Victorian Civil and Administrative Tribunal|2001-12-05

Bevendale PL v Whittlesea CC [2001] VCAT 2273 (5 December 2001)

Planning; Enforcement Order; Land Use classification or categorisation; whether `Crazy Clints' discount department store now known as "The Warehouse" is a prohibited `shop' use in this Business 4 zone or whether it falls within the definition of Restricted Retail premises.

That part of the land at 560-602 High Street, Epping occupied by The Warehouse Group (Australia) Pty Ltd

The use of the land contravenes Clauses 31.01-3, Clause 34.04 of the Whittlesea Planning Scheme and amended Planning Permit No. 705225 dated 19 October 2000 allowing the construction of buildings and works for the use of the land for, inter alia, restricted retail premises.

1. Within fourteen days of the date of service of this Order upon it, the first named Respondent, the Warehouse Group Australia Pty Ltd, must cease to use the subject land and the building owned by ISPT Pty Ltd as a `shop' for the sale or hire of goods other than goods which fall within the categories specified in paragraphs (a) - (l) of the definition of `restricted retail premises'. Without limiting the generality of this order, the Warehouse Group Australia Pty Ltd must cease to use the subject land and aforesaid building for the sale or hire of goods in the following categories listed below, unless the goods are ancillary to goods in the categories listed in the purposes automatically permitted in the zone:

2. Within fourteen days of the date of service of this Order upon it, the Warehouse Group Australia Pty Ltd must cease to use the subject land and the building owned by ISPT Pty Ltd for a "shop" as defined by the Whittlesea Planning Scheme other than as "restricted retail premises" as so defined.

3. That the second named Respondent, ISPT Pty Ltd must cease to allow its land and building to be used as specified in orders 1 and 2 above.

4. That the first named Respondent, the Warehouse Group Australia Pty Ltd, pay the applicant's party/party costs of this application and the second named Respondent's party/party costs of this application to be assessed on County Court Scale D to be taxed by the Registrar in default of mutual agreement - such costs to be paid no later than 21 days following taxation by the Registrar.

(a) serve a copy of this enforcement order by certified mail on the registered office of The Warehouse Group Australia Pty Ltd, 11-21 Forge Street, Blacktown NSW 2148;

(b) serve a copy of this enforcement order by personal delivery or by certified mail on The Warehouse Group Australia Pty Ltd by service on its solicitors, Lander & Rogers at Bourke Place, 600 Bourke Street, Melbourne 3000, to the attention of Michael Champion, Solicitor;

(c) serve a copy of this enforcement order by certified mail on the registered office of ISPT Pty Ltd at 27-29 Little Lonsdale Street, Melbourne 3000;

(d) serve a copy of this enforcement order by certified mail or by personal service on ISPT Pty Ltd at their solicitors offices of Holding Redlich, 350 William Street, Melbourne 3000 to the attention of Theo Kalyvas, Solicitor;

(e) serve a copy of the enforcement order by personal service or by certified mail on the Chief Executive Office of the City of Whittlesea;

(f) serve a copy of this order by personal service or by certified mail on the offices of the Solicitors for the City of Whittlesea, Maddock Lonie & Chisholm, Solicitors of 140 William Street, Melbourne, 3000 to the attention of Mr John Rantino, Solicitor.

For the Applicant for Enforcement Order: Mr H McM Wright QC with Mr Adrian Finanzio of Counsel, instructed by Freehills, Solicitors.

Mr Wright QC called Mr Brendan Rogers, Ms Elaine Forde, Ms Michelle Keen and Ms Bettina Hocking to give evidence.

For the Responsible Authority: Mr John Rantino, Solicitor of Maddock Lonie & Chisholm

For the First Named Respondent: Ms Susan Brennan of Counsel instructed by Lander & Rogers, Solicitors

For the Second Named Respondent: Mr L M Schwarz of Counsel instructed by Holding Redlich, SolicitorsREASONS

1. This is an application under s114 of the Planning and Environment Act 1987 for an enforcement order to prevent use of the subject land, or any part thereof, by the first named respondent, The Warehouse Group Pty Ltd, for purposes falling outside the definition of restricted retail premises.

