council’s power to grant consent to a relevant development application and compliance with this condition is a jurisdictional fact. This characterisation is required both by the text of the clause and by Enfield City v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 and Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707. In Enfield City the relevant provision in s 35(3) of the Act provided:

“A development that is of a kind described as non-complying development ... must not be granted a ... consent ... unless ...”

7 Spigelman CJ pointed out in Pallas Newco at 717 there is no similar provision in the New South Wales Act. He continued:

“In Enfield City ... the indicators of jurisdictional fact were found in both the prohibition of the development and in the express statutory provision to the effect that the consent authority ‘must not grant consent unless’.”

8 The language of cl 51: “consent may be granted ... only if” cannot be relevantly distinguished from that considered in Enfield City. As Dixon J said in R v Wallis [1949] HCA 30; (1949) 78 CLR 529, 550:

“... an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely that the same matter is not to be done according to some other course. This applies especially when the power ... affirmatively conferred ... is qualified by some condition, limitation or direction.”

9 Clause 51 is not conditioned upon the Council’s opinion or satisfaction that its requirements have been complied with but is expressed in starkly objective and quantitative terms. The reasons in the joint judgment in Enfield City at 148-150 appear to require a decision that compliance with cl 51 is a jurisdictional fact. As the High Court said at 150:

“It stipulates in direct terms a precondition which obliges ... refusal of a grant of consent.”

10 A finding that the development application, modified if necessary, complies with cl 51 is, in the words of Spigelman CJ in Pallas Newco at 718L

“... a fact that is an ‘essential preliminary to the decision-making process’ not a ‘fact to be adjudicated upon in the course of the inquiry’.”

11 In such a case, as he said at 719:

“... classification is by its nature extrinsic or ancillary to the process of evaluation under s 79C and s 80.”

12 I am unable to accept that s 79C is relevant to this question and it seems to me that in Pallas Newco this Court held that it was not. At 718 Spigelman CJ said:

“Section 79C of the Act makes provision for a consent authority to take into account a wide range of considerations when determining to grant or withhold consent under s 80 of the Act ... However the particular facts and matters which determine whether the proposed development falls within a classification do not inevitably arise in the course of considering the exercise of the discretionary power to grant or withhold consent. The classification process is not only distinct but is extrinsic to the process of determining whether consent should be given ... Section 79C(1)(a)(i) requires a consent authority to take into consideration the provisions of an environmental planning instrument, but classification is not part of the plan that arises during the course of the evaluation process. The determination of whether a particular development proposal answers the classification ... appears to me to be a reference accurately described as either extrinsic or preliminary or ancillary to the exercise of the power to grant consent. It is not a matter that falls to be considered under s 79C, in the course of making a determination under s 80.”

13 In this context I venture to quote my own words in Pallas Newco at 735 as being applicable to the issue that the Council is required to consider under cl 51:

“This threshold or preliminary enquiry (can I?) is legally and logically antecedent to and distinct from the merits enquiry (should I?).”

14 The analysis of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, 39, quoted by Basten JA, is confined to judicial decisions and is not relevant in the present context. There is no hint of the presumption that Dixon J refers to in Enfield City or Pallas Newco. There is also no scope for a weaker presumption to the same effect because the Council as the decision maker is a representative body. Again there is no hint of this in Pallas Newco.

15 In his reasons for judgment Hodgson JA describes cl 51 as a development standard and considers the possible application of SEPP 1. This question, although raised, was not developed in argument because the Council was not asked to exercise its powers under SEPP 1 in this case. Clause 51 may not be a development standard because it is directed solely to the granting of consent and its operation is then exhausted. Accordingly it may not be a provision “in relation to the carrying out of development” within the definition of development standard in s 4.

16 The orders proposed by Hodgson JA should be made.

17 HODGSON JA: On 6 April 2001, the second respondent (the Council) granted consent 1937/01 to the appellant (Warehouse) purporting to be for a proposed development at 3 Sappho Road, Warwick Farm described as “use of Unit 1 as Bulky Goods Salesroom (Clint’s Warehouse)”.

18 On 20 September 2001, the Council modified that consent by alteration of one of its conditions.

19 Also on 20 September 2001, the Council granted consent 358/02 to Warehouse, purporting to be for the following use of 100 square metres of the same site, namely “convenience store within a bulky goods salesroom (Clint’s Warehouse)”.

20 On 25 October 2002, the first respondent (Woolworths) commenced proceedings in the Land & Environment Court, in which it sought a declaration that consent 1937/01 was invalid, declarations to the effect that Warehouse’s use of the subject property was in breach of the Environmental Planning & Assessment Act 1979 (the Act) because of such invalidity and/or because of breaches of conditions of that consent and of consent 358/02, and consequential relief.

21 On 19 December 2003, Talbot J gave a decision in which he determined that consent 1937/01 was valid, but that Warehouse was using the relevant premises otherwise than in accordance with that consent.

22 Warehouse sought an opportunity to bring the use “into line” with the consent; and there was a further hearing after it had taken steps with a view to achieving this. Following that hearing, on 13 December 2004, Talbot J gave a further decision in which he determined that Warehouse’s use of the premises was still in breach of the terms and conditions of the relevant consent or consents, and made consequential orders.

23 Warehouse has appealed from those decisions, and the consequential orders have been stayed pending the hearing of the appeal. Woolworths has cross-appealed against the decision that the consent 1973/01 was valid.

STATUTORY FRAMEWORK

24 This appeal requires consideration of various provisions of the Act, the Environmental Planning & Assessment Regulation 2000 (the Regulation), State Environmental Planning Policy 1 (SEPP 1), and the relevant planning instrument, namely the Liverpool Local Environmental Plan 1997 (the LEP).

25 Relevant definitions in s.4 of the Act are those of “development” and “development standards”, which are (to the extent relevant) as follows:

development means:

(a) the use of land, and

...

development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development,

...

26 Section 76A of the Act relates to development needing consent, and subsection (1) provides as follows:

76A Development that needs consent

(1) General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.

...

27 Section 76B of the Act relates to prohibited development, and that section is as follows:

76B Development that is prohibited

If an environmental planning instrument provides that:

(a) specified development is prohibited on land to which the provision applies, or

(b) development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land.

28 Section 78A of the Act concerns applications for development consent, and subsections (1) and (9) of that section are as follows:

78A Application

(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

...

(9) The regulations may specify other things that are required to be submitted with a development application.

29 Section 79A deals with notification of applications, and subsection (2) is as follows:

79A Public participation - advertised development and other notifiable development

...

(2) A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.

30 Section 79C of the Act concerns evaluation of applications, and subsections (1)(a), (2), (3) and (6) are as follows:

79C Evaluation

(1) Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and

(iii) any development control plan, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

that apply to the land to which the development application relates,

...

(2) Compliance with non-discretionary development standards - development other than complying development

If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority:

(a) is not entitled to take those standards into further consideration in determining the development application, and

(b) must not refuse the application on the ground that the development does not comply with those standards, and

(c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,

and the discretion of the consent authority under this section and section 80 is limited accordingly.

(3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards:

(a) subsection (2) does not apply and the discretion of the consent authority under this section and section 80 is not limited as referred to in that subsection, and

(b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

...

(6) Definitions

In this section:

(a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and

(b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

31 Section 80 of the Act relates to determination of applications, and subsections (1)-(5) are as follows:

80 Determination

(1) General

A consent authority is to determine a development application by:

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

(3) “Deferred commencement” consent

A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

(4) Staged development

A development consent may be granted:

(a) for the development for which the consent is sought, or

(b) for that development, except for a specified part or aspect of that development, or

(5) A development consent referred to in subsection (4) may be granted subject to a condition that the development or the specified part or aspect of the development, or any thing associated with the development or the carrying out of the development, must be the subject of another development consent.

32 Section 80A of the Act relations to conditions of consents, and subsection (1) is as follows:

80A Imposition of conditions

(1) Conditions - generally

A condition of development consent may be imposed if:

(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or

(b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or

(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

(d) it limits the period during which development may be carried out in accordance with the consent so granted, or

(e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or

(g) it modifies details of the development the subject of the development application, or

(h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)–(9) of this section or section 94 or 94F.

33 Section 96 of the Act concerns modification of consents, and subsections (1)-(3) are as follows:

96 Modification of consents - generally

(1) Modifications involving minor error, misdescription or miscalculation

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5), (6), (6A) and (7) do not apply to such a modification.

(1A) Modifications involving minimal environmental impact

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan under section 72 that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification.

(2) Other modifications

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(i) the regulations, if the regulations so require, or

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

34 At material times, the Regulation contained the following provisions concerning applications for development consent:

50 How must a development application be made?

(1) A development application:

(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and

(b) if the consent authority so requires, must be in the form approved by that authority, and

(c) must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority, and

(d) must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission.

55 What is the procedure for amending a development application?

(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.

(2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.

(3) If the development application is for:

(a) development for which concurrence is required, as referred to in section 79B of the Act, or

(b) integrated development,

the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

Schedule 1 Forms

Part 1 Development applications

1 Information to be included in development application

A development application must contain the following information:

(a) ...

(b) a description of the development to be carried out

2 Documents to accompany development application

(1) A development application must be accompanied by the following documents:

...

(4) A statement of environmental effects referred to in subclause (1)(c) must indicate the following matters:

(a) the environmental impacts of the development,

(b) how the environmental impacts of the development have been identified,

(d) any matters required to be indicated by any guidelines issued by the Director-General for the purposes of this clause.

35 SEPP 1 was made pursuant to s.39 of the Act, by which the Minister was empowered to recommend to the Governor the making of a State Environmental Planning Policy applying to the State or such part of the State as is described in the policy. Clause 3 states under the heading “Aims, Objectives, Etc.”:

This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

36 Clause 5 of SEPP 1 provides to the effect that, to the extent of any inconsistency between it and any other environmental planning instrument, whenever made, SEPP 1 prevails.

37 Clauses 6 and 7 of SEPP 1 provide:

6. Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefore) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.

7. Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6.

38 By cl.2 of SEPP 1, “development standards” has the meaning ascribed thereto in s.4(1) of the Act.

39 Relevant definitions in cl.6 of the LEP are those of “bulky goods salesroom or showroom”, “convenience store”, “local shops” and “shop”. Those definitions are as follows:

Bulky goods salesroom or showroom means a building or place used for the sale by retail or auction, or the hire or display, of any of the following:

(a) furniture, or

(b) electrical goods, or

(d) office furniture, or

(e) hardware, or

(f) outdoor products, or

(g) floor coverings, or

(h) automotive parts and accessories, or .

(i) lighting, or

(j) antiques and second-hand goods, or

(k) kitchen or bathroom showrooms, or

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

Convenience store means a shop selling a variety of small grocery goods, whether or not goods are available for hire there.

Local shops means a shop that:

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

(b) trades principally in groceries, small goods and associated convenience items, and

and includes such a shop that also offers the facilities of a post office or newsagency.

