Manly Council v Malouf

CATCHWORDS : LEASES AND TENANCIES - Premises - Outdoor area - Licensed under specific deed - Whether part of retail shop lease - Approval under s 125 Roads Act - Whether subject to Retail Leases Act - s 125 Roads Act - STATUTES - Interpretation - Generalia specialibus non derogrant - s 125 Roads Act 1993 - Retail Leases Act Retail Leases Act 1994 LEGISLATION CITED : Roads Act 1993 Supreme Court 1970 Bonnington & Co Pty Limited v Lynch (1952) 86 CLR 259; Conoid Pty Limited & Anor v International Theme Park Pty Limited [1999] NSWSC 1138; (1999) 9 BPR 97802 Conservative and Unionist Central Office v Burrell [1982] 1 WLR 522 Delaney v Staples [1992] 1 AC 687 CASES CITED : Maybury v Ploughman (1913) 16 CLR 468 McNamara v Quin [1947] VLR 123 Mowena Pty Limited v Stratis Promotions Pty Limited [2003] NSWCA 376 Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 Simms v Lee (1945) 45 SR (NSW) 352 Turner v York Motors Pty Ltd (1951) 85 CLR 55 PARTIES : Manly Council Michael Malouf t/as Fusion Point FILE NUMBER(S) : CA 40150/04 COUNSEL : A: B Coles QC / R Bellamy R: J Gleeson QC / G Newport / D B Beukes SOLICITORS : A: Abbott Tout, Sydney R: Doyles Construction Lawyers, Sydney

LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 30045/02 FILE NUMBER(S) : LOWER COURT Shaw J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40150/04 SC 30045/02

MASON P HANDLEY JA TOBIAS JA

Thursday 2 September 2004 MANLY COUNCIL v MICHAEL MALOUF t/as FUSION POINT

Mr Malouf, a restaurateur, attained a licence from the Council to occupy four areas of footpath for outdoor dining. Two of these areas were on the footway of a public road and, in respect of these, the licence was granted in conjunction with a two year approval under s 125 Roads Act: a section specifically dealing with approvals to use footways for restaurant purposes. A dispute subsequently arose which, on appeal distilled to two issues: firstly, whether the deed, made pursuant to an approval under the Roads Act, was itself subject to the Retail Leases Act; and secondly, whether an outdoor footway, the subject of its own licence but used in conjunction with a retail shop, was capable of being a 'premises', as defined under the Retail Leases Act.

Held: (per Tobias JA with Mason P agreeing, allowing the appeal) 1. Approval for the use of a footway for dining purposes, made pursuant to s 125 of the Roads Act, is governed by the provisions of that section and operates independently of the Retail Leases Act.

2. The Roads Act exclusively governs a council's power to grant rights of occupation of a public road's footways. As such the Council acted beyond power in granting the respondent a licence, by way of deed, to occupy the footway. Thus, the existence of the deed does not bring the matter within the Retail Leases Act.

3. In any event, an approval to occupy a footway for dining purposes, granted pursuant to the specific provisions of s 125, is unaffected by the Retail Leases Act in virtue of the maxim generalia specialibus non derogrant (general things or words do not derogate from special things or words).

4. (per Tobias JA with Mason P agreeing and also per Handley JA with Mason P agreeing) 'Premises', as defined under the Retail Leases Act, does not include a leases or licenses for bare or vacant land, even if the land is used in conjunction with a lease for a retail shop. As such the deed granting the licence, which was exclusively for the vacant land (ie the footway), did not constitute a 'retail shop lease' as defined. The position would have been different had the deed extended to both the footway and the restaurant.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40150/04 SC 30045/02