2. Bevendale Pty Ltd, is the owner of Epping Plaza Shopping centre on the west side of High Street south of Cooper Street, which is zoned Business 1 and lies opposite the subject land known as The Homemaker Centre on the east side of High Street south of Cooper Street, and is zoned Business 4 under the Whittlesea Planning Scheme. The applicant alleged that The Warehouse Group Australia Pty Ltd (formerly known as "Clints" or "Crazy Clints") used part of the subject land for the purpose of a "shop" which is a prohibited Section 3 use in the Business 4 Zone and, alternatively, did not use the premises for "restricted retail" purposes, which is an automatically permitted Section 1 use in Business 4 Zone.

3. The name of the second named respondent was amended by the Tribunal from Migic Pty Ltd to ISTP Pty Ltd as ownership of the land had changed. No objection was taken to the amendment.

4. An adjournment was requested by the first named respondent on two grounds:

(i) late supply of further and better particulars outside the time limits provided by the Tribunal's Practice Note; and

(ii) the late supply of affidavit material setting out the facts upon which the applicant relied to prove its case, outside the time limits provided by the Tribunal's Practice Note.

5. The hearing of those complaints took up the morning of the first day of the hearing. Oral reasons for refusing to grant the adjournment were handed down just before 1.00 pm.

6. In the afternoon of the second day of the hearing, upon application made to it by the disappointed first named respondent, Beach, J. sitting in the Supreme Court Practice Court, refused to uplift the matter from the Tribunal.

7. The Tribunal refused an adjournment for the reasons that follow on the basis that there would be no denial of procedural fairness to the first named respondent if the case proceeded as listed for full hearing.

8. The ground of the Enforcement Order application is clear and the respondents can be in no doubt as to what is alleged. It is a question of the characterisation of the use of the subject land - a question of fact and legal argument.

9. Further and better particulars were requested by the first named respondent on 18 October 2001. The first named respondent alleges that service thereof is technically in breach of Practice List Planning Note 1, Clause 2.3 because it should have occurred on 1 November 2001. They were however provided on 13 November 2001, being nine business days prior to the hearing.

10. However, upon examination of the particulars sought, it is clear that they go beyond what is required to inform the respondent of the case it has to meet.

11. An examination of the particulars sought indicates they:

(i) are within the knowledge of the first named respondent - which did not need to await that information to be able to prepare its defence or rebut any characterisation the applicant may wish to allege in argument;

(iii) as to matters requested in paragraphs (c ) & (d) go to evidence ;

(iv) as to matters set out in paragraph 8 Pt 6A of the Enforcement application, go to the determination of fact by the Tribunal;

(v) as to matters set out in paragraph 9 Pt 6A of the EO application request information irrelevant to the applicant's proofs of evidence;

(vi) are so wide as to require greater time for their preparation and provision.

12. Notwithstanding that the applicant considered the breadth of the request vexatious, it acceded thereto in order to press towards a full hearing and not incur delays caused by directions hearings to dispute their propriety. Nor did the first named respondent rush to the Tribunal immediately after 13 November 2001 deadline to complain about late delivery.

13. The first named respondent also alleged that there had been a breach of Planning List Practice Note 1, Clause 4.2(a), because the witness statements in affidavit form delivered by the applicant were served less than ten business days prior to the hearing date.

14. Ms Brennan complained that her clients had awaited the receipt of that material in order to prepare their own material.

15. The fallacy in this latter argument presupposes that the procedure adopted in a Planning List follows a chronological supply and counter supply of information. That is not correct. The provision of expert witness material is by way of contemporaneous exchange no less than ten business days before the hearing, and does not depend upon the receipt of opposing material beforehand.

16. A second fallacy is that the Practice Note deals with all witness material. It does not. It only deals with expert witness evidence. The affidavits relied upon by the applicant are not in the nature of "expert evidence". They are factual observations and conclusions that do not go to the expertise foreshadowed by Clause 4.2(a) of the Practice Note 1.