Shop means a building or place used for selling items, whether by retail or auction, or for hiring or displaying items for the purpose of selling or hiring them (whether the items are goods or materials).

40 Clause 6(2)(a) of the LEP provides as follows:

6(2) In this plan:

(a) a reference to a building, work or place used for a purpose includes a reference to a building, work or place proposed to be used for the purpose, and

...

41 Clause 9 of the LEP is as follows:

9 Development which is allowed or prohibited within a zone

(1) Unless otherwise provided by this plan, the Table to this clause specifies for each zone:

(a) development which may be carried out without consent, where “v*” is shown corresponding to that development, and

(b) development which may be carried out only with consent, where “v" is shown corresponding to that development.

(2) Development referred to in the Table to this clause is prohibited in a zone if “v*” or "v" is not shown corresponding to that development.

(3) Development which is not referred to in the Table to this clause may be carried out only with consent (except within the 6(c) zone, in which any such development is prohibited).

(4) The Council may grant consent to development only if the Council has had regard to the following:

(a) the general objectives and other objectives of this plan,

(b) the objectives of the zone in which it is proposed to be carried out, and

The subject land is in the zone “industrial 4(b)”, and the effect of cl.9 is that, in that zone, bulky goods salesrooms or showrooms and convenience stores are permitted with consent, but shops are prohibited, subject to the effect of cl.10(10).

42 Clause 10(10) of the LEP is as follows:

10(10) Shops in the 4(a), 4(b), 4(c) and 4(d) zones

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

43 Clause 50(2) of the LEP is as follows:

50 Objectives of the industrial zones

...

(2) The objectives of the 4(b) zone are:

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

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

(d) to permit retail development only where:

(i) it is ancillary to and associated with an industrial use of land in the zone, or

(ii) it services the daily convenience needs of the local workforce, or

(iii) it is for the purpose of bulky goods retailing, or

(iv) it is a motor vehicle orientated land use,

and only if it does not have an adverse impact on the viability of the business areas of Liverpool, and

(e) to promote a high standard of urban design, particularly along arterial roads.

The reference in par.(iii) to “bulky goods retailing” is appropriate for the application of s.7 of the Interpretation Act 1987, which is as follows:

7 Cognate words

If an Act or instrument defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings.

44 Clause 51 of the LEP is as follows:

51 Bulky goods salesroom or showroom

Consent may be granted for a bulky goods salesroom or showroom within the 4(b) zone only if:

furniture 1000 sqm

electrical goods 1000 sqm

toys and sporting equipment 1000 sqm

office furniture 1000 sqm

hardware 1000 sqm

outdoor products 500 sqm

floor coverings 250 sqm

automotive parts and accessories 250 sqm

lighting 250 sqm

antiques and secondhand goods 250 sqm

kitchen or bathroom showrooms 150 sqm

tiles (floor, ceiling, wall) 150 sqm

(b) the building is located on land having a site area of not less than that shown corresponding to the number of bulky goods salesrooms or showrooms on the land:

1 0.5 ha

2-5 1.0 ha

6 or more 2.0 ha

It is to be noted that this provisions only applies in the industrial 4(b) zone: there are other zones in which bulky goods salesrooms or showrooms are permitted with consent, this consent not being subject to cl.51.

THE APPLICATION AND CONSENT

45 Development application was made under cover of a letter to the Council dated 15 February 2001 from Douglas Sanger Pty. Limited, Architects and Urban Designers.

46 The development application form, in the place provided for identification of the proposed use stated “occupy existing Home Centre by Clint’s the Warehouse”.

47 An accompanying statement of environmental effects relating to “proposed Bulky Goods Use for Clint’s the Warehouse” stated inter alia as follows:

1.0. INTRODUCTION

This Development Application is for the USE of one part of these existing Bulky Goods Retail Premises.

The Proposal is for a CLINTS THE WAREHOUSE outlet to occupy 2,666 square metres at the rear of the building, which is in an Industrial 4(b) Zone.

Discussions with Council's Officers (C Weston & J Tapp) presented the bulk format of “Clints The Warehouse" and sought to verify that the USE qualifies as "Bulky Goods" under Council's Development Controls. Council's Officers expressed some reservation on the interpretation of the apparent requirements of certain clauses in LEP 1997.

This Statement is accompanied by a Report prepared by Hirst Consulting Pty Ltd on those LEP 1997 conditions, their objectives and the nature of retailing in this context

2.0 THE PROPOSED USE:

"CLINTS WAREHOUSE" is a new chain of retail outlets owned by the same group as the Clints Crazy Bargains chain, but is distinctly different from those previously known discount outlets, for the following reasons :

i. a wider range of products

ii. emphasis upon large products

iii. 6 metres high building with open "warehouse" interior

iv. large floor area requirement (2,500 to 3,500 sqm)

v. use of bulky sales & storage displays

vi. no store room, since storage is on the Sales Floor racking

vii. high-racking (instead of low-level trays)

viii. wider aisles related to the product sizes

ix. necessity for direct access to parking by customers to move the larger goods.

Thus CLINTS THE WAREHOUSE is different in size, products, appearance, accessibility, etc and is not suited to inclusion within conventional shopping centres nor street strip shopping. They also operate significantly differently since the Bargains outlets are “shops" which are visited as a passing activity, whereas the Warehouses are area destination, with direct car parking.

CLINTS THE WAREHOUSEs do NOT replace the Clints Crazy Bargains stores. The existing Clints Crazy Bargains business in the Liverpool CBD will continue to operate (even though under a different name). As another example there were 2 existing Crazy Bargain stores in the CBD of Toowoomba, which were not closed due to the opening of CLINTS WAREHOUSE at a Bulky Goods site on the outskirts.

We include a copy of a brochure which fully illustrates and describes both the nature and operations of CLINTS THE WAREHOUSE, together with other sales leaflets relating to existing CLINTS THE WAREHOUSEs which further illustrate the business and product range.

The Hirst Consulting Report sets out in detail the nature of the CLINTS THE WAREHOUSE operations, products, etc. The relevant products include Furniture, Furnishings. Garden & Outdoor, Lighting & Lamps, Electrical Goods, Prints & Frames, Camping Goods, Car Accessories, Rugs & Floor Coverings, Office Equipment, Hardware.

It is pertinent to note that the first CLINTS THE WAREHOUSE was opened in early 2000 in Shellharbour. Since that time other outlets have been Consented to and opened in NSW, Queensland & Victoria. That at Villawood - in Fairfield City Council area - opened on 14 February 2001, where it is immediately drawing customers from the Liverpool area.

3.0. COMPLIANCE WITH DEVELOPMENT CONTROLS:

This Development Application is submitted to obtain Development Consent for the Use of this existing floor area, in the existing Homemakers Centre development under the 4(a) Zone by CLINTS THE WAREHOUSE.

The Hirst Consulting Report has specifically addressed the Development Controls & Objectives of the Industrial Zone 4(c) under the Liverpool Local Environmental Plan 1997.

Hirst Consulting have clearly shown that CLINTS THE WAREHOUSE:

· satisfies the general objectives of Council's LEP 1997

· is consistent with the objectives for this 4(b) Zone

· the main provisions of Clause 9 of the LEP

· satisfies the listed definition of bulky goods

They have also addressed the specific content of Clause 51(a) of the LEP, which sets out floor areas against a list of items. Hirst Consulting present a clear case that the proposed CLINTS THE WAREHOUSE more than adequately satisfies the intent of this Clause in ensuring a minimum floor area of 1,000 sqm of bulky goods sales (the proposed space is 2,666sqm) and it offers the full range of items listed (except for antiques and secondhand goods).

We note that CLINTS THE WAREHOUSE are not dissimilar from other traders in bulky goods areas, such as HardwareHouse, Bunnings, OfficeWorks. Indeed it is pertinent to observe that the OfficeWorks outlet on Cumberland Highway, which is also within the 4(a) Zone, has a building area of around 3,200sqm, of which furniture comprises 264 sqm, and electrical goods 196 sqm, which are far below the areas nominated in Clause 15(a) (sic). Most customers buy only small items (carried in bags). HardwareHouse and OfficeWorks include cooked food outlets, as well as ancillary confectionery, clothing, etc.

48 This statement referred to a report by Hirst Consulting, which was also lodged at the time. This contained inter alia the following information concerning the proposed use, and submissions:

I am familiar with the concept of Clints The Warehouse from previous applications, and aware that it developed from twenty years experience in Australian retailing of the retail division of Clints Crazy Bargains. The concept of Clints The Warehouse is to provide much larger premises than the retail shops (ideally between 2,500-3,500 square metres) to store and display goods in bulk and to offer expanded ranges and increase the volume of goods in categories such as:

“furniture; furnishings; garden and outdoor; lighting and lamps; electrical goods; camping goods; rugs and floor coverings; hardware; and office equipment".

The first examples of this kind of warehouse have already been established by Clints, (one has recently opened in the City of Fairfield) and the company is presently embarking on a program to establish similar operations at key locations throughout metropolitan areas in NSW, Vic and Queensland.

The general concept of "bulky goods" which are now commonly retailed in centres such as the Warwick Farm Homemakers Centre, relies on defining the goods to be of such a size, shape, or weight as to require a large area for handling, storage or display, or to permit direct vehicular access to the development for the convenience of customers.

Clints The Warehouse accords with this concept because it is a bulk warehouse which retails a range of items stored and displayed in a bulk manner, where the goods require the convenience of a warehouse-style building to be handled, stored and displayed. In this way, the Clints The Warehouse proposal for Warwick Farm is not a shop, neither is it a supermarket, nor a general store, nor a clothing store.

...

A Clints The Warehouse development fits well in this emerging planning and operational context because:

· Clints qualifies as a bulky goods outlet because it satisfies the primary tests in that its operation requires a large floor area and sufficient height for the handling, storage and display of goods, and as it relies on direct vehicular access for customers;

· this form of warehouse retailing is not suited to established retail centres because of its characteristics. A Clints The Warehouse is distinguished from a Clints bargain shop because it offers products such as tables and chairs, beds, shelving units, wardrobes, office chairs and desks, gazebos, storage units, tents and other recreational equipment, for which there is insufficient room in the smaller shop;

· Clints The Warehouse cannot be classified as a premises used for the sale of food stuffs or clothing because that is not its primary purpose, neither is it a supermarket nor a clothing store. It is a bulk warehouse for the sale of a range of items, including a very limited ancillary range of dry packaged food and some clothing items, where the operational imperative is to store and display the range of goods in a bulk manner. All of the goods require the size and convenience of a warehouse-type building to be handled, stored and displayed.

...

The range of goods proposed to be offered at the Clints The Warehouse will include items from each of the abovementioned "categories" with the exception of antiques or second-hand goods. To that extent, Clints The Warehouse is, by the LEP definition, a bulky goods salesroom or showroom.

Clause 51 of the LEP, relating to uses, must also be considered in assessing Clints The Warehouse proposal, because it requires that a bulky goods salesroom or showroom at Warwick Farm cannot be approved by Council unless:

"the gross floor area of the part of the building used for the sale, storage, and display of the following items, ... is not less than the area shown ...”

