Snowside Pty Limited v Holroyd City Council

By letter dated 23 May 2003, the Applicant's Solicitors advised the Council's Solicitors that in the description of the proposal in the Executive Summary of the Statement of Environmental Effects, the word "general" should be added to the word "merchandise" where that word twice appears in the third dot point quoted above. This letter was tendered (Exhibit 2) without objection from the Council to the intent that the description of the proposed development should be so understood.

In the plans accompanying the development application, the following physical details of the development are provided - AREA ANALYSIS - Bunnings Smithfield m2 Main Store (incl. Indoor Nursery) 7906.44 Main Entry 81.56 Warehouse Area 7988 Timber Trade Sales 1904.10 Timber Storage Yard n/a Trade Area 1904.1 Outdoor Nursery 1763.99 Bagged Goods Canopy (Nursery) 314.7 Nursery Area 2078.69 Total Retail Area 11,970.79 Bunnings Carparks` 432 Disabled Carparks 8 Trolly Bays 4 Trailer Bays 3 Land Size: Bunnings (Ha) 3.37 Balance (Ha) Total Land (Ha) 3.37

Greater detail of the manner in which the proposal is intended to be operated was given in the affidavit evidence of Mr Mathew Toohey, the General Manager, Property of Bunnings Building Supplies Pty Limited which operates its businesses throughout Australia in a fairly standardised manner. Mr Toohey has held his current position with Bunnings for two years and his evidence is based, inter alia, upon his knowledge of the manner in which Bunnings Warehouses are typically operated.

In par 4 of his affidavit, he stated that in broad terms, the Bunnings warehouses have two principal purposes - (i) the display for sale and sales of a wide range of merchandise to both household end users and to those engaged in the building and construction industry; and (ii) as a warehouse and storage facility for merchandise not on display for sale at particular times.

In par 8, he annexes a list of the range of merchandise proposed to be sold and stored at the Smithfield premises involving some 45,000 separate product lines.

The annexed list presents the range of merchandise by reference to types of merchandise available in the following "departments" or classifications:

Bathroom Builders hardware Building Products Craft Display Pond Drapery Electrical Flooring Garden Leisure Gardening General Promo Hire Area Homewares Indoor Nursery Indoor Timber Kwick Gas Landscape Yard Outdoor Nursery Paint Pigeon Hole Park Power Gardening Storage Containers Timber and Drive Through Tools

The list comprises 8 x A4 pages of typescript and is too lengthy to be reproduced here. Rather, by way of illustration, I will quote the entries for "Building Products" and "Electrical" respectively: Department Merchandise Type BUILDING PRODUCTS Additives/Acids/Oils/Compounds BUILDING PRODUCTS Aluminium/PVC Mouldings BUILDING PRODUCTS Aluminium Joinery BUILDING PRODUCTS Bricks - Internal/Face/Common BUILDING PRODUCTS Building Construction Products (1) BUILDING PRODUCTS Building Construction Products (2) BUILDING PRODUCTS Building Construction Products (3) BUILDING PRODUCTS Building Construction Products (4) BUILDING PRODUCTS Building Construction Products (5) BUILDING PRODUCTS Building Construction Products (6) BUILDING PRODUCTS Building Construction Products (7) BUILDING PRODUCTS Cement/Lime BUILDING PRODUCTS Fibre Cement Sheeting & Accessories BUILDING PRODUCTS Gyprock Sheeting & Accessories BUILDING PRODUCTS Insulation/Ventilation BUILDING PRODUCTS Insulation/Ventilation (2) BUILDING PRODUCTS Metal Sheeting (Steel/Aluminium) BUILDING PRODUCTS PVC Fibreglass/Polycarbon Sheeting BUILDING PRODUCTS Sheet Glass (Inc. LouvreBlades) BUILDING PRODUCTS Speciality Structural Products ELECTRICAL Air Movement & Electrical Heating ELECTRICAL Car Radio & Accessories ELECTRICAL Conduit/Cable ELECTRICAL Electrical Accessories ELECTRICAL Electrical Fittings ELECTRICAL Electrical Fittings ELECTRICAL Electrical Fittings ELECTRICAL Electrical Fittings ELECTRICAL Globes/Lamps ELECTRICAL Globes/Lamps ELECTRICAL Globes/Lamps (2) ELECTRICAL Kitchen Whitegoods ELECTRICAL Lighting (1) ELECTRICAL Lighting (2) ELECTRICAL Lighting (3) ELECTRICAL Lighting (4) ELECTRICAL Power Usage Products ELECTRICAL Torches/Batteries ELECTRICAL TV/Telephone & Accessories

Mr Toohey's affidavit also deposes to the following aspects of the proposed operation of the proposed development -

