Anzac Square Arcade [2007] QBCCMCmr 359 (13 June 2007)

Last Updated: 5 July 2007

REFERENCE: 0122-2004B

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27978
Name of Scheme:	Anzac Square Arcade
Address of Scheme:	208 Adelaide Street, BRISBANE QLD 4000

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Anzac Square Arcade CTS 27978

I hereby order that the respondents, Dimitri Conomos and Paul Georges as the operators of Buzz Café, shall within 1 month of the date of this order make application to the body corporate committee under by-law 18.1(c) for approval of the following items of equipment installed during the fitout works carried out in early 2004: • The hot Bain Marie • The two cold display cabinets • The two deep fryers • The illuminated menu board • The display drinks refrigerator I further order that the respondents, Dimitri Conomos and Paul Georges as the operators of Buzz Café, shall within 1 month of the date of this order make application to the body corporate committee under by-law 18.1 for approval of the following changes made to the external appearance of the lot in early 2004: • The installation of the illuminated menu board over the main counter • The installation of the two cold display cabinets • The installation of the hot Bain Marie • The installation of the display drinks refrigerator

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0122-2004B

"Anzac Square Arcade" CTS 27978

ORDER SOUGHT

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

1.	Order for all fit-out works to cease immediately.
2.	Order for owner/occupant to submit fit-out plans in accordance with the by-laws.
3.	Order to cease trading until all by-laws are adhered to.

The applicant originally sought an additional order, by way of interim determination, that the occupants of lot 19 cease fit-out works to the lot. However, those works were completed shortly after the application was made. No interim order was made.

On 8 September 2004, I made the following orders:

I hereby order that the occupiers of lot 19 shall, within 7 days of the date of this order, make a written application to the body corporate committee for approval of the fitout/renovation works completed within lot 19 in February/March 2004.

I further order that the occupiers of lot 19 shall, within 30 days of the date of the committee’s decision on that application, comply with such conditions as the committee might impose in approving the works.

I further order that the occupiers of lot 19 shall, within 7 days of the date of this order, make a written application to the body corporate committee seeking approval for the present food use for lot 19.

I further order that, in the event the committee does not approve the present food use, the occupiers of lot 19 shall cease the sale of such food items as the committee does not approve within 24 hours of having been notified of the committee’s decision in that regard.

An appeal against these orders was filed on 20 October 2004, and on 30 January 2006 the appeal was allowed. His Honour Judge Rackemann DCJ made the following order:

"THE ORDER OF THE COURT IS THAT:

1. The adjudicator’s orders are set aside and the matter referred back to an adjudicator through the commissioner, with a direction that the matter be re-determined in light of these reasons.

2. Adjourned to 9:30am Thursday 2 February 2006."

On 2 February 2006, His Honour Judge Rackemann made the following further order:

"THE ORDER OF THE COURT IS THAT:

1. Costs of and incidental to the affidavits of Nicholas John Rosato and Paul Georges to be excluded from costs in favour of the Appellants.
2. The Respondent pay Appellants costs of the appeal limited to the costs of the hearing itself on the 25 August 2005 and the costs of today."

JURISDICTION

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).


SUBMISSIONS

The parties were invited to make further submissions following receipt of the statement of reasons of the learned appeal Judge. In each instance, the parties repeated and relied upon their earlier submissions, supplemented by the further submissions.

The parties were further invited to comment upon my observations of the business conducted from lot 19 on four separate occasions, further details of which appear below.


BACKGROUND

Anzac Square Arcade is a community titles scheme comprising 35 lots and common property. The scheme was established upon registration of the building format plan on 27 April 2000, and is regulated by the Body Corporate and Community Management (Commercial Module) Regulation 1997 (Commercial Module).

Lot 19, the subject of this application, has a floor area of 160m2 and was at all material times designated under the scheme’s by-laws (11.1) as an "Existing Food Use Tenancy, with the use nominated as a coffee lounge.

A business known as "Buzz Café" has been operated from lot 19 since at least 2003. In early 2004, the present occupiers of lot 19, Dimitri Conomos and Paul Georges (the respondents) acquired the business, and undertook certain work within the lot.