Clause 51 then lists each of the bulky goods categories contained in the definition and has against each a floor area which ranges from 1,000 square metres for elements such as furniture or electrical goods to 150 square metres for elements such as kitchens bathrooms or tiles.

In my opinion, the proposal by Clints The Warehouse accords with Clause 51 because part of the building to be occupied has a floor space of 2,650 square metres which is larger than any of the minimum floor areas required for any of the bulky goods elements listed. For example, the gross floor area of 2,650 square metres is larger than the minimum of 1,000 square metres required for the retail or display of furniture - the Clause does not operate to require that a minimum of 1,000 square metres must be devoted to furniture, but rather the premises in which furniture is to be displayed and sold should not be less than 1,000 square metres, notwithstanding the actual floor space occupied for the specific purposes of furniture retailing or display.

In my opinion, the intent of Clause 51 can only be to require increasingly larger floor areas for the display and sale of increasingly larger commodities but it does not comment on the manner in which specific areas of floor space should be occupied. Neither should such a Clause of an LEP control development to the extent that it would conflict with the reasonable commercial operating characteristics of a bona fide retailer. Clause 51 simply requires the premises to be of a minimum size where the retailing of specific items is envisaged without limiting or seeking to influence the actual floor space which might be devoted to anyone category - tiles and/or kitchens or bathrooms can be displayed in a premises as small as 150 square metres, whereas hardware and/or furniture and/or electrical goods requires a premises of at least 1,000 square metres floor space.

Since the definition in the LEP of bulky goods salesroom or showroom relates to: "...any of the following..." categories and does not specify anyone of the categories, there is nothing to prevent the reasonable "mixing" of categories in the one establishment, provided, as Clause 51 insists, that the premises itself is large enough to accommodate the goods in question.

The operational characteristics of Clints The Warehouse is itself an excellent example of the way in which a bulky goods retailer can maximise use of rented premises for the display and sale of goods in a number of categories in a totally complementary manner, to the ultimate benefits of the customer.

In my opinion, to insist that if you have, for example, 1,000 square metres you may only occupy it with furniture or electrical goods but not with both, not only does not accord with a sensible reading of Clause 51 but might also be interpreted as an unreasonable restraint of trade, something over which local government planning controls have no power.

49 On 5 March 2001, there was a further letter to the Council from Douglas Sangar, which enclosed a new document more fully describing and illustrating the Clints The Warehouse operation. This document included the following:

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

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

· the interior is 9 metres high

· the appearance is of a "barn" or "industrial shed"

· there is no rear storage area, merely a deliveries' stripping area

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

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

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

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

· they must have direct access to large car parking area(s), for customers to transport their purchases.

(NOTE: the above description is of the standard format; in acceptable existing buildings these standards may be nominally modified)

The larger floor area, high display, on-floor storage and general bulky operation are all specific needs of "Clints The Warehouse" to offer this considerably wider range of products (especially the large sized items), which is NOT possible in their small outlets.

Appended photographs include an early brochure illustrating the format, the sales/storage racking & display and general appearance, photographed at the first "Clints Warehouse" in Shellharbour, NSW. Other photographs were taken in the later Villawood store (Fairfield City Council) and in New Zealand locations.

RANGE OF PRODUCTS

A fundamental feature of Clints' operations is that they are NOT conventional retailers, in the sense that they do NOT offer a constant range of products. Their products are purchased in-bulk, as the purchase opportunity arises. Thus they offer a continual range of "specials" which are available ONLY until that bulk purchase is sold out. Many products are "on sale" for a short time and never repeated. Not all products are available from all stores. This is entirely different from conventional retailers who offer a constant product range.

Clints communicate their products-for-sale by direct distribution of their Sales Catalogues to homes in the vicinity of each outlet. The catalogues are produced weekly (for each outlet). Thus customers are made aware of that week's products and "specials" and so visit their local outlet accordingly.

Within their overall wide range of products "Clints The Warehouse" include clothing items, dry food products and confectionery. Their clothing is limited to a special low price-range and to narrow product-types selections. The dry food products are typically job-lot purchases, each of which is available only for a short period Confectionery is an important part of customer service, being typically located at the check-outs, for impulse buying, or for special occasions such as Easter Eggs. This customer service aspect is directly comparable to a Service Station selling confectionery & food, or Hardware House selling cooked food, clothing, lollies, etc.; that is, in all these examples those products are sold as a part of customer service, as an ancillary (NOT primary) part of the operations.

50 The instrument of consent dated 6 April 2001 described the proposed development as follows: “USE OF UNIT 1 AS A BULKY GOODS SALESROOM (CLINTS WAREHOUSE)”. It contained the following conditions, among others:

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

...

4. Occupation of the subject unit is to be undertaken in accordance with the following definition at all times:

Bulky goods salesroom or showroom means a building or place used for the sale by retail or auction, or the hire or display, of any of the following:

(a) furniture, or

(b) electrical goods, or

(d) office furniture, or

(e) hardware, or

(f) outdoor products, or

(g) floor coverings, or

(h) automotive parts and accessories, or

(i) lighting, or

(j) antiques and second-hand goods, or

(k) kitchen or bathroom showrooms, or

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

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

52 The Council replied on 30 April 2001 and made the following observation:

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

53 Following receipt of legal advice the Council again wrote to Warehouse’s representative on 6 July 2001 and explained the legal advice it had received as follows:

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

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

55 Condition 5 of the consent as modified provides as follows:

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

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

57 The use in the second consent is described as follows: CONVENIENCE STORE WITHIN A BULKY GOODS SALESROOM (CLINTS WAREHOUSE)

DECISIONS OF PRIMARY JUDGE

58 In finding the consent 1973/01 to be valid, the primary judge gave the following reasons:

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

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

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

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

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

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

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

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

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

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

59 The primary judge noted the following evidence concerning actual use:

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

Giftware Baby Pet Care

Laundry Craft Toys

Kitchenware Manchester Gallery

Furniture Luggage Automotive

Hardware Camping Gardening

Electrical Party Supplies Convenience Store

Stationary

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

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

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

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

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

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

(a) Furniture 273 sq m

(b) Electrical Goods 122 sq m

(d) Office Furniture 43 sq m

(e) Hardware 109 sq m

(f) Outdoor Products 324 sq m

(g) Floor Coverings 22 sq m

(h) Automotive Parts and Accessories 50 sq m

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

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

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

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

...

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

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

...

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

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

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

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

...

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

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

60 The primary judge gave the following reasons for finding the actual use to be in breach of conditions of the consent:

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

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

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

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

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

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

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

61 In his second judgment, the primary judge gave the following reasons for finding that the use of the premises was still in breach of the conditions of consent:

7 The first respondent now contends that it is operating the business as a bulky goods salesroom and that it is therefore inappropriate and unnecessary to make final orders. The applicant contests that position and says that the definition and constraints imposed by the LEP are not satisfied. Even if they are, orders should be made to mandate lawful use of the premises in the future.

8 Although the General Manager of the first respondent, Tim Andrews, initially gave conflicting evidence regarding the present configuration of the store layout, he has caused a diagram to be produced which purports to show the current racking layout and floor space allocation as at 19 November 2004.

9 The floor space allocation is claimed to be as follows:-

Furniture 1000m2

Electrical Goods 1002m2

Outdoor products 500m2

Convenience store 124m2

Amenities/storeroom 40m2

2666m2

10 Ms Duenow, the solicitor representing the applicant, attended the store on 10 November 2004 when she observed Christmas trees and decorations in each of the areas designated for the sale of furniture, electrical goods and outdoor products. She also observed four aisles of manchester (including sheets, pillows and pillowcases) in the area of the store designated by Mr Andrews for the display of furniture. Her evidence is to the effect that, in her opinion, only about one third of the area designated for furniture display was used for that purpose.

11 On 18 November 2004, Ms Duenow again attended the store and purchased 40 items selected from the range of goods offered at diverse locations within the store. It is submitted on behalf of the applicant that the display and sale of the items purchased by Ms Duenow was not authorised by the consent. Ms Duenow also identified the location of the following items of goods displayed for sale within the store:-

(a) pre-recorded videos, CDs and audio tapes;

(b) dog kennels;

(d) power tools, drill bits, sand paper, grinders, compressors; and

(e) baby strollers, prams and car seats.

12 On 19 November 2004 I undertook a comprehensive site visit and inspected most areas within the store in the company of the representatives of the parties.

13 Apart from the discrepancies identified by Ms Duenow the parties are in dispute as to whether particular items displayed in the store and offered for sale fall into any of the designated categories.

14 The first respondent claims the items currently displayed are in conformity with the definition in cl 51 of the LEP, specifically within the categories of furniture, electrical goods and outdoor products. Undoubtedly there are items that fit into those categories. Others do not readily fit a designated category or they also answer the description of some other category such as floor coverings.

15 In order to persuade the Court that the store is operating in accordance with the terms of the consent the applicant must satisfy me that the prohibition in condition 5 does not apply A plethora of goods offered for sale in the furniture section, such as Christmas decorations and manchester do not readily fall within the common understanding of furniture. Mr Robertson SC contends that on one view they are all furniture, or alternatively are at least ancillary items generally associated with household use in conjunction with furniture. Similarly, the first respondent claims items such as paint and some kitchen implements are readily identifiable as outdoor products. Moreover, the applicant contends some items in the electrical goods section such as blank CD’s, audio tapes and work benches cannot be regarded as electrical goods.

16 If the first respondent is correct, many items such as paint (hardware), lino (floor coverings), teddy bears (toys), lamps (lighting), car covers and child’s car seat (automotive parts and accessories) have a dual or alternative classification as either furniture, outdoor products or electrical goods. This approach is indicative of the first respondent’s attitude to squeeze as many items as possible into its store.

17 The combined effect of cl 51 of the LEP and conditions 4 and 5 of the development consent is that the gross floor area of the building used for a designated purpose must comply with the minimum area requirement. Condition 5 is not, in my view, a relaxation of that requirement. It reflects the precondition to the exercise of the power to grant consent for a bulky goods salesroom or showroom contained in cl 51.

Furniture

18 A number of cases referred to by Mr Robertson SC are cited for the purpose of supporting his argument that furniture has such a wide connotation that it includes any items or goods that contribute to the use or convenience of the occupants of a house, office or ornament of a building. Most of the cases relate to the construction of a particular testamentary disposition of “furniture” made by a testator or the ambit of the reference to “furniture” in the given circumstances of the deceased (Kelly v Powler [1763] EngR 70; (1763) Amb 605 at 610; Cremorne v Antrobus 7 L.J.O.S Ch. 88 at 92; Re McLuckie [1943] V.L.R 137 at 140; Re Willey 45 T.L.R 327 at 327; Re Cripsin’s Will Trusts, Arkwright and others v Thurley and others [1974] 3 All ER 772 at 775) or tenancy law where it has been held “furniture is to be construed in accordance with its common or popular meaning” (Gray v Fidler [1943] 1 KB 694 at 710; Wilkes v Goodwin [1923] 2 KB 86 at 95; Property Holding Co Ld v Mischeff [1946] 1 KB 645 at 650).