MASON P HANDLEY JA TOBIAS JA

Thursday 2 September 2004 MANLY COUNCIL v MICHAEL MALOUF t/as FUSION POINT Judgment 1 MASON P: I agree with the reasons of Tobias JA and with the additional reasons of Handley JA. The orders proposed by Tobias JA should be made. 2 I would point out that these proceedings should have gone directly to the Court of Appeal in light of s 48(1)(vii) of the Supreme Court Act 1970. Judge O'Connor was the presiding member of the Appeal Panel of the Administrative Decisions Tribunal in the present case. 3 HANDLEY JA: This appeal from a decision of Shaw J raises questions concerning the scope of the Retail Leases Act 1994 and its relationship with the Roads Act 1993. Shaw J allowed an appeal by the present respondent from a decision of the Appeal Panel of the Administrative Decisions Tribunal which had reversed a decision of the Retail Leases Division of the Tribunal. The appeal from the Appeal Panel to the Supreme Court is limited to questions of law. 4 On 5 December 2000 Manly Council, purporting to act under s 125 of the Roads Act, granted a licence by Deed to the respondent to use public space adjoining his restaurant at the Corso for the purposes of his restaurant business. Some of that public space was on the footpath of Wentworth Street, and the balance on the Corso Plaza. It was common ground before the Tribunal that the latter space was not part of a public road. This obviously creates problems that I need not consider in view of the conclusion I have reached on the application of the Retail Leases Act. 5 The subject matter of the licence was open space on which the respondent could place chairs, tables, umbrellas and the like (cl 7). These could not be placed on the licensed area before 7 am and were to be removed by midnight (cl 15(q)). There were no permanent improvements on the areas other than the hard pavement. 6 The Retail Division of the Tribunal and Shaw J held that the Deed was a retail shop lease within the Retail Leases Act 1994. The Appeal Panel held that it was not. The question whether a lease or licence of vacant space is within the Retail Leases Act is a question of law. 7 The key definitions in s 3 of the Act are those for "retail shop" and "retail shop lease or lease". The former is defined as meaning premises used for the carrying on of a business specified in Sch 1 or which is used for the carrying on of any business in a retail shopping centre. A retail shopping centre as defined is located within buildings. Schedule 1 contains a long list of businesses, the great majority of which include the word shop (eg antique shops). The relevant business is "restaurants, cafeterias, coffee lounges and other eating places". 8 The word defined in a statute may properly influence the interpretation of the definition. See Conservative and Unionist Central Office v Burrell [1982] 1 WLR 522 CA at 525 per Lawton LJ. As Bennion states (Statutory Interpretation 3rd ed 1997 p 434): "Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court." 9 The citations to this passage include Delaney v Staples [1992] 1 AC 687 at 692 where Lord Browne-Wilkinson said: "The proper answer to this case turns on the special definition of 'wages' in s 7 of the Act. But it is important to approach such definition bearing in mind the normal meaning of the word." 10 This principle applies with special force in the present case because the great majority of the businesses listed in Sch 1 incorporate the word shop which must be used in the Schedule in its ordinary and popular meaning. This is given in the Macquarie Dictionary as "a building where goods are sold retail". Its meaning in the Shorter Oxford Dictionary is "a house or building where goods are made or prepared for sale and sold". 11 Although the relevant part of Sch 1 "restaurants, cafeterias, coffee lounges and other eating places" does not incorporate the word "shop" there is every reason for construing these words as having a similar connotation because of the context in which they appear. This used to be known as the noscitur a sociis rule of construction. 12 A retail shop is defined as meaning "premises" used for particular purposes. The original technical meaning of premises, derived from the Latin praemissa meaning that which comes before, developed from its use as an abbreviation in conveyances and leases. Its popular meaning emerged from this background ("the leased premises"). Its meanings in the Macquarie Dictionary include "a tract of land and a building with the grounds belonging to it". The Shorter Oxford Dictionary shows the popular meaning dating from 1730 as a house or building with its grounds or other appurtenances. 13 The National Security Regulations which restricted the rights of landlords to fix the rent of their premises and recover possession applied to leases of "premises" and three State courts construed this expression in its context as limited to buildings and associated land and held that it did not include vacant land leased as such. When the regulations could no longer be supported by the contracting defence power in peacetime they were replaced by equivalent State legislation. The meaning of premises in the context of that legislation was twice considered by the High Court. In Turner v York Motors Pty Ltd (1951) 85 CLR 55 at 75, after referring to the decisions of the State courts, Dixon J said: "According to Lord Chelmsford, speaking for the Privy Council, the word 'premises' in popular language is applied to buildings … This statement is confirmed by the Oxford New English Dictionary … the word 'premises' is no doubt a vague one but in legislation of this sort there are great advantages in a test of its application which is objective and consists in a readily ascertainable physical fact. Having regard to the history of the provision and the dictionary meaning of the word 'premises', I think that we should adhere to the rule laid down that bare land without buildings, if let for the purpose of occupation as bare land, does not constitute premises." 14 Williams J, who also referred to the three decisions of State courts, said at 83 that they were correct and continued: "The word 'premises' is used in a popular sense and in this sense has a wide meaning. It is wide enough to include bare land. Its true meaning in any particular statute must be ascertained from the context in which it appears and from an examination of the scope and purpose of the statute as a whole. If the word 'premises' in the present definition is intended to include bare land that part of the definition which refers to any land leased with any premises would be otiose. There are cases decided under other Acts in which the same word has been held not to include bare land." 15 Although there was some difference in the reasons given by Dixon J and Williams J for arriving at the conclusion that "premises" in that legislation did not include vacant land the matter was settled the following year by the decision in Bonnington & Co Pty Ltd v Lynch (1952) 86 CLR 259 at 264 in the joint judgment of five justices including Dixon CJ and Williams J where the Court said: "The definition of 'prescribed premises' … has been taken to show that on the land there must be some building or structure or perhaps artificial work, which colloquially might be described as 'premises', and that accordingly vacant or bare land cannot constitute 'prescribed premises'. Such a view was adopted in the Supreme Court of more than one State and to it this Court subscribed in York Motors Pty Ltd v Turner ." 16 These cases are of some assistance although the meaning of premises in this or any other Act largely depends on its context in the particular statute. In this case where the word is used in the definition of retail shop its meaning in that context takes colour from the ordinary meaning of shop as a building where goods are sold. In that context the word "premises" should be understood as used in its narrower meaning of a building or similar structure with any associated land not including vacant or bare land. The critical definition which governs the jurisdiction of the Tribunal is that of "retail shop lease or lease". This is given the exclusive definition ("means"): "… any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop …" 17 This definition also incorporates the words "retail shop" and "premises" and again in this context the word "premises" takes its colour from the fact that they are to be leased for the purpose of being used as a retail shop. The word should again be understood as used in its narrower meaning of a building or similar structure with any associated land not including vacant or bare land. 18 The narrower construction is supported by other definitions in the same section. "Outgoings" are defined as meaning a lessor's outgoings on account of the expenses directly attributable to "the operation, maintenance or repair of the building in which the retail shop is located" and rates, taxes or charges payable by the lessor as the "owner or occupier of any such building or the land on which it is erected". Retail shopping centre is relevantly defined as a cluster of premises located in one building or in two or more buildings. 19 There are a number of sections in the Act which refer to bare land and in every case the word used is either "area" or "land". See s 3 (definition of outgoings), s 23 (areas used in association with building), s 24B (unrelated land), s 26(2) (other land used or available for use by lessees). Similar provisions in the war time and post war landlord and tenant legislation were held to indicate that the word "premises" without more did not include bare land. See Simms v Lee (1945) 45 SR (NSW) 352, 357; McNamara v Quin [1947] VLR 123, 125-6; Turner v York Motors Pty Ltd (1951) 85 CLR 55, 83 per Williams J. 20 I have been unable to identify any provision in the Act where premises has been used to refer to vacant or bare land apart from any building erected on it and used with it. 21 There are a large number of provisions in the Act which are consistent with the narrower meaning of premises. See s 5(c), (d) (lessor's outgoings), s 17 (lessor's fitout), s 19 (current market rent of shop), s 19(1)(d) (lessor to provide information about leases of other shops in same building), s 23 (capital costs of building or areas used in association with building), s 24B(2) (definition of unrelated land as land other than that on which the building is situated or land used for the benefit of lessees in the building), s 25(e) (sinking fund contributions limited to repair or maintenance of a building or plant and equipment of a building in which retail shop located), s 25A(2) (no more than one sinking fund for retail shops in same building), s 25B(2) (sinking fund contributions to be refunded if building in which retail shop is located is destroyed or demolished), s 26 (land tax limited to tax on the land on which the building is situated), s 31(1)(d), (3) (on rent review lessor to supply information about leases of retail shops in same building), s 33 (alterations etc of building of which retail shop forms part), s 35(1) (demolition of building of which retail shop forms part), and s 36 (damaged premises, shop or building of which shop forms part). 22 Prior to the Deed the respondent's restaurant business was conducted within his freehold shop situated in the adjoining building. This, although not leased, was a retail shop as defined in the Act. The effect of the Deed was to extend the area in which the respondent's restaurant business was conducted. Accordingly, during the permitted trading hours of 7 am to midnight, the restaurant comprised the whole area including that licensed under the Deed. 23 In my judgment this fact does not convert into a retail shop lease what, on its own, would not be such a lease. Such a lease is defined as an agreement to grant "a right of occupation of premises for the purpose of the use of the premises as a retail shop". 24 The fair meaning of this language is that the leased premises must themselves be a retail shop, but even if this were thought to be debatable the subject matter of the lease must be premises and in this Act that expression does not include vacant or bare land. In my judgment this Deed was not a retail shop lease merely because the licensed area was to be used in conjunction with a retail shop as defined. 25 Accordingly the Deed did not constitute a retail shop lease and the Tribunal had no jurisdiction under the Retail Leases Act. I would therefore allow the appeal, set aside the decision of Shaw J, and restore the decision of the Appeal Panel of the Tribunal. 26 TOBIAS JA: The respondent, Mr Michael Malouf (Mr Malouf) carries on a restaurant business known as "Fusion Point" at Shop Nos 1-21 Wentworth Street, Manly (the restaurant). The restaurant fronts both Wentworth Street and Rialto Place. 27 Wentworth Street is within the local government area of the appellant, Manly Council (the Council), and is vested in it for an estate in fee simple: Roads Act 1993 s 145(3). Being a public road, the Council is the roads authority with respect thereto: Roads Act, 1993 s 7(4). 28 Rialto Place is also vested in the Council for an estate in fee simple but it is not a public road. Accordingly, it is neither governed by, nor subject to, the Roads Act. 29 Pursuant to a deed made on 5 December 2000 (the deed) between the Council and Mr Malouf, the former granted the latter a licence to occupy four separate areas identified on the plan annexed to the deed and marked "Schedule B". According to the deed those areas were to be used as outdoor eating areas for the restaurant. A maximum of 14 tables and 44 chairs were allowed in the areas. Two of the areas with provision for two and four tables respectively were located on the pavement of the Wentworth Street frontage to the restaurant. The remaining areas with provisions for two tables and six tables respectively were located in, and occupied part of the pavement of, the Rialto Place frontage to the restaurant. I shall refer, as does the deed, to these areas as "the licensed area".

