Characterisation of the use
71 The characterisation of the use of the premises has thus to be determined in accordance with these principles, the relevant date for the characterisation being 19 April 1963, when the North Sydney Planning Scheme Ordinance came into effect.
72 The trial judge found, at [52], that the evidence demonstrated that "immediately before 19 April 1963 and at all relevant times thereafter, the major component of the business was of a milk bar, which included the sale of sandwiches and other forms of prepared food, and which later developed into a take-away food business and café". His Honour found that the evidence showed that the sale of groceries was generally a minor or ancillary part of the business that was provided mainly for the benefit of local residents. His Honour further considered, at [55], that "the change in emphasis from a milk bar to a café seemed to be a natural change in the method of carrying on a business consistently with the principles explained by McHugh JA in the Royal Agricultural Society case". His Honour considered that this change was consistent with the evidence of Josef Liebhardt. In particular, his Honour found that the change in use did not mean that it was a different use or that the use had been abandoned, citing North Sydney Municipal Council v Boyts Radio & Electrical Pty Limited & Ors per Kirby P and Shire of Perth v O'Keefe per Kitto J.
73 The appellants contend that the evidence did not support his Honour's finding that the dominant use of the premises was as a take-away food business. They also submit that the evidence did not support his Honour's finding that the use of the premises was as a refreshment room. They contend that, even in the 1960s, there was a clear distinction between concepts such as refreshment room, restaurant, café and eating house and a shop. In this regard, reference was made to a number of definitions to be found in local government legislation. Thus; in Local Government Ordinance 69 of 1983, "refreshment room", was defined in cl 3 to mean "restaurant, café, tea room, eating house or the like". (The same definition is contained in the Environmental Planning and Assessment Model Provisions 1980 (NSW)). In the County of Cumberland Planning Scheme Ordinance, "shop" was defined to mean "any building or place or portion of a building used or designed for the purpose of exposing or offering goods for sale by retail", but specifically excluded "refreshment room" from the definition. Counsel acknowledged that statutory definitions were not determinative of the characterisation in a given case.
74 The appellants accept that the evidence of Brian Bury and Warren Bury was that the shop had two uses, namely, as a local milk bar and a corner shop. They submitted, however, that it was insufficient for the purposes of classification of use to simply find that an activity was undertaken as part of, in this case a corner store, that is, the sale of take-away food such as sandwiches, milkshakes and ice creams. They emphasised that there was no evidence that hot food was sold from the premises at any time prior to 19 April 1963, and that the sale of take-away sandwiches and the like was merely an attribute of a corner store or mixed business and it did not, of itself, become a separate use.
75 The appellants point out that it is likely that childhood memories such as those recounted by Brian Bury and Warren Bury would focus upon milk shakes and ice cream, rather than necessary food commodities available from a corner store. It was submitted that when consideration was given to the layout of the premises and the evidence of its use, these premises functioned as a corner shop. Likewise, it was submitted that the evidence of the Bury's did not support any finding of a dominant use as found by his Honour.
76 The respondents contend that it was sufficient for the purposes of establishing existing use that there had been a take-away food shop in operation at the premises as at 19 April 1963. They submitted that it was irrelevant whether such a use was the dominant use or merely a use. It was sufficient that there was such a use. Accordingly, the respondents were content to rest their case on the alternate finding made by his Honour at [56], that there were two uses of the premises, one as some kind of corner shop or convenience store and the other as a milk bar or café: see Baulkham Hills Shire Council v O'Donnell.
77 His Honour's analysis of the facts and his ultimate findings gave emphasis to the milk bar/takeaway food aspect being the principal objective of the business and that under the proprietorship of Carmel LaMaro, that became not merely a substantial use, but the most significant use of the premises. It is unclear why his Honour focussed his attention on the question of dominant use in this way, unless it was what led him to find that there had been an evolution in the use of the premises from milk bar to café or refreshment room (see judgment [52]-[53]), and that all that had happened was that there had been a change in emphasis from milk bar to café. It also seems to have been relevant to his Honour's analysis that there had been a continuation of the takeaway food component of the business.