(i) Plant Nursery and related sales: Sales of relevant merchandise are substantially to household end users. Total floor space devoted to such merchandise is 4,119 m2 (representing 34.5 per cent of total floor space) and sales of such merchandise total 23 per cent of overall annual turnover; and

(ii) Warehousing/storage use of premises The proposal includes a significant warehousing/storage use whereby merchandise is stored pending its display and sale at the premises or pending its distribution supply and sale to other Bunnings Warehouses. Such warehousing/storage use is accommodated in shelving/racks positioned at the inside perimeter of the building above the display shelving (containing goods for sale) which is some 2.1 m in height to heights ranging between 4.5 and 6 metres. A comparison of the volumetric spaces available to (i) warehousing/storage use; and (ii) display for sale use is 7,000 m3 for the former and 6,500 m3 for the latter use; and

(iii) Trade Sales Trade sales comprising sales made to persons engaged in the trade or industry including the building/construction industry in contrast to sales to household end users. Trade sales are expected to amount for some 35 per cent of total annual sales turnover.

(iv) Bulky goods "Bulky Goods" comprise "large goods, which by reason of their shape and size, require a large area for handling, storage, and display, and easy and direct vehicular access for the unloading and loading of delivery and customer vehicles".

It is estimated that some 78 per cent of the total volume of all merchandise displayed for sale and stored at the premises comprises "bulky goods".

Mr Toohey's evidence was not challenged or rebutted and I accept it in its entirety as providing comprehensive details of the proposed manner of operations of the proposed development.

Accordingly, I find that the proposed development will have the physical attributes of the building and site layout as described in the Statement of Environmental Effects accompanying the development application that I have earlier recited, and will have the attributes of use of that building and development site in the manner described in that Statement of Environmental Effects as amplified by the detail of the manner of operation of the proposed development provided in Mr Toohey's testimony.

The foregoing findings relate to the proposed development as a physical entity - both as a static development (ie the building and site layout) and as a dynamic development (ie the manner of operational use of the development).

Those findings do not attempt to categorise or characterise the development for the purposes of the LEP or the EP&A Act. It is to the all important task of that characterisation (upon which the parties divide in the present case) that I now turn. C. THE CHARACTERISATION OF THE PROPOSED DEVELOPMENT IN TERMS OF THE LEP and the EP&A act

In undertaking the task of characterisation, two preliminary observations, which are relevant to the present case, may be made. Firstly, it has not been suggested (nor could it be suggested) that the expression "Bunnings Warehouse" although perhaps widely appreciated in our community as a fairly standardised form and format of merchandising of particular classes of goods, constitutes of and by itself, an established category of development for planning purposes.

Secondly, although the Applicant in its amended Executive Summary in the Statement of Environmental effects has described the merchandise stored, displayed and sold by Bunnings as "general merchandise", that description in the development application and the accompanying documentation is not, and cannot be, conclusive or determinative in the task of characterising the proposed development for planning purposes and in particular for the purposes of the LEP. This observation is supported by the following statement from my judgment in Westpoint Corp Pty Ltd v Rockdale City Council (2000) 109 LGERA 298 at 403:

Description of a proposed development, and categorisation of it, are not necessarily co-extensive. Categorisation of a proposed development conventionally is undertaken by reference to defined terms or purposes in the relevant environmental planning instrument principally to determine whether the proposed development is for a permissible purpose. Unless a proposed development is shown to be for a permissible purpose of development, it is axiomatic that a valid development consent cannot in law be granted to that application.

It is now necessary to identify the relevant provisions of the LEP because it is by reference to those provisions that the required task of characterisation is to be undertaken.

According to the Statement of Agreed Facts (Exhibit 1), the land upon which the proposed development is to be carried out is within Zone No 4(a) ("Industrial General Zone") created by the LEP.

Within that Zone, cl 9 of the LEP provides as follows: Zone objectives and development control table 9. (1) The objectives of a zone are set out in the Table to this clause under the heading Objectives of zone appearing in the matter relating to the zone. (2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which:

(a) development may be carried out without development consent; (b) development may be carried out only with development consent; and (c) development is prohibited, are specified under the headings Without development consent Only with development consent and Prohibited, respectively appearing in the matter relating to the zone.

(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development proposed is to be carried out.