The dispute 30 Affixed to the building in which the restaurant was located and extending along both its Wentworth Street and Rialto Place frontages is an awning, intended to protect pedestrians from inclement weather. At some point of time prior to May 2001, Mr Malouf erected a separate awning over the licensed area located in Rialto Place. It is unclear whether he erected a similar awning over the licensed area located on the Wentworth Street pavement. 31 Nevertheless, the Council's solicitors wrote to Mr Malouf on 24 May 2001 giving notice that he had erected structures in breach of clauses 11 and 15(h) of the deed and requiring them to be removed within 24 hours. Termination of the deed was threatened if the notice was not complied with. 32 Thereafter, employees of the Council kept the restaurant under surveillance (including the licensed areas) and, it was alleged, took photographs and otherwise caused embarrassment and loss of custom to the restaurant. Accordingly, on 18 June 2001, Mr Malouf filed a retail tenancy claim pursuant to s 71(1) of the Retail Leases Act 1994 "the RL Act" with the Administrative Decisions Tribunal (the Tribunal). He initially sought an urgent interim order pursuant to s 72(4) of the RL Act requiring the Council to cease all forms of harassment, loitering and surveillance of the restaurant and the licensed areas and that it be prevented from terminating the deed or otherwise interfering with Mr Malouf's quite enjoyment of his premises. 33 The Council challenged the jurisdiction of the Tribunal to determine Mr Malouf's claims upon the ground that the RL Act did not apply to the deed. Two preliminary questions required determination. The first was whether the deed was subject to the RL Act in light of the provisions of s 125 of the Roads Act. The second was whether the licensed areas were "premises" within the meaning of the definition of "retail shop" in s 3 of the RL Act. 34 The preliminary matters came before Judicial Member Montgomery of the Tribunal in May 2002. On 14 October 2002 the Judicial Member held that the deed could be subject to the RL Act notwithstanding that it purported to be entered into pursuant to s 125 of the Roads Act. It was further held that the licensed areas, or at least those the subject of the dispute between the parties, constituted "premises" and further, that the deed was a "retail shop lease" within the meaning of the definition of that term in s 3: [2002] NSW ADT 200. 35 The Council instituted an appeal against this decision to the Appeal Panel of the Tribunal which, on 16 April 2003, held that the deed did not constitute a "retail shop lease" within the meaning of the definition of that expression because the licensed areas were not "premises". This being so, the Appeal Panel ordered that Mr Malouf's retail tenancy claim be dismissed for want of jurisdiction: [2003] NSW ADTAP 12. Because of the Appeal Panel's finding with respect to the licensed areas, it did not find it necessary to deal with the issue considered by the Judicial Member as to whether in relation to s 125 of the Roads Act displaced the RL Act with respect to the licensed areas on the Wentworth Street frontage to the restaurant. 36 Mr Malouf then appealed from the Appeal Panel's decision to the Supreme Court pursuant to s 119(1) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). That appeal was confined to a question of law. The appeal came before Shaw J who, on 6 February 2004, upheld the appeal and ordered that the Appeal Panel's orders be quashed. It is from that decision that the Council appeals to this Court.