THE APPLICANT’S POSITION

The body corporate contended that the respondents contravened the scheme’s by-laws (by-law 18) because they did not obtain the written approval of the body corporate committee prior to commencement of the work carried out within the lot.

That work was particularised in a letter dated 23 February 2004 from the respondents’ solicitors to the owner of lot 19’s solicitors, which was in turn forwarded by the respondents’ solicitors to the body corporate manager under cover of a further letter dated 24 February 2004. In this further letter, the work was described as the "proposed fitout".

The scope of work to be undertaken was noted as follows:

• Implementation of new signage (menu boards)
• Upgrade of existing bain marie to a counter top model
• Addition of a cold display for the sale of cakes and slices
• Coffee company re-branding in accordance with changing coffee companies

At a later time the body corporate ascertained that two large deep fryers were also installed, to replace the existing smaller deep fryer.

In relation to the food use, the body corporate argued that the increased availability of take away foods from Buzz Café demonstrated that the food use had materially altered from that permitted under by-law 11, and that the respondents required written approval from the body corporate committee under by-law 11.2 for the altered food use.

In response to my recent observations of the proportion of dine-in and take away food choices made by patrons of Buzz Café, the body corporate stated that its own observations were:

• The clear majority of customers elect to purchase pre-prepared and/or pre-packaged food and do not sit down in the designated seating area for patrons of Buzz Café.
• The body corporate has not observed except on rare occasions that the seating area of Buzz Café has been more than approximately 50 percent full.
• Prior to the works undertaken by the respondents the proportion of customers who were able to purchase pre-prepared and pre-packaged food was minimal.

THE RESPONDENTS’ POSITION

The respondents denied that there had been a material alteration of food use, and submitted that within the category of "Coffee Lounge" there was no restriction on the proportion of takeaway sales to sales of food which patrons intended to consume on the premises of Buzz Café.

The respondents also submitted that for a finding to be made in relation to material alteration, the present operation of the business should be compared with the previous operation so as to determine a benchmark in relation to the takeaway/dine-in ratio of food consumption.

The respondents denied that the work carried out within the lot had required body corporate approval, and submitted that by-law 18 "applies to the commissioning of construction work but does not apply to the installation of equipment (in this case the Bain-Marie)".

In response to my recent observations of the proportion of dine-in and take away food choices made by patrons of Buzz Café, the respondents stated:

• The mix of patrons of Buzz Café is entirely consistent with the existing food use tenancy of coffee lounge and the mix of patrons is similar to that of other coffee lounges in the Brisbane CBD.
• There is no restriction on the sale of takeaway food for the existing food use tenancy.
• The process used to serve dine-in patrons is entirely consistent with the existing food use tenancy and that a similar or identical process for the provision of food to patrons is utilised by coffee lounges in many areas in Brisbane.

PRELIMINARY ISSUE REGARDING FURTHER MATERIAL FROM RESPONDENTS

The body corporate objected to the further material submitted in affidavit form by the respondents being considered in the re-determination process.


Section 294 of the Act sets out the powers of the District Court on appeal. In this instance, the order of the District Court, as stated earlier, was to refer the application back, through the Commissioner, to the adjudicator with a direction that the application be re-determined in light of the reasons of the learned Appeal judge.

Those reasons did not appear to disclose any limitation upon the re-determination process. Rather, the learned Appeal judge specified the areas of the original determination in respect of which there had been a failure to ask the right question or in respect of which the reasons for a finding had been inadequate.

The order of the court referred "the matter" back to the adjudicator. Without any further distinction being made, I have taken "the matter" to mean "the application".

"Application" is defined in Schedule 6 of the Act as meaning, for chapter 6 (applicable here), an application for the resolution of a dispute.

In investigating the application under section 269 of the Act, the adjudicator must, amongst other things, observe natural justice.

Whilst I accept that there is no information in the affidavits of Mr Georges and Mr Rosato that could not have been provided in the respondents’ initial submission, I do not consider that I am precluded, in the absence of a contrary direction from the learned Appeal judge, from investigating the application, in order to re-determine it, in any way that is permitted under the Act. In my view that includes the receipt of such further information as has been provided in these affidavits. Furthermore, the body corporate was given, and availed itself of, the opportunity to respond to that further information.