17. Although some of the affidavits are by persons who are town planning consultants by profession, the affidavits are not expert opinion, and town planning consultants are not disqualified from giving lay or factual evidence. Any opinions expressed therein as to categorization are not "expert opinions" (as to this see Franceschini) and is a matter of fact for the Tribunal to determine.

18. However, the Tribunal can and sometimes does allow the exchange of non-expert witness evidence, particularly in enforcement proceedings. It can and sometimes does allow the provision of material by way of response to material that has been provided earlier. But that is not required by the Practice Note as a matter of course and is only done upon request at a directions hearing.

19. The respondent's desire to review the affidavit material, obtain advice, double check its accuracy, get additional witnesses now etc, are all matters for which it should have sought the opportunity, at a directions hearing - and well before the hearing date. But it did not do so and cannot complain now, given that there is no breach of the rules of practice and procedure in that regard. It foreshadowed in writing as early as 5 September that it would seek a Directions Hearing but never did so.

20. The fact that there is an application for a convenience shop within the subject land before the Council at present, is no reason to delay the hearing of this enforcement application.

21. A fundamental difference between a Business 1 Zone and a Business 4 Zone is that use of the land for the purpose of "shop" is an automatically permitted Section 1 use in a Business 1 Zone for which no permit is required.

22. The word "shop" is very broadly defined in Clause 74 of the Planning Scheme as:

Land used to sell goods or services, or to hire goods, but does not include food and drink premises, gambling premises, landscaping gardening supplies, manufacturing sales, market, motor vehicle, boat or caravan sales, postal agency, primary produce sales or trade supplies."

23. The definition however clearly includes `restricted retail premises', within the definition of `shop'.

24. In a Business 4 Zone however a "shop" is a Section 3 prohibited use for which no permit may be obtained (other than an adult sex book shop, convenience shop and restricted retail premises).

25. There are strategic policy considerations and reasons for this difference in treatment of land use between a Business 1 Zone and a Business 4 Zone. Part of the policy considerations, while prohibiting "shop", automatically permit use of land in a Business 4 Zone for "restricted retail premises" for which it is not necessary to obtain any permission.

26. `Restricted retail premises' is defined in the planning scheme as:

Equestrian supplies, lighting shop and party supplies are also nested under or included within Restricted retail premises.

27. "Trade supplies" is also a Section 1 permit not required use in this Business 4 Zone. Trade supplies is defined as:

Land used to sell by both retail and wholesale, or to hire, materials, tools, equipment, machinery or other goods for use in:

h) local government, government departments or public institutions.

28. The purpose of the restricted retail land use may have originated for selling bulky items, such as swimming pools, furniture etc, but has clearly been expanded to encompass small items such as party supplies, videos etc.

29. Mr Wright maintains that the list is, however, exhaustive, and cannot be expanded to permit the non-restricted items which he alleges are sold in The Warehouse.

30. Three of the four witnesses called by the Applicant, attested to purchasing the following miscellaneous items on the following dates from "The Warehouse", being the name of the premises operated by the first named respondent.

On 20 August 2001 Ms Forde attended the store and purchased the following goods:

On 28 August 2001, Ms Forde attended the store and purchased the following goods:

On 7 September, 2001 Ms Forde attended the store and purchased the following goods:

On 23 August 2001 Ms Hocking witnessed a colleague purchase the following goods at the store:

On 30 August 2001 Mr Rogers purchased the following goods:

A packet of spicy seasoning mix to be added to a stir fry dish;

On 12 October 2001 in the course of a second inspection, Mr Rogers purchased the following items:

A mini jet basketball from the sports (toys/sports) section;

A pack of twinkle glue from the read and write section;

A pair of safety scissors from the read and write section;

A pack of space chalk from the read and write section; and

A Winnie-the-pooh lecture pad from the read and write section.