The relevant provisions of the deed 37 The deed, in its operative part, did not expressly contain a grant by the Council to Mr Malouf of a licence to occupy the licensed areas. Nonetheless, it was common ground, at least inferentially, that there was such a grant given the recital to the deed which was in the following terms: "WHEREAS in accordance with Section 125 of the Roads Act, 1993, the Council has agreed to grant to the licensee on the term and conditions hereinafter appearing a Licence (hereinafter called "the Licence") to occupy that part of The Corse, Manly as outlined in red on the plan annexed hereto and marked "Schedule B", showing all measurements in respect of the Outdoor Eating Area (hereinafter called "the licensed area") for the purpose of establishment of an outdoor eating area for the restaurant premises occupied by the Licensee known as Fusion Point (the business) BEING those premises as defined in the Roads Act, 1993, which provide table service within the restaurant or the Licensee agrees to provide facilities for the consumption of food on the Licensee's premises and where the Licensee agrees to extend table service to the outdoor eating area, and WHEREAS Council has calculated that the licensed area measures the dimensions shown on Schedule A annexed hereto to be occupied by the number of tables and chairs as stated on that schedule, illustrated on Schedule B annexed hereto." 38 Clause 3 of the deed provided that the licence was to be for a period of two years commencing 1 December 2000 and expiring 30 November 2002, with a one year option. This is of some significance given that firstly, the fixed term of two years has expired; secondly, if the option was exercised (which is not conceded by the Council) its term has also expired; and thirdly, if the RL Act applies to the deed then s 16 of the RL Act provides that the term of the deed is extended by such a period as may be necessary as to provide a minimum term of five years. This would extend the term of the licence to 30 November 2004 which, if the option were exercised, would then expire on 30 November 2005. 39 The point is that unless the RL Act applies to the deed, its term has expired with the consequence that the Council would be entitled, unless a new deed is granted, to obtain vacant possession of the licensed areas. Accordingly, the disputes that triggered the application to the Tribunal would become academic. 40 The following further provisions of the deed are relevant to the resolution of the appeal: "8. The Licensee agrees to place only the number of tables and chairs indicated on the plan annexed hereto, within only the area indicated on the plan annexed hereto. … … 11. Additional improvements such as lighting, heating, music, barriers or pot plants etc. shall not be installed or used without the specific written approval of Council. 15. The Licensee does hereby covenant with the Council as follows: … (b) The Licensee will not misuse or damage any part of the licensed area or public road or footpath outside the licensed area and he will not obstruct or impede the flow of pedestrian traffic on any part of the public road or footpath including any emergency access route outside the licensed area. … (h) The Licensee shall not make any alterations or additions to the licensed area or erect any structures or fixtures thereon or erect or display any advertisement sign or hoarding therein, except a well designed menu stand that is specifically approved by Council. … (q) The Licensee shall not place any chairs, tables or other equipment on the licensed area before 7.00 am. All chairs tables and other equipment shall be removed from the licensed area when the business is not open to the public for service an will be stored in the Licensee's premises. At no time shall the chairs tables or other equipment remain in the licensed area after midnight unless Council at its sole discretion grants consent."

The Roads Act 1993 41 Part 9 of the Roads Act is headed "Regulation of Works, Structures and Activities". Division 1 is entitled "Footway Restaurants". Its provisions are as follows: "125 Approval to use footway for restaurant purposes (1) A Council may grant an approval that allows a person who conducts a restaurant adjacent to a footway of a public road (being a public road that is vested in fee simple in the Council) to use part of the footway for the purposes of the restaurant. (2) An approval may be granted on such conditions (including conditions as to payments in the nature of rent) as the Council determines. (3) An approval may not be granted in respect of a footway of a classified road except with the concurrence of the RTA. (4) The term of an approval is to be such period (not exceeding 7 years) as is specified in the approval. (5) An approval lapses at the end of its term or, if the part of the footway the subject of the approval ceases to be used for the purposes of a restaurant, when that use ceases. 126. Authority to erect structures (1) A Council: (a) may authorise the holder of an approval to erect and maintain structures in, on or over any part of the footway the subject of the approval, or (b) may, at the request and cost of the holder of the approval, erect and maintain any such structure. (2) … 127. Effect of approval While an approval is in force: (a) the use of the footway for the purposes of a restaurant, and (b) the erection and maintenance of structures on the footway in accordance with an authorisation given in respect of the approval, are taken not to constitute a public nuisance and do not give rise to an offence against this or any other Act." 42 Division 3 of Part 9 is headed "Other Works and Structures". Section 138 "prohibits a person from erecting a structure on or over a public road otherwise than with the consent of the appropriate roads authority". Section 139 "provides that a consent under Division 3 may be granted by the roads authority on the application of any person and may be granted on such conditions as the appropriate roads authority thinks fit". Section 139A is relevantly in the following terms: "(1) A roads authority, in granting consent under this Division to the erection of a structure in, on or over a public road and located in a built-up area, may, without limiting section 139, impose conditions: (a) permitting the use of the structure for the purpose of selling any article or service, and (b) requiring payments in the nature of rent. (2) The term of a street vending consent is to be such period (not exceeding 7 years) as is specified in the consent."

The Retail Leases Act 1994 43 Division 3 of Part 8 of the RL Act is headed "Determination of claims by an administrative decisions tribunal". Section 71 empowers a party to a "retail shop lease" to lodge a "retail tenancy claim" in respect of the lease with the Tribunal for the determination of the claim. Section 70 defines "retail tenancy claim" to mean, relevantly, "a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned". Section 72 then sets out the powers of the Tribunal relating to a retail tenancy claim including the power to order a party to pay money whether by way of debt, damages or restitution, to order that specific work be performed, to grant relief against forfeiture and to declare the rights and liabilities of the parties under the law. 44 It will be seen that the Tribunal's jurisdiction to entertain a "retail tenancy claim" pursuant to s 71(1) of the RL Act is dependant upon that claim being in respect of a "retail shop lease". That expression is defined in s 3 of the RL Act to mean "any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop: (a) whether or not the right is a right of exclusive occupation, and (b) whether the agreement is express or implied, and (c) whether the agreement is oral or in writing, or partly oral and partly in writing."

It is thus apparent and is not disputed, that a " retail shop lease " includes a right of occupation of premises for the purpose of their use as a retail shop pursuant to a licence. 45 Critically for present purposes is the definition of "retail shop". I shall set it out in full: " Retail shop means premises that: (a) are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 (whether or not in a retail shopping centre), or (b) are used for the carrying on of any business (whether or not a business specified in Schedule 1) in a retail shopping centre." 46 Schedule 1 to the RL Act is headed "Retail Shop Businesses". Relevantly, it includes: "Restaurants, cafeterias, coffee lounges and other eating places."

