Maryland Development Co Pty Ltd v Penrith City Council & Anor

and then commented (p9): The basis of the applicant's argument would seem to be that the major players in the supermarket industry have expanded their range of products and services to the point that they are now 'general store's, the size of the store depending only on the size of the population catchment.

It is acknowledged that the definition of a 'general store' in IDO No. 26 (as amended by LEP No. 116) does not specify a maximum floor space. However, it is of interest to note that a 'general store' is defined in the Penrith Planning Scheme as a building not exceeding 2000 square feet (185.8m2) in floor space. Whilst this fact bears no statutory weight in these circumstances, it none the less is indicative of Council's position/expectation relating to the indicative size of a 'general store'.

The officer went on to quote at length from an advising from Phillips Fox, dated 3 March 2000 (Exhibit E1). Inter alia, that advising said (par 16-22):

The Council cannot say that, as the body responsible for drafting the relevant planning instrument, it interprets relevant provisions thereof to give a meaning intended by the Council. Rather, words contained in the planning instrument will be interpreted according to the rules governing statutory interpretation. Words used will be given their meaning whether technical or ordinary, having regard to the context in which those words appear.

The 1999 development application proposes a modern supermarket. The writer has inspected a Coles supermarket at Bella Vista, in the Baulkham Hills Shire Council area, which is laid out in almost identical fashion to the layout contained in plan GS01 dated 15 November 1999.

The range of goods shown in plan GS01 is extremely broad. There is a good argument that the goods offered for sale would fit the description of 'general merchandise'. In our opinion it cannot now be a disentitling factor that the plan does not show, for example, a range of rural or farming merchandise.

There must be an argument that the applicant for development consent has reflected the evolution of modern retailing and proposes a range of merchandising that aligns itself more closely to the definition of 'general store' but which to all intents and purposes is a contemporary supermarket.

The fact that the latest proposal is to all intents and purposes a supermarket will not exclude it from the definition of general store. The question is whether it sells general merchandise and there must be a very good argument that it does.

Although a supermarket is a shop the definition of shop in IDO 26 excludes a building or place for a purpose elsewhere specifically defined in the relevant clause. That is a shop would not include a general store which is elsewhere specifically defined.

Accordingly there is a very real possibility that a Court would find that the current development application is for a permissible purpose, being a general store.

The letter of advice relevantly continued (par 24-25):

Historically the Council has opposed the establishment of supermarket style buildings on the Property and on other similarly zoned land throughout the City area.

As a consequence we have recommended that Council prepare a draft local environmental plan ('draft LEP') which will have the effect of limiting general stores on the Property and other similarly zoned land in the City area to those stores that are not greater than 200 square metres in area (emphasis added).

In commenting on that letter, the officer said (at p10):

It would seem that the permissibility or otherwise of the proposed 'general store' is arguable and on that basis the assessment of the application should move beyond the issue of permissibility (but not dismiss that) and to the merits of the proposal.

Consistent with the legal advice received, a draft LEP proposing a floor area limitation of 200m2 for 'general store's in the 3(d) zone has been prepared and exhibited. The draft LEP was made with the objective of clarifying Council's long adhered to planning policy for development within highway service zones.

To avoid criticism and potential legal challenges that the Draft LEP has not been made for a proper planning purpose, we have deferred reporting the Draft LEP to Council until after this application is determined. Clearly, should Council elect to refuse the application, then it would be appropriate to advance the LEP.

It should be noted that a longstanding practice of the Department of Urban Affairs and Planning has been to not advance LEP's where they would have the effect of negating a development application which is still in the course of determination, including determination before the Land and Environment Court. Therefore, even if Council were to refer the Draft LEP to the Minister, based on past practice, it would not be acted upon.

The officer's report summarised the Hill PDA findings and noted having provided a copy to Mullane for comment.

The Council meeting on 8 May 2000 resolved to "receive and note" the officer's report, and Council's review of the material submitted continued.

Leyshon commented to Mullane on 12 May 2000, regarding the April Colston Budd report (doc 22 at fol 388):

There is nothing in this data which convinces us that the proposal is anything other than a large supermarket".

…the real issue for consent authorities is whether a proposed development will put at risk retail or other facilities currently enjoyed by a community and whether the proposed development will make good the loss of any such facilities.

Leyshon concluded that the Colston Budd report did

…not provide Council with an adequate understanding of the likely economic ramifications of the proposed development on existing neighbourhood centres - particularly those at Kingswood Park and Werrington County.

The material contained in the CBHK report focuses only on the impact likely to be experienced by the supermarkets. It is silent on the impact on specialty traders although they are vitally dependent on the drawing power of the supermarkets. Our research indicates that the impact on these centres, particularly Kingswood Park, is likely to be significant and could put existing neighbourhood retail facilities at risk. The standalone supermarket proposed for Star Court is not a neighbourhood retail facility and it would not make good the community services which would be lost by residents of Kingswood Park if the development proceeds.

