Victorian Civil and Administrative Tribunal|2006-12-21

Radford v Hume CC [2006] VCAT 2662 (21 December 2006)

Section 149A of the Planning and Environment Act 1987 declaration - Characterisation of use - Relationship of "shop" and "retail premises" - Nesting diagrams in clause 75 of the planning scheme

1 Pursuant to section 149A of the Planning and Environment Act 1987 I declare that the proposed use of the subject land for "pet supplies distribution" should not be characterised as a "shop" but should be characterised as "retail premises".

Mr Stephen Coleiro, town planner, of Gattini & Partners

1 On its face, this is quite a simple matter involving the characterisation of a proposed use of land for "pet supplies distribution". However, it raises difficult issues of whether the proposed use should be characterised as a "shop" or "retail premises", and the relationship of these two uses and their definitions in the planning scheme.

2 I have taken the view that when characterising uses that may fall within two or more definitions it is necessary to have regard to the structure, context and purpose of the planning scheme provisions at the time of interpreting the land use terms. It is also necessary to have regard to the "big picture" to ensure that the purposes of planning and the objectives that the planning scheme seeks to achieve are not frustrated by unduly restrictive interpretations of land use terms.

3 Sometimes it is necessary to go back to basics and remind oneself of what is the purpose of planning and planning schemes. In this context it is useful to refer to the objectives of planning set out in the Planning and Environment Act 1987, a primary one of which is to provide for the fair, orderly, economic and sustainable use and development of land, and to clause 11 of the State Planning Policy Framework in the planning scheme. Clause 11 sets out the over-arching goals and principles of all planning schemes. In the introduction it states:

The State Planning Policy Framework provides a context for spatial planning and decision making by planning and responsible authorities. [Tribunal's emphasis]

4 An important aspect of planning is making specific decisions about proposals in terms of where they are best or most appropriately located in a geographic or spatial sense and where such proposals will foster the goals and principles of planning set out in the planning scheme. The State Planning Policy Framework recognises that society has various needs and expectations, including economic wellbeing. Clause 11.03-5 addresses the general principle of economic wellbeing and states:

Planning is to contribute to the economic well-being of communities and the State as a whole by supporting and fostering economic growth and development by providing land, facilitating decisions, and resolving land use conflicts, so that each district may build on its strengths and achieve its economic potential.

5 The reason why it is important to remember these general principles in this particular case is that the case highlights the danger of becoming enmeshed in the minutiae of land use definitions without taking account of their role in implementing the purpose of particular zones, which in turn are intended to implement the over-arching objectives of planning in Victoria and the goals and principles set out in the State Planning Policy Framework.

6 This case involves an application for declaration under section 149A of the Planning and Environment Act 1987 regarding interpretation of the Hume Planning Scheme in relation to the proposed use of the subject land for "pet supplies distribution". The proposed use will involve the sale of pet supplies. It will be a retail and wholesale outlet for bulky goods including equestrian supplies, kennels and pet bedding, aquariums and associated supplies, bulk pet foods (primarily equine, dog, cat and bird etc) and pet health products. It is also proposed that there will be a small component of manufacturing sales (dog kennels) and pet grooming.

7 The subject site is a building which has a floor area in excess of 1000m2 and is one of the tenancies within the Roxburgh Plaza and Home Maker Centre located at the south east quadrant of the intersection of Somerton Road and Pascoe Vale Road, Coolaroo. The Roxburgh Plaza and Home Maker Centre is included in a Business 4 Zone, the purpose of which is to encourage the development of a mix of bulky goods retailing and manufacturing industry and their associated business services. On the face of it, the type of use proposed would appear to be ideally suited for location within this Business 4 Zone as it involves a mix of bulk goods retailing and manufacturing industry.

8 Within the Business 4 Zone the following are section 1 (permit not required) uses: Equestrian supplies, industry (other than materials recycling), lighting shop, party supplies, restricted retail premises and trade supplies. Retail premises (other than shop and trade supplies) is a section 2 (permit required) use. Shop (other than adult sex book shop, convenience shop, and restricted retail premises) is a section 3 (prohibited).

9 Notwithstanding that the type of use proposed is well suited to a location within a Business 4 Zone, the council has characterised the use as a "shop" and taken the view that it is therefore prohibited. The question I must decide is whether the use should be characterised as "shop" or as "retail premises".[1]

10 The definition of "retail premises" is:

a) sell goods by retail, or by retail and wholesale;

11 "Retail premises" includes a range of separately defined uses such as food and drink premises; gambling premises; landscape gardening supplies; manufacturing sales; market; motor vehicle, boat, or caravan sales; postal agency; primary produce sales; trade supplies; and, importantly, shop.