In these circumstances, I propose to have regard to all of the submissions currently before me, including the information contained in the affidavits, in making my determination.

ADDITIONAL MATERIAL OBTAINED DURING ADJUDICATOR’S INSPECTION OF LOT 19

In the course of investigating the application for the purposes of re-determining it, I also observed the operation of the business conducted from lot 19 on four separate occasions, namely:

• Wednesday 31 January 2007 from 1:00pm to 1:30pm
• Friday 9 February 2007 from 12:30pm to 1:00pm
• Tuesday 13 February 2007 from 7:30am to 8:00am
• Wednesday 14 February 2007 from 10:30am to 11:00am

During these periods of observation I noted:

• That patrons proposing to dine-in ordered their food from the main front counter, and, depending on their selection, were either provided with food from the range of foods available in the Bain Marie or the cold display cabinets, or were provided with an identification number so that their food selection, if it had to be prepared, could be brought to their table.
• That there were approximately equal numbers of patrons choosing to dine-in or take food away during the four periods of observation.

On 9 May 2007 the parties were invited to comment on this aspect of the investigation. Submissions were received from the respondents and from the body corporate.

The body corporate stated that it agreed with my observations, and made the following further comments in relation to its own observations:

• That a clear majority of customers from day to day elect to purchase pre-prepared and/or pre-packaged foods and do not elect to sit down in the coffee lounge. The body corporate’s estimate is that two thirds of customers of Buzz Café would purchase take away food.
• That only on rare occasions would the seating area of Buzz Café be more than approximately 50 percent full.
• Prior to the works undertaken by the respondents in installing the additional Bain Marie, the additional cold display cabinets, the heavy duty deep fryers, the display refrigerator and the illuminated menu board, the proportion of customers who were able to purchase pre-prepared and pre-packaged take away food was minimal. The body corporate considered that this might account for the significant number of customers now electing to purchase the pre-prepared and pre-packaged foods being sold by Buzz Café.

The body corporate submitted that even if 20, 30 or 40 percent of the customers of Buzz Café elected to purchase the pre-prepared and pre-packaged foods, this would be sufficient evidence of a departure of the business from the designated use of coffee lounge.

The respondents made the following comments:

• The times of my observations coincided, generally speaking, with the busiest times of the day during the working week, and to that extent, they acknowledged that my conclusion that an equal mix of dine-in and takeaway patrons frequenting the business appeared to be correct.
• During the working week the mix of patrons changes during the quieter times of the day, when approximately 80% of patrons choose to dine-in.
• No inspection took place on a Saturday, when approximately 80% of patrons also choose to dine-in. This is consistent with the respondents’ general observations that patrons are more inclined to dine-in on weekends when they have more time to do so.
• The mix of patrons over the whole of the trading hours is entirely consistent with the Existing Food Use Tenancy of coffee lounge.
• A visit to other coffee lounges (such as those listed in the affidavit of Mr Rosato) would confirm that such businesses are frequented by a similar mix of patrons, and that the sale of takeaway food and beverages is integral to those businesses.
• The sale of takeaway food is not inconsistent with the Existing Food Use Tenancy for lot 19, for which there is no exclusion in relation to the sale of such foods
• A similarly broad Existing Food Use Tenancy of "Carvery" is in place for lot 21, and this also does not restrict the sale of takeaway food
• There are, however, significant restrictions on Existing Food Use Tenancies under by-law 18 for certain lots in the scheme, including the sale of takeaway food.

DETERMINATION

By-law 18 and renovation/fit out works to lot 19

The respondents deny having carried out renovation/fit out works, characterising the changes made by them to lot 19 as "installation of equipment". They submit that "the word ‘works’ in its natural and ordinary meaning is associated with construction rather than the simple act of bringing equipment onto premises".

By-law 18.1 defines "works" to include renovation works and fit out works, as well as structural alterations.

"Fit out" is defined in Butterworths Australian Legal Dictionary (1997) (Butterworths) as "the provision of finishes, fittings, equipment, or services to leased premises, usually to a tenant’s specifications."

Butterworths defines "works" as being "the construction, alterations, repair, refurbishment, or fitting out of buildings, other structures, and equipments designed to be used in the provision of services."