Document 23 (in Vol 2 of Exhibit M4) is a memo from Colston Budd to Hill PDA, dated 24 May 2000, apparently in response to a request for further advice. It records an attempt to compare the current trading position of supermarkets presently drawing trade from the Cambridge Gardens catchment with their anticipated trading position in 2002-2003, following the opening of the proposed new store at Cambridge Gardens. The material Colston Budd assembled was (fol 389-90): …derived from the figures in the expenditure flow tables … which examine existing and future market shares of supermarket spending - i.e. of that proportion of total spending reasonably expected to be made at supermarkets. The proposed Cambridge Gardens store by virtue of its mix and location, is expected to draw around 80% of its trade from such spending, which explains why you will not find negative $6 million in the impacts (being the $20 million sales projection less the $14 million projected grown in catchment supermarket spending), but on c.80% of $20m minus the $14 million in growth in supermarket spending potential.

Colston Budd next commented that the proposed store will draw $3M-$4M p.a. away from existing specialty retailers presently serving the catchment population, and concluded (fol 391):

The proposed general store at Cambridge Gardens is located in an area of strong and continuing catchment growth, in which there has been little additional retailing provided for some years. Growth in existing released areas will continue over the projection period, and significant additional growth will accelerate with the imminent commencement of the ADI lands.

Furthermore, existing supermarket facilities within the main catchment of the proposed store are poor, with Franklins the only national chain operator in the vicinity.

Hill PDA reported to Council on 29 May 2000 (doc 24 fols 393-400), commenting (at 394):

The proposed retail centre is a 'stand alone supermarket' offering a convenient 'one-stop-shop' with an extended range of food, take-away food, some clothing and household goods. A large proportion of its trade would be derived from commuters during the PM peak period.

Our analysis of the submitted reports would confirm that there is justification for an increase in supermarket floor space in the trade area and that the likely impact of the proposed development will be significant but is unlikely to result in the closure of any of the existing supermarkets.

However we do believe that it will undermine the viability of the establish centres to expand and to attract a greater range of specialty stores. The location of this proposed store outside the established retail centres will set precedence (sic) and contribute to the fragmented nature of retailing in the area. This can be viewed as a social detriment in that it retards any established local centre from gaining a critical mass to attract a greater diversity of stores and services.

The Council officer reported again to the Council meeting on 5 June 2000 (doc 25 - fols 401-411).

By that stage proposed 24 hour operation, and parking for 244 vehicles, had been clarified. 71. The report referred (at fol 402) to the ABS classification of general store as having an average floorspace of 1458m2 (cf 3800m2), average employment of 30 persons (cf more than 100), and average annual sales of $1.86M (cf at least $20M).

72. The report referred to Perrignon J's judgment and the range of matters raised by objectors (see fol 402ff), and, in the assessment section, reference is made again to the Hemmings QC's opinion. The officer's report went on to note (fol 403A, p5):

The basis of the applicant's argument would seem to be that the major players in the supermarket industry have expanded their range of products and services to the point that they are now general stores, the size of the store depending only on the size of the population catchment.

Submissions contend that a general store is not dominated by the retailing of a particular category of goods and is not of the size or scale of a supermarket.

In 1986 Council considered a development application to erect a building on this site that comprised, among other things, a building to be occupied by a 1500m2 Franklins type supermarket. Council sought a declaration in the Land and Environment Court that the proposed development was prohibited. In his determination Justice Perrignon noted that 60% of the items sold would be food items and concluded that '…I do not think that the proposed use would be for the purpose of a general store within the meaning of that expression in the model provisions'. His Honour concluded that the proposed use was not a general store but a shop and as such was prohibited.

The plans submitted with the application indicate that 65% of the display area within the building will be dedicated to the display and sale of food and drink and 35% will be allocated to other general merchandise. Further, the applicant's economic consultant indicates that the proposed general store will derive 80% of its trade from 'supermarket spending'.

73. A further advising from Phillips Fox is then quoted, being the final version of a letter dated 31 May 2000 (see Exhibit C1), which indicates that the report's quotation from the letter (at fol 404) was incorrectly transposed. Phillips Fox advised Council that it was open to Council to classify the development as a "shop", but went on to say:

whether or not the proposed development the subject of this advice is a 'general store', however, is a question of fact and degree that must be determined by the Council.

In our opinion, it is reasonably open for the Council to conclude that the proposed development includes a 'shop' that is not a 'general store' and is accordingly prohibited on the subject land.

74. The report went on to note that if the draft LEP is made, a floor area limitation of 200m2 for general stores in the 3(d) zone will take effect and the proposed development would not comply. The officer comments (fol 404 - doc p6):

The making of the draft LEP would not alter the permissibility of the proposed development, however, as it is considered that the proposed use is not a 'general store' as that term is currently defined. 75. The report goes on to deal with the Colston Budd, Mullane, Leyshon and Hill PDA reports. Council noted its engagement of Hill PDA to provide an independent assessment of the social and economic aspects of the proposal. The contentions of Colston Budd and Leyshon, and the views of Hill PDA, were then summarised (pp 9-11 of doc 25), and the officer noted (fol 408 or p14):

In 1981/82 Council commissioned Retail Surveys to undertake a retail study to assist Council in the preparation of a strategy for the location of retail centres in the Cambridge Park/Werrington area. As a result of that study Council adopted a strategy that saw the establishment of the existing network of neighbourhood shopping centres and the denial of a request to establish a neighbourhood shopping centre at the Star Court site. In 1985, at the request of the then Department of Planning and Environment, Council commissioned Retail Surveys to review their previous report and examine the likely impact that a supermarket based centre on the Star Court site would have upon the retail strategy for the North Ward. It was concluded that the introduction of a new centre would undermine established centres and as such was considered contrary to encouraging the orderly and economic development of the city.

