The Warehouse Group (Australia) Pty. Ltd. v. Woolworths Ltd. & Anor. [2005] NSWCA 269

The Warehouse Group (Australia) Pty. Ltd. v. Woolworths Ltd. & Anor. [2005] NSWCA 269 - NSWCA 2005 case summary — Zoe

[32]

Within their overall wide range of products "Clints The Warehouse" include clothing items, dry food products and confectionery. Their clothing is limited to a special low price-range and to narrow product-types selections. The dry food products are typically job-lot purchases, each of which is available only for a short period Confectionery is an important part of customer service, being typically located at the check-outs, for impulse buying, or for special occasions such as Easter Eggs. This customer service aspect is directly comparable to a Service Station selling confectionery & food, or Hardware House selling cooked food, clothing, lollies, etc.; that is, in all these examples those products are sold as a part of customer service, as an ancillary (NOT primary) part of the operations. 50 The instrument of consent dated 6 April 2001 described the proposed development as follows: "USE OF UNIT 1 AS A BULKY GOODS SALESROOM (CLINTS WAREHOUSE)". It contained the following conditions, among others: 1. Development must be carried out generally in accordance with Development Application received 21 February 2001 and accompanying plans marked "Proposed commercial development Warwick Farm Homemaker's Centre" dated 2 August 1999 (Ref:Plan No/s. Drawing No.97166; Sheet No. H1), except where modified by the undermentioned conditions. … 4. Occupation of the subject unit is to be undertaken in accordance with the following definition at all times: Bulky goods salesroom or showroom means a building or place used for the sale by retail or auction, or the hire or display, of any of the following: (a) furniture, or (b) electrical goods, or (c) toy and sporting equipment, or (d) office furniture, or (e) hardware, or (f) outdoor products, or (g) floor coverings, or (h) automotive parts and accessories, or (i) lighting, or (j) antiques and second-hand goods, or (k) kitchen or bathroom showrooms, or (l) tiles (floor, ceiling or wall). 51 On 9 April 2001 Douglas Sanger forwarded a letter to the Council expressing disappointment at prohibitions imposed by another condition of the first consent, namely condition 5, and providing reasons for that concern, together with arguments why the prohibition should be modified. 52 The Council replied on 30 April 2001 and made the following observation: It is Council's observation, from inspection of new 'Clints Warehouse' operations, that many of the items referred to in condition No. 5 are not merely 'ancillary' or 'incidental' to the principal retail activity being undertaken, but are significant enough to serve as 'draw cards' in their own right. 53 Following receipt of legal advice the Council again wrote to Warehouse's representative on 6 July 2001 and explained the legal advice it had received as follows: In accordance with the consent, anyone wishing to sell, hire or display items other than those listed in Condition No. 4, can only do so if the sale, hire or display of those items is ordinarily ancillary to and dependent upon the sale, hire, or display of the items listed in Condition No. 4. 54 On 13 July 2001 Douglas Sanger made an application to modify the development by deleting condition 5. The Council subsequently modified the first consent pursuant to s.96 of the EP&A Act on 20 September 2001 by amending condition 5 ("the modified consent"). 55 Condition 5 of the consent as modified provides as follows: The sale by retail or auction, or the hire or display on the premises of any item which is not ancillary to and dependant upon the sale by retail or auction, or the hire or display of any item listed in the definition of "bulky goods salesroom or showroom" in Condition 4 is prohibited. 56 On 16 July 2001 Douglas Sanger submitted the further development application to the Council seeking consent to the use of 100m2 of the site as a convenience store. 57 The use in the second consent is described as follows: CONVENIENCE STORE WITHIN A BULKY GOODS SALESROOM (CLINTS WAREHOUSE)

[99]

4 His Honour erred in failing to hold that the following categories of items or items, as displayed for sale in the Store, were prohibited from being sold from the Store by operation ofs76B of the EP&A Act, the LLEP 1994 and/or development consent 1937/01 dated 6 April 2001: (i) Floor coverings; (ii) Linoleum; (iii) Small plastic storage containers; (iv) Garbage bins; (v) Estima midi 4 drawer storage container; (vi) Paint accessories; (vii) Paint; (viii) Krown semi gloss acrylic; (ix) Drop cloths; (x) Dust masks; (xi) Paint scrapers; (xii) Paint tool sets; (xiii) Kitchen implements; (xiv) Mashers; (xv) Vegetable peelers; (xvi) Kitchen hand food storage containers; (xvii) Curtains and accessories; (xviii) Shower/bath curtains; (xix) Calico tab top curtains; (xx) Curtain tassels; (xxi) Lighting; (xxii) Electric light globes; (xxiii) Lamps; (xxiv) Hardware; (xxv) Electrical power tools; (xxvi) 6pc spade drill bits set; (xxvii) Sand paper; (xxviii) Four prong hook (10 pack); (xxix) Work benches; (xxx) Baby goods; (xxxi) Baby bib; (xxxii) Baby strollers; (xxxiii) Baby prams; (xxxiv) Baby car seats; (xxxv) Child's potties (xxxvi) 3 step spoons; (xxxvii) Pet accessories; (xxxviii) Dog toys; (xxxix) Pet toys; (xl) Pet food; (xli) Pet grooming equipment; (xlii) Bird cages; (xliii) Pet Furniture; (xliv) Dog kennels; (xlv) Toys; (xlvi) Manchester; (xlvii) Sheets; (xlviii) Pillows; (xlix) Pillowcases; (l) Doona covers; (Ii) Quilts; (Iii) Bath mats; (liii) Bath towels; (liv) Pre-recorded videos; (Iv) Pre-recorded CDs; (lvi) Pre-recorded audio tapes; (lvii) Blank videos; (lviii) Blank CDs; (lix) Blank audio tapes; (Ix) Christmas goods; (lxi) Christmas trees; (lxii) Christmas decorations; (lxiii) Christmas cards; (lxiv) Automotive parts and accessories; and (lxv) Car cover (the "Items"). 64 Woolworths has put on the following Notice of Contention: 19 December 2003 decision 1 The finding that the appellant was using the premises known as '"The Warehouse" at unit 1 in lot 10 in DP 788368 at 1-3 Sappho Road, Warwick Farm otherwise than in accordance with development consent 1937/01 dated 6 Apri12001 contrary to s.76A of the Environmental Planning and Assessment Act 1979 (paragraph 14) was otherwise open to be made on the evidence on the basis that the use was for the purpose of a "shop", being a use prohibited from being carried out in the premises, and such a finding should have been made.