12 The definition of "shop" is:

13 "Shop" includes adult sex bookshop; beauty salon; bottle shop; convenience shop; department store; hairdresser; restricted retail premises; and supermarket.

14 Looking at the operative words of the definition of "shop" - land used to sell goods or services, or to hire goods - there is little distinction between them and the operative words of the definition of "retail premises" - land used to sell goods by retail, or by retail and wholesale; self services; or hire goods. In fact, the only distinction is the reference in the definition of "retail premises" to the sale of goods by retail, or by retail and wholesale.

15 The issue is whether "retail premises" has any meaning other than being an umbrella term for specific types of retail uses included within it (see Nesting Diagram for Retail Premises Group in clause 75.11) or whether, in fact, "shop" is the generic use with specific types of retail uses being excluded[2] but with everything else not separately listed falling within the ambit of the definition of "shop". In other words, is "retail premises" simply the sum of its parts - ie an umbrella - or is it a broad use in its own right which includes specific types of retail premises but may also include other unspecified types of retail premises, thereby allowing room for new type of retail premises to evolve?

16 The council contends that the sale of pet supplies does not fit within any of the "retail premises" uses listed in clause 75.11 other than potentially the "shop" use. It submits that the proposed use is therefore either prohibited because it is a "shop" or it is an unlisted and undefined permissible "retail premises" use described as "pet supplies". The council argues that it would be difficult, if not impossible, to characterise land used for the sale of goods or services as falling outside the "shop" definition unless it is another listed and defined land use term. Clause 74 of the planning scheme provides that "a term describing a term or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously more commonly included within one or more of the terms listed in the table." The council submits that if the use is obviously and commonly included within a definition, that is how it should be categorised. There is no logical policy reason for supposing that the sale of pet supplies (which is undefined) is a particular category of "retail premises" which should escape the broad "shop" definition. Rather, it is plainly embraced by the words of that definition when those words are given their ordinary meaning.

17 I consider that when interpreting the land use terms "retail premises" and "shop" in the context of the Victorian Planning Provisions an interpretation is to be preferred that gives effect to the cascading nature of the Nesting Diagrams in clause 75, to the structure and purpose of zones and the grouping of uses within them, and to the goals and principles set out in the State Planning Policy Framework. I consider that an expansive rather than a restrictive approach should be adopted that makes allowance for the evolution of the retail industry but in a way that will achieve a net community benefit.

18 Accordingly, I find that the catch-all or generic land use term within the retail premises group is "retail premises" not "shop". I find that "shop" - is no more than a particular category of retail premises albeit a very broad category. If a particular type of use does not fit comfortably within the plain English meaning of one of the defined land use terms included in the retail premises group in clause 75, it may be categorised as "retail premises" and a permit may be granted for this use if the relevant zone allows for this and other relevant decision guidelines are satisfied. Notwithstanding the similarity in the definitions of "shop" and "retail premises", it is not always necessary to characterise a use as a "shop" rather than "retial premises". In my view, such an approach:

•

Is consistent with the way in which other land use terms are nested in clause 75 and the way in which they are interpreted.

•

Does not restrict the opportunity for new forms of retailing to evolve and locate in appropriate areas that will support the State and local planning policy frameworks found within the planning scheme.

•

Acknowledges the purpose of the different zones and their tables of uses within the planning scheme.

•

Gives effect to the principles of economic wellbeing set out in clause 11.03-5 of the SPPF.

19 Clause 75 of the planning scheme contains a series of nesting diagrams setting out land use terms which are included in other land use terms. It represents in diagrammatic form the table to clause 74, which sets out the definitions of land use terms. Justice Morris dealt with the nesting of land use terms in National Lifestyle Villages Pty Ltd v Wyndham CC[3] where he said:

[9] The structure of land use terms contained in the table to clause 74 of the scheme is that terms are specified at different levels of abstraction or specificity. Some terms are nested within other terms; or even within nested terms. Hence land use terms often overlap. Even when terms are not nested it will still be common enough for a particular use to naturally fall within more than one specified term....

[10] If a use clearly falls within more than one specified land use term, the proposed user is entitled to take advantage of the most (or more) favourable provision. But it will not always be appropriate to regard a use as falling within more than one specified land use term. This is because some parts of the scheme are structured so as to invite a choice between different land use terms, at least where an activity can obviously or commonly fit within a specified term....