An independent review of the current proposal has concluded that it will fragment the nature of retailing in the area and undermine the viability of the established centres to expand. As such, approval of the proposal is not considered to promote the orderly and economic development of the city, a primary object of the Environmental Planning and Assessment Act.

76. The officer recommended refusal on the grounds of: 1. Not a " general store ", but a supermarket, i.e. " shop " as prohibited by 3(d). 2. Inadequate provision for on-site parking of vehicles generated. 3. Will not encourage orderly and economic development of the City.

77. The Council meeting of 5 June 2000 deferred the report, to enable the applicant and its consultants to brief Councillors on the proposal. Mullane and Leyshon were also invited to attend. Hill PDA was to be available to assist in Council's deliberations. The briefing meeting was set for Monday 26 June (see doc 26 fol 412).

78. Hill PDA provided further advice on 7 July (doc 27 fol 413-416). The conclusion of its advising of 7 July 2000 stated (at fol 415):

Closure of an existing supermarket would have adverse impact on some residents that do not rely on the automobile. However as stated above this scenario is highly unlikely to occur. Even if an existing supermarket were to close the cost to some residents is significantly less than the benefits to the majority of residents in the trade area given that (i) the proposed centre is on a bus route; (ii) car ownership rates are high in the area; and (iii) the location of existing retail centres are in areas of low residential density.

79. The proposal was reported again to Council on 17 July 2000 (doc 28 - fols 417-437). Information additional to that in the earlier report (at fols 432ff) included a commentary on Hill PDA's later advice, and noted that the layout of parking and the number of vehicle parking spaces had been amended to a satisfactory standard.

80. The officers again recommended refusal, on the grounds of: 1. Not incorporate " general store ". 2. Contrary to the object of encouraging the orderly and economic development of the City. 3. Not in the public interest.

81. The officers also recommended that the draft LEP be reported to Council (fol 435).

82. The Minutes of the meeting of 17 July 2000 appear at doc 29 (fols 438-451). The relevant item was referred to the Committee of the Whole. The minutes note that the issue of another location for the proposal had been extensively addressed and exhausted. The officer's recommendation of refusal was moved and seconded, and an amendment to approve on conditions prepared by the Council officers, was moved and seconded (fols 441-450). (A further amendment was foreshadowed suggesting only an amendment to one of the conditions). The amendment was put and lost, the motion was put and carried, on the casting vote of the Mayor, and a notice of rescission was given.

83. The rescission motion was dealt with at the Council's meeting on Monday 7 August 2000, the minutes of which (document 30, fols 452-462) indicate that the rescission motion was carried 8 votes to 7 votes, and the development was approved on comprehensive conditions.

84. Notice of determination (doc 31 fols 463-474) was issued on 15 August 2000 to operate from the 7 August 2000. The consent will lapse on 7 August 2002. The grant of consent was then advertised (fols 476-8).

85. Mr Craig, on behalf of the applicant, submitted that the relevant issues for the court to determine are: (i) Is the proposal a " general store ", permissible under the IDO as amended? (ii) Is the question a jurisdictional fact? (iii) Was it open to the Council to reach that conclusion in any event? (iv) Should the court determine that matter now for itself?
86. If it is not a "general store", the consent should be set aside. In Mr Craig's submission, it is a large stand-alone single facility, with a significant turnover, which looks like a supermarket in form, and will compete with other supermarkets. The Model Provisions require "general merchandise", i.e. a range of goods which will distinguish a general store from other types of shop, including food-oriented supermarkets. Most general stores have a rural character, which establishes their generalist nature.

87. Both the IDO and LEP exclude shops from the site, except two particular species of the genus "shop", namely, convenience stores and general stores. The rationale for the LEP's specific amendment of the IDO regarding this site is that there should be only a limited range of retail facilities provided in such a location, and a general store would sell items not normally sold by a convenience store.

88. The court should conclude that it was not open to the Council to conclude that this was a permissible use, i.e. it is not a general store, but a supermarket.

89. Mr Craig submitted that there had been recent significant changes in the law regarding determinations of permissibility, and questions of jurisdictional fact such that the question "can the Council approve this?" was a threshold question to be answered before the Council went on to consider the merits.

90. In Hope v Council of the City of Bathurst (1980) 144 CLR 1, the High Court was considering a decision by Rath J (in the NSWSC), in which His Honour arrived at "the common understanding of the word 'business'". Mason J (with whom the majority of the court agreed) said (at 10) that primary regard should be had to the statutory definition of "business", and that Rath J's conclusion, being an "error in construction and accordingly of law … cannot reasonably be supported".

91. In Hoyts Cinemas Ltd v Penrith City Council & Anor [1999] NSWLEC 187, Lloyd J said: The Council was the body entrusted with the task of determining the development application. If it acted lawfully, bona fide and reasonably its decision cannot be challenged, even if some other body on the same material might legitimately have reached a different view. The other preliminary observation to be noted is that in a challenge to the validity of a development consent, the proof of invalidity rests on the challenger.