19 I do not find that the abovementioned authorities offer a great deal of assistance in the planning context of an Industrial – Special 4(b) zone and the discrete provisions in the Liverpool LEP that specifically deal with a bulky good salesroom or showroom, as defined. It is appropriate to search for the meaning of the consent issued in that context ( House of Peace Pty Ltd and Another v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [30].

20 The Australian Oxford English Dictionary and the Macquarie Dictionary Third Edition have comparable definitions of furniture as follows:-

...the movable equipment of a house, room etc eg tables, chairs and beds (Oxford)

...the movable articles, as tables, chairs, bedsteads, desks, cabinets, etc, required for use or ornament in a house, office, or the like. (Macquarie)

21 The consent operates in rem and it enures beyond the use of the premises by the initial grantee of the consent. Accordingly, the task is to ascertain “what, objectively determined, it might be said the Council meant by the permission which it gave” to the first respondent (ACR Trading Pty Ltd and Another v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 77). In this respect the Council would have been aware that the definition in cl 6 of the LEP and the provision in cl 51 of the LEP made a distinction between furniture, office furniture, floor coverings and kitchen or bathroom showrooms. The reason for this distinction with its potential for overlap is not clear. It obviously leaves the application of the provisions open to conflicting interpretations. However, what is apparent is that an object of the provisions is to confine retail selling in the zone to a particular category of goods that would normally be associated with a large showroom with a sufficient floor area to accommodate items that are generally regarded as bulky goods. Manchester items, curtain tracks and tassels, a baby’s bib, a dog toy, packs of hooks, spoons and other small items purchased from the furniture section by Ms Duenow would not fall into this category. The same can be said about the Christmas decorations on display. These range from Christmas trees down to Christmas cards.

22 In my view the selling of these incidental goods is not an ancillary use to the sale of furniture within the widely accepted approach adopted by the Court of Appeal in Foodbarn Pty Limited and Others v Solicitor General (1975) 32 LGRA 157 at 161 in circumstances where there is, as there is in this case, a special condition relating to ancillary items. Condition 5 as modified includes the added dimension of requiring any item to be “dependant upon the sale” of furniture.

23 The first respondent has not shown that any of the so called ancillary or incidental items may only be purchased on condition that they are purchased in conjunction with an item that falls concisely within the designated category such as a piece of furniture, for example a bed. Alternatively, it has not been demonstrated that the sale of items that are not strictly furniture, rely upon or are controlled or determined by, the sale of furniture items in a sense that makes the sale of the former dependant upon the sale of the latter. The sale and display of items that do not meet the “ancillary to and dependent upon” test are prohibited by Condition 5.

24 The first respondent contends that the Christmas decorations are ancillary items incidental to Christmas trees, which in turn are central seasonal ornaments and therefore “furniture” for the purposes of cl 6 of the LEP. There is no suggestion that the Christmas decorations or the other small items referred to above are for sale only on the basis that they are dependant upon the sale of a Christmas tree. In any event, I do not regard Christmas trees as furniture in the context of the consent given pursuant to Liverpool LEP. They are symbols of a festive season.

25 Arguably, curtains might be regarded as furniture but the same cannot be said about sheets, bath mats and towels. One cannot be definitive about every item displayed in the furniture section. The inventory is comprehensive, variable and wide ranging, including such things as a child’s potty, birdcages, plastic storage containers, pillows and quilts. Although there are beds, chairs and desks on display, the impression of a furniture showroom is subsumed by the plethora of small items. I am not satisfied that the area allocated by management for the sale and display of furniture is being used solely for that purpose in accordance with the development consent.

Outdoor products

26 Paint that can be used internally and externally, a car cover, a paint scraper, a dust mask, food storage containers, a potato masher and a peeler pack are all likewise items that cannot be readily categorised as outdoor products, thereby raising similar issues of non-compliance in the area allocated by management for the sale of outdoor products.

Electrical goods

27 Some of the contested items in this designated area are located immediately adjacent to the approved convenience store and arguably are within the area approved for that purpose. The argument that blank CD’s, light globes, drill bits and work benches (to mention a few items in dispute) are not electrical goods does not persuade me that there is a continuing breach which justifies making an order on that account alone.

Generally

28 The adjusted layout of the store and the presentation of the products for sale gives the impression that the eclectic range of goods on offer is generally associated with the business of a variety store or small discount shop.

29 The first respondent is clearly anxious to offer a plethora of goods that go beyond the class of goods the buying public would expect to find in a bulky goods store dedicated to either furniture, electrical goods or outdoor products or a combination of those categories. It is apparent that the interlocutory orders made on 12 March 2004 were not strictly complied within the time specified. The operation of store is still inconsistent with the consent. Accordingly final orders are appropriate.

ISSUES

62 Warehouse relies on the following grounds of appeal:

Judgment of 19 December 2003

1. His Honour erred in finding that cl.51(a) of the Liverpool Local Environmental Plan 1997 (“the LEP”) required that the gross floor area used for a nominated category of goods should be distinct for each category such that the same area could not lawfully be used for the sale, display or retail of overlapping categories of goods.

2. His Honour erred in finding that compliance with the area specification in cl.51 of the LEP I as he construed it, was an implied condition of development consent compliance with which was required at all times during the development.

3. His Honour erred in finding that if, on its proper construction, cl.51 required minimum areas must be actually used for the sale, storage and display of specified categories of goods, then the minimum area requirements could not be satisfied by including the area of floor space on which such goods were retailed elsewhere in the building, of which the appellant's store formed part.

4. His Honour erred in failing to determine whether particular goods fell into permissible categories of goods.

5. His Honour erred in finding that the appellant was using its premises in breach of development consent.

Judgment of 13 December 2004

6. His Honour erred in finding:

(a) that the object of the LEP in relation to the subject land was to confine retail selling to a particular category of goods that would normally be associated with a large showroom with a sufficient floor area to accommodate items that are generally regarded as bulky goods; and

(b) that the determination of what goods may be permissibly sold in the appellant's store should be influenced by that object.

7. His Honour erred in departing from the popular meaning of "furniture" by excluding from that category of goods furniture which was not normally associated with a large showroom with a sufficient floor area to accommodate items that are generally regarded as bulky goods.

8. His Honour erred in failing to define or describe "furniture" before determining whether particular items fell within that category of goods.

9. His Honour erred:

(a) in finding that if the impression of a furniture showroom could be subsumed by the plethora of small items on display or for sale, then the appellant was not using the premises in accordance with the development consent;

(b) by giving effect to his impression by determining that the appellant was in breach of the consent.

10. His Honour erred in finding that condition 5 of the development consent required that the sale of goods not strictly within a permissible category of goods ("ancillary goods") must rely upon or be controlled or determined by the sale of goods within such a category ("permissible goods") before they can be sold as ancillary to the latter.

11. His Honour erred in finding that ancillary goods may not be sold unless with permissible goods.

12. His Honour erred in finding that goods falling within more than one category, including a permissible goods category, could not be sold.

13. His Honour erred in finding that Christmas trees were not furniture.

63 Woolworths relies on the following grounds in its cross-appeal:

General

1 His Honour erred in holding that development consent 1937/01 dated 6 April 2001 was a valid consent.

2 His Honour erred in failing to hold that development consent 1937/01 dated 6 April 2001 was invalid.

Particulars

(i) The development application, properly construed, sought development consent for the purpose of a "shop", being development for a purpose prohibited from being carried out in the applicable 4(b) zone.

(ii) Development consent 1937/01 dated 6 April 2001, by reason of the imposition of conditions 4 and 5 thereof, was not a grant of consent to the development application as lodged.

3 His Honour erred in failing to hold that the use being made of the premises known as "The Warehouse" at unit 1 in lot 10 in DP 788368 at 1-3 Sappho Road, Warwick Farm (the "Store") was in fact a single use for the purpose of a "shop", being a use prohibited from being carried out in the premises by operation of s.76B of the Environmental Planning and Assessment Act 1979 (the "EP&A Act") and the Liverpool Local Environmental Plan 1997 ("LLEP 1997").

3A His Honour erred in failing to hold that the LLEP 1997, properly construed, prohibits the use of any building or place for the sale by retail or auction, or the hire or display, of any item in or from a "bulky goods salesroom or showroom" other than an item listed in the definition of "bulky goods salesroom or showroom" in clause 6 of that instrument.

4 His Honour erred in failing to hold that the following categories of items or items, as displayed for sale in the Store, were prohibited from being sold from the Store by operation ofs76B of the EP&A Act, the LLEP 1994 and/or development consent 1937/01 dated 6 April 2001:

(i) Floor coverings;

(ii) Linoleum;

(iii) Small plastic storage containers;

(iv) Garbage bins;

(v) Estima midi 4 drawer storage container;

(vi) Paint accessories;

(vii) Paint;

(viii) Krown semi gloss acrylic;

(ix) Drop cloths;

(x) Dust masks;

(xi) Paint scrapers;

(xii) Paint tool sets;

(xiii) Kitchen implements;

(xiv) Mashers;

(xv) Vegetable peelers;

(xvi) Kitchen hand food storage containers;

(xvii) Curtains and accessories;

(xviii) Shower/bath curtains;

(xix) Calico tab top curtains;

(xx) Curtain tassels;

(xxi) Lighting;

(xxii) Electric light globes;

(xxiii) Lamps;

(xxiv) Hardware;

(xxv) Electrical power tools;

(xxvi) 6pc spade drill bits set;

(xxvii) Sand paper;

(xxviii) Four prong hook (10 pack);

(xxix) Work benches;

(xxx) Baby goods;

(xxxi) Baby bib;

(xxxii) Baby strollers;

(xxxiii) Baby prams;

(xxxiv) Baby car seats;

(xxxv) Child's potties

(xxxvi) 3 step spoons;

(xxxvii) Pet accessories;

(xxxviii) Dog toys;

(xxxix) Pet toys;

(xl) Pet food;

(xli) Pet grooming equipment;

(xlii) Bird cages;

(xliii) Pet Furniture;

(xliv) Dog kennels;

(xlv) Toys;

(xlvi) Manchester;

(xlvii) Sheets;

(xlviii) Pillows;

(xlix) Pillowcases;

(l) Doona covers;

(Ii) Quilts;

(Iii) Bath mats;

(liii) Bath towels;

(liv) Pre-recorded videos;

(Iv) Pre-recorded CDs;

(lvi) Pre-recorded audio tapes;

(lvii) Blank videos;

(lviii) Blank CDs;

(lix) Blank audio tapes;

(Ix) Christmas goods;

(lxi) Christmas trees;

(lxii) Christmas decorations;

(lxiii) Christmas cards;

(lxiv) Automotive parts and accessories; and

(lxv) Car cover (the "Items").