The respondents have upgraded their equipment by installing two deep fryers, a Bain Marie, and two cold display cabinets. They have also installed a new illuminated menu board, which includes the name of Buzz Café, situated over the hot and cold display cabinets.

By-law 18.1 also notes that "works" include any change to the external appearance of the lot.

I am satisfied that the respondents have carried out fit out works to lot 19 by the installation of the following equipment, which is used by the respondent in the provision of services, namely the preparation/supply and presentation of food for sale to the patrons of the respondent’s coffee lounge business:

• Two deep fryers
• Two cold display cabinets
• A hot Bain Marie
• The illuminated menu board
• A large display drinks refrigerator

In making this determination, I have concluded:

• That the two deep fryers are used to prepare certain hot foods which are then sold to dine-in patrons and also to those who wish to take their food away.
• That the two cold display cabinets are used to store and display cold food for sale
• That the hot Bain Marie is used to store and display hot food for sale
• That the illuminated menu board provides a visual representation of the food available for sale and that it is designed to allow potential patrons to see the range of food available for sale as they approach the counter on which the hot and cold display cabinets containing the food are located.
• That the display refrigerator provides patrons with easy access to cold drinks which they are able either to consume on the premises or to take away.

Having compared the photographs provided by the respondent (Exhibit "PG-1" to the affidavit of Paul Georges sworn 10 March 2005) I am also satisfied that the external appearance of lot 19 has been changed by the installation of:

• The illuminated menu board
• The hot Bain Marie
• The two cold display cabinet
• The large display drinks refrigerator

In making this determination, I have had regard to the following:

• The previous menu board was smaller than the illuminated menu board installed over the main counter
• The previous menu board was not illuminated
• The previous sign "Buzz Café & Espresso Bar" (on which the word ‘Buzz’ was illuminated) has been removed and replaced with a large illuminated menu board which features a central panel displaying the words "Buzz Café & Espresso Bar Express" plus telephone and facsimile numbers for the business as well as photographs and prices of various foods available for sale
• The hot Bain Marie is larger than the previous Bain Marie
• The two cold display cabinets and the hot Bain Marie occupy a larger area of counter space than was occupied by the previous hot box and cold display cabinet.
• Based on the photographs provided with the material there did not appear to have been a display drinks refrigerator present before February/March 2004

I am satisfied that the positioning of the two deep fryers has not changed the external appearance of the lot given that they are located within the lot behind the counters and the internal work bench and therefore are not visible from outside the lot except to a very limited extent from certain positions at the counter. I find that this limited degree of visibility does not constitute a change to the external appearance of the lot.

I have ordered that the respondents shall within 1 month of the date of the order make application to the body corporate committee under by-law 18.1(c) for approval of the following items of equipment installed during the fitout works carried out in early 2004:

• The hot Bain Marie
• The two cold display cabinets
• The two deep fryers
• The illuminated menu board
• The display drinks refrigerator

I have further ordered that the respondents shall within 1 month of the date of the order make application to the body corporate committee under by-law 18.1 for approval of the changes made to the external appearance of the lot by:

• The installation of the illuminated menu board over the main counter
• The installation of the two cold display cabinets
• The installation of the hot Bain Marie
• The installation of the display drinks refrigerator

It should be noted that in considering these applications the body corporate committee is required to act reasonably in reaching its decision (Act s94(2)), failing which the respondents would be entitled to seek redress under the Act by lodging an application to the Commissioner’s Office to overturn or modify the committee’s decision (should it be unfavourable to them).

By-law 11 and Existing Food Use Tenancy

Under by-law 11.1 the Existing Food Use Tenancy for Lot 19 is designated as Coffee Lounge.

The respondents detailed seven issues which in their view need to be considered in determining if the designated Food Use for Lot 19 has materially altered. Those issues appear at paragraph 3(a) to (g) under the heading "Submissions" on page 2 of the respondents’ supplementary submissions dated 21 June 2006.

What food items were available for sale prior to February/March 2004?

Some of the food items that were available for sale from Lot 19 prior to the respondents’ commencing trade in February/March 2004 were shown on the copy menu provided by the body corporate in its original submission dated 27 April 2004. The items could be broadly categorised as being hot breakfast items, light meals (almost all of which were served with chips), a variety of pizza and designer sandwiches. The menu did not disclose the range of hot and cold drinks or cakes, pastries and sweets that apparently were available as well.