31. Evidence was also tendered of promotional brochures and advertising catalogues indicating the sale of a broad range of items.

32. The purpose of Mr Roger's visit was not merely to purchase the above miscellaneous items but to survey the subject land for the purpose of collecting information on the types of goods sold and the proportion of floor space occupied by the goods surveyed.

33. He prepared a floor plan which indicated the results of his surveys and then proceeded to prepare the following Table cataloguing his survey results into named categories of goods sold and his opinion of whether they fell within the category of restricted retail goods or not.

34. Ms Brennan on behalf of The Warehouse, formerly Clint's Crazy Bargains, described her client's use of the land as a warehouse superstore selling household related supplies. She also indicated that the type of goods sold was not always consistent or guaranteed as it depended upon availability for bargain purchasing. I see her description of the premises as tantamount to calling it a `shop' except that she went on to distinguish her client from Big W or Kmart, and to align it with a Bunnings or Officeworks `category killer' superstore because of the look of the store - spartan display shelving, no floor coverings, and no ceiling - as in a warehouse.

35. The definitions, however, are not interested in what the premises look like but in the nature of the goods sold.

36. In his Table, Mr Rogers went through a detailed analysis of the goods sold, his description of the categories into which those goods fell, the proportion of floor space occupied by the goods as against the total floor area, and how he interpreted each category as falling within or outside the `restricted retail' categories. He compared his categories to those specified in the definition and expressed his opinion of whether they fell within restricted retail or not.

37. He concluded that the percentage of floor space occupied by non-restricted retail goods was approximately 78.2% or 2240.5 m2 and that occupied by restricted retail goods was approximately 20.5% or 584.7 m2.

38. Mr Rogers was cross-examined on his observations, how he arrived at his diagrammatic representation of what he surveyed in Exhibit BFR7, and how he arrived at his Table analysis contained in Exhibit BFR8, although Ms Brennan elected not to cross-examine Mr Rogers, nor indeed any of the witnesses called by the applicant to give evidence. No other party called any witnesses.

39. Instead, Ms Brennan proceeded to produce an alternative analysis of the description of goods and a categorisation of those goods sold on the subject land, to which she made submissions. Mr Wright QC objected to this form of introducing `alternative evidence' by Ms Brennan because she neither called any evidence herself that could be tested by cross-examination - nor did she put to Mr Rogers in cross-examination, any alternative manner of categorising the items sold. Mr Wright QC based his objections on the rule in Brown v Dunne (1893) 6 Retties Sessions Reports 67.

40. The Tribunal announced that it would treat the Brennan material (Exhibit SMB1) as submission and argument addressed by Ms Brennan as to categorisation. Her submissions re-categorised the items sold into different categories than those arrived at by Mr Rogers. Not surprisingly, her submissions went on to claim a percentage floor space and sales figures of non-restricted retail goods and of restricted retail goods in the same percentage as that provided to Mr Jeremy Gobbo QC in his written opinion to the former owner of the subject land, Migic Pty Ltd, dated 19 October 2000. Figures given to Mr Gobbo QC were in the order of 78% floor space and 76% sales for restricted retail goods while 22% floor space and 24% sales were given over to goods outside those categories.

41. As confirmed in Francheschini v M & MBW (1980) 1 PABR 276, Springvale CC v Heda Nominees (1982) 1 PABR 287, the analysis required in this case is a question of fact to be determined by the Tribunal, about which the parties can debate.

42. Mr Wright QC submitted that the very nature of the definition of restricted retail does not permit the sale of goods that are not either:

(a) within a category specified in the list (eg furniture sales); or

(b) items ancillary to the goods within a category (eg furniture polish to complement furniture sales).

(i) in order for an activity on land to be considered as ancillary to the dominant purpose for which the land is used it must either be:

(a) an activity which, although quite different from the dominant purpose for which the land is used, is a necessary adjunct to that primary use (eg administration office);

(b) an activity which grows out of or develops from the primary use in order to enhance that use (eg sale of light bulbs for the light fittings; refreshments for customers to partake of while browsing).