64 Woolworths has put on the following Notice of Contention:

19 December 2003 decision

1 The finding that the appellant was using the premises known as '"The Warehouse" at unit 1 in lot 10 in DP 788368 at 1-3 Sappho Road, Warwick Farm otherwise than in accordance with development consent 1937/01 dated 6 Apri12001 contrary to s.76A of the Environmental Planning and Assessment Act 1979 (paragraph 14) was otherwise open to be made on the evidence on the basis that the use was for the purpose of a "shop", being a use prohibited from being carried out in the premises, and such a finding should have been made.

13 December 2004 decision

1 The finding that the operation of the premises remained in breach of development consent 1937/01 dated 6 April 2001 (paragraph 29) was otherwise open to be made on the evidence on the basis that the use was for the purpose of a "shop", being a use prohibited from being carried out in the premises, and such finding should have been made.

65 I will consider the issues raised by these grounds in the following order. First, what is a bulky goods salesroom? Second, was the application of 15 February 2001 a nullity? Third, was the consent 1937/01 a consent “to” the application? Fourth, what was the effect of cl.51? Fifth, was the use brought into conformity with cl.51? Sixth, what are the appropriate orders?

66 The issue of validity of consent 1937/01 will be dealt with under the second, third and fourth questions; and the issue of breach of conditions in actual use will be dealt with under the fifth question.

WHAT IS A BULKY GOODS SALESROOM?

Submissions

67 Mr. Robertson SC for Warehouse submitted that the primary judge had erred in his approach to the definition, as in other aspects of the case, by underestimating the flexibility displayed by the LEP, by paying too much attention to objectives, and by finding requirements to be prescriptive on the basis of implication; and he submitted that planning law should not be construed so as to restrain economic dynamism.

68 Mr. Robertson submitted that what the relevant definition identified was the retailing of particular product categories, without regard to size, shape or bulk of the products; and that the primary judge was wrong to the extent that he held it related to selling categories of goods that would normally be associated with a large showroom with sufficient floor area to accommodate items that are generally regarded as bulky goods. The definition includes categories that overlap, and many categories include items that are in no sense bulky. Mr. Robertson also submitted that the definition did not require that the use at any place be confined to the use for sale of just one of the twelve categories, because “any” means “any one or more”; and that it did not require that no other goods be sold.

69 Mr. Craig QC for Woolworths submitted that the definition should be interpreted having regard to the policy of generally prohibiting retailing in the industrial 4(b) zone, with quite specific exceptions. He submitted that to qualify as a bulky goods salesroom, the use must be for the sale of goods in one or more of the twelve categories, and no others. Accordingly, he submitted, the use as described in the development application, including the statement of environmental effects and the Hirst Consulting report, was not use as a bulky goods salesroom, because it was not proposed to limit what was to be sold to one or more of the twelve categories, and because it was sought to come within the definition by reference to the manner of selling, that is, in bulk.

Decision

70 In my opinion, for a building or place to qualify as a bulky goods salesroom, it must relevantly be used for the sale of goods in one or more of the twelve specified categories and, subject to what I say about ancillary items, no others.

71 To qualify as a place used for the sale of furniture, it is not necessary that nothing but furniture be sold; but the sale of anything other than furniture must be of items ancillary to furniture (such as furniture polish or bed linen), and must be subsidiary to the sale of furniture. And the same applies to each of the other categories. I have used the expression “subsidiary to” rather than the expression “dependent upon”, because I do not think ancillary items can only be sold together with items squarely within the categories: rather it is a matter of the place of the ancillary items in the conduct of the business generally. The wording “dependent upon” appears in the modified condition 5 in this case, but I am inclined to the view that this does not alter the position by making it essential that ancillary items be sold only in conjunction with items squarely within the categories.

72 There may be overlapping between categories: certain items might be both furniture and office furniture, for example, or both floor coverings and floor tiles. And items falling squarely within one category may be ancillary to another category. But this does not affect the position that items sold must be within at least one of the categories, or must be ancillary to one or more of the categories and sold in such a way that their sale is subsidiary to the sale of items within that category or those categories.

73 I do not think there is any superadded requirement that all, or even some, of the goods sold in each category should themselves be bulky. I do not think a space devoted to the sale of toys and sporting equipment would fail to qualify because no single one of the toys or pieces of sporting equipment was itself “bulky”. (I accept that “toy” is to be read as “toys”, both as a matter of correct English and for consistency with cl.50.) However, with some categories, such as furniture, it is difficult to conceive of a place used for the sale of furniture that does not include bulky items.

74 In my opinion, any wider approach, for example one that requires that only some of the goods sold be within one or more of the twelve categories, or that it is sufficient that any goods sold be considered ancillary to goods sold within one or more of the categories (without regard to whether their sale is as items ancillary to items within one or more categories and/or is subsidiary to the sale of items in that category) would conflict with the words of the definition, particularly if those words are construed (as they should be) having regard to the intention disclosed by the LEP to exclude shops generally from the relevant zone.

75 It follows that certain aspects of the operation described by the development application, statement of environmental effects and the Hirst Consulting report, fell outside the definition. In particular, in so far as it was indicated that the operation would or could include items falling outside the twelve categories, and would or could include items which were not ancillary to items within those categories and/or were not to be sold in the manner subsidiary to the sale of items within those categories, what was proposed fell outside the definition of bulky goods salesroom.

WAS THE APPLICATION OF 15 FEBRUARY 2001 A NULLITY?

Submissions

76 Mr. Craig submitted that the application was for a development which was prohibited within zone 4(b), being a development not permissible either with or without consent, and the application was therefore a nullity: Chambers v. Maclean Shire Council [2003] NSWCA 100, 57 NSWLR 157. The characterisation of the development was a jurisdictional fact (Woolworths Limited v. Pallas Newco Pty. Limited [2004] NSWCA 422, 61 NSWLR 707), and the development proposed by the application fell outside the definition of “bulky goods salesroom or showroom” and thus fell within the definition of “shop” (rather than being within the residual category in cl.9(3) of the LEP); and this development was not capable of satisfying the jurisdictional pre-conditions of cl.10(10) of the LEP.

77 Alternatively, he submitted, the development did not comply with the requirements of cl.51(a) of the LEP: since the available area was just 2,666 sq. metres, the proposed use had to be only for categories within cl.51(a) the floor areas for which aggregated to less than this figure, such as furniture, electrical goods and outdoor products. Clause 51(a) conditions the power to grant consent for bulky goods salesrooms or showrooms within the 4(b) zone, limiting that power to those within the description in the clause, which is framed in objective terms, not depending on the opinion or satisfaction of the Council. Mr. Craig submitted that the indicators referred to in Pallas Newco for identification of jurisdictional facts applied to these requirements.

78 Mr. Craig submitted that the defects in the application could not be cured by amendment. The case of Currey v. Sutherland Shire Council [2003] NSWCA 100, 129 LGERA 223 was distinguishable because that related to a case in which the statutory requirements were amended between application and determination. In any event, he submitted, at the point of determination any power to amend an application was lost.

79 Mr. Robertson submitted that what was proposed in the application was not a prohibited development, but at most a development not complying with a development standard (cl.51(a)) that could be waived under SEPP 1: Poynting v. Strathfield Municipal Council [2001] NSWCA 270, 116 LGERA 319. Clause 51(a) was not a matter of jurisdiction: it was not a matter falling within cl.9(1) or 9(2) in the LEP, but rather a matter which the Council was required to have regard to under cl.9(4). Even if the application were construed as an application for consent for a shop, this was permissible in certain circumstances: cl.10(10) of the LEP. However, even accepting that the Statement of Environmental Effects and the Hirst letter were part of the development application, the application on its true construction was for consent for a bulky goods salesroom, coupled with proposals that the application asserted would be within that use. If that assertion was erroneous, the application could be amended (Regulation 55) or could be granted subject to conditions to ensure that the use was as a bulky goods salesroom (s.80A). Accordingly, it was not a nullity: Currey at [34].

Decision

80 The application, read with accompanying material, purported to be an application for consent for a bulky goods salesroom, but some of the accompanying material elaborated on what was proposed to be done; and it follows from my decision as to the meaning of “bulky goods salesroom” that what was proposed would not in fact qualify as use as a bulky goods salesroom. This was because it did not propose a limitation of what was to be sold to items within the twelve categories, and items ancillary to those items and sold in such a way as to be subsidiary to the sale of those items. On the contrary, it proposed the sale and display of unspecified goods in bulk “such as” goods in some of those twelve categories, as well as other goods.

81 However, these indications as to what was proposed were coupled with submissions that this qualified as use for a bulky goods salesroom; and in those circumstances, in my opinion, these indications were not sufficient to make the application something other than what it purported to be, namely an application for consent for a bulky goods salesroom.

82 An additional problem with the application was that, for reasons given by Mr. Craig, the use it proposed did not comply with cl.51(a) of the LEP.

83 In my opinion, both the problems I have identified could have been overcome by amendment of the application, pursuant to regulation 55, so as to make it fully comply with both the requirements for a bulky goods salesroom and with cl.51(a): I think this conclusion is supported by Currey. In addition, in my opinion, cl.51(a) is a development standard compliance with which can be dispensed with under SEPP 1 (Poynting); and this is a further reason why non-compliance with cl.51(a) would not make the application a nullity. It is not to the point that the ability to amend is lost at the point of determination: in my opinion, that consideration relates to the validity of the consent rather than to the validity of the application.

84 In the events that happened, the application was not relevantly amended, and that leads on to the next two questions I have mentioned.

85 Having regard to the views I have expressed above, it is not necessary for me to decide whether an application that was in truth an application for use as a shop would have been a nullity; and not necessary to consider the relevance to this question of cl.10(10) of the LEP. In my opinion, that clause is irrelevant to this case, in circumstances where the application was in truth an application for consent for use as a bulky goods salesroom, and was dealt with as such by the Council.

WAS THE CONSENT 1937/01 A CONSENT TO THE APPLICATION?

Submissions

86 Mr. Craig submitted that the imposition of a condition to the effect that the premises be used in accordance with the definition of “bulky goods salesroom” had the effect of “so significantly altering the development in respect of which the application [was] made” that “the purported consent [was] not a consent to the application”: Mison v. Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA.

87 Mr. Robertson submitted that the statement in Mison was too broadly expressed, and was certainly so in relation to the present statutory provisions: ss.79C, 80(4) and 80A(1)(a) and (g) contemplated conditions that could very substantially alter the development from that for which the application was made.

88 Mr. Craig responded that Mison was not affected by the introduction of provisions concerning deferred commencement and staged development. Under such provisions, a consent authority could grant part of an application and leave the balance for later determination (Patrick Autocare Pty. Limited v. Minister for Infrastructure Planning & Natural Resources [2004] NSWLEC 687); but, he submitted, this does not affect the application of Mison to indivisible applications dealt with as a whole.

