Pallas Newco Pty Limited v Votraint No 1066 Pty Limited and Others

Characterisation of the Development 12 In an affidavit sworn in support of an application for the conditional removal of an off-licence in the Licensing Court of New South Wales Mr Hardy, the National Manager Licensing and Acquisitions of the third respondent, described the proposed layout of the premises as follows:- The premises are large (approximately 1,310 sqm which includes a total trading area of 978 sqm (including the drive-in area)) and can comfortably contain the liquor stock which will comprise approximately 5,000 items spread throughout the premises. By comparison, a typical traditional liquor store has a product range of between 1,200 to 1,300 items. By way of further comparison, there is a range of approximately 350 items which are common to all reasonably stocked liquor stores.

13 The Statement of Environmental Effects ("SEE") which supported the development application described the proposal as the use of existing premises as a "Dan Murphy's drive-in takeaway liquor store". The concept of a Dan Murphy's operation was explained in the SEE as follows:- Dan Murphy Liquor Merchants was established in Victoria in 1878 and there are currently 9 outlets operating throughout Victoria…The Dan Murphy Liquor outlet displays and sells a wide range of liquor and has regular specials on market leader wines. The Dan Murphy Liquor outlet also focuses on service delivery by providing expert advice on all their products. 14 Notwithstanding contentions made to the contrary in the documents supporting the development application, the Court is entitled to conclude on the evidence before it that there will be provision for seven cars to park in the driveway serving area at any one time. The consent conditions require a minimum of 80 car spaces to be made available for the whole site, including the demand for about 39 spaces attributable to the subject development. Approximately one to four counter staff will be employed within the drive-in component of the store, whereas up to 35 staff will be required overall, according to demand.

