Hastings Co-operative Ltd v Port Macquarie Hastings Council

Land and Environment Court (NSW)|2009-07-01|Before: Lloyd J

Background facts 1 HIS HONOUR: This is a case about a proposed supermarket in Wallace Street, Wauchope. 2 The second respondent, Emanlach Pty Ltd, obtained consent from Port Macquarie Hastings Council on 25 August 2008 for development of a supermarket. The applicant, Hastings Co-operative Ltd, is challenging the validity of consent on the ground that the development is prohibited in the relevant zone. 3 The proposed supermarket is a single storey building with a retail gross floor area of approximately 2,012 square metres - which is equivalent to the area of about eight tennis courts. The majority of the retail display area will consist of food, which, according to a document referred to in the development consent, is expected to include: · General food lines · Grocery items · Refrigerated meat · Fresh fruit and vegetables · Dairy products and juices · Frozen food · Hot food (including chicken) · Delicatessen items (including seafood and refrigerated items) · Bakery items 4 The development consent also indicates that the remaining 30 to 40 per cent of the retail display area is expected to include, but not be limited to, the following non-food items:

· Pet care and pet food · Magazines · Audio visual (DVDs, cards, photographic and computer supplies) · Electrical items (toasters, fans, heaters, smoke alarms, irons, light bulbs, clocks, extension leads, power boards and the like) · Beauty and health care products · Baby care products (including nappies and the like) · Pharmaceuticals · Batteries (including torches) · Laundry and cleaning equipment (including buckets, bins, brushes) · Plastic bags and wraps (including garbage bags, tissues, toilet paper, wrap, paper towels and the like) · Household cleaning products (including pest control items) · Clothes · Manchester · Gardening items · Cigarettes/tobacco items · Toys · Car care products · Hardware items · Fresh flowers · Miscellaneous items

5 The gross area of the proposed supermarket building is approximately 3,011 square metres. The supermarket will have a parking area at ground level providing 85 car parking spaces to the south of the building. A further four car parking spaces for staff will be provided at the north of the building together with a loading dock and manoeuvring area. The supermarket will have no more than 20 staff on duty at any one time and will operate from 7:00 am to 9:00 pm on Thursdays and 7:00 am to 7:00 pm on other days.

Issue 1: Is the supermarket a "general store"? 6 The first issue raised by Hastings Co-operative relates to the classification of the development under the Hastings Local Environmental Plan 2001 and, specifically, whether the proposed development is a "shop" or a "general store" for the purposes of that plan. Shops, other than those referred to in Sch 2 of the Hastings Local Environmental Plan, are prohibited in the relevant zone, whereas general stores are permissible with development consent. The classification of a development as permissible or prohibited is jurisdictional and is to be determined objectively: see Chambers v Maclean Shire Council [2003] NSWCA 100; (2003) 57 NSWLR 152 at [45]-[46]. The proposed supermarket is not a commercial premises of the kind in Sch 2, namely, it is not a "Delicatessen, Financial institution, Mortuary, Newsagency, Take-away foodshop" or "Veterinary establishment". 7 The Dictionary to the Hastings Local Environmental Plan defines the relevant terms as follows: " general store means a shop used for the sale by retail of general merchandise and which may include the facilities of a post office.

shop means a building or place used for the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials, but (in the table to clause 9) does not include a building or place elsewhere specifically defined in this Dictionary or a building or place used for a land use elsewhere specifically defined in this Dictionary." 8 It is clear from the definitions above that the essential difference between a "shop" and a "general store" is that a "shop" offers for sale by retail "goods, merchandise or materials" and a "general store" offers for retail "general merchandise". Hastings Co-operative rightly submits that, as there is little difference between goods, merchandise and materials, the significant difference between the definitions comes from the use of the word "general". 9 This distinction was discussed in Maryland Development Co Pty Ltd v Penrith City Council [2001] NSWLEC 135; (2001) 115 LGERA 75. In that case, Sheahan J dealt with definitions of "shop" and "general store" which are directly comparable to the definitions in this case (see 79 [15]). His Honour said (at 103 [127]-[128]): "The operative element of the statutory definition is the retailing of 'general merchandise'. It is that concept which distinguishes 'general store' from 'shop'." 10 Mr M G Craig QC and Mr M A Staunton, appearing for Hastings Co-operative, submit that the merchandise to be offered at the proposed supermarket is not "general merchandise" and that the proposed supermarket should therefore have been characterised as a "shop" and not a "general store". Mr Craig submits that even though the supermarket will offer a large number and range of merchandise, that merchandise all falls within the specific category of "food and household items", and it would be incorrect to describe the range of merchandise as general or not restricted.