[11] If a proposed use comfortably fits the definitions of two specified land use terms, the choice will often involve giving preference to the more specific term. However it is not always clear which is the more specific term....

[12] Usually it will be necessary to identify critical differences between land use terms. These may flow from comparing the definitions. Sometimes the words of the definitions will be vague and the task of interpretation will be more challenging....

20 In the National Lifestyle Villages case, the two uses in question were "camping and caravan park" and "residential village" both of which were nested within the "accommodation" group. An analysis of the definitions of each use meant that the particular use proposed in that case could have fallen within either the definition of "camping and caravan park" or "residential village". To distinguish between them Justice Morris looked not only at the essential requirements included in the definitions but also their qualitative differences. In his opinion, the qualitative differences between the two uses included the following: permanency of residents; accommodation standard and size; movability of accommodation units; and the nature of communal facilities.[4]

21 The National Lifestyle Villages case is illustrative of what is the preferable approach in characterising land uses in the context of planning scheme controls. This approach was summarised by Justice Morris who said:

[4] ... What must be emphasised is that the task of characterising a use for the purpose of applying zone provisions takes place in the context of particular planning scheme provisions. Thus it is the structure, context and expression of planning scheme provisions which will usually determine the outcome, rather than general statements about how land uses ought be characterised.

22 Reference to "general statements about how land uses ought to be characterised" no doubt refers to passages about the characterisation of land uses in such well known cases as Shire of Perth v O'Keefe[5], Pacific Seven Pty Ltd v City of Sandringham[6] and Cascone v City of Whittlesea[7]. The various cases providing guidance about how land uses should be characterised were exhaustively analysed by Ashley J in Cascone v City of Whittlesea. This was an appeal against a Tribunal decision which considered an application to use an industrial building for a combined wholesale and retail video outlet. The premises were already being used by the applicant to distribute videos to retailers, and to conduct a large retail video library, as well as selling video related products and repairing video recorders. The site was in a zone where "shop" was a prohibited use. The Tribunal determined that the proposed use included a use as "shop", as well as uses "warehouse" and "peripheral sales", and that the shop use was not ancillary to the other uses. On that basis it granted a permit for use only as a warehouse and peripheral sales. The Court allowed the appeal and remitted the matter to the Tribunal for rehearing. In doing so, Ashley J said:

With respect, it did not follow from the fact that goods were sold or hired in the retail operation that the premises were constituted a shop. What the Tribunal did, I think, was no more than to find an activity which fitted a definition - operating upon the basis that there may be more than one use of a premises. Having found an activity fitting a defined use it thereupon concluded that "the operation" was placed in the defined category. But the question was not whether an activity or operation fitted a definition. The question was what was the purpose (or purposes) of the use to which the premises were being put. The circumstances being such that more than one purpose might have been revealed, questions of dominant and ancillary use then arising, consideration of the matter by reference to the real and substantial purpose of the use was indicated. But even if the adjectival phrase had not been applied to 'purpose', the approach of finding defined use by reference simply to activity or operation undertaken at the premises was, in my opinion, impermissible.[8]

23 The important point emerging from the Court's finding is that it is wrong to look at a proposed use simply in terms of the activity it entails rather than the purpose to be served by that activity. Thus in the present case, simply because the activities proposed will entail the sale of goods and services does not automatically mean that the proposed use is a "shop". In my view, the scale and mix of activities, the size of the premises, the type of goods and services dealt in, the bulky nature of many of the goods sold, and the location of the premises are qualitative differences that distinguish the proposed use from a shop.

24 A shop is typically found and encouraged in a Business 1 Zone. The purpose of the Business 1 Zone is:

To encourage the intensive development of business centres for retailing and other complimentary commercial, entertainment and community uses.

25 In a Business 1 Zone, "shop" is a section 1 (permit not required) use and "retail premises" is a section 2 (permit required) use.[9] In the Business 2 Zone, the purpose of which is to encourage the development of offices and associated commercial uses, "shop" and "retail premises" are section 2 uses. In the Business 3 Zone, whose purpose is to encourage the integrated development of offices and manufacturing industries and associated commercial and industrial uses, "retail premises" is a section 2 use except for "shop (other than adult sex bookshop, convenience shop and restricted retail premises)", which is a section 3 use. I have referred earlier to the Business 4 Zone, whose purpose is to encourage the development of a mix of bulky goods retailing and manufacturing industry and their associated business services, where similarly "retail premises" is a section 2 use and "shop (other than adult sex bookshop, convenience shop and restricted retail premises)" is a section 3 use. Finally amongst the business zones is the Business 5 Zone, whose use is to encourage the development of offices or multi dwelling units with common access from the street. In the Business 5 Zone "retail premises" is a section 2 use and "shop (other than convenience shop)" is a section 3 use.