The decision of the primary judge 47 The primary judge considered that the licensed areas constituted an "eating place" within the meaning of that part of Schedule 1 which I have extracted in [24] above. After referring to what this Court said in Mowena Pty Limited v Stratis Promotions Pty Limited [2003] NSWCA 376 at [49] and certain of Sir Owen Dixon's observations in Turner v York Motors Pty Limited (1951) 85 CLR 55 at 75, his Honour said (at [11]): "Having regard to the history of the provision and the dictionary meaning of the word 'premises', I think that we should adhere to the rule laid down that bare land, without buildings, if let for the purpose of occupation as bare land does not constitute 'premises'. It is clear that the term 'premises' is not a precise word. I am of the view that the observations of Dixon J have to be seen in the context of the National Security (War Service Moratorium) Regulations and the Landlord and Tenant (Amendment) Act 1948 (NSW). On their face, these words do not represent a conclusive or universal view of what are 'premises' in all of the possible legislative meanings of that term. Black's Law Dictionary (7th edition) indicates that 'premises' means 'a house or building, along with its ground…'. It has been held that 'premises' include a pleasure garden occupied with a dwelling house for the purpose of rating for water supply: Bristol Waterworks Co v Uren (1885) QBD 637. In that case, the English court took what seems to me to be a practical view that a dwelling house with appurtenances may be regarded as a single entity." 48 The primary judge then concluded (at [12]) that it would be "artificial" to hold that the licensed areas did not constitute "premises" within the meaning of the definition of "retail shop". His Honour then considered the effect of s 125 of the Roads Act and noted that that Act preceded the enactment of the RL Act. He then continued (at [14]): "…However, it seems to me that it is unlikely that the Legislature intended that that provision meant that such a footway restaurant was not part of the premises for the purposes of a retail shop lease within the meaning of the 1994 statute. The Legislature could have excluded such areas from the broad definition of retail shop lease under the 1994 legislation but it did not do so. I do not perceive any repugnancy or difficulty in construing the broad and subsequent definition in the 1994 Act of "retail shop lease" as comprehending an outdoor area which is adjacent to an established restaurant or other eating facility. In my opinion the Retail Leases Division of the tribunal was correct in its primary decision: Malouf v Manly Council (No. 2) [2002] NSWADT 2000." 49 His Honour then noted that the RL Act was "beneficial legislation" and that, although it envisages the possibility of penalties, it should be given a broad construction. He therefore concluded in these terms (at [22]): "It seems to me that any ambiguity in the use of that term should be resolved in favour of giving the possibility of a remedy before a tribunal rather than to deny it, and accordingly I would uphold the submission that the tribunal does have appropriate jurisdiction to hear and determine on its merits the claim brought by Mr Malouf."

The submissions of the parties 50 The Council submitted that as the deed had been purported to have been made pursuant to s 125 of the Roads Act, it constituted an approval within the meaning of that section as a consequence whereof the nature and extent of the rights between the parties were exclusively governed by the section. It was further submitted that there was nothing in the RL Act that purported to interfere with approvals granted pursuant to s 125 or, for that matter, consents granted pursuant to s 139A of the Roads Act. The deed was merely a mechanism adopted by the parties to impose conditions upon the approval pursuant to s 125(2). It would be inappropriate to construe the RL Act as applying to public roads governed by the Roads Act unless, either expressly or by necessary implication, such a construction was demonstrated. The conferral of rights of occupation pursuant to an approval granted under s 125 was limited and would need to be considered in light of the objects of the Roads Act to provide members of the public with the right to pass along public roads. The RL Act would frustrate that objective if it were found to apply to an approval granted pursuant to s 125. 51 In addition, it was submitted by the Council that the licensed areas were not "premises" within the meaning of the definition of "retail shop" as a consideration of the RL Act as a whole made it clear that its reference to "premises" was confined to retail shop premises and that such premises were, as a matter of ordinary parlance, confined to buildings. Furthermore, the licensed areas in the present case only permitted activities which were ancillary to the restaurant whereas the RL Act was intended to apply to premises in which the relevant business was carried on which, in this case, was the restaurant and not the licensed areas. Although the licensed areas were used for purposes ancillary to the business, the business itself was not carried out within those areas. Furthermore, the recital to the deed made it clear that the licensed areas were not to be used for the purpose of a "retail shop" but only as an adjunct to the adjacent restaurant, the existence of which was a necessary pre-condition to the grant of an approval pursuant to s 125(1) of the Roads Act. 52 Finally, it was to be noted that practically all the businesses referred to in Schedule 1 to the RL Act refer to "shops" and not, for instance, to "stalls". Accordingly, when taken in conjunction with various provisions of the RL Act, it was clear that the word "premises", where used in the definition of "retail shop", was used in the well-understood sense of part of a building or some type of built structure. Accordingly, the Appeal Panel was correct when it held (at [40]) that the legislature's reference to "premises" in the definition of "retail shop" was not "intended to embrace any more than circumstances where landlords had authorised the occupation of a built structure (and its appurtenances) for use for retail trade." 53 Mr Malouf submitted that notwithstanding that Dixon J in Turner had said (at 75) that "bare land without buildings, if let for the purpose of occupation as bare land, does not constitute premises",

as in the present case the licensed areas were let not for the purpose of occupation as bare land but for the purpose of carrying on the restaurant business thereon. The restaurant was clearly " premises " and the licensed areas were intended to be part of the restaurant. Accordingly, it was part of the restaurant premises and, therefore, " premises " within the meaning of the definition. 54 Further, if the legislature had intended that a "retail shop" could only be within a building or similar structure, it would not have used the word "premises" but would have made its intention clear. The fact that it did not indicates that the word "premises" was to have a broad connotation and was not to be confined to an area within a building or other structure. 55 Finally, Mr Malouf submitted that there was no incompatibility between the RL Act and the Roads Act. The deed constituted both an approval under the Roads Act and a contractual licence. The two could stand together.