Relevant authorities 11 In Maryland, Sheahan J considered a development of a 3,800 square metre supermarket building which was to devote 66 per cent of its retail floor space to food and drink and to sell the following range of products (at 102-103 [120]): " Garden Products Electrical Stationery Clothing Video Cleaning products Grocery items Health products Beauty products Asian foods Gourmet foods Health foods Bakery Patisserie Chicken Fish Bakery Butcher Fresh produce Frozen foods " 12 Sheahan J said (at 104 [132]): "The definition [of general store] does not distinguish between food and other merchandise, nor does it limit size, nor specify predominance or non-predominance of various product lines, such as food. The definition is satisfied where a range and variety of product lines are offered for sale by retail … The range of goods for sale here is clearly 'general merchandise'." 13 However, Sheahan J was not required to rule on whether the Council's characterisation of the proposed development as a "general store" in that case was correct. Rather, he was determining the question of whether the Council's classification of the development as a general store was reasonably open to it. His Honour did, however, indicate that he would have come to that conclusion (at 104 [135]): "The council had to choose between 'general store' and 'shop' as the correct characterisation, and the choice of "general store" was not only justifiable on the material before it, and therefore reasonably open to it, but probably correct."

14 In Snowside Pty Ltd v Holroyd City Council [2003] NSWLEC 136; (2003) 126 LGERA 279, Bignold J also considered whether a development could be categorised as a "general store". In that case, the phrase "general store" was defined in exactly the same terms as in the Hastings Local Environmental Plan (see 293 [66]). The development in question was a Bunnings store with a total retail area of 11,970 square metres. The development anticipated the sale of the following product categories (at 282 [3]): " Timber and building boards Power and hand tools Builders hardware Electrical goods and supplies Bulk building supplies Plumbing supplies Nursery and bulk garden supplies Hire equipment Paint Timber flooring" 15 After detailed consideration of Maryland, Bignold J held that the proposed development did not involve the sale by retail of "general merchandise" because (at 295 [82]): "[D]espite the immense range of goods, they are goods that clearly are of a specialty nature where that specialty is quite narrowly confined to (i) the building and construction industry; and (ii) the household improvement and decoration."

16 Accordingly, Bignold J held that the proposed development was not properly characterised as a general store.

Application of the authorities 17 Mr Craig submits that Snowside applies to the present case and, if the merchandise in the proposed Bunnings store was specialty merchandise, being narrowly confined to "the building and construction industry" and "household improvement and decoration" then it would follow that the merchandise to be provided at the proposed supermarket is specialty merchandise because it is narrowly confined to "food and household items". 18 I agree with Mr Craig that, with the exception of perhaps car care products, the items to be sold at the proposed supermarket could broadly be categorised as "food and household items". This categorisation, however, is artificial and inappropriate when regard is had to the only limitation in the definition of "general store". What is required by the definition is the sale of "general merchandise". I do not believe that the broad characterisation of the merchandise as "food and household items" necessarily means that they are not "general merchandise". 19 Characterisation of merchandise as "general merchandise" will necessarily involve matters of fact and degree: see Shire of Perth v O'Keefe (1963) 110 CLR 529. The distinction between "general merchandise" and "specialty merchandise" needs to be drawn for the purposes of the definition, and, in my view, unlike the Bunnings store in Snowside, the proposed supermarket falls on the "general" side of that distinction. 20 As noted by Sheahan J in Maryland at 104 [132], the definition is satisfied where a range and variety of product lines are offered for sale by retail. In the present case, it seems to me that the supermarket does offer a range and variety of product lines, and that they are by no means specialised merely because they may broadly be categorised as "food and household items". Moreover, unlike the Bunnings store in Snowside, the proposed supermarket is not seeking to supply particular industries or cater for particular activities. 21 This view finds support in the conclusion reached by Sheahan J in Maryland. His Honour indicated (at 104 [135]) that he would have classified the proposed development in that case as a "general store". I respectfully agree with his Honour's view and note that the facts in that case are not distinguishable from the facts in this case. If anything, the proposed merchandise to be sold at the supermarket in question are broader than the merchandise considered in Maryland. In that case, the facts indicate that the items proposed to be sold did not include such items as photographic supplies, computer supplies, manchester, toys and car care products, all of which would be "general merchandise". 22 In agreeing with Sheahan J, I accept that his observations were obiter dictum because his Honour did not ultimately have to decide the point. I do, however, consider them to be highly persuasive, and note they were also considered in detail by Bignold J in Snowside (at 293-5 [68] - [79]).