(ii) goods which do not fall within any of the specified categories and are not ancillary are prohibited;

(iii) the sale of goods that do not fall within restricted retail is of such a scale and occupies so much of the display area that it amounts to a separate and definable use of the land for the purpose of `shop'.

44. Mr Roger's evidence was not disputed or destroyed in cross-examination. The Tribunal accepts that most of Mr Rogers' categories are fairly and accurately described. I may disagree as to the details, such as classifying power chords as NRR (unrestricted) instead of household appliances and classifying tools and hardware as NRR instead of trade supplies. But, in the final analysis, the differences are not such as to change the clear and uncontested evidence that the subject land is not being used primarily as restricted retail premises or for trade supplies. The categories of goods being sold in this `super warehouse' are broad and unrestricted in category. The character of the premises is a `shop'.

45. Case law was relied upon. The "Bunnings" case, STY Building Supplies (Shepparton) Pty Ltd v Greater Shepparton City Council & Bunnings Properties Pty Ltd (2000) VPR 264, revolved around semantics employed in the definition of `trade supplies' that are absent in this definition of `restricted retail'. There the analysis was of the words `for use in ....[particular trades]'. The argument that the use was a `shop' rather than `trade supplies' revolved around the fact that that non trades persons could and did purchase the items sold by retail, so that sales were not limited to the trades. The definition expressly contemplated sale by retail as well as wholesale. Deputy President Macnamara held that the definition should be interpreted by reference to the nature of the goods supplied (ie that they could be purchased by persons in the specified trades) rather than by the end user of the goods.

46. One case that is worth citing substantially is Ms Helen Gibson's decision in Pacific Seven Pty Ltd v Knox CC (1993) 11 AATR 325 @ 329 et seq.

It has always been recognised that land may be used for more than one use. Land can also be used for more than one activity. However, not all activities constitute separate uses in their own right. Sometimes activities will be ancillary or incidental to the primary use of the property, in which case they will not constitute a separate use but are considered to be part and parcel of the primary use. Whilst these are commonly termed "ancillary uses", the word "use" in this context is a misnomer. They are really activities which are an ancillary part of the primary use. [For an interesting discussion of this distinction see Mollica v Shire of Bulla 9 AATR 157 at pg 161-163].

In general terms there are two types of activities which are commonly considered to be ancillary uses. The first is where the ancillary activity is quite different to the activities constituting the primary use of the property but are a necessary adjunct to the primary use. A common example given is the sixth floor of Myers in Melbourne which is devoted to offices, yet the offices are ancillary to the primary use of the premises as a shop. In such cases there must exist a close association between the principal and ancillary uses. Thus, so long as the office of a business or industry deals with the administration of that business or industry, then it will not be classified as a separate office use but as part of the use constituted by the business or industry. But if other administrative work entirely unrelated to the business or industry in question is carried out, then that aspect of the office activity would cease to be ancillary to the primary use and would become a separate use in its own right which would need to comply with the planning scheme.

The second type of ancillary uses are those types of activities which grow out of or develop from the primary use and are intended to enhance it. The most common example of these in recent years has been the sale of convenience goods by petrol stations. Petrol stations have always tended to sell items over and above simply motor fuel and oil. At first, such goods were confined to motoring accessories and spare parts. This range expanded to include cigarettes, sweets and drinks for motorists themselves. Gradually the sale of further convenience goods came to be accepted as being ancillary to a petrol station.

It was this type of additional activity which was discussed by the Full Court of the Supreme Court in Blout v Gianevsky [1980] VicRp 19; (1980) VR 156 at 161 where it said:

"The mere installation of two coin operated amusement machines cannot convert a fish and chip shop into a place to which people resort for the purpose of amusement. It is nothing to the point that one or two people may do so. Necessarily a question of degree is involved. If there be an undoubted amusement parlour it would not have its character altered by the installation of pie stall in one corner of it."