The effect of the Roads Act 56 In my opinion, Division 1 of Part 9 of the Roads Act does not contemplate what occurred in the present case. Section 125 only empowers a Council to grant an approval subject to such conditions as it determines. Section 139A is to the same effect although it contemplates the granting of a consent as distinct from an approval. Importantly, each involves a "grant" thereby referring to a unilateral exercise of power by a Council. Notably, there is no reference to the approval being the subject of, or granted in conjunction with, a consensual agreement such as a licence. Accordingly, in my opinion, the deed, insofar as it created a contractual relationship between the parties, was entered into by the Council pursuant to its general powers rather than pursuant to s 125(1). It thus appears that the Council did two things. Firstly, it granted an approval pursuant to s 125(1) subject to conditions imposed thereon under s 125(2) and, secondly and independently, it entered into a license agreement. 57 In my view, the approval operates in accordance with s 125 of the Roads Act and the rights and obligations of the Council and Mr Malouf are governed thereby. The contractual arrangements set out in the deed operate independently according to their terms. 58 The foregoing explains why the RL Act makes no reference to an approval granted pursuant to s 125 of the Roads Act. As I have noted, the primary judge (at [14]) observed that the legislature could have excluded "footway restaurants" from the RL Act by including them in the list of retail shops nominated in s 5 as being excluded from the operation of the Act or by excluding them under a regulation: see s 5(e). However, in my opinion this was unnecessary. Section 125 concerned only the grant of an approval. The RL Act relevantly only applies where there is a "retail shop lease" which is predicated upon an agreement, albeit one under which a person grants or agrees to grant to another person a particular right of occupation. Had the Council done no more than grant an approval pursuant to s 125 of the Roads Act with respect to the licensed areas in Wentworth Street, no issue under the RL Act would have arisen. It only arises because the terms of the deed encompass not only the licensed areas in Wentworth Street but also those in Rialto Place. 59 Assuming that the deed is a "retail shop lease" within the meaning of the RL Act and subject to what I say in [61] below, I do not consider that the Roads Act prevents the operation of the RL Act upon the deed. Insofar as the Council has granted an approval pursuant to s 125 with respect to the licensed areas located upon the pavement of Wentworth Street, the rights and obligations of the Council and Mr Malouf are, as I have already observed, governed by the provisions of s 125. Accordingly, the term of that approval is only two years being within the meaning of s 125(4) the term "specified in the approval". It therefore expired on 30 November 2002. Section 125(4) makes no provision for the granting of an option to renew a term so specified. 60 The provisions of s 125(5) confirm the foregoing. They provide, relevantly, that an approval lapses at the end of its term. By force of the statute therefore, the approval in question lapsed, as I have observed, on 30 November 2002 and has never been regranted. Accordingly, to the extent to which the continued use by Mr Malouf of the licensed areas in Wentworth Street causes any obstruction to the public, he no longer has the protection of s 127. If the obstruction of the pavement by the placement of tables and chairs continues, then the Council may issue a direction for the removal thereof pursuant to s 107 of the Roads Act. Failure, without reasonable excuse, to comply with such a direction is an offence: s 239. 61 However, I would go further. Except to the limited extent permitted by Division 2 of Part 10 of the Roads Act, in my opinion a council has no power to grant a lease or licence to permit the private use or occupation of any part of a public road of which it is the roads authority. The Roads Act exclusively governs its powers with respect to such roads: see s 7(5). Although it is empowered to grant an approval or consent pursuant and subject to s 125 and s 139A respectively, that is the extent of its power to grant rights of private occupation of any part of a public road. In the present case, the purported grant of a licence with respect to part of the footway of Wentworth Street was, in my opinion, beyond power. Subject to any issue about severance, the Council only had power to grant the licence the subject of the deed with respect to Rialto Place. 62 It is thus strictly unnecessary to consider the application of the maxim generalia specialibus non derogant. It was submitted that the maxim would apply in the present case upon the basis that the RL Act contained general provisions whereas s 125 of the Roads Act contained a special provision dealing with a use of a footway of a public road in particular circumstances. It is well-known that the approach adopted by the courts to resolve such conflicts was stated succinctly by O'Connor J in Goodwin v Phillips (1908) 7 CLR 1 at 14: "Where there is a general provision which, if applied in its entirety, would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision and the general provision, insofar as it is inconsistent with the special provision, must be deemed not to apply." 63 Again, the rationale underlying this approach was stated by Barton A-CJ in Maybury v Ploughman (1913) 16 CLR 468 at 473-4 in these terms: "The judgment under appeal turns upon the application of the principle involved in the maxim generalia specialibus non derogant to cases in which the legislature, after having dealt specially with a particular matter, has afterwards passed an enactment in general terms wide enough to repeal, or supersede, or qualify the original provision …I wish to quote a passage from the judgment of Wood V-C in Fitzgerald v Champneys 2 J&H 31 at 54, quoted by Stirling J in Re Smith's Estate; Clements v Ward (1887) 35 Ch D 589 at 595. 'The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated.' " 64 The relevant principles were restated by Kirby P, with whom Clarke and Handley JJA agreed, in Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 at 293-294. In particular, the President noted (at 294 C-D) that: "[I]n the absence of express repeal of earlier or other statutory provisions, it will normally be presumed that Parliament intended the two statutes to work harmoniously together so that each operates within its respective field of application." 65 In my opinion, the maxim would apply in the present case. Section 125 of the Roads Act applies only to, firstly, part of a footway of a public road the fee simple of which is vested in a Council; secondly, where a person conducts a restaurant adjacent to the footway; and thirdly, to the use of the relevant part of the footway for the purposes of that same restaurant. It is indeed a special case. On the other hand, the RL Act applies to all "retail shop leases" as defined in circumstances where, firstly, it is not confined to a "retail shop" located upon part of the footway of a public road and, secondly, it is not confined to the business of a restaurant but extends, as Schedule 1 to the RL Act makes clear, to over 130 different retail businesses of which a restaurant is but one. It therefore follows that for this additional reason, an approval granted pursuant to s 125 is unaffected by the RL Act which has no application to it with the consequences in the present case to which I have referred.