Conclusion 23 Having regard to the broad range of merchandise which will be sold at the proposed supermarket, it is my view that the merchandise is general rather than specific in nature, particularly the range of non-food items. I conclude, therefore, that the proposed supermarket in the present case is, for the purposes of the Hastings Local Environmental Plan, correctly characterised by the Council as a "general store".

Issue 2: Is the supermarket a "shop" and therefore prohibited in the relevant zone? 24 The second issue is whether a "general store" is, nevertheless, a species of "shop" under the zoning table for the relevant zone, namely 4(b) Service Industrial in the Hastings Local Environmental Plan. Development for the purpose of "shops" is prohibited in that zone: cl 9. The zoning table is relevantly as follows: "Zone 4(b) Service Industrial

Zone objectives (a) To provide land for the establishment of services and light industry appropriate to the locality.

(b) To enable a range of light industrial and related service land uses, without unduly detracting from the retail strength of existing business districts.

(d) To enable appropriate development where allowed with consent.

Allowed without development consent Nil

Allowed only with development consent Any development not included in Item 3.

Prohibited Development for the purpose of: Aeroplane landing areas Airline terminals Bed and breakfast establishments Boarding houses Brothels Caravan parks Cluster housing Commercial premises (other than those referred to in Schedule 2) Dual occupancies Exhibition homes Extractive industries Forestry Home businesses Hospitals Hotels Industries (other than light industries) Institutions Junk yards Liquid fuel depots Medical Centres Mines Motels Neighbourhood centres Recreation establishments Roadside stalls Rural workers' dwellings Saw mills Shops (other than those referred to in Schedule 2) Single dwellings (except those used in association with other development not prohibited by this Item and attached to a building used for that development) Stock and sale yards Tourist facilities"

(emphasis added) 25 As noted in par [6] above, Sch 2 of the Hastings Local Environmental Plan is as follows: "Schedule 2 Specified commercial premises Delicatessen Financial Institution Mortuary Newsagency Take-away foodshop Veterinary establishment" 26 The proposed supermarket clearly does not fall within any of the above exceptions in Sch 2. Hence, if the proposed supermarket, although a "general store", is correctly characterised as a "shop" as defined in the dictionary to the Hastings Local Environmental Plan, it would be prohibited by cl 9.

Contentions 27 Mr Craig first submits that a "general store" is a species of shop because the first words of the definition indicate that it "means a shop": "general store means a shop used for the sale by retail of general merchandise and which may include the facilities of a post office."

(emphasis added) 28 Secondly, Mr Craig submits that on a contextual interpretation of cl 9, it would be contrary to the apparent intent of the table in cl 9 to have the limited provision of shops confined to those in Sch 2, but otherwise allow a further kind of "shop" in the form of a "general store". 29 In support of this submission, Mr Craig relies upon the judgment of McColl JA in Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at 388-389 where, after summarising the principles applicable to interpreting environmental planning instruments, McColl JA states that the meaning of the definitions provided in planning instruments depend on the context in which they appear, considered as a whole. In support of this principle, her Honour cites the judgment of McHugh J in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at 253 [103]: "[T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment … [O]nce … the definition applies, … the only proper … course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment … [T]he true purpose of an interpretation or definition clause [is that it] shortens, but is part of, the text of the substantive enactment to which it applies." 30 Mr Craig also relies upon cl 6(1) of the Hastings Local Environmental Plan, which indicates that in interpreting the Plan, the terms have the meaning as defined in the Dictionary "unless the context or subject-matter indicates otherwise".