92. Questions of characterisation involve subjective views as to matters of fact and degree. Shire of Perth v O'Keefe (1963) 110 CLR 529. I surveyed the authorities on characterisation of DAs in University of Sydney v South Sydney Council (1998) 97 LGERA 186 (at 200-209) and concluded (at 214-215 omitting case references): What is required is not "precise cataloguing" (Kitto J in O'Keefe), but a "detailed examination of the facts" to construe the purpose " broadly " and " liberally " without "confining the user to precise activity" in the town planning context. (Kirby P in Boyts Radio).

The Court must examine the "character, extent and other features" of the proposal (O'Donnell) and determine its "appropriate genus " (Kirby P in Boyts Radio and Steedman) and whether other aspects of the proposal might best and/or fairly be regarded as species of that genus (Pryor Park).

The law does not require me to "force fit" the proposal into any of the models defined in Foodbarn, O'Donnell or Pryor Park. Questions of fact and degree are "inescapably involved" and characterisations will always be "partly impressionistic" (Penrith). Where more than one use is involved in a proposal the primary consideration is the relationship between/among them, beyond their shared use of the subject site (Blakemore).

On the evidence in this matter I characterise the "use" in the University's proposal as "teaching hospital".

In so far as that is a species of the genus "hospital", and/or in so far as the education use may be said to be "ancillary" to the hospital use, the proposal is clearly permissible in that part of the 5(a) zone which is "hospital" (even though par (b) of the definition imported into the LEP does not, in terms, require it to be "ancillary").

However, this proposal in its entirety cannot simply fit into simplistic definitions of "hospital use" and/or "education use", nor into the genus/species approach most overtly used in Pryor Park.

Here the twin/dual functions of delivering clinical education to medical students and delivering health care services to patients, public or private, are not relevantly severable, in the way that extraction works are severable from agriculture, orcharding, riding schools, etc. (C B Investments, Steedman, and O'Donnell).

Foodbarn and Steedman make it clear that the Court should not characterise the proposal simply on some comparative analysis of income, space or staffing. Also like Bignold J in Pryor Park, I want to resist an absurd result, and to take an overly "specific" approach, along the lines urged upon me by Mr Spigelman (despite authority to the contrary), will bring one. 93. The test of whether a Council's classification or characterisation of a project should not be upset is whether it is one reasonably open to Council as a "reasonable body of persons" to make - Bentham & Anor v Kiama Municipal Council & Ors (1986) 59 LGERA 94, per Stein J, relying on Lord Diplock's judgment in Bromley London Borough v Greater London Council [1983] 1 AC 768 (at 821): "Looked at objectively" the decision upset by the court must be "so devoid of any possible justification" that no such body could reach it.

In Bentham the issue was whether a proposed development should be characterised as a hotel (which was prohibited) or, as the Council found, a conglomeration of motel, tavern and conference centre (which was permissible with consent). Stein J (as he then was) said (at 98-9): "in the circumstances of the difficult factual assessment to be made by Council, the fact that minds might differ and conclude otherwise than did the Council is no reason to vitiate its decision" if it was "reasonably open to Council to make".

Once translated to the Court of Appeal, Stein JA (on 22 December 1997) applied Bentham in delivering the court's decision (Mason P and Meagher JA concurring) in Londish v Knox Grammar School & Ors (1997) 97 LGERA 1, saying (at 7-9): The appellants submit that the issue of whether or not the use of the land falls within the characterisation of 'educational establishment' is not a matter of discretion, but a jurisdictional fact and a matter which goes to the court's jurisdiction. Accordingly, the court can review the council's decision as being in excess of jurisdiction.

In response, the respondents assert that the council's decision was not one of jurisdictional fact (which would be reviewable by the court) but a finding of primary fact not ordinarily reviewable.

It is a question of law whether the primary facts can necessarily fit the statutory description: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. However, whether facts fall within the meaning of an ordinary expression, such as 'educational establishment' as a matter of common understanding, is a question of fact. Although more than one conclusion might reasonably have been reached by a decisionmaker, an incorrect finding will not involve an error of law: see Hope v Bathurst City Council (1980) 144 CLR 1; 41 LGRA 262. In such cases, it is not for the court to substitute its own opinion for that of the primary decision maker: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24.

The present case was commenced in class 4 of the Land and Environment Court's jurisdiction, by way of judicial review. There is a line of authority in the Land and Environment Court commencing in 1986, to the effect that if the opinion formed by the decisionmaker was not vitiated by irrelevant considerations and one which was reasonably open to make, the court will not review the substance of the decision …

In Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc & Anor (1998) 97 LGERA 333, the leading judgment was given (on 22 April 1998) by Meagher JA, who concluded that Council's decision that a mushroom composting process was "rural industry" may well be "wrong", but must be shown to be "devoid of plausible justification". Sheller JA agreed, quoting at length from Bentham and Londish. Mason P, in a one paragraph judgment (at 334), agreeing with both of his colleagues, said he "would affirm the principles stated in Londish … as to the proper approach to judicial review of a Council's decision" on such matters.

In Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 102 LGERA 52, Mason P and Meagher JA agreed, without additional comment, with the judgment of Spigelman CJ (delivered on 9 February 1999). The local Council had accepted and processed a DA without a species impact statement ("SIS"). Talbot J held that the decision was not reviewable as it was not an error of jurisdictional fact. The Court of Appeal reversed that decision on the basis of the statutory framework dealing with such SIS questions - the need for the SIS had to be adjudicated as an "essential preliminary" to Council's embarking on the DA assessment process. The learned Chief Justice specifically distinguished Londish, and did not say, or even infer, that it was wrongly decided. His Honour said (at 58 pars 28ff): The issue in Londish was purely a question of characterisation. The court applied the well-established principle that whether the matter under consideration fell within the meaning of an ordinary English expression was a question of fact. To say that the issue is whether or not a proposal answers a specific statutory description, identifies the issue as one of fact. It says nothing about whether or not a finding of fact by a primary decision-maker can be called into question. It is not the law that the determination of whether or not something answers a statutory description cannot be a jurisdictional fact. (Sometimes called 'collateral fact' or 'condition precedent'). Whether or not a particular finding of fact is jurisdictional in the requisite sense, depends upon the proper construction of the factual reference in the particular statutory formulation in which it appears.

Londish decided that a finding of fact, being the determination of whether primary facts answer a statutory description, in the context there under consideration, was not a finding of jurisdictional fact. The reasoning in that case is not determinative of the construction of other provisions, even in the same legislative scheme.

In my opinion, the statutory scheme in the case of development affecting threatened species is sufficiently different from the scheme under consideration in Londish, to require separate consideration. Indeed, the entire point of the elaborate procedural mechanism that is laid down in the case of threatened species is to distinguish it from the normal case of development applications, under consideration in Londish.

Londish would be more obviously applicable if the issue before the court arose under s 90(1)(c3) where, amongst the considerations required to be taken into account by the consent authority, appears: '(c3) whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats'. In exercising that statutory power, the determination by a consent authority of 'likely to significantly affect', is a matter incidental to the exercise of the power to grant consent. The reasoning in Londish, on which the applicant relied, would be more clearly relevant.

However, s 77(3)(d1) does not confer a power on a decision-maker. It imposes a requirement on an applicant. The reasoning in Londish does not apply to such a statutory provision.

The issue on this appeal is whether or not the reference in s 77(3)(d1) to 'development … that … is likely to significantly affect threatened species, populations or ecological communities, or their habitats …' is a jurisdictional fact in the sense that if, in truth, that is the situation, no valid development application can be made without an accompanying species impact statement.

In Gales Holdings Pty Ltd v Tweed Shire Council (1999) 110 LGERA 235, Lloyd J (on 31 August 1999) referred to Timbarra, and held that a determination of whether something was an "activity" (within the meaning of s 110 of the EP&A Act) was a question of jurisdictional fact and thus a question to be answered at the "threshold" of Council's processing of an application.

On 10 February 2000, the High Court delivered its judgment in Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135. In a concurring judgment, Gaudron J said (at pars 59-60): …with respect to non-jurisdictional facts … there is no legal error involved if an administrative body simply makes a wrong finding of fact. And, again, different considerations apply where what is in issue is not a jurisdictional fact, but the decision-maker's opinion as to the existence of that fact. In that situation, the question is whether, on the available material, it was reasonably open for the decision-maker to form the opinion in question. … Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility. However, there may be situations where the evidence before the court is the same or substantially the same as that before the primary decision-maker and minds might reasonably differ as to the finding properly to be made on that evidence. In that situation a court may, but need not, decline to make a different finding from that made by the primary decision-maker, particularly if the latter possesses expertise in the area concerned.

The relevant statute in Enfield required the "relevant authority" to assess a development against various matters, including the provisions of appropriate plans. The Development Assessment Commission was a "relevant authority" for the purpose of that assessment, and, if the proposed development was for "special industry", it was prohibited. The High Court noted that, before carrying out the assessment, the Commission was required to determine the nature of the development, and proceed to deal with the application according to that determination. Under the Regulation, the Commission made its determination that the proposal was "general industry". Accordingly, the Commission was not required to refuse consent.

The High Court held that a question whether a decision-maker erred as to jurisdictional facts has to be answered by the court in which it has litigated upon the evidence before that court. Where the issue requires the determination of whether the jurisdictional facts existed, the task of the court in determining that question is essentially the same whether equitable relief or judicial review is sought.

An argument based on Bentham was apparently rejected by the High Court in Enfield, but Londish was not mentioned.

Bignold J has opined, obiter, that "it is unlikely … that the decision in Londish can be taken to have survived the effect of the decision in Enfield" - see Donnelly v Delta Gold Pty Ltd & Ors [2001] NSWLEC 55 (at par 64) - but I am not convinced of that. To the best of my knowledge, Enfield has not yet been considered by the NSW Court of Appeal, but it seems to me to sit quite comfortably with the dichotomy of approach the Court of Appeal has adopted. The two lines of authority in the Court of Appeal are strong, and consistent, and should be followed in this court.