Is the deed a " retail shop lease "? 66 This issue remains relevant due to the fact that the Roads Act does not affect those parts of the licensed areas located in Rialto Place. The critical question therefore is whether, assuming the deed applies severally to each of the two licensed areas in Rialto Place, those areas, either individually or combined, constitute "premises" within the meaning of the definition of "retail shop" s 3 of the RL Act. 67 Before dealing with this issue, I should say something about the Council's submission that even if the licensed areas are "premises", they are not used wholly or predominantly for the carrying on of one of the business specified in Schedule 1. It will be recollected that the submission was that the relevant business (restaurant) was carried on in the restaurant itself and that the licensed areas were merely ancillary to that business so that "the business" was not relevantly carried on upon those areas. 68 In my opinion this submission should be rejected for the following reasons. Firstly, there can be no doubt that the licensed areas are predominantly used for the purpose of the restaurant. Although the deed provides in clause 15(q) that chairs, tables and other equipment are not to be placed within the licensed areas after 12 midnight and before 7 am during which time those items are to be removed therefrom, it is clearly contemplated that the period between those hours would be when the restaurant business was not open to the public for service. Clearly, in terms of the predominant use of the licensed areas, it is for the purpose of Mr Malouf's business. 69 Secondly, I do not consider that the licensed areas are used merely for purposes ancillary to the restaurant. In its written submissions, the Council exemplified ancillary activities such as parking, the loading or unloading of delivery vehicles, storage of refuse bins and other forms of storage, as the type of the ancillary activities which were not intended by the legislature to be part of the premises, the subject of a retail shop. In my view, the uses of the licensed areas contemplated by the deed are of an entirely different nature to those so exemplified by the Council. The recital to the deed makes it clear that the licensed areas are to be used for the purpose of the establishment of outdoor eating areas for the restaurant and to which table service from the restaurant is to be extended. In these circumstances, the licensed areas are to be used for the purpose, and as an integral part, of the restaurant business. That business is, therefore, to be carried on, at least in part, upon the licensed areas and that, in my view, is sufficient satisfaction of sub-paragraph (a) of the definition of "retail shop". 70 That leaves the question of whether the licensed areas are "premises" within the meaning of the definition. The Council placed reliance upon the following passage of the judgment of Sir Owen Dixon in Turner where, at 75, his Honour said: "The word 'premises' is no doubt a vague one but in legislation of this sort there are great advantages in a test of its application which is objective and consists in a readily ascertainable physical fact. Having regard to the history of the provision and the dictionary meaning of the word 'premises', I think that we should adhere to the rule laid down that bare land without buildings, if let for the purpose of occupation as bare land, does not constitute premises. If land is let upon terms that the tenant shall or may erect buildings which are not removable by him but will pass with the freehold, then I should say that the land and building when erected would form premises." 71 Mr Malouf relied upon the following passage from the judgment of Williams J in the same case where his Honour observed (at 83): "… The word 'premises' is used in a popular sense and in this sense has a wide meaning. It is widen enough to include bare land. Its true meaning in any particular statute must be ascertained from the context in which it appears and from an examination of the scope and purpose of the statue as a whole. If the word 'premises' in the present definition is intended to include bare land that part of the definition which refers to any leased with any premises would be otiose." 72 Turner dealt with the definition of "prescribed premises" in s 8 of the Landlord & Tenant (Amendment) Act 1948. The following year the same provision was the subject of the unanimous decision of the High Court in Bonnington & Co Pty Limited v Lynch (1952) 86 CLR 259 where, in a joint judgment, Dixon CJ, McTiernan, Williams, Webb and Kitto JJ, said in respect of a lease of vacant land which the tenant intended to use as a junkyard (at [264]): "The definition of 'prescribed premises' in s.8 of the Landlord & Tenant (Amendment) Act has been taken to show that on the land there must be some building or structure or perhaps artificial work, which colloquially might be described as 'premises', and that accordingly vacant or bare land cannot constitute 'prescribed premises'. Such a view was adopted in the Supreme Court of more than one State and to it this Court subscribed in York Motors Pty Limited v Turner. " 73 Mr Malouf's submission misunderstood, with respect, what Williams J was saying in Turner. His Honour was correct in opining that the word "premises" when used in its popular sense is wide enough to include bare land. Equally, he was correct in saying that its true meaning in any particular statute must be ascertained from the context in which it appears and from an examination of the scope and purpose of the statute as a whole. In the case with which his Honour was dealing, like Sir Owen Dixon, he held that the word "premises" in the definition in s 8 did not include bare land because of the exclusion from the definition of "prescribed premises" of land leased with any premises. 74 Of course, the objective of the Landlord & Tenant legislation was to protect tenants and it might well be said that the RL Act has a similar objective. As the primary judge observed, the RL Act was "beneficial legislation". Accordingly, it should not be construed narrowly. 75 One can accept for present purposes that most of the definitions in legal and general dictionaries equate the word "premises" with a building or some form of built structure. Equally, a "shop" is generally defined in a manner which connotes a built structure. Whether that is so in the present case depends upon a consideration of scope and purpose of the RL Act. 76 The only decision that relates directly to this aspect of the RL Act is that of Simos J in Conoid Pty Limited & Anor v International Theme Park Pty Limited [1999] NSWSC 1138; (1999) 9 BPR 97802. In that case, the plaintiffs entered into agreements with the defendant for the grant of concessions to enable the former to operate certain photographic activities. The premises housing the concessions consisted of wooden structures with the exception of one, which was a converted VW Kombi van, which rested on wheels with metal stands next to each wheel. One of the issues was whether concessions were retail shops within them meaning of the RL Act. 77 Simos J held (at [53]) that, with the possible exception of the VW Kombi van, the premises in which the plaintiffs carried on their businesses were "shops" within the ordinary, natural meaning of that word. That was because the word "shop" was generally defined as "a building where goods are sold retail" and his Honour was of the view that the structures within which the businesses were carried on were properly described as "buildings". 