31 Mr Craig submits that the Council's interpretation of the word "shop" would defeat the meaning required by the context. Mr Craig relies upon the following contextual indicators from cl 9: (a) the land use table for zones 1(a3) Rural Agricultural Protection, 1(a4) Rural Agricultural Protection and 1(i) Rural Residential Investigation, where "general stores" are expressly permissible and "shops" are not; (b) the land use table for zone 4(t) Industrial Technology, where "shops" are expressly permissible and "general stores" are not; (c) the land use table for zones 3(b) Special Business and 4(a) General Industrial, where "shops (other than those referred to in Sch 2)" are prohibited and no mention is made of "general stores". 32 Mr Craig submits that in comparing the approach taken by the draftsperson in relation to the tables mentioned in (a) and (b) above, with the approach taken by the draftsperson for the tables mentioned in (c) above, it becomes apparent that the intent in the latter mentioned tables was to confine the kind of shop permissible to a delicatessen, newsagency or take-away food shop. 33 Also on this point, Mr Craig submits that the Court would not be construing the Hastings Local Environmental Plan in context if it allowed the proposed supermarket to be permissible in the 4(b) Service Industrial zone, in circumstances where the Plan specifically excludes "neighbourhood centres" and all "shops" other than a delicatessen, newsagency or take-away food shop. Mr Craig also points to the table in cl 9 for zone 4(a) General Industrial, which, for current purposes, has the same prohibitions as the table for zone 4(b) Service Industrial. The phrase "neighbourhood centre" is defined in the Dictionary to the Hastings Local Environmental Plan as follows: " neighbourhood centre means an integrated development containing shops and commercial premises which serve the local community and are limited in scale, with ancillary parking and landscaping and whether or not it also contains development for the purpose of a bus station, child care centre, club, community facility, dwelling attached to other buildings, hotel, place of assembly, place of public worship, medical centre, public building, recreation facility, refreshment room, retail plant nursery or service station." 34 Mr Craig also relies on cl 4(f) of the Hastings Local Environmental Plan, which provides that an express aim of the Plan is to strengthen "retail hierarchies". Mr Craig submits that the objectives in the table for zone 4(b) Service Industrial, along with zones 3(b) Special Business and 4(a) General Industrial as noted in par 31 above, is to limit the shops in those zones to the lowest end of the retail hierarchy in pursuance of that aim. In support, Mr Craig has drawn my attention to the economic impact assessment report, which indicates that the supermarket will generate turnover of approximately $22.4M, which would constitute around 65% of the spending available in the Wauchope trade area. I regard this consideration with considerable caution, however, since it risks a slide into impermissible merits review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42, Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [79].

Conclusion 35 I am not persuaded by the submissions on behalf of Hastings Co-operative. 36 Although a "general store" is described as a "shop" in the Dictionary to the Hastings Local Environmental Plan, the definition of "shop" in the Dictionary to the Hastings Local Environmental Plan expressly excludes a "general store" from that definition where it is referred to in the table to cl 9. The definition is as follows: " shop means a building or place used for the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials, but (in the table to clause 9) does not include a building or place elsewhere specifically defined in this Dictionary or a building or place used for a land use elsewhere specifically defined in this Dictionary. "

(emphasis added) 37 Under the Hastings Local Environmental Plan, the phrase "general store" is "elsewhere specifically defined". Further, the word "shop" is being construed "in the table to cl 9" and that phrase must be given appropriate work to do. Hence, the word "shop" in the table does not include a "general store", and the supermarket is therefore not a "shop". 38 I accept that this definition needs to be construed in context, but note that there are contextual factors in support of the express language of this definition. 39 Elsewhere in cl 9, the draftsperson has employed the tool of specific reference in the one zoning table to both "general store" and "shop", thereby drawing a clear distinction between them. Namely, the table for the 2 (t2) Tourist - Restricted zone includes "general stores" and "shops" separately on the list of developments allowed only with development consent. If the draftsperson intended to include the definition of "general store" within the definition of "shop" in cl 9, there would have been no purpose in listing "general store" separately in that table. 40 As to the argument in par [33] above, I am not persuaded that there is a contextual problem with allowing the proposed supermarket whilst prohibiting "neighbourhood centres" and all "shops" other than a delicatessen, newsagency or take-away food shop. I note that under Pt 2 of the zoning table in question, it can be inferred that the "retailing of bulky goods" would also be allowed with development consent in the 4(b) zone. The definition of this phrase appears in the Dictionary to the Hastings Local Environmental Plan as follows: " Retailing of bulky goods means use of land for the sale by retail or auction, or the hire or display, of articles which are of such a size, shape or weight as to require: (a) a large area for handling, storage or display, or (b) direct vehicular access to the premises by members of the public for the purpose of loading articles into their vehicles after purchase. Use of the land may include: (a) plant sales and hire (which may include associated repairs and service), and (b) vehicle part and accessory sales (which may include fitting), and (c) the sale of hardware, or landscaping or building supplies, and (d) the sale of furniture, floor coverings, light fittings, large electrical goods, swimming pools, spas or camping equipment. It does not include use of land for the sale of clothing or foodstuffs, or a motor showroom." 41 Objective (d) of the relevant zone is to "enable appropriate development where allowed with consent", and I am not persuaded that the establishment of the supermarket would undermine retail hierarchies in a way that is inconsistent with cl 4(f) noted in par [34] above, or the objectives of the relevant zone extracted in par [24] above. I do not believe that the Plan requires stores at the lower end of the retail hierarchy. I have come to this view because, firstly, the Plan allows the "retailing of bulky goods" in that zone and, secondly, the subject site is located only 300 metres from the Wauchope post office and is adjacent to the Wauchope railway station. Even if I were wrong on this point, there are numerous difficulties with ousting the primacy of the text of a local environmental plan in aid of the objectives of that plan: Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [10]. 42 I am thus not persuaded that a "general store" is a species of "shop" for the purposes of the zone 4(b) Service Industrial table in cl 9 of the Hastings Local Environmental Plan. I find therefore that the Council did not make an error granting consent to the proposed supermarket. Whilst it may seem artificial to some that a supermarket such as that which is proposed can be classified as a general store, this conclusion necessarily follows from the definition in the Dictionary to the Hastings Local Environmental Plan. When words are defined in legislation or in statutory instruments, they amount, in effect, to an artificial meaning of those words solely for the purpose of the instrument. The ordinary meanings of the defined words have no part to play. Thus, in the artificial world of the artificial definitions adopted in the Dictionary to the Plan, the resultant application of the artificial definitions can lead to seemingly artificial results. It cannot be said that this was not the intention of the draftsperson.