78 Usually it is not necessary to seek out or determine a dominant purpose. In Foodbarn Pty Limited & Ors v Solicitor-General (1975) 32 LGRA 157, Glass JA (Hutley and Samuels JJA agreeing) observed, at 160-161, that incidental purposes were to be disregarded for town planning purposes. However, premises may have dual uses. In that case, as his Honour observed at 161:
"Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed."
79 In Baulkham Hills Shire Council v O'Donnell, Meagher JA (Samuels AP and Clarke JA agreeing), stated at 409-410 that:
"Notwithstanding the principles laid down in Foodbarn , it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is 'ancillary to', or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses (of which the decision of this Court in Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206 is an example) illustrate the point: they show that a 'convenience store' and a petrol station are two independent uses, although the former is clearly ancillary to the latter. This is a fortiori the case where the 'ancillary' use has pre-dated the use to which it is said to become ancillary and when it has done so in circumstances where it was initially not 'ancillary' to any other use."
80 The respondents submit that, as his Honour found, the premises were not only a place where young people in the neighbourhood came to purchase milkshakes, but were also used for the preparation of lunches, which were then delivered to local businesses. They acknowledge that his Honour did not deal with the question of seating or the consumption of food on the premises up until 19 April 1963. Nonetheless, they submit that the effect of his Honour's finding was that that use 'developed' into use as a café, which was a natural progression of a method of achieving the purpose that his Honour found existed in 1963. Accordingly, the fact that seating had been increased from a single chair in 1963 to outdoor seating for 20 people in early 1985 was 'simply a means of sale and distribution of food to the public' and was thus the same purpose as his Honour found had existed in 1963.
81 This submission was also relevant to a question raised during the course of argument as to whether the presence or, more particularly the absence of any relevant seating as at 1963, was relevant to the question whether the use of the premises as a café constituted a change of use, rather than a natural evolution. Counsel for the respondents submitted that that was irrelevant, having regard to the finding of the purpose of the use as found by the trial judge. He referred the Court to the decision of The Turnbull Group v North Sydney Council (1998) 101 LGERA 354 and Epivision Pty Ltd v Blacktown City Council (Commissioner Brown, LECNSW, 5 May 1999, unreported) as examples of this proposition. In The Turnbull Group v North Sydney Council, Sheahan J held that the provision of seating did not have the effect of changing the use to which premises were put. In Epivision Pty Ltd v Blacktown City Council, Commissioner Brown rejected an argument that the question of the provision of additional seating in a food shop was relevant to the classification of use. However, each decision must be read in accordance with its own facts and I have not found anything in either of these decisions that assists with the present matter.
82 The respondents and North Sydney Council also contend that, as found by his Honour, the evidence established that there had been a "development" of the business from, relevantly, a milk bar/takeaway food business in 1963, to a small café with outdoor seating as at early 1986 and that expansion and/or intensification of use was protected as an existing use.
83 The respondents acknowledge the relevance of town planning purposes in the characterisation of the use. They submitted that there were number of factors, including town planning requirements, that demonstrated that the present use was a "development" of the existing use.
84 At its most basic level, it was said that, as found by his Honour, the premises were used for the preparation of food and the distribution of that food to the public for immediate consumption. There had been no change in that purpose, although it was now carried out in a different, indeed, a significantly different, manner. It was said that the same hygiene considerations were involved, namely the hygiene requirements associated with food preparation, disposal of rubbish and the like.
85 The respondents acknowledge that the introduction of seating was a change in the manner of using the premises but, it was submitted, not so as to constitute a change of use. Rather, it was a progression of the use that was already in existence. They rely in particular upon the evidence of Josef Liebhardt as supporting this proposition, although they acknowledged that this is a borderline case.
86 It must first be recognised that his Honour's finding as to use was a finding of fact and as such requires the respect to be given to the findings of a trial judge. However, his Honour's essential findings with which I am presently concerned are not specifically protected as findings based on credit, although his Honour was required to evaluate the evidence of witnesses who were recalling circumstances which existed nearly half a century ago. see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. Nonetheless, the appeal is by way of rehearing: s 75A(5) of the Supreme Court Act 1970 (the Supreme Court Act) and this Court is required to form its own judgment on the facts in issue: Fox v Percy at 124-129, [20]-[31].