15 Mr Hardy describes the layout of the store with gondolas and shelves located throughout the store in such a manner so as to allow easy access by customers in wide aisles using specially designed trolleys which cater for large and small purchases. The cool room comprises a 15 door width opening that allows customers access to the products contained in the cool room either by themselves entering the cool room or by use of the door opening. Mr Hardy also states that this Dan Murphy's store will also provide a two-lane "drive-in" service where the staff will take and fill a customer's order alongside two cash registers positioned near the drive-in laneways. For the main part of the store, exiting customers will have a choice of up to six checkouts. 16 The plans approved by the council show that a customer can enter the store through the driveway car park, may leave the vehicle for a short period and enter the main store on foot. Alternatively, customers can park and wait in the vehicle until service is provided at the car window or leave the vehicle for a short period to select items from the shelves, refrigerated cupboards and displays that align the driveway. 17 It is proposed that wine tastings will be held at the premises and a delivery service with phone orders being taken will be available. 18 The plans lodged with the development application show that the drive-in facility will be operated as a separate entity, with separate stock, shelving, cash registers and staff. 19 The evidence of the Executive Manager Planning and Building Services employed by the council is that the assessment of the development application proceeded without any consideration that the development may not be a drive-in take-away establishment either in whole or in part. The assessing officers assumed that the decision of Lloyd J in Giddings concluded the question of permissibility. 20 Clayton Luke Rowston is the National Property Manager Liquor and Petrol for the third respondent. In cross-examination he conceded he knew of no other Dan Murphy store with a drive-in facility at present although some large Woolworths did have one. He recognises that the decision to introduce the drive-in facility is directed at complying with the requirements of the LEP but that intention coincides with the business opportunity to maximise the generation of sales even if, as he admits, the evidence that there would be additional sales specifically attributable to the drive-in facility is, at this stage, speculative, tenuous and unsubstantiated. 21 There is a direct path of ingress and egress to and from the principal trading area through the drive-in area but the dedicated access to the major and primary display and sales area is quite distinct and will, on the Court's reading of the plans, present as a separate entrance. The driveway is constituted as part of the building but there will be separate racking and service facilities confined to the driveway area. 22 The motive for incorporating the drive-in facility is irrelevant to the process of objectively determining the description or characterisation of the development (Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 at 714). 23 The Court also accepts that the character of the development must be determined objectively by reference to such plans and material presented to the council in support of the development application as well as any extraneous material that can be relied upon and is relevant to determine whether or not the development, as it will in fact be carried out, is prohibited. If it is a development that is prohibited then not only did the council not have jurisdiction to receive and consider the development application, the decision to determine the application by a grant of consent is invalid. 24 The development purpose of "drive-in take-away establishment" is not defined. The meaning of this combination of ordinary English words is to be determined as a question of fact (Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 at 137 and Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 395 - 6). 25 Justice Lloyd was not required to address the issue of what is a "drive-in take-away establishment" as it arises in the circumstances of this case when he determined that a drive through bottle shop was permissible with consent in Giddings. The issue of whether the business in that case also constituted a shop was not addressed. 26 A "drive-in" is defined in the Australian Oxford Dictionary as "(of a bottle shop, cinema etc) able to be used while sitting in one's car". While this description may be apt for the goods offered in the driveway service area it cannot be regarded as anything more than ancillary to the major trading area within the store itself. Obviously questions of fact and degree arise here. For example, it could not be said that the provision of a drive-in parcel pick-up area for a major department store would entitle that business to be regarded as a drive-in take-away establishment. 27 Generally there can be no real doubt that a conventional suburban bottle shop that solely relies on a stand-alone drive through facility for access and sales answers the description in the LEP. A bottle shop or liquor store without any driveway access would obviously be characterised as a shop. 28 An establishment in day-to-day parlance is generally descriptive of a business or place of business. It is appropriate, therefore, to look at the entirety of the proposal to determine whether the whole business or enterprise will fall within the concept of a drive-in. 29 The whole enterprise cannot be regarded as one solely dependent on the drive-in facility. Obviously, the business is one of the take-away species. But so too is any other shop that deals in goods that are readily portable. I do not understand it to be contended by either respondent that the combination of parking spaces and the sale of readily transportable items, but without the drive through element as proposed, would comply with the statutory description in the LEP of a drive-in take-away establishment. 30 The substantial and dominant purpose of the proposed use is a conventional bottle shop comprised within the major and principal trading area. The drive-in is a feature of a convenience but it either operates separately as a distinct entity or it is a separate and distinct use. It does not provide the commanding and dominant feature that enables the business to be characterised wholly as a drive-in take-away establishment. At best, it is a liquor store or bottle shop with an ancillary feature of a driveway or pick-up area. Alternatively, it is to be rightly regarded as two separate uses, namely a liquor store or bottle shop as the major business and a second distinct, although secondary, use for a drive-in liquor outlet operated by separate staff delivering stock from a distinct area using dedicated cash registers even though there may be occasional access by customers to stock in the adjoining shop. 31 The Court is not satisfied that it is correct to categorise the whole development as a drive-in take-away establishment given the predominance and concentration of the aspect of in-store selling that will occur. The drive-in aspect is truly a minor part of the overall establishment notwithstanding that it is nevertheless a prominent feature in what is otherwise a large-scale development. Moreover, I do not consider that any other conclusion based solely upon the documents before it was reasonably open to the council. 32 The LEP expressly raises the concept of scale by reference to the prohibition of shops exceeding 90m2 floor space. As mentioned earlier, the LEP reflects the classification of acceptable uses in town planning terms. It is clear the LEP did not envisage a large warehouse style liquor outlet in the zone. 33 Accordingly, I am satisfied that the drive-in aspect of the approved development is subordinate to the shop purpose of the Dan Murphy store. In that case, the drive-in use should be disregarded and the whole development regarded as a prohibited shop. If I am not right about that, nevertheless there are two distinct uses proposed for the site, neither of which subserves the other. A minor use is not to be ignored simply because it is minor and the fact that it is overshadowed by another use does not make it less a use (Steedman and Another v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562). In the latter case, the use of the Dan Murphy store area is prohibited as a shop. 34 In either case, the council did not have jurisdiction to entertain the development application and, accordingly, the purported grant of consent is a nullity. Alternatively, the consent has been granted in respect of a prohibited development and, accordingly, is void and of no effect. Orders 35 The Court makes the following formal orders:-

(1) The Court declares that development consent No. 10.2002.318.1 issued by Ashfield Municipal Council dated 20 January 2003 ("the development consent") is void and of no effect.

(2) The Court orders that the first respondent, by its servants and/or agents be restrained from acting on the development consent.

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