TABLE ZONE No. 4(a) (INDUSTRIAL GENERAL ZONE)

1. Objectives of zone The objectives of this zone are: (a) to encourage the development and expansion of a wide range of industrial activities which will contribute to the economic growth of, and create employment opportunities within, the City of Holroyd; (b) to ensure that industrial development creates areas which are pleasant to work in, and safe and efficient in terms of transportation, land utilisation and services distribution; and (c) to allow commercial or retail uses only where they are associated with, ancillary to or supportive of, industrial development. 2. Without development consent Nil. 3. Only with development consent Any purpose other than a purpose included in Item 4. 4. Prohibited Abattoirs; boarding houses; brothels; commercial premises (other than those ordinarily incidental or subsidiary to and situated on the same land as the industry); dual occupancies; dwellings and residential flat buildings (other than those used in conjunction with industry and situated on land on which such industry is conducted); educational establishments; extractive industries; hazardous industries; hazardous storage establishments; hospitals; institutions; integrated housing; medium density housing; mines; motels; offensive industries; offensive storage establishments; places of public worship; roadside stalls; self-storage units; shops (other than those referred to in Schedule 3); stock and sale yards; timber yards; tourist facilities.

It may be observed that cl 9 of the LEP adopts the conventional approach available under the EP&A Act (see ss 26, 30 and 31) of specifying development controls by reference to three categories (i) permissible development; (ii) development requiring development consent; and (iii) prohibited development in respect of the carrying out of development on land included within each of the designated zones. The LEP creates 16 separate zones - three residential zones, two business zones, four industrial zones, two special uses zones, three open space zones and two road or transport zones. It may also be noted that in the case of the development controls applying to the Residential, Business and Industrial Zones (except for Zone No 4(d) "the Industrial Extractive Zone") cl 9 specifies the particular purposes of development that are "prohibited development" and specifies as the purposes for which development may be carried out only with development consent "any purpose other than a purpose included in Item 4" (that item containing the specification of the particular purposes that constitute "prohibited development" within each zone).

For all other zones, cl 9 specifies the particular purposes for which development is permissible development or development that may be carried out only with development consent and specifies as "prohibited development" "any purpose other than a purpose included in Item 2 or 3" (those items comprising the other two categories of permissible development).

It may be noted that of the 29 enumerated prohibited purposes of development within Zone No 4(a), all but two ("amusement parks" and "timber yards") are defined by the LEP - either by virtue of the definitions contained in cl 5(1) of the LEP or by virtue of the adoption by cl 6(1) of the LEP of all but a few of the definitions contained in the Environmental Planning and Assessment Model Provisions 1980 (the Model Provisions).

The EP&A Act, s 33(1) provides that an environmental planning instrument may, by reference, adopt wholly or partially any set of model provisions made by the Minister by order published in the Gazette.

Because it was the subject of considerable competing argument, I should quote cl 6 being the provision of the LEP that partially adopted the Model Provisions -

6. (1) The Environmental Planning and Assessment Model Provision 1980 (except for the definitions of child care centre , general store , map , professional consulting rooms , residential flat building , rural industry and rural workers dwelling in clause 4(1) and clauses 5(2), 5(3) and 5(5), 6, 78, 14-17, 19-28, 32 and 33(2)) are adopted for the purposes of this plan.

(2) If a definition adopted by subclause (1) is expressed so as not to include a building or place (or a building or place used for a purpose) separately defined in those provisions then, for the purpose of Part 2, the definition does not include a building or place (or a building or place used for a purpose) separately defined in this clause.

Clause 4(1) of the Model Provisions contains definition of some 70 terms, almost all of which qualifies as a "purpose of development".

The effect of cl 6(1) was that all of those definitions, except for the seven specified terms, were adopted by the LEP. (Of the seven excepted terms, four are separately defined by cl 5(1) of the LEP.)

One of the three definitions that is excepted from the adoption of the definitions contained in the Model Provisions and is not the subject of a substitute definition separately contained in the LEP is "general store", which has a material bearing on the scope of one of the adopted definitions, namely the definition of "shop".

"Shop" is one of the enumerated prohibited purposes of development in Zone No 4(a), which is obviously relevant to the present case. Indeed, it is the fact that "shop" is relevantly a prohibited purpose of development which provides the principal foundation for the Council's opposition to the declaratory relief claimed by the Applicant for it is the Council's case that the proper characterisation of the proposed development for the purposes of the LEP is that it is a "shop". (It is common ground that the seven particular types of "shop" enumerated in Schedule 3 to the LEP and which are express exceptions to the prohibition of "shops" do not apply to the present case.)

"Shop" as defined in the Model Provisions means:

a building or place used for the purpose of selling, exposing or offering for sale by retail, goods merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause, or a building or place used for a purpose elsewhere specifically defined in this clause.

There are two other adopted Model Provisions definitions upon which the Applicant relies in advancing one of its three alternative characterisations of the proposed development, namely "retail plant nursery" and "warehouse" which are in the following terms:

retail plant nursery means a building or place used for both the growing and retail selling of plants, whether or not ancillary products are sold therein;

warehouse means a building or place used for the storage of goods, merchandise or materials pending their sale and distribution to persons engaged in the retail trade

The Applicant's case in support of its claim to the declaration proffers three alternative bases for characterising the proposed development as a permissible purpose of development in terms of the LEP, namely:

(i) It is a general store; (ii) It is bulky goods retailing; (iii) It is mixed purpose development comprising (a) warehouse; (b) retail plant nursery and (c) general merchandising.