87 The evidence supported his Honour's finding that as at 19 April 1963, the premises were used as a milk bar/takeaway food shop. They were also used for the sale of groceries in the style of an old fashioned corner store. The evidence also supported his Honour's finding that both aspects comprised a substantial portion of the business. It is not necessary, however, to be concerned as to whether one or other purpose was dominant. It is sufficient to say that one was not subservient to the other such as to call for the classification of the purpose of the premises as a single use. Accordingly, no error will have been shown if his Honour correctly determined that the change or intensification in use up until 3 February 1986 was a natural evolution of a lawful use as at 19 April 1963. However, if the change from a milk bar/takeaway food shop to a refreshment room or café constituted a different use, then his Honour will have erred in his characterisation.
88 There is no doubt that both use as a milk bar and use as a café involve the purchase of food for immediate consumption and in the former case, the consumption of food on the premises, even as at 19 April 1963. There is also no doubt that use as a milk bar and use as a café invites and facilitates social interaction amongst patrons, either accidentally or intentionally. In this case, the evidence permitted an inference that children socialised at the milk bar, but there is no evidence that this was done in numbers or in groups. Nor was there any evidence that adults socialised as such as part of the milk bar/takeaway business. Rather, that aspect of the adult patronage was of the shop. The takeaway aspect of the business as at 1963 largely involved the preparation of lunches, which were collected by employees from the local boatyard and other businesses. There may, of course, have been some social interaction involved in that activity, but it would have been fleeting and of short duration.
89 From a town planning point of view, the incidents of a milk bar/takeaway business are different in nature from the incidents of a café. In the case of a milk bar, patrons come and go, stay for a short time and do not congregate or sit down or generate noise in a way that is usual in the case of a café. There is unlikely to be traffic or parking issues arising from such use. In the case of a café, the very purpose of attending is to stay for a period of time to consume a meal, sitting at a table or bench, often in company. Patrons are likely to attend for an extended period, such as at lunch time, and there are likely to be a number of persons present at the same time, and leaving in groups of similar or large numbers. The fact that a number of persons are coming, staying and going is likely to have impacts in relation to creating noise, traffic and parking.
90 As I have indicated, the law recognises a natural evolution of use without losing the protection of existing use. In this case, if what was in question was the grocery side of the business, then a natural evolution would have been from a corner store to a convenience store. Likewise, if the facts had been different and as at 19 April 1963, the premises were used as a lunch place, with, for example, booths, a progression to more sophisticated food, tables and chairs and a blackboard menu would have been a natural evolution. However, that is not this case.
91 The town planning considerations in respect of the two uses is markedly different. Use as a café involves the concentration of people for an extended period of time. Use as a milk bar does not have those aspects. Accordingly, noise considerations for local residents, the pattern of the movement of people, and traffic and parking issues are different and give rise to very different town planning considerations. There are potentially other differences, such as the quantity of rubbish removal, which could involve industrial rubbish removal unsuitable for residential precincts, and the emission of cooking smells, both of which may have significant town planning impacts.
92 In my opinion, these considerations make it apparent that a milk bar with takeaway food is a different use from a café. I consider, therefore, that his Honour erred in classifying this use as a refreshment room as at 19 April 1963. Admittedly, the use to which the premises were put at that time involved a use for food distribution, including all the ancillary aspects of such use, such as food preparation, cleaning up of and removal of food waste and the like, as submitted by the respondents. However, the town planning considerations for use of a milk bar/takeaway food shop are fundamentally different from those of a refreshment room or café. As Mason J pointed out in Banool Developments, the detail required for town planning purposes is relevant for the classification of the particular purpose to which premises are put. The town planning purposes relevant to a refreshment room or café would include: the numbers of persons on the premises at the same time with consequent noise and parking considerations, and possibly regulatory staff amenities and different rubbish removal considerations. The town planning considerations in relation to a milk bar/takeaway would not involve those considerations or at least would not be as critical.
93 It follows, therefore, for the reasons that I have given, that the premises do not have existing use rights as a café/restaurant/refreshment room.