Issue 3: The public notice under section 101 of the Environmental Planning and Assessment Act 43 The conclusion that the development consent is in fact valid has the consequence that it is not necessary to consider the effect of the public notice of the granting of the consent. However, since the effect of the notice was argued, I should briefly indicate my conclusion thereon. 44 The proceedings were commenced more than three months after the date of publication of the notice, contrary to s 101 of the Environmental Planning and Assessment Act 1979, which states: " 101 Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given." 45 It can immediately be seen that the protection afforded to a development consent against a legal challenge to its validity only applies if the public notice is given in accordance with the regulations. 46 The Council published in the Port Macquarie News, a newspaper circulating in the Wauchope area, a notice of development approval in the following form: DA No. Property Description Applicant/Consultant Development Approved 07/0143 LSE: ARTC, All About Planning Supermarket Wallace Street, WAU

47 The notice also states: "The approved development applications and buildings permits mentioned above, are available for inspection free, upon request, at Council's Development and Environment Division, Burrawan Street, Port Macquarie." 48 The Environmental Planning and Assessment Regulation 2000, cl 124 relevantly states: " 124 What are the public notification procedures for the purposes of section 101 of the Act? (1) The granting of a development consent is publicly notified for the purposes of section 101 of the Act if: (a) public notice in a local newspaper is given: (i) by the consent authority, or (ii) if the consent authority is not the council, by the consent authority or the council, and (b) the notice describes the land and the development the subject of the development consent, and (c) the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours: (i) at the consent authority's principal office, or (ii) if the consent authority is not the council, at the consent authority's office or the council's principal office. (2) Nothing in this clause confers a right or entitlement to inspect, make copies of or take extracts from so much of a document that, because of section 12 (1A) of the Local Government Act 1993 a person does not have the right to inspect." 49 The notice, therefore, satisfies sub-cl (1)(a) of the Regulation - it was published in a local newspaper by the consent authority. The notice does not, however, satisfy sub-cl (1)(b) of the Regulation. The description of the land is meaningless. In particular, the letters "LSE: ARTC" are meaningless. And unless one was familiar with the area, the letters "WAU" are also meaningless. 50 The Council submits that the letters "LSE" are a shorthand for "lease", the letters "ARTC" are shorthand for "Australian Rail Track Corporation", and the letters "WAU" are shorthand for Wauchope. These shorthand descriptions are not commonly known, and until I was informed what they meant by the Council's Senior Counsel, I didn't have a clue. A person living in the area may have assumed, however, that the letters "WAU" were shorthand for Wauchope, but this assumption is unlikely to have been made by persons unfamiliar with the area. 51 The evidence shows that the subject land has no street number and forms part of the North Coast railway corridor. The subject land has a frontage to Wallace Street of about 198 metres. The railway corridor has a total length of about 480 metres adjacent to Wallace Street. There are numerous properties fronting onto the opposite side of Wallace Street. 52 As noted by Cowdroy J in De Haas v Williams [2004] NSWLEC 15, (2004) 132 LGERA 195 at [60], the purpose of the advertisement prescribed by s 101 of the Act is to give notice to the public of the granting of development consents to enable the public to investigate the consent and afford an opportunity to question its validity. Cowdroy J said that for this purpose "it is essential that the notice accurately describe the land". 53 In my opinion, the use of shorthand abbreviations which are not in common use and are unlikely to be understood, does not accurately describe the land. In the present case cl 124(1)(b) of the Regulation is not satisfied. The notice which was published is thus ineffective and is not a notice within the meaning of s 101 of the Act. 54 I note that the applicant relies upon a further ground of invalidity, namely that the notice does not state that the development consent is available for public inspection during ordinary office hours. The notice does state, however, that it is available for inspection at the Council's Development and Environment Division, Burrawan Street, Port Macquarie. It is self evident that the office would be open during ordinary office hours. I would not uphold the challenge to the validity of the notice on this ground. 