Decision

89 I accept that the provisions referred to by Mr. Robertson mean that, in the particular circumstances dealt with by those provisions, conditions may be imposed that have the effect that the development approved is substantially different from that applied for. In my opinion, the statement in Mison is still correct (see Pallas Newco at [133]); but in order for that principle to apply in those circumstances, the alteration must go beyond alterations of the kind contemplated by those sections.

90 In my opinion, the condition in this case limiting the use to use in accordance with the definition of “bulky goods salesroom”, as correctly interpreted, was not such an alteration that the consent was not a consent to the application.

WHAT WAS THE EFFECT OF CLAUSE 51?

Submissions

91 Mr. Craig’s primary submission was to the effect that any use authorised by the consent had to conform with cl.51(a), rather than that the consent itself was invalid because of non-compliance with cl.51(a). He submitted that the application must be construed as complying with cl.51(a), that is as proposing a use conforming to cl.51(a), so that consent to the application could be within power; and such consent should be construed as limited to that use. In addition, each occasion of use was itself a development requiring consent, and if such occasion of use was not in conformity with cl.51(a), it was a prohibited development under s.76B(b) of the Act; and thus consent could not permit use for which consent could not have been granted. He also submitted that, by implication, condition 1 to the consent incorporated the requirements of cl.51(a); and that there was no authority for the contention that, once consent was granted, cl.51(a) was exhausted.

92 Mr. Craig also submitted that, since cl.6(2)(a) of the LEP meant that “used” in cl.51(a) meant “proposed to be used”, cl.51(a) precluded the grant of consent unless what was proposed at the time of consent complied with the standards set out in cl.51(a), and for reasons given above, they did not. Even though cl.51(a) may be a development standard which can be dispensed with pursuant to SEPP 1, it is, in the absence of an objection, still a prohibition on consent if it is not complied with.

93 Mr. Robertson submitted that the requirements of cl.51(a) were merely something the Council had to be satisfied of before the grant of consent, and did not have any application once consent was granted. He submitted that the requirements of cl.51(a) were in any event satisfied, because it was sufficient for compliance that there be floor space appropriate to each of the categories sold, and there was no requirement that floor spaces be aggregated where more than one category is sold: that is, it is sufficient to sell all of the items set out in cl.51(a) if there is a floor space of at least 1000 square metres. Mr. Robertson also submitted that it was sufficient that the proposed use could comply with cl.51.

94 In any event, he submitted, cl.51 was a development standard that could be waived pursuant to SEPP 1; and it was not a non-discretionary development standard within s.79C because it was not identified as such. He submitted that the correspondence between Warehouse (and Hirst) and the Council amounted to an objection under SEPP 1, having regard to its reference to the underlying objective of the development standard; the onus was on Woolworths to prove invalidity, and it made no attack on the Council’s decision-making; and validity was supported by the presumption of regularity. He also submitted that the point that the approval was invalid because of non-compliance with cl.51(a) was not taken below and was not within the cross-appeal.

95 Mr. Craig submitted that SEPP 1 had not been relied on by Warehouse in its pleading or in the conduct of the case, but was raised for the first time in final submissions before the primary judge. In any event, the primary judge had implicitly rejected any contention that there had been an objection under SEPP 1. The correspondence could not in fact amount to an objection, because there was no identification of a standard with which the development did not apply or objection that it would be unreasonable or unnecessary to require compliance. The Council records indicating that SEPP 1 was not involved in the application made it clear that the Council had not dealt with the application on that basis.

Decision

96 In my opinion, cl.51(a) operates at the time of consent and requires that consent not be granted unless the proposed use conforms to its requirements. In my opinion also, it plainly requires aggregation of spaces where more than one of the categories is being sold: this accords with the language, and also with the policy of prescribing minimum areas for specified categories.

97 Thus, cl.51(a) requires that, when consent is given, the “proposed use” is in accordance with cl.51(a). This could be so if the use proposed by the applicant was in accordance with cl.51(a), or if the use proposed by the applicant could be in accordance with cl.51(a) and the consent or the LEP required that any use pursuant to the consent must be in accordance with cl.51(a). But in my opinion, unless the consent or the LEP so required, the mere fact that the use proposed by the applicant could be in accordance with cl.51(a) would be insufficient, because it would not then be the case that the proposed use is in accordance with cl.51(a).

98 It is plain from the development application and accompanying material that the areas proposed to be used in respect of the categories set out in cl.51(a) would not comply with that clause. As submitted by Mr. Craig, since the available area was 2,666 square metres, the proposed use had to be only for categories within cl.51(a) the floor areas for which aggregated to less than this figure, such as furniture, electrical goods and outdoor products.

99 Accordingly, at least unless the purported consent in this case or the LEP required that use pursuant to the consent be in accordance with cl.51(a), the purported consent itself was in contrary to the terms of cl.51(a).

100 The consent imposed no explicit condition that the use comply with cl.51(a), and it was Warehouse’s position that there was no such continuing requirement either from the consent or the LEP. Woolworths contend to the contrary, as set out above.

101 In my opinion, the relevant use for which consent was required was use as a bulky goods salesroom, this being a use permitted with consent, that is, consent for use as a bulky goods salesroom. Clause 51(a) in its terms applies at the time of granting consent, and hence the relevant use at that time must be a future use: accordingly, cl.51(a) must apply to what is the proposed use at that time. If a use in conformity with cl.51(a) is proposed at that time, then consent can be granted, and what is then permitted is use as a bulky goods salesroom, which need not necessarily be in accordance with cl.51(a). This view may seem contrary to the intention of the LEP and cl.51(a) in particular; but in my opinion it follows from the wording of the LEP and cl.51(a). Although consent could not have been given for a proposed use not in conformity with cl.51(a), such use is not a prohibited development, because the relevant development is use as a bulky goods salesroom, not use as a bulky goods salesroom in conformity with cl.51(a).

102 If an applicant at the time of consent overtly proposed to change the use some time in the future so as not to be in conformity with cl.51(a), then in my opinion the “proposed use” would not at the time of consent be in conformity with cl.51(a), and cl.51(a) would forbid the grant of consent; and it is of course open to the Council to avoid the difficulty that the use might later change to one not in conformity with cl.51(a), by imposing a condition of consent that the standards in cl.51(a) continue to be complied with.

103 In this case, no express condition was imposed; and I do not think there is any basis on which such a condition can be implied. Nor do I think that the LEP itself imposes such a continuing requirement.

104 Accordingly, in my opinion, the granting of consent was contrary to the terms of cl.51(a), at least unless compliance was dispensed with pursuant to SEPP 1.

105 In my opinion, there is no substance in Mr. Robertson’s contention that Woolworths has not negatived the operation of SEPP 1. The application of cl.51(a) was always squarely in issue in the case, and in my opinion it was for Warehouse to allege and prove that it had been dispensed with under SEPP 1; and it did not raise SEPP 1 until submissions below. Furthermore, in my opinion, Warehouse did not in its correspondence with the Council identify cl.51(a) as a standard with which the proposed development did not comply or object to its application to the development; so that, while accepting that explicit reference to SEPP 1 is not essential for an objection, there was nothing in the correspondence that could be construed as an objection. Since SEPP 1 was not pleaded, Warehouse cannot rely on absence of objection to the Council’s decision-making or the presumption of regularity; and to the extent that there is evidence of the Council’s decision–making, it is that SEPP 1 was not applied.

106 The next question is whether the non-compliance with the terms of cl.51(a) invalidated the consent purportedly granted by the Council.

107 This could be the case if the requirements of cl.51(a) are matter of jurisdictional fact, so that a breach determined by a court makes the decision a nullity, subject to the validating effect of the limitation provision in s.101 of the Act (see Pallas Newco).

108 Some of the matters relied on in Pallas Newco as indicators of jurisdictional fact may apply less strongly to cl.51(a) than to the identification of developments permissible in particular zones.

109 First, the intention of the legislative scheme that there must be objective compliance is less clear in the case of a standard which arguably is a matter to be considered under cl.9(4) of the LEP rather than under cl.9(1) or (2).

110 Second, cl.51(a) does not use the terminology of prohibition. However, the terminology “may ... only if” is to similar effect; and the clause indirectly engages the expression “must not” in s.76B of the Act and the offence under s.125.

111 Third, there is the flexibility in the application of cl.51(a) itself through SEPP 1.

112 Fourth, it could be argued that cl.9(4) suggests that cl.51(a) is not preliminary to decision-making, but rather is to be adjudicated upon in the decision-making process. However, much the same can be said about s.79C(1)(a)(i) of the Act, which is wide enough to include matters that are plainly jurisdictional.

113 It may also be argued that clauses in the LEP similarly expressed in terms of objective fact (for example, cls.17 and 74) are matters of degree calling for judgment by the Council, suggesting that they may not be jurisdictional; and suggesting in turn that cl.51(a) (and cl.30) are also not jurisdictional. Clauses 17 and 74 are in the following terms:

17. Bushland

The Council may grant consent to development on land shown on the map with heavy diagonal hatching only if:

(a) it substantially retains the existing vegetation;

(b) it does not detract from the scenic qualities of the locality, and

74 Restrictions on development in heritage conservation areas

The Council may consent to the erection of a building or the alteration of an existing building within a heritage conservation area only if:

(a) it would not diminish the heritage significance of the conservation area, and

(b) it would be compatible with the existing character of buildings and other items in the conservation area in terms of:

(i) height, scale and proportions, and

(ii) overall form and massing, including pitch and form of roof, and

(iii) the setting, including any building alignment affected, and

(iv) the colour, texture, size and type of finish of the materials to be used on the exterior of the building, and

(v) the character, size, proportion and arrangement of door and window openings.

114 However, there are other provisions of the LEP (for example, cl.26 and cl.37) that refer to Council’s satisfaction or opinion; and this tends to suggest that it is the objective fact being referred to in cl.51(a); and the High Court decision in Corporation of the City of Enfield v. Development Assessment Commission [2000] HCA 5, 199 CLR 135, shows that matters of degree can be jurisdictional facts. The definition of “special industry” involved in that case (see footnote 16 at [6]) plainly raised questions of degree; and the joint judgment of the majority (at [49]-[50]) held that these questions were for the Court to decide, but that if the Court was in doubt, it was open for it to resolve the doubt by giving weight to the determination of the Commission.

115 My initial view was that, on balance, the requirements of cl.51 were jurisdictional facts, and that view is supported by Handley JA. Basten JA gives persuasive reasons for the view that these requirements are matters to be considered by the Council pursuant to s.79C(1) of the Act; but even if it is accepted that what cl.51 in substance requires is the Council’s satisfaction as to these matters, it can be seen, without any investigation of the Council’s decision-making process, that the proposed use could not possibly be considered as complying with cl.51, at least unless a decision to that effect was reached by reference to a “wrong and inadmissible test”: see R. v. Connell; ex parte the Helton Bellbird Collieries Ltd. [1944] HCA 42; (1994) 69 CLR 407 at 431. I agree with Basten JA that this would be sufficient to invalidate the decision. Accordingly, whichever view is preferred, the purported consent was invalid.

