I refer to our discussions in this matter. I enclose copy letter I propose to forward to Millennium Markets Pty Ltd and its solicitors relating to the Apartment Contract.
On a plain reading of the contract I consider there are some difficulties associated with having the Apartment Contract cancelled.
I understand your instructions to be that you understood that as long as the amended Whittlesea Planning Scheme did not materially change the permitted use of the Market Land you would be entitled to have the Apartment Contract cancelled because no more than existing uses were required by the contract with Millennium Markets.
However, the proviso in clause 3, requiring the land to be used for the Proposed Uses, states with reference to the proposes uses, whether because of a rezoning of the Market Land and/or by the grant of planning permits on terms reasonably acceptable to the Purchaser. This suggests that some change was necessary to facilitate the Proposed Uses. Furthermore, it is arguable whether the land can be used for factory retailing outlets, fruit and produce market with the ability to grant leases. The most significant concern in this regard is the ability to grant leases when, according to the City of Whittlesea the permit allows a use which is defined as 'land where vendors of goods temporarily occupy an area or stall for a fee'.
I note your advice in this regard that some stall holders did have leases and the Council effectively sanctioned those leases by granting shop permits to them.
However, the grant of leases involves entitlement to the land which is greater than the right to temporarily occupy it for a fee and the fact that the Council overlooked the difference does not have the effect of allowing a grant of a lease where no such power existed.
In relation to the use as a fruit and produce market, the explanatory memorandum to the definitions related to use of premises under the Planning Scheme states that Trash and Treasure has its ordinary meaning and fruit and produce may well not constitute Trash and Treasure. Further in its letter of 23 November 1999, the City of Whittlesea notes that the endorsed plan for the site limits the areas where fruit and produce can be sold and also points out that the permit allows a Trash and Treasure Market only and all goods sold must conform to this primary use.
On the other hand, I understand your instructions to be that the premises has operated as a fruit and produce market for some time. Furthermore, a Trash and Treasure Market is included in the definition of Retail Premises which is described as land used to sell goods, including foodstuffs from stalls.
In summary, it appears that without objection from the City of Whittlesea, and perhaps with its sanction, the Market Land has been put to a use which does not accord with the permit.
I understand your instructions to be that these issues [were] known to the directors of Millennium Markets Pty Ltd and that the real agreement between the parties was that if the market could continue to operate in the way that you had operated it for some time, then the 'Proposed Use' provision had been satisfied and the Apartment Contract could be cancelled.
Courts are able to look beyond the written word of a contract where the words are capable of ambiguity. You will have the burden of showing not only that the existing uses continued and were legal but also that the discussions that you had with the directors of Millennium Markets were such that they were agreeing to accept the existing uses of the Market Land.
Will you kindly confirm that the enclosed letter to Millennium Markets is acceptable to you and I will forward it to that company.[5]