In his affidavit sworn on 26 April 2005, Nicholas Rosato listed, in paragraphs 4 and 5, various categories of food and drinks that were sold during the four years that he and his brother operated the business. Mr Rosato stated that the items were sold to patrons dining in and also to those wishing to take the items away.

I accept, in the absence of any statement to the contrary by the body corporate, that the items shown on the menu and as detailed by Mr Rosato in his affidavit were available for sale prior to February/March 2004.



Was there a material alteration in the types of food and beverage available for sale after February/March 2004?

The body corporate has argued that the Food Use for Lot 19 has materially altered, in that, by the installation of the two large deep fryers; the two cold display cabinets; the hot Bain Marie; the large drinks refrigerator and the illuminated menu board, the respondents have effected "a significant change in the use of the food lot" and "also intended to effect such a material change". The body corporate further stated:

"A typical coffee lounge does not traditionally emphasise the selling of pre-prepared pre-heated, pre-toasted foods which are pre-wrapped ready for instant take-away by a customer. Rather it is the type of dining outlet that is not dedicated towards the take-away of food or fast food generally. ...Pre-heated foods do not form any significant part of the business of a coffee lounge, with its kitchen fitout and menu usually emphasising foods and coffee or other beverages ... that are made to order on the request of a customer when the customer arrives at the coffee lounge. ...In other words, the coffee lounge is traditionally associated with the provision of beverages and food prepared heated and served only after a customer orders it, and often to a seated customer. It almost always has seating, tables, crockery and metal cutlery and china for customers to dine, unlike a take-away or coffee stand or cart."

The respondents have argued that many coffee lounges in and around the CBD provide pre-prepared food for sale to patrons who wish to take the food away from the premises, rather than to consume the food on the premises. The respondents pointed out that there has been no change to the structure of the premises, in that there are still tables and chairs available for customers to dine in.

In addition, the respondents submitted that there is no evidence that the component of takeaway food sold from lot 19 materially altered after February/March 2004.

I am satisfied that the quantity of food and beverages able to be displayed for sale has increased since the respondents installed the larger hot and cold display cabinets and the drinks refrigerator in lot 19. However, based on the information provided to me in the submission process, which I accept, the type of food and beverages available would not appear to have materially altered from that which was available for sale prior to February/March 2004.

Are the food items sold from lot 19 traditionally associated with a coffee lounge?

The body corporate stated in its submission that a coffee lounge is traditionally associated with the provision of beverages and food prepared heated and served only after a customer orders it. The body corporate further stated that a coffee lounge almost always has seating, tables, crockery and metal cutlery and china available for its customers.

The body corporate’s view appears to be that the increase in the availability of pre-prepared and pre-packaged food for sale to patrons who wish to consume that food away from the premises has fundamentally altered the nature of the business conducted by the respondents, such that the business can no longer properly be described as a coffee lounge and should instead be considered to be a takeaway. On this basis, the body corporate considers that the Existing Food Use Tenancy has materially altered, and that the respondents must seek body corporate approval for that change. Furthermore, the body corporate considers that such a material change has caused the Existing Food Use Tenancy for lot 19 to cease under by-law 11.1.

The respondents’ argument is that the food items available for sale from lot 19 are traditionally associated with a coffee lounge. They point out that the business still operates as a coffee lounge, and patrons have a choice of whether they will dine-in or take their food away. They further point out that at different times of the day, and different days of the week, the mix of patrons in each category changes. In addition, they note that there is no restriction on the sale of take away food from lot 19, unlike the restriction under by-law 11.1 on the sale of other food items that is placed on other lots within the scheme.

I accept the respondents’ submissions that the food items available for sale from lot 19 are traditionally associated with a coffee lounge, particularly when one examines the various menus exhibited to the affidavit of Mr Rosato. There are perhaps many more food items which could be included in that range of foods should the respondents wish to expand the choices available to their customers, but the kitchen facilities in lot 19 are not extensive, so there may be a practical limitation in any event.

Whether the sale of takeaway foods is inconsistent with the Food Use of "Coffee Lounge"?