The Council' opposing case is that the proper characterisation of the proposed development is a "shop" - a prohibited purpose of development within Zone No 4(a).

Since the Applicant, in seeking the declaration, must establish its case - see Jones v Sutherland Shire Council (1979) 40 LGRA 323 at 327 - I shall consider separately as alternatives each of the three characterisations of the proposed contended for by the Applicant. (i.) Is the Proposed Development Properly Characterised as a General Store?

As the case was argued, it became apparent that the adjudication on this question did not simply involve the conventional task of characterisation. Rather, a significant question of construction arose focussed on the true meaning and effect of cl 6 of the LEP, the outcome of which would be either that the Model Provisions definition of "general store" would be relevant and applicable (the Applicant's construction) or it would be irrelevant and inapplicable (the Council's construction).

Although the parties' focus was principally directed to cl 6(2) of the LEP, as will become apparent, it is the whole of cl 6 that must be properly construed - to resolve the parties' competing arguments.

It is because of the exclusionary aspect of the definition of "shop" (what Glass JA in Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 at 160 referred to as "the proviso") that the definition of "general store" comes into the picture in the present case. The definition of "general store" in the Model Provisions is as follows:

general store means a shop used for the sale by retail of general merchandise and which may include the facilities of a post office.

The Applicant submits that the definition of "shop" contained in the Model Provisions excludes from its scope and ambit, inter alia a "general store" as also defined in the Model Provisions because a "general store" is relevantly a "building or place elsewhere specifically defined in this clause" within the meaning of the proviso to the definition of "shop".

Accordingly, the Applicant submits that when cl 6(1) of the LEP adopts the definition of "shop" contained in cl 4(1) of the Model Provisions the adopted definition of "shop" excludes from its ambit and scope a "general store" as defined by the Model Provisions. The net result of the application of this submission is that if the proposed development is properly characterised or categorised as a "general store" it is not embraced by the prohibited purpose of "shop" applicable to the carrying out of development within Zone No 4(a) and accordingly, is properly regarded as being a permissible purpose of development, being a purpose "other than a purpose included in Item 4": vide Item 3 applying to Zone No 4(a).

The Council's opposing argument to the effect that the adopted definition of "shop" does not exclude from its ambit and scope the definition of "general store" fastens upon the true meaning and effect of cl 6(2) of the LEP.

While acknowledging the textual difficulty of cl 6(2), the Council submits that its true intended meaning is that the exclusionary aspect of an adopted definition only has effect for the purposes of Part 2 of the LEP (that Part contains only two clauses - cl 8 creating or designating the various zones and cl 9 imposing controls on development within those zones) where that exclusionary aspect is itself the subject of a definition which is adopted by the clause.

This proffered meaning (which is challenged by the Applicant) requires the notional injection after the words "separately defined in" where last appearing in cl 6(2) of the words "a definition adopted by". So understood, cl 6(2) of the LEP qualifies the adoption by cl 6(1) of the definitions contained in the Model Provisions.

Applying this meaning and effect of cl 6(2) in the present case would mean that the adoption by cl 6(1) of the Model Provisions definition of "shop" (which would exclude from its ambit and scope "general store" as also defined in the Model Provisions) is qualified by the operation of cl 6(2) by virtue of the fact that the definition of "general store" is not adopted by cl 6 of the LEP - on the contrary, it is expressly not adopted: vide cl 6(1) - with the consequence that for the purpose of cl 9 of the LEP the adopted definition of "shop" does not exclude from its ambit and scope the definition of "general store" contained in the Model Provisions.

The Council's proffered interpretation of cl 6(2) applies a purposive construction, albeit one that adds a gloss to the last crucial phrase of the subclause "separately defined in this clause". Its justification is apparent since "the clause" does not expressly contain any definitions. The definitions referred to in the clause are the definitions contained in cl 4(1) of the Model Provisions that are "adopted for the purposes of this plan".

The same result as that yielded by the Council's purposive construction of cl 6(2), namely that the adopted definition of "shop" does not exclude from its ambit and scope a "general store" is achieved by applying a literal construction to cl 6(2), since literally the exclusionary aspect of the adopted definition of "shop" does not include a "general store" because that term is not "separately defined in this clause".

The Applicant's competing construction of cl 6(2) is that its operation is merely declaratory of the effect of cl 6(1) adopting a definition contained in the Model Provisions which definition expressly excludes from its scope and content another relevant definition. Thus, in the present case the adopted definition of "shop" expressly excludes another relevant definition contained in the Model Provisions, namely "general store".