In Timbarra, Enfield and Gales, particular statutory contexts applied to the decision-making process of the local authorities concerned. Londish and Mittagong Mushrooms had no such contexts, and the question before the Councils and the courts in those two cases turned on the applicable planning instruments, without the complication of such a statutory context requiring the determination of a jurisdictional fact.

The question posed in this case is of like character.

Hence, I have concluded that the Court of Appeal decisions in Londish and Mittagong Mushrooms remain good law, are binding on this court, and are "on point" for this case. Their authority is not diminished in any way by the subsequent reformatting of the EP&A Act, as submitted by Mr Craig for the applicant - the relevant provisions for the processing of DAs have not been altered in any substantive way.

That being the case, the challenge to the consent must succeed or fail on the basis of the reasonableness of the decisions taken by the Council.

In this context, Timbarra and Enfield make clear that in class 4 judicial review cases the court should not need to embark in such detail on the sort of characterisation analysis described in my judgment in University of Sydney, which dealt with a preliminary question of law in a class 1 appeal.

Applications and consents are not construed as stringently as statutory instruments. The common meaning and general usage of words changes over the years, and the words of such documents must be interpreted in their context. Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297;; Power v Pentill House Pty Ltd & Ors (1993) 80 LGERA 247 (at 249f).

Dictionaries recognise that usage varies over time and place, but they are often not internally consistent. They must, therefore, be used with care. Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 (per Mahoney JA at 560-1) and House of Peace Pty Ltd & Anor v Bankstown City Council (2000) 48 NSWLR 498. In House of Peace, Mason P said (at 505): They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose.

So, what assistance, if any, can the court obtain in this case from the various dictionary meanings drawn to its attention.

The Macquarie Dictionary, Third Edition, defines: " convenience shop " or " convenience store " as " a small shop, usually located in the suburbs, which caters to the needs of nearby households by offering a range of food and domestic items most commonly in demand ".

" general store " as " a shop at some distance from a major shopping centre, stocking a wide range of goods, as the main store in a small country town" .

" supermarket" as " a large, usually self-service, retail store or market selling food and other domestic goods ".

" merchandise " as " goods; commodities; especially manufactured goods, the stock of a store ".

" general " as an adjective meaning " relating to, affecting, including, or participated in by all members of a class or group; not partial or particular… not restricted to one class or field; miscellaneous… not specific or special ".

The Australian Pocket Oxford Dictionary, Fourth Edition, defines: " general " as " including or affecting all or most parts or cases of things, prevalent, usual, not partial or particular or local, not limited in application, … not restricted or specialised ".

" general store " as " shop which stocks a wide range of miscellaneous goods, esp. in a country town ".

" supermarket " as " large self-service store selling food, household goods, etc ".

The retailing "use" or industry has undergone enormous change over the years, illustrated by, e.g., the change in the role of service stations, which are now frequently coupled with "convenience stores". See Caltex Oil (Australia) Pty Ltd v Holroyd Municipal Council (1983) 49 LGRA 77, in which McClelland CJ said (at 86-7): Unquestionably, … social changes have occurred which have resulted in a public demand which has been inevitably catered for by watchful entrepreneurs, namely to combine the use of the motor car with the universal imperative of household shopping.

Proliferation of the comprehensive retail outlet under its various names with the indispensable concomitant of adjacent parking space is the most obvious example of this trend. If it has become obvious that, since most people own cars, they will prefer to shop where they can buy everything (or almost everything) that they want for recurring household needs at one place from which it is easy to convey those goods to their cars and then to their dwellings it was but a short step to the discovery that, when people drive their cars to a service station to buy petrol a store alongside the bowsers will tempt them to buy other goods which are available on the same site.

However, such an evolution in public habits does not transform the meaning of language… the most pervasive transformation in public habits cannot transform the meaning of the particular into the general in planning instruments. Such instruments which make the selling of one particular class of commodity, such as petroleum products, permissible in a certain zone but ban from that zone 'shops', which are defined as having the general purpose of 'selling, exposing or offering for sale by retail goods, merchandise or materials' must be treated as meaning what they say.

See also my discussions of the authorities in York Developments Pty Ltd v Liverpool City Council [2000] NSWLEC 174, a case not factually dissimilar from the situation in this matter, and in Turnbull Group v North Sydney Council (1998) 101 LGERA 354, a case involving a "shop".

Quite obviously some traditional types of shops, e.g. chemist, butcher, etc. have changed their complexion over the years. Whereas historically we generally saw single-product line shops for such goods as cakes, groceries, meat, clothing, hardware, newspapers, etc., we now see wide ranges of those lines sold from a single location in what could be called a "general store". The task of characterisation, in the present era, as in the past, poses questions of fact and degree. Perth v O'Keefe.

Where a large "general store" sells a general range of merchandise, including foodstuffs and homewares, it may be referred to colloquially as a supermarket. "Supermarket" is not a planning term; labelling the proposed development as a "supermarket" is irrelevant; a supermarket is a shop, and may be a "general store". A "department store" is probably also a "general store". It is irrelevant also that a store's approval may have impacts. The merit question is different from the permissibility question.

There are no specifications as to what constitutes "general merchandise", and product lines change over time.

In this case, does the proposed shop, with 66% of floorspace and 80% of expected sales being "food and drink", qualify for the title "general store"? Will it sell "general merchandise"?