26 The same applies in the industrial zones where "retail premises" is a section 2 use except for "shop (other than adult sex bookshop, convenience shop and restricted retail premises)" which is prohibited.

27 In my view, the distribution of these uses in the business and industrial zones indicates an intention that the location of these uses will serve the purpose of the zones, which in turn are a means of implementing the principles and objectives found in the planning policy framework of the planning scheme.[10] The regulation of use and development is not an end in itself, but rather a means to an end. That end is the achievement of objectives and strategies in the planning scheme and, ultimately, the objectives of planning in Victoria as set out in the Planning and Environment Act 1987.

28 I acknowledge the fear that by allowing retail premises that might otherwise be characterised as shops to locate in non-traditional Business 1 Zone activity centres, this may undermine the achievement of activity centre policies within the planning scheme. However, I do not consider this fear will be realised provided that a common sense approach is adopted by decision makers. A critical question in making decisions about specific applications is whether a proposed use is appropriately located in terms of supporting the overall objectives and strategies for a council's activity centres, bearing in mind the differences between activities centres. In my view, a retail premises dealing in bulky goods of the nature of the proposed use is most appropriately located in an activities centre such as the Roxburgh Plaza and Homemaker Centre which is zoned for the purpose of encouraging the development of a mix of bulky goods retailing and manufacturing industry. The proposed use has far more affinity with uses such as "equestrian supplies", and "restricted retail premises", which are section 1 uses in the Business 4 Zone, than the type of shops one would expect to normally find within a Business 1 Zone where the emphasis is usually on higher order goods and a more intensive form of retailing.

29 The structure of the nesting diagrams in clause 75 is such that specific land use terms are nested within the broadest land use term. However, the separate, specific land use terms nested below them do not necessarily "cover the field" of the head land use term. Thus in the education centre group, education centres exist that are neither a business college, an employment training centre, a primary school, a secondary school nor a tertiary institution. Likewise, no one would suggest that the land use terms included in the industry group "cover the field" of all types of industry. "Industry" remains a separate and broad category of use in its own right apart from the separately defined uses falling within the industry group.

30 In my view, there is no reason to take a different view to the retail premises group in clause 75. Retailing is a dynamic industry driven by competition and consumer demand, changes in technology and shifts in consumer patterns. I consider it would be inappropriate to constrain opportunities for the retail industry to develop on the basis that new types of retail premises do not fit comfortably within existing definitions and traditional concepts of retailing which may have informed earlier decisions about how specific uses ought to be characterised. That would be contrary to the general principle of economic wellbeing set out in clause 11.03-5 that planning should support and foster economic growth and development as a means of contributing to the economic wellbeing of communities and the State as a whole. As new forms of retailing evolve, the role of planning is to ensure that they locate in appropriate places where they will best meet the needs of net community benefit and sustainable development. It is not the role of planning to frustrate the development of retailing or try to force uses into inappropriate locations by taking a restrictive view about which definition certain activities fall within.

31 For the reasons I have previously outlined, I consider that the use proposed by the applicants in the present case will be appropriately located in the Business 4 Zone. I find that the proposed use is not prohibited in the Business 4 Zone because it is not a "shop". Rather, the proposed use of the subject land for "pet supplies distribution" can be characterised as "retail premises", hence it is open to the council to grant a permit for this use of the subject land.

[1] It was common ground between the parties that the proposed use was not "restricted retail premises" because the goods to be sold did not fall within the enumerated categories of goods within that definition.

[2] I.e. those uses separately listed in the Nesting Diagram in clause 75.11

[9] There are some other specific uses included in "retail premises" that are section 1 uses, but they are not relevant for present purposes. In this discussion I am focussing primarily on the uses "shop" and "retail premises".

[10] See clause 2 of the Victoria Planning Provisions; Using Victoria's Planning Scheme (DSE) section 1.2; and section 12A(3)(c) of the Planning and Environment Act 1987 which establish that it is the MSS within the local planning policy framework that establishes the rationale for the application of zones and overlays within a planning scheme.

Radford v Hume CC [2006] VCAT 2662

At a glance

Court

Decision date

Source

Judgment (42 paragraphs)

Radford v Hume CC [2006] VCAT 2662 (21 December 2006)

Parties

Cases Cited (1)