However, if that be the true meaning and effect of cl 6(2), it is candidly acknowledged by the Applicant that that meaning is not precisely supported by the text of the subclause, and again, it is necessary to make some textual amendment to the final phrase "separately defined in this clause".

In the course of argument, a variant interpretation was proffered by the Applicant, namely that cl 6(2) did not disturb the outcome of the adoption by cl 6(1) of a definition contained in the Model Provisions which itself excluded from its ambit and scope something falling within a separate definition contained in the Model Provisions but was intended to operate in addition to, but not in derogation from, the operation of cl 6(1). This proffered construction accommodates the fact that the LEP itself contains definitions (other than those adopted from the Model Provisions) which may need to be factored into the operation of the exclusionary aspects of an adopted definition.

Which of these competing constructions reflects the true meaning of cl 6 of the LEP?

As noted earlier, cl 6 of the LEP reflects the competence and capacity of an environmental planning instrument (such as the LEP) "to adopt wholly or partially" the Model Provisions: vide s 33(1).

It is clear that cl 6(1) effects a "partial" adoption of the Model Provisions, by excepting from its adoption of the 70 definitions contained in cl 4(1) of the Model Provisions - seven definitions (including "general store") in addition to a number of specified clauses contained in the Model Provisions (which are not relevant to this case). It is that partial adoption that creates the difficulty of construction.

In particular, the partial adoption of the definitions contained in cl 4(1) of the Model Provisions includes the adoption of the definition of "shop" but excludes the definition of "general store" (which is not otherwise separately defined by cl 5(1) of the LEP unlike some of the other definitions that were excepted from the adoption of the Model Provisions' definitions).

A question of construction of cl 6(1) is immediately posed by its concurrent adoption of the Model Provisions definition of "shop" and exception (non-adoption) of the definition of "general store" upon the underlying premise that if all of the definitions contained in the Model Provisions had been adopted by the LEP the definition of "shop" would have excluded from its ambit and scope, inter alia, the definition of "general store".

That premise is supported by the following passage at 161 from the judgment of Glass JA in Foodbarn at 161 rejecting the argument that the defined term "warehouse" fell within the proviso to the definition of "shop" and was therefore not a shop:

In my opinion this construction does violence to the logical structure of the definition There are purposes specifically defined in cl. 4 such as place of public worship, educational establishment, hospital and dwelling-house which could not possibly fall within the purpose of selling by retail. There are others such as general store, refreshment rooms, hotel and service station which could. Warehouse belongs to the former group. It could not have been intended to exclude from the genus of shop purposes, purposes which would not have been included in any event. The clear intention was to exclude purposes which would otherwise be a species of that genus. Shop was to include all shops except shops specially defined. Since the definition of a warehouse purpose was hinged on sale to retailers, it could not have fallen within that class of purposes which involved sales by retailers. Accordingly, warehouse not being within the definition of shop it was not excluded from it by the proviso.

In my opinion, the crucial question to be resolved in the present case in the process of construing cl 6(1) is what (if any) is the effect on the adoption of the Model Provisions definition of "shop" of the express exception (ie non-adoption) of the definition of "general store".

There are two competing possibilities. One is that there is no effect so that the adoption of the definition of "shop" means that "shop" has the meaning and denotation that it is given in the Model Provisions (including most relevantly for present purposes that is excludes from its ambit and scope the definition of "general store"). The other is that there is a profound effect, namely that the adopted meaning of "shop" is necessarily an adapted meaning by virtue of there being no exclusion from its ambit and scope of the definition of "general store".

The former interpretive result preserves in tact the integrity of all of the definitions (including the definitions of "shop" and "general store") contained in cl 4(1) of the Model Provisions whereas the latter effects an adaptation of the meaning of "shop" because of the express non-adoption by cl 6(1) of the definition of "general store". The former interpretive result recognises that the LEP does not adopt "general store" as a relevant definition but gives little or no effect to that recognition, whereas the latter sustains that effect by requiring an adaptation to be made to the definition of "shop".

The competing meanings so far identified derive from an exclusive focus on cl 6(1). It is now necessary to look beyond that narrow focus to consider wider textual and contextual considerations in the LEP to see what light they cast upon the true meaning of cl 6(1).

In my judgment, although cl 6(2) creates its own difficulties of interpretation simply by virtue of apparent textual deficiencies in the last phrase of the subclause, the interpretation urged by the Council supports the meaning of cl 6(1) resulting in an adaptive meaning of the adopted definition "shop" by not excluding from its ambit and scope the definition of "general store". The Council's construction achieves an internal harmony between cl 6(1) and (2).