55 If, however, I am wrong in concluding that the notice is ineffective and is not a notice within the meaning of s 101 of the Act, there is the further question of whether a notice, if valid, nevertheless operates as a bar to these proceedings. In my opinion, a valid notice published in accordance with s 101 would not operate to prevent a person from questioning the validity of the consent. I am of this opinion for the following reasons. 56 Section 101 will not protect a manifest defect, in the sense that a decision is not a bona fide attempt to exercise the power, that is does not relate to the subject matter of the legislation, or that it is not reasonably capable of reference to the power given to the decision-maker: R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 ("the Hickman principle"). Neither will it protect a decision in breach of a limitation or requirement which is construed as being of such significance in the legislative scheme that is essential, indispensable, imperative or inviolable: R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248, Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [21]; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707; (2004) 136 LGERA 288 at [81]; Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [77]; Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695; (2005) 147 LGERA 234 at [19], [111] and [112]. 57 The classification of a development as permissible or prohibited is jurisdictional and is answered objectively - not by reference to the subjective opinion of the Council: Pallas Newco at [50], Chambers v Maclean Shire Council at [45] and [46]. As Spigelman CJ observed in Pallas Newco at [46], there is a distinction between a fact that is an "essential preliminary to the decision-making process" and a "fact to be adjudicated upon in the course of the inquiry". The jurisdictional error in Pallas Newco involved a question of classification of the particular use the subject of a development application. The classification is not only distinct but is extrinsic to the process of determining whether consent should be given: Pallas Newco at [50]. 58 The third limb of the Hickman principle will not be satisfied if the decision on its face exceeds jurisdiction, that is, exceeds the limits of the relevant power: Anambah Homes at [122]. The granting of development consent to a development which is prohibited so that the Council does not or did not have the power to grant consent, would in my opinion come within the third limb of the Hickman principle. Moreover, the fact that a proposed development is prohibited would constitute an inviolable restraint upon the exercise by a council of its power to grant consent. In another way, the limitation on the power of the council to grant consent is of such significance in the legislative scheme as to be inviolable or essential so that non-compliance therewith would be legally intolerable: cf Anambah Homes at [160]. Section 101 would not be a bar to a challenge to the validity of such a consent.

Conclusion and final orders 59 The development the subject of the development consent is not prohibited under the local environmental plan, being for the permissible use as defined in that planning instrument of a general store. If, however, the development were prohibited, section 101 of the Act would not preclude a challenge to the validity of the consent. Because of the finding on the first issue, however, the Court makes the following orders:

(2) The applicant must pay the second respondents' costs.

I hereby certify that the preceding 59 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWLEC 99

Chambers v Maclean Shire Council [2003] NSWCA 100; (2003) 57 NSWLR 152 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 De Haas v Williams [2004] NSWLEC 15, (2004) 132 LGERA 195 Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695; (2005) 147 LGERA 234 Maryland Development Co Pty Ltd v Penrith City Council [2001] NSWLEC 135; (2001) 115 LGERA 75; CASES CITED: Matic v Mid- Western Regional Council [2008] NSWLEC 113 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 Shire of Perth v O'Keefe (1963) 110 CLR 529 Snowside Pty Ltd v Holroyd City Council [2003] NSWLEC 136; (2003) 126 LGERA 279 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 Snowside Pty Ltd v Holroyd City Council [2003] NSWLEC 136; (2003) 126 LGERA 279 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707; (2004) 136 LGERA 288

(2004) 132 LGERA 195

(2006) 143 LGERA 277

(2005) 138 LGERA 207

(2005) 147 LGERA 234

(2003) 126 LGERA 279

(2004) 136 LGERA 288

At a glance

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Cases Cited (30)