The great difficulty with these cases is to judge at what point the activities cease to be simply ancillary to the primary use of the land and become separate uses in their own right. As the Planning Appeals Board said in Henshall v Shire of Flinders 4 PABR 350 at p 357:

In recognising that a principal land use could have a number of associated ancillary uses which may legitimately come within the planning permission under which the principal land use is carried on, this Board and responsible planning authorities must be alert to the inevitable tendency - especially with certain commercial activities where market demand may prove to be irresistible for ancillary uses to grow. To the unscrupulous it may be thought that, by gradually increasing the scale or intensity of an ancillary use, they can achieve, via the back door, an otherwise prohibited or unpermitted use. It is necessary for planning authorities to be diligently watchful so as to ensure that ancillary uses never become more than just that.

In determining whether an ancillary use has grown too far, the yardsticks will vary according to the use concerned, but comparative scale, degrees of intensity and the continued existence of a close association between the principal and ancillary uses will all be very relevant factors. Of course, it will be the facts in any particular case which will determine the matter: artificial formulae or rigid rules would probably never work.

The distinction is illustrated by comparison of Village Road Show v City of Knox (Appeal No. 90/27588) 6 AATR 160 and Village Roadshow Corp v City of Dandenong (Appeal No. 1991/23351). In the Knox case the installation of 22 amusement machines in a 10 cinema complex where the machines were to be grouped together in one designed machine area within a part of the complex accessible at any time to the general public was held to be a separate use requiring a permit and was not ancillary to the cinema complex. In the Dandenong case, 10 machines in and around the foyer of a 10 cinema complex was held to be ancillary to the cinema use.

However, not every additional activity carried out on a site will necessarily be ancillary to the primary use, even though only of a modest scale. The situation was discussed by Nicholson J in Davey v Brightlight Nominees Pty Ltd [1984] VicRp 76; [1984] VR 957 at pg 965 where he said:

"....[P]remises may be used for more than one purpose, and provided that each use is a distinct and separate use, then, in my opinion, such individual use may be unlawful even if the rest of the premises are used for lawful purposes. Taking an extreme example: the use of a portion of a hotel as a brothel could not be legitimised by the lawful use of the remainder of an hotel."

His Honour then went on to consider whether this approach was at variance with the "real and substantial purpose" test espoused by Marks J in Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR 157.

The issue in the Pacific Seven case was whether the sale of some hot food for consumption off the premises disqualified the premises from being characterised as service premises where the definition of "service premises" specifically excluded the use of the same as take-away food premises.

Marks J held that for the purpose of considering an application for a permit it was sufficient to look at the real and substantial purpose for which the premises were to be used and found that the fact that it was intended to supply some hot take-away food as part of the overall operation should not be regarded as a disqualifying factor.

Nicholson J considered that his views did not materially differ from those expressed in the Pacific Seven case. At p. 966 he said:

It may be one thing on a permit application to look at it and say, as his Honour did, that the substantial purposes for which the premises are to be used complies with the definition of service premises so that a permit ought to be granted. It is, I think, quite another to say that the fact that premises are largely used in a lawful fashion, or that their substantial purpose is lawful, operates to make lawful, uses which would otherwise be unlawful. The test in such a case, in my opinion, is not whether the real and substantial purpose of the user complies with the Ordinance but rather, whether a particular use does not comply with the ordinance. No doubt when a permit is granted uses which are truly ancillary to the main purpose and which might otherwise be unlawful would be legitimized, such as, for example, the use of portion of shop premises for office purposes connected with and essential to the user as a shop. However, I do not think that this principle can or should be extended to related but separate uses which are in fact unlawful.

47. In the final analysis the determination of the issue is a matter of fact and degree in each case.

48. Does the use conducted at the subject land fall within the definition of `restricted retail premises'?

49. The parties accept that a store selling goods within one of these categories alone would clearly be as-of-right (eg an Officeworks superstore), but this case revolves around the issues of a store selling, not only all of the specified categories in one superstore but more. The issues also revolved around which goods sold could be included in the categories, ie categorisation. It was argued that within each category of item sold that is permissible, there can be a broad definition or a more limited definition of what is included. For example, it was argued that:

(i) furnishings could range from the very narrow - curtains, upholstery, cushions to a broader category - mirrors, paintings, prints - to the broadest - manchester, towels, tea towels.