Wider contextual considerations confirm the meaning of cl 6(1) that the adopted definition of "shop" has an adapted meaning by virtue of the express non-adoption of the Model Provisions definition of "general store". I am here referring to the fact that the term "general store" is not referred to in any provision of the LEP (except for cl 6(1) which expressly excepts it from the adopted Model Provisions definitions) and to the related fact that in all Residential Zones and Industrial Zones (other than Zone No 2(c) "Higher Residential Zone" and Zone No 4(c) "Industrial Special Zone") created by the LEP where "shops" is included in the enumerated prohibited purposes of development (Item 4 in the Zones Table) and where the permissible purposes of development (Item 3 to the Table) are the innominate purposes, ie "any purposes other than a purpose included in Item 4" if the unadapted meaning of "shops" were to be applied as urged by the Applicant, the prohibition of "shops" would not include "general stores" with the result that such development would be permissible development within those Residential and Industrial Zones.

The possibility of such a manifestly unreasonable and unexpected result strongly militates against the Applicant's argument that the meaning of the adopted definition "shop" is that yielded by the Model Provisions unaffected by the express non-adoption by the LEP of the definition of "general store". In effect, the Applicant's construction gives no effect whatsoever to the express non-adoption by the LEP of the Model Provisions definition of "general store" (without the LEP providing its own separate definition of that term).

For all of the foregoing reasons, I am of the opinion that the legal effect of cl 6 of the LEP concurrently adopting the Model Provisions definition of "shop" but expressly not adopting the Model Provisions definition of "general store" is that the adopted definition is necessarily adapted so as to not exclude from its scope and ambit the Model Provisions definition of "general store".

Moreover, in my judgment, the result of an adapted meaning of the adopted definition of "shop" is a legally legitimate outcome of a "partial adoption" of the Model Provisions within the power conferred by the EP&A Act, s 33(1). Although that power does not in terms refer to an adoption "with or without adaptations or modifications" (which is often the statutory formula that is employed) the power to "partially adopt" in my opinion includes the power to adopt with adaptations or modifications. In so concluding, it must be appreciated that the Model Provisions is a source of standardised planning provisions that may readily and conveniently be adopted by environmental planning instruments. But the Model Provisions are the servant and not the master of environmental planning instruments and their legitimate contents, and it is competent for an environmental planning instrument to modify or adapt provisions contained in the Model Provisions.

This conclusion as to the true meaning and effect of cl 6 of the LEP means that it is not necessary to consider the difficult question whether the express non-adoption by the LEP of the Model Provisions definition of "general store" (allied with the LEP not providing any separate definition of that term) has any bearing, as a matter of construction, on what purposes are comprehended by the innominate category of permissible purposes of development being "any purpose other than a purpose included in Item 4" which applies to a number of the zones created by the LEP including the Residential and Industrial Zones that I have earlier identified.

That question is not the same as that which I recently considered in Marscon Pty Ltd v Holroyd City Council (2003) 123 LGERA 323 where I concluded at 330 in respect of the proper construction of the same LEP as is here under discussion that "there was no justification for reading down the innominate purpose (other than a nominated purpose of prohibited development) appearing in the Table to cl 9 of the LEP so that it means only a purpose that is defined or recognised by the LEP". The significant difference between the present case and Marscon is that here, the LEP expressly does not adopt the Model Provisions definition of "general store". The question which would have arisen had I upheld the Applicant's proffered construction of cl 6 of the LEP as it applies to the adopted Model Provisions definition of "shop" is whether there is any legal significance of that express non-adoption of the definition of "general store" in the construction of the innominate category of permissible purposes of development and in particular, whether by necessary implication, the expression "any purpose" should be construed as not embracing the purpose of "general store".

Notwithstanding the foregoing conclusions, I should for completeness and in deference to the Applicant's claims, proceed to determine whether the proposed development is properly characterised or categorised as a "general store" as that term is defined in the Model Provisions, namely "a shop used for the sale by retail of general merchandise and which may include facilities of a post office".

The passage from the judgment of Glass JA in Foodbarn provides, in my respectful judgment, a sound approach to an analytical assessment within the context of the statutory definition of the terms of the relationship between a "shop" and a "general store", namely that "shop" is the genus and "general store" is a species of that genus. (I interpose that the definitions of "shop" and "general store" considered in Foodbarn were the definitions contained in the Blacktown Planning Scheme Ordinance - vide 1968 NSW Rules, Regulations and By Laws at pp 409 to 452 which definitions are not precisely the same as the definitions of the terms contained in the Model Provisions. In particular, the definition of "general store" included the requirement or attribute that the floor space of the building not exceed 2,000 square feet).