116 As submitted by Mr. Robertson, this point does not appear to have been squarely raised in this way below, and is not within the particulars of the cross-appeal; but it does fall within the grounds of the cross-appeal. The point does not require investigation into the decision-making process of the Council; and it would be fanciful in the extreme to suggest that, notwithstanding what was in the application and accompanying material, Warehouse did in fact propose to use the premises in accordance with cl.51(a), or that the Council could have rationally formed the opinion that it did so propose. No such suggestion was made. In those circumstances, the point is a question of law, which could not have been affected by the way the case was conducted below. This is not a case where Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418 precludes the raising of this point.

WAS THE USE BROUGHT INTO CONFORMITY WITH CLAUSE 51?

117 This question does not arise for determination, having regard to the decision on the previous issue. However, I think it appropriate to make some comments on the submissions that were advanced.

118 Mr. Robertson submitted that the primary judge’s second decision disclosed a number of errors, in particular the reference to a requirement that goods be bulky in par.[21], the suggestion in par.[23] that ancillary items may only be purchased on condition that they are purchased along with an item squarely within the designated category, and in the adoption of a narrow construction of the word “furniture” so as to exclude items such as Christmas trees.

119 I am inclined to the view that there is no independent requirement that the goods sold be, or any of them, be themselves bulky; and as indicated above, I am also inclined to the view that the adoption of the wording “dependent upon” in the modified condition 5 does not mean that there must be a condition attached to the sale of ancillary items that they be sold only in conjunction with the sale of items squarely within each category. In my opinion, it is sufficient that the business be conducted in such a way that the sale of the ancillary items be ancillary and subsidiary to the business of selling the primary items. Mr. Robertson referred to many cases from areas such as succession giving a broad interpretation to the word “furniture”: I do not think it appropriate to go into this issue in detail, but I am by no means convinced that the use of the word in the context of retail selling should have the same construction as in the context of succession or other areas of law.

120 In my opinion, it is not appropriate to reach a conclusion as to whether the primary judge’s decision on this aspect was wrong, because there would be little utility in doing so.

ORDERS

121 I propose that the following orders be made:

1. Cross-appeal allowed.

2. Order 2 made on 3 February 2004, Order 2 made on 8 June 2004, and Order 1 made on 13 December 2004 (as amended on 12 January 2005) set aside.

3. Declare that purported consent 1937/01 granted by the second respondent on 6 April 2001 was not a valid consent, and that the application pursuant to which that consent was purportedly granted has not been determined.

4. Order that the appellant be restrained from carrying out, causing, or permitting or suffering the use of the premises known as “The Warehouse” at Unit 1 in Lot 10 in DP 788368 as 1-3 Sappho Road, Warwick Farm for the purposes of a bulky goods salesroom or storeroom or for the purpose of a shop (in both cases as defined in the Liverpool Local Environmental Plan 1997 (as amended)), except pursuant to a valid consent granted under the EPA Act.

5. Order 4 stayed for a period of 28 days.

6. The appellant to make any application to the Land & Environment Court for an adjournment of the proceedings and any further stay of Order 4 within 7 days of the date of these orders.

7. Appeal dismissed.

8. Appellant to pay the respondents’ costs of the appeal and cross-appeal.

122 BASTEN JA: This appeal is brought from judgments of the Land and Environment Court, in relation to a development consent obtained by Warehouse in relation to use of premises as a bulky goods salesroom. Pursuant to s 123 of the Environmental Planning and Assessment and Assessment Act 1979 (NSW) “any person” can take proceedings for enforcement of an environmental and planning law. Where a challenge is brought with respect to the validity of a development consent, there are limitations imposed by s 101 of the EP&A Act. However, Warehouse accepts that s 101 provides no obstacle to the proceedings instituted by Woolworths, the public notification of the decision being ineffective to engage that provision: Judgment [30]-[35].

123 It may reasonably be inferred that the proceedings were instituted by Woolworths in order to constrain the business activities of a competitor. As counsel for Warehouse emphasised, care must be taken in construing the requirements of environmental and planning laws to ensure that their scope and operation are determined to effect their proper purposes and not to limit competitive commercial behaviour. The need for such caution may be accepted: however, it does not follow that environmental and planning constraints, properly construed, may not have a direct effect on commercial competition. This is not a case in which it was suggested that such an effect would be inconsistent with a Commonwealth law, nor that such an effect required the reading-down of the EP&A Act in order for it to operate satisfactorily in conjunction with other State laws.

124 The focus of the appeal by Warehouse was on the conclusions reached by the Court below that the use made of the premises by Warehouse breached the requirements of the development consent. However, the logically anterior question is whether the consent was valid, a question determined by the primary judge adversely to Woolworths, but which was the subject of a cross-appeal by Woolworths.

125 The thrust of Woolworths’ submissions may be summarised as follows:

(a) clause 51(a) of the Local Environmental Plan, set out at [44], imposes a mandatory requirement on the minimum areas of floor-space to be used for the sale, storage and display on identified classes of items;

(b) the development application lodged by Warehouse identified a proposed use which did not comply with the requirements of cl 51(a);

(d) in the alternative to (c), if the application was not a nullity, nevertheless, the consent was invalid because -

(i) the consent permitted a use which was not within the terms of cl 51(a), or

(ii) the consent should be construed as subject to an implied condition requiring compliance with cl 51(a) and, so construed, was not a consent to the application made.

The relief sought by Woolworths in the Court below, based on these contentions, included a proposed declaration that the consent was invalid and of no effect. If that were so, it followed that use of the premises in the manner proposed, whether strictly in compliance with the consent or not, was unlawful.

126 Hodgson JA has held that the application was what it purported to be, namely an application for consent to the use of the premises as a “bulky goods salesroom or showroom”. Such a use was a lawful use, if consent were forthcoming. His Honour has further held that the indication in the materials accompanying the application, which suggested that the intended use of the premises by Warehouse would not comply with cl 51(a), did not mean that the application was a nullity: see [83] above. It followed that the consent, limiting use to use in accordance with the definition of “bulky goods salesroom or showroom” was not other than a consent to the application made: see [90]. However, relying on the material accompanying the application to demonstrate that the proposed use was not in compliance with cl 51(a), his Honour has held that the granting of the consent was in breach of that clause: see [104] above.

127 The validity of the consent is said to depend upon the question “whether cl 51(a) is jurisdictional”: see [107] above. His Honour has accepted that the condition imposed was “jurisdictional” and accordingly that breach of it led to invalidity of the consent. The trial judge came to a different conclusion upholding the validity of the consent.

128 At [108]-[114] his Honour considers whether the requirements of cl 51(a) constitute a “jurisdictional fact”, as identified by this Court in Woolworths Ltd v Pallas Newco [2004] NSWCA 422; (2004) 61 NSWLR 707 (“Pallas Newco”), and in accordance with the reasoning in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 (“Enfield Corporation”). (For a helpful critical analysis of Enfield Corporation, viewed in its legal and historical context, see Aronson, M “The Resurgence of Jurisdictional Facts” (2001) 12 PLR 17.)

129 The term “jurisdictional fact” is a label which can identify a limit on the availability of a power vested in a public authority. Where there is a challenge to an activity, such as a use of land, the lawfulness of the use must be determined by the Court. Where the respondent asserts that lawfulness follows from the grant of a permission, such as a development consent given by a council, the complainant may reply that the consent was invalid, and the activity was therefore unlawful. In such a case, the validity of the consent may be challenged by a collateral attack. But where, as here, that reliance has been anticipated at the outset and the complaint seeks a declaration that the consent was invalid, the challenge to validity is direct.

130 In the present case, the challenge to the validity of the consent depended on whether the proposed use was one for which consent could be given: a question relating to the power of the public authority. That in turn depended on the characterisation of the proposed use, as identified in a development application which sought to engage a specific provision of the local environment plan. A preliminary question is to ask on whom the jurisdiction is conferred to decide this question authoritatively. No doubt the Council from whom consent is sought will need to satisfy itself that it has the power to grant the application. But if its opinion with respect to the application is challenged in a court, the question will be whether its opinion is reviewable only on the standard grounds on which judicial review is permitted, or whether the Court is required to decide the question of characterisation for itself, independently of any view formed by the Council.

131 The answer to this question must depend upon the terms of the legislative instruments conferring power, in accordance with the principles set out in the authorities noted above and with special reference to the decision in Pallas Newco, dealing with a local environment plan under the EP&A Act.

132 In that case, Spigelman CJ identified elements in the statutory scheme under the EP&A Act which his Honour noted as supporting the view that the characterisation of the relevant use was a matter to be determined authoritatively by the Court: at [30]-[37] and [45]. Other factors suggested a different conclusion, but were not, as his Honour concluded, persuasive: [86].

133 In reaching that conclusion, his Honour gave significant weight to “the proper construction of s 101” of the EP&A Act, a privative clause which seeks to impose a time limitation of three months on any proceedings questioning the validity of a consent. That conclusion was based upon the proposition that the word “validity” in s 101 was intended to protect decisions from jurisdictional error, and would hence provide a bar to any challenge to the validity of a consent after three months, even where the use of land proposed was a prohibited use, to which consent could not be given: [77] and [78].

134 The relevance of that argument stems from the proposition which his Honour outlined in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at 72, identifying questions of convenience as relevant to statutory construction:

“Another factor, relevant to determining the intention of Parliament, is the inconvenience that may arise from classifying a factual reference in a statutory formulation as a jurisdictional fact. Statutes are construed on the basis that Parliament did not intend to cause inconvenience, although it can do so, and often has.”

That approach echoes the language of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391, albeit in relation to determination of a fact by an inferior Court:

“It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.”

No doubt that strong presumption is significantly diminished in relation to administrative tribunals, but different factors may be relevant in relation to a representative body, such as a local council. (See generally, Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004) at 231-232.)

135 In Pallas Newco the President agreed with the Chief Justice at [36], as did Handley JA. Handley JA did not place weight on s 101, because his Honour was not satisfied that such a provision would apply to civil proceedings to restrain prohibited development in contravention of s 76B of the EP&A Act: at [144]-[145].

136 Sheller JA also agreed with the Chief Justice, although with some hesitation – at [179]-[180], because his Honour considered that the case was not distinguishable from Enfield: at [181]. His Honour noted doubt attending the operation of s 101 in this context, and appears not to have placed reliance upon it for his conclusion: at [176]. The final member of the Court, Cripps A-JA, also expressed doubt as to the correct conclusion, at [218], but agreed with the Chief Justice, in part because of the effect and operation of s 101, as expressed in the reasons of the Chief Justice.

137 On one view, the statutory scheme of the EP&A Act is of limited relevance in determining whether the application of a particular criterion falls for decision by the council as consent authority, or can only be authoritatively decided by a court with jurisdiction to enforce the prohibitions contained in the EP&A Act. As Spigelman CJ noted in Pallas Newco at [25] the EP&A Act envisages that classifications of land use may be adopted in a planning instrument, expressed to turn on the opinion or satisfaction of the consent authority. Further, at [57] his Honour continued:

“Determining whether a factual reference is jurisdictional in the context of classification under an environmental planning instrument will depend on the way the classification is expressed. The degree of flexibility which the Act permits with respect to the description of uses is such that Parliament must be taken to have authorised the adoption of classifications which are not jurisdictional as well as those which are jurisdictional.”