The body corporate’s argument in this regard centres on its view that an increased quantity of pre-prepared and pre-packaged foods which are readily accessible for take away customers has changed the character of the coffee lounge, or, in other words, materially altered the Existing Food Use Tenancy.

I do not consider that the sale of takeaway food is inconsistent with the Existing Food Use Tenancy of Coffee Lounge, provided there is not such a disproportionate focus on the sale of that takeaway food so as to render the business incapable of providing food to dine-in customers.

I did not form the view that there was a disproportionate focus on the sale of takeaway food after observing the business.

All patrons ordered their food, mostly selected from the foods on display, at the counter. Those who wished to dine-in were provided with their food on a china plate and they were given cutlery and paper napkins, and then made their way to one of the tables available in the seating area within lot 19. On some occasions, they were provided with a number if the food or beverage ordered by them was not immediately available, and it was then brought to their table. This was however the exception rather than the rule during my periods of observation.

I am satisfied that the availability of preheated and pre-packaged foods on display in the Bain Marie and the cold display cabinets facilitates speedy service to both dine-in customers and take-away customers. I would expect that this is a most desirable outcome for those customers, particularly if they are on a limited lunch break, or have to catch public transport. As the business is located in a food court in the centre of the CBD, which not only services nearby office buildings but also passengers moving to and from Central Railway Station it seems reasonable to assume that speedy service would enhance the prospect of repeat business.

Whether the general use of the term "coffee lounge" in by-law 11, like the use of the term "carvery" in the same by-law is consistent with lot 19 enjoying broader uses than, for example, lot 13 which is confined to the "sale of Japanese takeaway food"? Whether this can be said to be supported by the fact that while certain lots are the subject of specific exclusions there is no such exclusion for lot 19?

I consider that the term "coffee lounge" does permit of a broader use than some of the other lots in relation to the types of food which might be offered for sale, particularly when it was open to the body corporate when formulating the by-law to specifically exclude the sale of takeaway food from lot 19 if that was the body corporate’s intention.

I have formed this view having noted the specific categorisation of food permitted to be sold from lot 13; the exclusion of carvery roasts from the list of foods permitted to be sold from lot 17, and the exclusion of authentic Japanese dishes from the category of food permitted to be sold from lot 15. Lot 35 on the other hand appears to have no limitation placed upon it insofar as the range of food is concerned provided that all food available for sale is taken away from the lot.

I have also noted the respondents’ argument that many coffee lounges in Brisbane provide a takeaway facility for their customers. Whilst this may be so, there is no evidence before me of the particular leasing or body corporate requirements in relation to the operation of those businesses. I have therefore disregarded the operation of those businesses when assessing whether the Existing Food Use Tenancy for lot 19 has materially or substantially altered.

I am satisfied that the business being conducted from lot 19 has not materially or substantially altered from that permitted under by-law 11, namely the business of a coffee lounge.

The respondents have not reduced the seating area and other facilities available for those of their patrons who wish to dine-in. Such patrons are able to have their food and beverages served to them on crockery, using metal utensils which are then removed by the respondents’ staff and washed up in the adjoining kitchen/work area. These were the parameters which the body corporate concluded would define a coffee lounge.

I accept that there has been a significant increase in the quantity of pre-prepared and pre-packaged food available for sale to the respondents’ patrons, however the type of food available has not changed substantially from that which was available prior to February/March 2004.

As a result of my recent observations, I find that all patrons order their food from the front counter, whether they propose to dine-in or take the food away. I further find that whilst the availability of increased quantities of pre-prepared and pre-packaged foods facilitates a more speedy delivery of food to all patrons, this does not substantially alter the nature of the business, which I am satisfied can be properly categorised as a coffee lounge.

I accept the respondents’ submission that the mix of dine-in and takeaway patrons varies depending on the time of the day and the day of the week. I further find that there is no specific exclusion on the sale of takeaway food within the Existing Food Use Tenancy of "Coffee Lounge" for lot 19, and that the sale of takeaway food from lot 19 is not inconsistent with the operation of a coffee lounge.

On this basis therefore, I am satisfied that the respondents do not require any approval from the body corporate for the continued operation of their business, as it is being conducted within the Existing Food Use Tenancy.