Surprisingly, over the years there has been little judicial consideration given to the term "general store" in a town planning context. However, recently Sheahan J has given detailed consideration to the term in a town planning context in Maryland Development Co Pty Ltd v Penrith City Council (2001) 115 LGERA 75. That case involved a challenge to the validity of a development consent granted for a number of purposes including a "general store" (defined by the relevant planning instrument in the same terms as the definition contained in the Model Provisions) that being one of the nominated permissible purposes of development under the relevant planning instrument which was a site specific instrument, albeit amending the general planning instrument (see at 80).

It appears that the challenge mounted to the validity of the development consent was founded upon the proposition that it was not open to the council which granted the development consent to conclude that the proposed development was a general store, being a permissible use, when in fact properly characterised, the proposal was for a "supermarket" being a prohibited use falling within the definition of "shop" adopted by the planning instrument: see at p 96.

The challenge raised a fundamental question as to the nature of the Court's jurisdiction to determine the challenge to validity - was the Court's function limited to the judicial review of the council's decision or was it the Court's function to determine for itself as a jurisdictional fact, the proper characterisation of the approved development and hence the threshold question whether the proposed development was for a permissible purpose.

In the event Sheahan J held at 100 that the question of permissibility of the proposed development did not involve a jurisdictional fact and that the Court's function in respect of the challenge was that of judicial review - in this case was the council's decision to grant development consent reasonably open to it. In so concluding, his Honour considered himself bound by two existing decisions of the Court of Appeal, the authority of which he held not to have been disturbed by the later decision of the High Court in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135.

In so concluding, his Honour "was not convinced" (see at 100) of my opinion, expressed obiter in Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34 that "it is unlikely….that the decision in Londish can be taken to have survived the effect of the decision in Enfield".

That ultimate conclusion by his Honour led him to state a corollary proposition at 101 that in undertaking the judicial review function, the Court did not need to "embark in such detail on the sort of characterisation analysis" described in his judgment in a class 1 development appeal in University of Sydney v South Sydney Council (1998) 97 LGERA 186.

In the light of his Honour's holdings that his function was to judicially review the council's decision to grant the development consent, it necessarily follows that his detailed and helpful discussion at 101 to 105 of trends in retailing uses including his understanding of the term "general store" constitute obiter observations.

In particular, I would respectfully agree with his Honour's statement at 103 that the key element of the statutory definition of a "general store" which qualifies it as a species of the genus "shop" is that it sells by retail "general merchandise" whereas a shop sells by retail "goods, merchandise or materials".

At 102, his Honour notes that there are no specifications as to what constitutes "general merchandise" and adds the comment that product lines change over time.

His Honour next notes that the proposed development with a floor space of 3,800 m2 (see at 78) will devote 66 per cent of that floor space and 80 per cent of expected annual sales to "food and drink" and will sell by retail and the following "wide range of products":

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

His Honour concluded at 104 that "the range of goods for sale here is clearly general merchandise". Before so concluding, his Honour had made the following general observations:

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.

In concluding that the decision to grant development consent was reasonably open to the council, his Honour reasoned as follows at 104:

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

The Applicant in the present case, in characterizing the proposed development as a "general store", urged the Court to adopt a similar approach to the term "general store" that was taken by Sheahan J in Maryland, recognizing (i) the observable changes that have occurred in our society in the nature of operations involved in the retailing of goods and merchandise; and (ii) the changes made in environmental planning instruments to key relevant concepts such as "shops", "general stores", "bulky goods retailing" etc.

Having regard to the facts earlier noted concerning the nature and range of the goods intended to be sold from the proposed development and the manner in which the proposed development is intended to be operated, I am not persuaded that the proposed development will involve the sale by retail of "general merchandise".

Rather, I find that despite the immense range of goods, they are goods that clearly are of a specialty nature where that specialty is quite narrowly confined to (i) the building and construction industry; and (ii) the household improvement and decoration.

Accordingly, I find on the primary facts that the proposed development will not involve the sale by retail of "general merchandise" and accordingly, that the proposed development is not properly characterized as a "general store". (ii.) Is the Proposed Development Properly Characterised as "Bulky Goods Retailing"

Here, the Applicant's case is founded upon the primary facts which establish that some 80 per cent of the goods stored and/or available for sale in the proposed development are "bulky goods" within the meaning of cl 29(2) of the LEP and the legal argument that "bulky goods" retailing is a relevant permissible purpose of development within Zone No 4(a).

Whereas the factual basis for the Applicant's submission is securely founded, the necessary concomitant legal argument is not, in my judgment, sustainable.