138 Accordingly, in the present case, the answer to this question must turn on the structure and terminology of the Liverpool Local Environmental Plan 1997 (“the LEP”), albeit read as part of the legislative scheme derived from the EP&A Act.

139 The structure of the LEP, being the source of the power of the consent authority is reasonably straightforward. Part 1 identifies the objects of the LEP, the land to which the LEP applies and the Council as the consent authority. It also provides for the effect of the LEP on other environmental planning instruments and sets out various definitions, including the definition of “bulky goods salesroom or showroom”: cl 6(1) set out above at [39].

140 Part 2 of the LEP establishes a range of zoning classifications, including relevantly to the premises the subject of the present application, “4(b) Industrial – special”. Clause 9 identifies the circumstances in which development may be carried out without consent, only with consent, or not at all. Clause 9(4) provides that the Council “may grant consent to development only if” the Council has regard to various factors including the objectives and “the other provisions of this plan”.

141 The scope of cl 9 is ambiguous: if it were construed as providing that the definition of the permissible uses is a factor to which the Council must “have regard” one would infer that characterisation of a use proposed in a development application would be a matter for the Council to determine. On the other hand, the provision could be construed as requiring the Council to have regard to the various provisions of the plan, as would be expected, in exercising its power to grant a consent, but only in relation to a valid application. It would thus mirror s 79C(1)(a)(i) of the EP&A Act. In that case, the characterisation might properly be seen as a matter for authoritative determination only by a court.

142 The answer to this question is, in terms of principle, obscure. Nevertheless, the approach adopted in Enfield Corporation and Pallas Newco is consistent with the conclusion that the characterisation of the use should be treated as a jurisdictional fact, in the absence of a provision which clearly identifies that the characterisation depends on the opinion of the Council.

143 The relevant issue may thus be defined as the characterisation of the development application to determine whether it was or was not an application for a “bulky goods salesroom or showroom”, in accordance with the definition of that term in cl 6 of the LEP. That exercise of characterisation, however, does not require consideration of matters relevant to the exercise of the Council’s power once properly engaged and in particular, for reasons given below, does not require consideration of cl 51 of the LEP.

144 It is not clear that the primary judge dealt with the matter in this way. The judgment appears to include in an assessment of the proposal contained in the development application a consideration of the construction of cl 51. His Honour had regard both to the development application and the submission made in support of it. He concluded at [44]:

“Although the development application did not stipulate that the site would be used for the purposes of a bulky goods salesroom, the submission was capable of being interpreted as a use that could comply with the provisions of the LEP.”

This language is consistent with the view that it was a matter for the Council to determine whether the application did comply, and it was sufficient for the Court reviewing its decision to be satisfied that such a conclusion was reasonably open. Consistently with this view, his Honour indicated that “the issues determined in [Chambers v Maclean Shire Council [2003] NSWCA 100; (2003) 57 NSWLR 152] do not arise”: [48]. However Chambers was a case which treated the characterisation of the development application as a jurisdictional fact to be determined by the Court. Accordingly, it would appear that the approach his Honour adopted was not consistent with Chambers, following Enfield Corporation, and hence not consistent with the analysis set out above. (His Honour’s decision was handed down a year before Pallas Newco.)

145 In my view, the answer to the characterisation question is correctly determined by Hodgson JA at [80]-[81] above. The application was properly characterised as one to which the Council could consent. I would not, however, consider in this context the operation of cl 51: c.f. [82]-[85] above.

146 It is convenient to consider next the operation of cl 51 because, in my view, this is determinative of the proceedings. It is necessary first to consider the correct approach to be adopted by the Court in relation to this question.

147 Clause 51 of the LEP does not in terms define the kind of application for which consent is required, pursuant to cl 9. Rather, it is formulated as a constraint upon the circumstances in which consent may be granted. It is a mandatory constraint on the exercise of power: consent “may be granted ... only if” the criteria identified in paragraphs (a) and (b) are satisfied. However, because it qualifies the power to grant, rather than the subject matter of an application, it falls within the matters which a consent authority is required to take into account pursuant to the obligation imposed by s 79C(1) of the EP&A Act, set out at [30] above. Clause 51 should therefore be understood as a provision which requires the consent authority to determine whether the application seeks approval for a use which conforms to its requirements. That assessment is not to be made by the Court.

148 In considering whether the matters identified by cl 51 should be treated as jurisdictional facts, Hodgson JA at [113]-[114] notes that other provisions of the LEP are expressed to depend upon the satisfaction or opinion of the Council, a fact which “tends to suggest” that cl 51(a) establishes an objective requirement for determination by the Court, even though it may depend on matters of evaluative judgment. Differences in terminology within an instrument are undoubtedly relevant to the proper construction of particular provisions. However, context may be critical as to whether the inference is to be drawn that a change in terminology was intended to indicate a change in meaning: see The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 50. The maxim expressio unius, as has often been said, “must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument:” Saunders v Evans [1861] EngR 335; (1861) 11 ER 611 at 615, cited in Houssein v Under Secretary of Industrial Relations and Technology (NSW) [1982] HCA 2; (1981-82) 148 CLR 88 at 94.

149 The LEP, read as a whole, reveals disparate terminology which reflects no clarity of purpose, sufficient to justify a different construction of different provisions. Hodgson JA cites cl 37 of the LEP as an example of a provision which expressly requires the formation of an opinion by the Council. It appears in Part 5 of the LEP dealing with rural zones. It provides for general restrictions on development in the circumstances identified, namely:

“Consent for development on land in [identified zones] may be granted only if each building or work resulting from carrying out the development would, in the opinion of the Council, be compatible with the character and amenity of nearby areas (both existing and likely future) in terms of:

(a) its scale, bulk, design, height, siting and landscaping, and

(b) its operation, and

(d) noise, dust, light and odour nuisance, and

(e) privacy, and

(f) stormwater drainage, and

(g) hours of operation, and

(h) overshadowing.”

Three clauses later, the opening words of the equivalent provision in relation to residential zones reads:

“Consent may be granted for a building on land in [specified zones] only if it would be compatible with the character and amenity of both the existing and likely future nearby residential areas in terms of:”

followed by the same paragraphs (a)-(h) as set out above. Clause 47, in the part dealing with business zones is identical to cl 40, except that the word “both” has been omitted. The opening words of cl 52 in relation to industrial zones returns, broadly, though not in identical language, to the terminology of cl 37. Each includes paragraphs (a)-(h). Finally, cl 60(6), in Part 9, dealing with special uses zones, is in different terms again:

“(6) Consent for development on land within [specified zones] after it has been acquired pursuant to this plan may be granted only if the Council has considered whether the proposed development would be compatible with the existing and likely future character and amenity of adjoining land in terms of:”

followed by the standard paragraphs (a)-(h), although the word “height” is omitted from par (a). It is not possible to derive from these linguistic changes an intention to permit the Council to make a final judgment as to the identified characteristics in some zones, but not in others.

150 Further, because the Council did not provide reasons for its decision to grant consent, a challenge to such a decision is not without its difficulties. However, such a decision is not unexaminable and may be challenged on the ground that it fails to comply with the mandatory requirements of cl 51. The available approach in a case such as this is that identified by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 253 at 360, where his Honour considered a similar situation in relation to the Commissioner of Taxation, who had not made known the reasons for his conclusion.

“The conclusion he has reached may, on a full consideration of the material that was before him, be capable of explanation only on the ground that he has made some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.”

151 That is the approach which should be applied in relation to this aspect of the matter. At [96]-[103] above, Hodgson JA demonstrates why the proposed use in the present case would not comply with cl 51(a). In my view that reasoning, with which, subject to a minor qualification, I agree, satisfies the exercise outlined in Avon Downs. In other words, given the nature of the application and the detail of the proposed use revealed in the accompanying material, the supposition that the Council gave proper, genuine and realistic consideration to cl 51, correctly understood, would appear to be a false supposition. Accordingly, the consent was not validly given.

152 My tentative qualification as to the reasoning adopted by Hodgson JA concerns the suggestion at [101] that the proposed use, which might otherwise be in conformity with cl 51, might not be so if the applicant had, at the time the consent was granted, expressed an intention to use the land in a manner which did not conform with cl 51. If at some future time, a developer could lawfully change an approved use in some respect, it is not self-evident that the approval would be invalid because the developer had evinced an intention so to act at the time it sought the consent. Because cl 51 does not in its terms have an on-going operation, questions of future conduct must be judged against the terms of the consent actually given, including any valid condition, as is recognised in the second half of [101] and [102]. However, his Honour’s reference to a proposal to change the use later is correct in the sense that the Council would be required to identify carefully the proposed use of the land, which may, in truth, be the changed use.

153 As his Honour further notes, at [94] above, Warehouse also argued that cl 51 was a “development standard”, as defined in s 4(1) of the EP&A Act and was therefore capable of being overridden by a grant of consent by the consent authority: see State Environmental Planning Policy No. 1 – Development Standards, cl 7. However, cl 6 of that policy provides, so far as relevant:

“6. Where development could, but for any development standard, be carried out under the Act ... the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying grounds of that objection.”

154 Warehouse sought to argue that it had made such a “written objection” although not one which referred expressly to SEPP 1. I agree with Hodgson JA that no such objection was made in the present case. Whether or not an application can qualify as a written objection under this clause, even though the SEPP is not referred to, it cannot be treated as such if it does not in substance comply with the requirements of cl 6. The material placed before Council in support of the development application was squarely directed to establishing that the relevant provisions of the LEP were complied with and that consent was therefore appropriate. There was nothing to suggest the alternative and inconsistent approach, namely that the relevant standard did not apply. The argument presented by Warehouse to the contrary should be rejected. It is not necessary to decide whether or not cl 51 is a “development standard” and I express no view on that issue.

155 It follows, in my view, that the cross-appeal filed by Woolworths should be upheld and the Court should declare that the consent 1937/01 granted on 6 April 2001 was invalid and of no effect. It was not suggested in this Court that, if Warehouse did not enjoy the benefit of such a consent, it had any present entitlement to use the premises as a bulky goods salesroom or showroom, whether in accordance with cl 51 of the LEP or otherwise. Accordingly, I agree with orders 4 and 5 proposed by Hodgson JA. All of the orders made by the primary judge should be set aside and the appeal by Warehouse should be dismissed. If there are further issues of a consequential nature relating to the terms on which final relief should be granted, they may be dealt with in the Land and Environment Court and the matter should accordingly be remitted to that Court for it to deal with any such limited application. I agree that Warehouse should pay Woolworths’ costs of the appeal and cross-appeal and its costs in the Court below.

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LAST UPDATED: 21/09/2005

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