It is proposed that it will retail a wide range of products (Exhibit M2), viz:

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

In Perth v O'Keefe, Kitto J found difficulty in the characterisation of shops, and noted (at 535): "in the case of a general store, wide variations in the use as regards the nature of the stock carried and the methods of merchandising might occur before one would say, in an ordinary use of language, that the premises were not being used for the same purpose as before".

Perth v O'Keefe, and North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1980) 67 LGRA 344: "establish that it is not appropriate to take a narrow or pedantic approach to the characterisation of use, nor to look at the precise activities going on, but rather to the broad purpose for which the use was exploited at the relevant date" (see Turnbull at p359).

The planning regime in this case distinguishes between "convenience stores" and "general stores". They may have different dimensions and product ranges, but both are "species" of a "genus", which might be called "one-stop shopping", and so is a "supermarket".

As Mr Tobias points out, the dictionary definition of "general store" differs from the statutory provisions. Whatever the term "general store" may or may not be commonly understood to encompass, it is defined in the Model Provisions, and the applicant's submissions focus on factors which are not included in, or referred to in, those statutory definitions (i.e. floorspace limitations, proportion of food and drink, etc).

General stores which comply with the statutory definition predated the emergence of the supermarket as a type of "shop". The concept of the general store has thus evolved over time as a response to changing needs, and how a facility looks in comparison to a supermarket is irrelevant. The traditional general store was always a one-stop destination - a derivative of the relative isolation of a rural community.

The statutory definition does not now stipulate any size - a general store in a small town, cf a general store in a large town; the definition does not deal with the balance or mix of merchandise, which does not need to be "balanced" in terms of floorspace or turnover; it does not distinguish between types of merchandise - fresh, canned, etc. A "general store" in a rural area may carry less food items because rural customers produce their own, and so on. The Council planning instruments in this case envisage a "general store" in an urban locality, not just in a rural area, and, in so far as Horizon Pacific might still be regarded as good law, the actual method of retailing is really irrelevant.

The operative element of the statutory definition is the retailing of "general merchandise".

It is that concept which distinguishes "general store" from "shop".

In terms of "general merchandise", Mr Craig goes beyond the dictionary definition of "not special or particular", and urges the adoption of a criterion of mix or balance. He relies on Perrignon J's decision in Horizon Pacific that 60% of food items and only 40% of other lines meant that the store was not a "general store". However, the definition does not stipulate the width or range of "general merchandise", and, with great respect to His Honour, the usage of the relevant terms has, in my view, varied between 1986 and now, just as it did between 1960 and 1971, and between 1971 and 1985-6.

The proposed "general store" in this case is larger than most of the (competing) supermarkets surveyed. It will be located on a major thoroughfare and in a rapidly growing densely population residential area. There is nothing in the zoning to give rise to a conclusion that the permitted uses were designed only to satisfy the needs of passing motorists. The permitted uses include childcare centres, educational establishments, etc. Land in the zone must play a greater role in satisfying the needs of the population located there, rather than just passing motorists. A general store in that location would be expected to have a large range of fresh and packaged food related product lines available for its local and passing customers.

A general store must have a greater range and variety of product lines than a specialty shop. The range and variety depends upon the needs of those the store exists to serve, and the modern methods adopted for retailing. It is not, therefore, surprising that a general store in an urban area will have a predominance of a variety of food related product lines presented in large open aisles with a checkout.

The definition 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, and to analyse a proposal in terms of floorspace or turnover as Perrignon J id in 1986, is contrary to the current definition. I do not adopt that approach. The range of goods for sale here is clearly "general merchandise".

That factual determination cannot in law be elevated to a jurisdictional fact, such as to permit reconsideration of the merits or validity of that determination by this court. The planning instruments make it clear that the determination of whether the proposal falls within the meaning of the ordinary words used in the relevant definition, is a question of fact for the consent authority. Londish.

At the time of its decision, Council was well aware of the full range of products to be retailed from the premises, as well as the floor space proportions, anticipated sales volumes, etc. It had before it numerous submissions, guideline documents, and legal advisings all of which urged it towards various characterisation options, and none of which demonstrated that the proposal was to retail "specialised", as opposed to "general merchandise".

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. Mittagong Mushrooms.

As Mr Tobias's written submissions say (at 4.3 and 6.2): Where, as here, the Council has had drawn to its attention the very pitfall that the Applicant alleges the Council fell into, it will be almost impossible to describe Council's considered rejection of the pitfall and its exercise of subjective judgment that the proposal does involve the sale by retail of general merchandise as being devoid of plausible justification. … Council's subjective view as to whether the proposed range and variety of general merchandise (a matter of fact and degree) was such as to constitute a general store cannot be said to be devoid of plausible justification. This is especially so given the legal advice (both from the Applicant's and Council's solicitors) that the Council had before it.

Nothing in either of the planning instruments, or in the Council's files, suggests that the Council's decision was vitiated by any irrelevant considerations or, when viewed objectively, was so devoid of plausible justification as to found a submission that it was not a conclusion reasonably open to be drawn. Bromley, Bentham, and Mittagong Mushrooms.