It is common ground that the only express reference to "bulky goods" or "bulky goods retailing" is to be found in cl 29 of the LEP which provides as follows:

Retail of bulky goods 29. (1) This clause applies to land within Zone 4(c) (2) In this clause, bulky goods means large goods which, in the opinion of the council, by reason of their shape and size require: (a) a large area for handling, storage and display; and (b) easy and direct vehicular access for the unloading and loading of delivery and customer vehicles. (3) Subject to subclause (4), nothing in this plan shall prevent a person with the consent of the council from carrying out on land to which this clause applies of development for the purposes of the retail sale of bulky goods from a building or site on which those goods are stores, manufactured, displayed or processed. (4) The council shall not consent to an application for a consent referred to in subclause (3) unless it is satisfied that: (a) suitable land for the development is unavailable in any nearby business centre; and (b) the proposed development will not affect:

(i) the existing and future development within the zone in which the development is carried out; and (ii) the range of services offered by existing retail outlets located within the nearby business centre.

The following obvious comments may be made in respect of this provision -

(i) it only applies to land within Zone No 4(c) (" Industrial Special Zone ") for which Zone one of the express objectives is:

to allow commercial and retail development only for: ….. (ii) the display and sale of bulky goods

(ii) it operates to allow the retail sale of bulky goods with development consent despite any provision of the plan that would otherwise prevent such development; and

(iii) the capacity and competence of the Council to grant development consent for the retail sale of bulky goods is predicated upon it being satisfied of the matters referred to in subclause (4)(a) and (b).

The Applicant's legal argument is that notwithstanding the express restrictions on the operation of cl 29 its existence manifests a recognition of bulky goods retail selling as a special type "shop" which manifestation is legitimately translatable into an innominate permissible purpose of development.

In my judgment, this argument is not sustainable, principally because the enabling provisions of cl 29 of the LEP are expressly confined to the Industrial 4(c) Zone. Accordingly, cl 29 is a special provision, not having any general effect within the operation of the LEP.

Moreover, the enabling provisions of cl 29 do not constitute "bulky goods retail selling" a species of the genus "shop" to be excepted fro the genus and consequently the retail selling of bulky goods clearly falls within the ambit and scope of the adopted definition of "shop".

It follows that there is simply no legitimacy in seeking to translate the very specialised and restrictive operation of cl 29 into a category of permissible purposes of development having general application in the LEP, including in respect of the Industrial 4(a) Zone in which Zone "shop" is a nominated prohibited purpose of development. (iii.) Is the Proposed Development Properly Characterised as Development for the Mixed Purposes of a Warehouse, Retail Plant Nursery and the Sale of General Merchandising?

Because of my earlier stated conclusions in rejecting the Applicant's proffered characterisation of the proposed development as a "general store" the Applicant's proffered "mixed purposes" characterisation of the proposed development is not sustainable either factually or legally in respect of the third mentioned purpose once it is appreciated, as the Applicant's evidence clearly reveals to be the case, that each of the three purposes is an independent (though related) purpose of development. In such a situation, the following statement of principle by Glass JA in Foodbarn at 161 governs:

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. The ordinance is nonetheless being disobeyed.

This conclusion is justified upon the basis that the third mentioned purpose ("sale of general merchandise") is not properly characterised as a general store (for the reasons I have earlier given in holding that the proposed development in its entirety is not properly characterised as a "general store") and the concomitant holding which I now make that the sale by retail of the goods from the proposed development is properly characterised as a "shop" within the meaning of the LEP (in particular cl 9 as it applies to the General Industrial 4(a) Zone).

The characterisation as a "shop" of the sale by retail to end consumers of goods available at the proposed development is in accordance with existing authority: see Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244 and Woolworths Ltd v The Warehouse Groups (Australia) Pty Ltd (2003) 123LGERA 341. That characterisation is inevitable given the failure of the Applicant to substantiate any of its three alternative characterisations.

In view of the foregoing conclusions I need not say much in respect of the two other purposes of development in the Applicant's proffered "mixed purpose" characterisation, other than to note that the Applicant's warehouse use as found, may encounter difficulties with the adopted Model Provisions definition of "warehouse" insofar as it involves storage pending sale to end consumers (see Woolworths v Campbells Cash and Carry at 245) and the Applicant's "retail plant nursery") use (which does not involve the growing of plants as was conceded by Mr Toohey under cross-examination) may on that account fall outside the adopted Model Provisions definition of "retail plant nursery".

However, in view of my former conclusions in respect of the retail sales aspect of the proposed development, I prefer not to express any final views on these other two categories of development, which by themselves are not capable of sustaining a characterisation of the development as a permissible purpose. D. CONCLUSIONS AND ORDERS

For all of the foregoing reasons, the Applicant has failed to establish that the proposed development, properly characterised by reference to the relevant provisions of the LEP, is for a permissible purpose of development within the General Industrial 4(a) Zone.

Accordingly, its application for declaratory relief must be held to have failed and in consequence, I make the following orders:

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