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

Introduction 1 The third respondent is the proposed lessee of land situated at 552-554 Parramatta Road, Ashfield ("the land") under an agreement for lease made with the first respondent. The first respondent, which is the owner of the land, has not participated in argument. 2 On 11 September 2002 a development application was lodged with the second respondent, Ashfield Municipal Council ("the council"), to carry out development for what was described as "use of an existing 'My Car' building as a Dan Murphy drive-in take away liquor store; Demolition of a café building keeping some of the façade for signage, addition of 4 parking spaces, landscaping". On 20 January 2003 the council granted a development consent to allow "Demolition of part of existing café building with retention of some facades and construction and use of the building for a drive through liquor outlet and provision of associated signage". 3 Under Ashfield Local Environmental Plan 1985 ("the LEP") the land is zoned 3(b) (Special Business Zone). Within the zone development for the purposes of shops other than some types of shops, which are referred to in Sch 3 to the LEP, not exceeding 90m2 floor space is prohibited. The LEP provides that "drive-in take-away establishments" are permissible in the zone but only with development consent. 4 The applicant is seeking a declaration that the development consent dated 20 January 2003 is void and of no effect. The grounds for its claim are either that the proposed development is properly characterised as a shop, not being a shop referred to in Sch 3 of the LEP, or that there are two distinct developments proposed, one of which is a prohibited shop. 5 Mr Hale SC contends, on behalf of the applicant, that a council has no jurisdiction to entertain an application for development consent in respect of prohibited development. Part 4 Div 2 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") sets down the procedures for development that needs consent. Section 77 provides that the division applies to development that may not be carried out except with development consent. Accordingly, if development is prohibited the argument is that an application cannot be made for development consent pursuant to Div 2. This has the consequence, according to Mr Hale, that the council is obliged to characterise the proposed development to determine whether it is development that may not be carried out except with development consent. This determination is said to be the establishment of a jurisdictional fact. 6 If the applicant's contention is correct then the Court is entitled to determine for itself whether the application is in respect of development that may not be carried out except with development consent. One result of this approach would be that the determination by the Court of Appeal in Londish v Knox Grammar School and Others (1997) 97 LGERA 1, namely that where the evidence and material before the council may have reasonably admitted to more than one conclusion and the decision made by the council was reasonably open to it then the council's decision is not reviewable by the Court, no longer has application after the amendments made to the EP&A Act subsequent to the decision. Mr Jackson, who appears for the council, agrees with Mr Hale in that respect but Ms Jagot, who appears for the third respondent, does not. The significance of this issue is that if Mr Hale is correct then the Court may have regard to material other than the material before the council in order to ascertain whether the development application was made within the jurisdiction of the council as consent authority (Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55). 7 Although the Court of Appeal was considering a slightly different circumstance in Chambers v Maclean Shire Council and 2 Ors [2003] NSWCA 100, unreported, nevertheless the Court found that if a development application was made for a prohibited development it was not an application in terms of the EP&A Act and the council had no power to consider it. The Court recognised the provisions in Div 1 of Pt 4 of the EP&A Act relating to the three-fold classification in regard to the carrying out of developments. These were made by the amendments to the EP&A Act which commenced on 1 July 1998 and, therefore, post-dated Londish. At the time Londish was decided, the EP&A Act contemplated that a development application for a prohibited development could be lodged with a consent authority, not being a Minister. In Chambers Justice Ipp, with whom the other members of the Court of Appeal agreed, concludes that the scheme of the EP&A Act now indicates that it is not for a council itself to determine, as a matter of its opinion, whether it has power to grant consent to a development application (citing Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135 at 149). 8 In Enfield the majority expressed the view that the text of the relevant Western Australian legislation does not suggest that the determination whether the responsible authority is or is not obliged to consent rests upon its own classification of the relevant circumstances. Following the amendments to the EP&A Act and the decisions in Timbarra, Enfield and Chambers the reasoning in Londish does not appear to apply, at least to the present circumstances. Accordingly, the Court is not confined solely to the evidence that was before the council and it is obliged to make the decision for itself as to whether the proposed development is prohibited. 9 In Giddings v Ashfield Council [1999] NSWLEC 238, unreported, Lloyd J expressed the opinion that a drive-through bottle shop is a "drive-in take-away establishment" for the purposes of the LEP. His Honour rejected an argument which sought to confine a "drive-in take-away establishment" to a take-away food outlet because to do so would be to read into the phrase words that are not there. I agree with His Honour that the phrase is equally inclusive of take-away drink outlets. However, that is not an end to the matter. 10 The approach to the classification of premises devoted to a dual use was settled by Glass JA in Foodbarn Pty Limited and Others v Solicitor-General (1975) 32 LGRA 157 at 161 in the following well recognised passage:- It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts….…Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. 11 The purposes or uses identified in the LEP are specific and are intended to be a reflection of the appropriate classification of acceptable uses in the zone in town planning terms. They should be scrutinised with this in mind. This approach contrasts with the more liberal or broad approach permitted in cases concerning existing uses (see Shire of Perth v O'Keefe and Another (1964) 110 CLR 529 and North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd and Others (1989) 16 NSWLR 50). However, it is well established that the Court will not construe the words of a planning instrument in the same strict manner as it will for interpretation of an act of parliament. It is important to realise, therefore, that the common elements of the sale of packaged alcohol products, ownership or use of the same building do not assist the identification of a use where, as in this case, the use is categorised in the LEP by reference to the modus operandi of a drive-in take-away establishment.

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:-

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Judgment (7 paragraphs)

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