(ii) household appliances could range from the narrow - microwave, stove, kettle - to the broad - VCR, TV, home computer.

50. Apropos this last argument, I am of the opinion that even in the grey areas of ancillary items, the breadth of manchester, towels, tea towels would be excluded from furnishings.

51. The parties conceded that if goods in all the specified categories were sold in one superstore, there would be no breach of the scheme. Mr Wright QC also conceded that if goods in all the specified categories of `restricted retail' as well as `trade supplies' were sold in one superstore, there would also be no breach of the scheme. That is because `trade supplies' is also an automatically permitted section 1 use for which no permit is required.

52. Does the use conducted from the subject land fall within the definition of `restricted retail premises' or `trade supplies'? To answer that question I need to ask whether the goods sold on the subject land fall within the categories specified in the definition of `restricted retail premises' or `trade supplies'?

53. If not, does the use conducted at the subject land fall within the definition of `shop' or some other (innominate) section 2 use?

54. Having heard the evidence, the arguments and conducted a site visit my assessment is that, viewing the matter in its totality, the true character of the use is a `shop'. Some goods sold either fall within the primary categories of goods specified in the permitted definitions, or serve the primary categories of goods specified in the permitted definitions (eg furniture cleaner) but, on the whole, the sale of those goods is minimal in comparison to otherwise broad and unrestricted nature of goods sold in general, so that does not change the real character of the premises, which is as a `shop' prohibited in this zone.

55. Whether one applies the `real and substantial purpose' test of Pacific Seven v Sandringham CC [1982] VicRp 14; [1982] VR 157 or analyses which goods fall outside the permitted categories applying the Davey v Brightlite Nominees Pty Ltd test [1984] VicRp 76; [1984] VR 957, the fact remains that substantial categories of goods sold do not comply with the permitted categories, even allowing for grey areas of ancillary goods.

56. Goods can be sold or activities conducted on the subject land that fall within an `ancillary' capacity to the restricted retail or trade supplies items, and the test one would assess them by is following the principles laid down in the Pacific Seven Pty Ltd v Knox CC guidelines above, or applying the Wright QC principles previously mentioned.

57. An Enforcement Order is necessary to ensure the land is used in accordance with the Scheme, the critical question being the wording of that Order to enable its enforcement by the applicant or the Responsible Authority. It is easier to order that use as a `shop' cease, but that is not instructive for an authority needing to enforce the order. So I have acceded to the request by Mr Wright QC to descend into particularity, acknowledging that it is always a matter of fact and degree and, of course, commonsense.

58. Mr Schwarz resisted the joinder of his client to the order, but the order must be made in this case against both occupier and owner. That is because the owner received an opinion from Mr Jeremy Gobbo, QC which is annexed to the Schedule to the Lease with its tenant, the first named respondent. That opinion is contrary to this decision on the legality of the use of the land by the first named respondent.

59. No aspersions are cast by the applicant against the owner, who is not itself conducting the activities complained of. But since the Lease Schedule Item 15 implies that use of the subject land in the manner described in Mr Gobbo, QC's opinion is lawful, the owner needs to be joined to ensure it enforces the planning scheme by serving, if it comes to that, a notice of breach of covenant upon the tenant. In the absence of an Order from the Tribunal, there is nothing compelling the owner to act on its covenants contained in clauses 2.2.1 and 2.2.2 of the Lease.

60. As to costs, the Responsible Authority sought none and the usual scale nominated by the Tribunal was sought by both the applicant and the second named respondent against the first named respondent.

Bevendale PL v Whittlesea CC [2001] VCAT 2273

At a glance

Court

Decision date

Source

Judgment (127 paragraphs)

Bevendale PL v Whittlesea CC [2001] VCAT 2273 (5 December 2001)

Parties