The Council determined that the range of product lines set out (in, e.g, Exhibit M4 p27) represented "sale by retail of general merchandise", and that determination could not objectively be held to be implausible or unreasonable.

The class 4 application should be dismissed with costs.

Both respondents seek a special order for costs as a result of the following series of events.

The class 4 application was filed against only the First Respondent on 11 December 2000.

On 19 January 2001 the Second Respondent was joined in the proceedings and the whole matter was set down for hearing on 1 and 2 March 2001.

On 8 February 2001, on the motion of the applicant, and on reference from the Registrar, Bignold J, as Duty Judge, gave directions which allowed the applicant to file expert evidence by 15 February 2001. As the respondents argued that expert evidence on the interpretation of the DA proposal as a "general store" would be inadmissible in these proceedings, His Honour granted the parties liberty to restore the matter on 24 hours notice to argue, preferably before the trial Judge, the question of admissibility of any expert evidence filed by the applicant.

His Honour also directed that any evidence in reply by the respondents was to be filed by 28 February 2001.

The applicant served affidavits from its expert witnesses between 15 and 19 February. Both respondents incurred costs in preparing to meet that evidence - the First Respondent prepared detailed submissions on the question of inadmissibility, which were handed up by Mr Austin during the hearing, and the Second Respondent also retained experts to reply to the applicant's expert evidence, in anticipation that it may, over the respondents' objections, be admitted by the trial Judge.

The First Respondent's solicitors wrote to the applicant's solicitors on 19 February, once all the applicant's affidavits were received, advising that it would object, at the hearing, to the admission of the evidence. They received no reply.

Neither respondent sought to restore the matter to the list, and seek a determination from the Trial Judge, in the nine days between 19 and 28 February. The Second Respondent's affidavits were served on the applicant late on 28 February.

Senior Counsel for the applicant did not seek to adduce his expert witnesses' evidence at the hearing.

The applicant now contends, on the question of costs, that the respondents should have sought the determination of the admissibility question before the hearing began. The counter argument is that there was insufficient time, between 19 and 28 February, for the respondents to retain experts and put on their evidence by 28 February in the event of seeking the early ruling and losing on the point.

The applicant further complains that, while the Second Respondent submitted that it had retained 4 experts between 8 and 12 February, it served its three reports only on the evening of 28 February 2001, the day before the hearing, the last day allowed by Bignold J's directions.

In par 26 of its written submissions of 7 March, the applicant said: The Applicant reserves its right to make additional submissions to the Court depending on the way the matter is determined by His Honour as the Applicant's submissions on costs may not be complete and may be premature. The Applicant may wish to make further submissions on the use of material contained in the experts affidavits by the Second Respondent during its oral submissions to the Court. This is particularly relevant in relation to a special cost order.

The Second Respondent responded to that in these terms (par 3): The Second Respondent agrees with the submissions of the Applicant to the effect that when judgment is handed down it will be necessary to revise these submissions and speak to these submissions. Because: a. If judgment is in favour of the Respondents the only issue is whether the costs should be paid on an indemnity basis in relation to the expert evidence; b. If judgment is in favour of the Applicant the issue is (i) whether a costs order should be made in favour of the Applicant in relation to all or part of its costs (ii) whether a costs order should be made in favour of the Second Respondent in relation to its costs concerning the expert evidence and if so whether those costs should be paid on an indemnity basis.

The written submissions filed in this matter refer to a number of decided cases. I recently reviewed the most relevant cases on indemnity costs in Styles v Wollondilly Shire Council (No.3) [2001] NSWLEC 133, as had Lloyd J in Hofer v Howell Developments Pty Ltd (No.2) [2001] NSWLEC 42.

The order made by Bignold J allowed the filing of the expert evidence, but that does not bind the party filing it - either the applicant or the Second Respondent - to rely on it, nor does it impose any duty to give notice, or explain, to the court why it chooses not to do so.

The applicant has lost the case and should pay the respondents' costs, but costs are compensatory, not punitive in character. Latoudis v Casey (1990) 170 CLR 534.

I can identify no authority which would lead me to the conclusion that indemnity costs are appropriate in this situation.

There has been, on the material so far put before me, no "relevant delinquency", abuse of process, ulterior purpose, or unreasonableness (Styles par 14, and Hofer par 17). The applicant sought leave, obtained it, and then made a tactical choice not to rely on certain evidence, albeit apparently after it saw the Second Respondent's competing evidence. The conduct of both those parties was reasonable, as was that of the First Respondent in indicating, and preparing, its objection to the applicant's evidence.

In the circumstances, I am not disposed, at this time, towards making any order for indemnity costs. However, as the applicant and Second Respondent may still wish to pursue this matter, once this judgment has been considered, I will make the usual costs order, but stay it for 21 days to enable any of the parties to revive the question by Notice of Motion, if they so choose.

The orders of the court will, therefore, be: 1. The applicant's class 4 application is dismissed . 2. The applicant is ordered to pay the costs of the First Respondent and the Second Respondent, on a party-party basis, in amounts to be agreed, or assessed according to law. 3. Order 2 is stayed for 21 days, pending a decision by any one or more of the parties to file a Notice of Motion to enable it/them to make further submissions on the question of costs in the light of these reasons for judgment. 4. All exhibits may be returned.

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