78 Simos J was also of the view that the VW Kombi van could also be described as a "building" for the purpose of the definition of "shop" contained in the Macquarie Dictionary, 3rd ed. He then said (at [59]): "The van is plainly used as a permanent fixed structure or room with roof and walls providing protection from the elements in which photographs are sold by retail. In those circumstances, in my opinion, it is appropriate for present purposes , that is, for the purposes of the Act, to regard the van as a "shop". In my opinion the legislative purpose underlying the Act is, relevantly, in this context, that the Act should cover all enclosed places (cf. stalls) in which goods and/or services are sold by retail, and which are the subject of leases or licences, regardless of whether those places may be strictly called "buildings" or not. This underlying legislative purpose is, in my opinion, manifested, inter alia, in the definition of "retail shop" in section 3 of the Act which incorporates Schedule 1 to the Act from which definition and Schedule it is plain that the legislature's principal relevant focus of attention in this connection was the (retail) business being carried on, and not the particular nature of the premises in which it was being carried on. Accordingly, I find that the V.W. Kombi van used to operate the Beastie Ride Photo concession is a "shop" within them meaning of the definition of "retail shop" contained in section 3 of the Act." (original emphasis) 79 In Conoid his Honour was not of course concerned with a vacant area dissociated from any structure as in the present case. Accordingly, he did not have to directly address the issue with which I am concerned. His statement in [59] of his judgment that the legislative purpose underlying the RL Act was that it should cover all enclosed spaces in which goods and/or services were sold by retail was, in effect, prefaced by the expression "relevantly, in this context, ". There can be no doubt that the legislative purpose referred to by his Honour is correct; the question is whether it is confined to enclosed places. 80 Of more moment is his Honour's statement that the legislature's principal relevant focus of attention is the business being carried on rather than "the particular nature of the premises in which it was being carried on", which I take to be a reference to the physical state of the premises. The definition of "retail shop lease" is concerned with the occupation of premises for a particular purpose. The definition of "retail shop" is also principally concerned with the use of the premises for the carrying on of one or more of the businesses described in Schedule 1. On one view, provided that the premises are occupied for the purpose of the relevant use and that use is wholly or predominantly for the carrying on of a Schedule 1 business, it matters not whether it is carried on within a building or other structure or upon a vacant parcel of land. When one considers the provisions of the RL Act, they are generally concerned with the conditions of the agreement constituting the retail shop lease by either deeming provisions to be included in the lease or rendering conditions void which contravene the relevant provisions of the Act. 81 On the other hand, a number of provisions were referred to as suggesting that the RL Act was concerned only with shops in buildings. Section 22 of the RL Act deals with the obligation of the lessee under a retail shop lease to pay amounts to the lessor in respect of "outgoings". That word is defined in s 3 to mean the expenses directly attributable to the operation, maintenance or repair of "the building in which the retail shop is located or (in the case of a retail shop in a retail shopping centre) of any building in the retail shopping centre or any area used in association with any such building." 82 A number of other provisions refer to "the building in which the retail shop is located": see, ss 23, 24B(2)(a), 25A(2), 25B(2), 26(2), 33 and 35(1). Sections 19(1)(d) and (3) and 31(1)(d) and (3) refer, in the context of reviews to current market rent, to the lessor suppling relevant information about leases for retail shops situated "in the same building", thus assuming that the shop in respect of which the rent is to be reviewed is situated in a "building": see also s 17(1)(b). 83 With the foregoing provisions, one can compare s 25(e) which deals with a sinking fund for major repairs and maintenance and refers to the repair and maintenance "of a building, or plant and equipment of a building, in which the retail shop is situated." (emphasis supplied) 84 Sections 24B and 26(2) warrant particular mention. Section 24B(1) provides that a provision in a retail shop lease is void to the extent that it requires a lessee to pay an amount in respect of rent associated with "unrelated land". Section 24B(2) defines that expression to mean "land other than: (a) land on which the building … of which the retail shop forms part is situated; or (b) land of the lessor used by or for the benefit of the lessees conducting business in that building …" 85 Section 26 limits recovery of land tax from a lessee. It provides that the lessee's liability is not to exceed the amount of land tax payable by the lessor on the basis that the "land concerned" is the only land owned by the lessor. Section 26(2) defines the expression "land concerned" as the "land on which the building … of which the retail shop forms part is situated, together with all other land the lessor used or available for use by or for the benefit of the lessees conducting business in that building …" 86 It will thus be seen that there are a number of provisions of the RL Act which clearly contemplate that the "retail shop" is situated or located in a building. Mr Malouf submitted that that did not matter: it just meant that those provisions of the RL Act only applied to a retail shop lease of the whole or part of a building and did not apply to a retail shop lease of vacant land. However, I do not think that the provisions to which I have referred can be so easily dismissed. 87 It seems to me that where a retail shop lease extends to a shop which is located partly in a building but also includes land associated with the building (such as an outdoor eating area), then the "premises" which are used wholly or predominantly for the carrying on of the relevant business will be constituted by the space used for that purpose both within and without the building. In other words, the "premises" constituting the "retail shop" will include the whole of the area devoted to the retail business. This assumes that the lease extends to both areas. The problem in the present case is that the deed extends only to vacant land. 88 With some hesitation, I have come to the view that the licensed areas are not "premises" within the meaning of the definition of "retail shop" in s 3 of the RL Act. As I have said, the position would have been different had the deed extended to the restaurant as well as the licensed areas. It was uncontested that a "shop" in ordinary parlance is referrable to the sale of goods within the whole or part of a building. There are sufficient indications in the RL Act and, in particular, in the provisions which I have identified above and in the nature of the retail businesses listed in Schedule 1, which provide a context which requires that the "premises" referred to in the definition of "retain shop" and "retail shop lease" be construed as confined to a shop being located within a building or similar structure. 89 In my opinion it follows that the licensed areas do not constitute "premises" and, therefore, the deed is not a "retail shop lease" within the meaning of the RL Act. Accordingly, the Tribunal does not have jurisdiction to entertain a "retail tenancy claim" as defined in s 70 of that Act insofar as such a claim is based upon the deed.

Conclusion 90 I would therefore propose the following orders:

(b) Orders made by Shaw J on 6 February 2004 be set aside;

(c) Appeal to the Supreme Court from the decision of the Administrative Decisions Tribunal Appeal Panel dated 14 October 2002 be dismissed;

(d) Order that the respondent pay the costs of the proceedings before the primary judge and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified. **********

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