[101]

WHAT IS A BULKY GOODS SALESROOM? Submissions 67 Mr. Robertson SC for Warehouse submitted that the primary judge had erred in his approach to the definition, as in other aspects of the case, by underestimating the flexibility displayed by the LEP, by paying too much attention to objectives, and by finding requirements to be prescriptive on the basis of implication; and he submitted that planning law should not be construed so as to restrain economic dynamism. 68 Mr. Robertson submitted that what the relevant definition identified was the retailing of particular product categories, without regard to size, shape or bulk of the products; and that the primary judge was wrong to the extent that he held it related to selling categories of goods that would normally be associated with a large showroom with sufficient floor area to accommodate items that are generally regarded as bulky goods. The definition includes categories that overlap, and many categories include items that are in no sense bulky. Mr. Robertson also submitted that the definition did not require that the use at any place be confined to the use for sale of just one of the twelve categories, because "any" means "any one or more"; and that it did not require that no other goods be sold. 69 Mr. Craig QC for Woolworths submitted that the definition should be interpreted having regard to the policy of generally prohibiting retailing in the industrial 4(b) zone, with quite specific exceptions. He submitted that to qualify as a bulky goods salesroom, the use must be for the sale of goods in one or more of the twelve categories, and no others. Accordingly, he submitted, the use as described in the development application, including the statement of environmental effects and the Hirst Consulting report, was not use as a bulky goods salesroom, because it was not proposed to limit what was to be sold to one or more of the twelve categories, and because it was sought to come within the definition by reference to the manner of selling, that is, in bulk.

[102]

Decision 70 In my opinion, for a building or place to qualify as a bulky goods salesroom, it must relevantly be used for the sale of goods in one or more of the twelve specified categories and, subject to what I say about ancillary items, no others. 71 To qualify as a place used for the sale of furniture, it is not necessary that nothing but furniture be sold; but the sale of anything other than furniture must be of items ancillary to furniture (such as furniture polish or bed linen), and must be subsidiary to the sale of furniture. And the same applies to each of the other categories. I have used the expression "subsidiary to" rather than the expression "dependent upon", because I do not think ancillary items can only be sold together with items squarely within the categories: rather it is a matter of the place of the ancillary items in the conduct of the business generally. The wording "dependent upon" appears in the modified condition 5 in this case, but I am inclined to the view that this does not alter the position by making it essential that ancillary items be sold only in conjunction with items squarely within the categories. 72 There may be overlapping between categories: certain items might be both furniture and office furniture, for example, or both floor coverings and floor tiles. And items falling squarely within one category may be ancillary to another category. But this does not affect the position that items sold must be within at least one of the categories, or must be ancillary to one or more of the categories and sold in such a way that their sale is subsidiary to the sale of items within that category or those categories. 73 I do not think there is any superadded requirement that all, or even some, of the goods sold in each category should themselves be bulky. I do not think a space devoted to the sale of toys and sporting equipment would fail to qualify because no single one of the toys or pieces of sporting equipment was itself "bulky". (I accept that "toy" is to be read as "toys", both as a matter of correct English and for consistency with cl.50.) However, with some categories, such as furniture, it is difficult to conceive of a place used for the sale of furniture that does not include bulky items. 74 In my opinion, any wider approach, for example one that requires that only some of the goods sold be within one or more of the twelve categories, or that it is sufficient that any goods sold be considered ancillary to goods sold within one or more of the categories (without regard to whether their sale is as items ancillary to items within one or more categories and/or is subsidiary to the sale of items in that category) would conflict with the words of the definition, particularly if those words are construed (as they should be) having regard to the intention disclosed by the LEP to exclude shops generally from the relevant zone. 75 It follows that certain aspects of the operation described by the development application, statement of environmental effects and the Hirst Consulting report, fell outside the definition. In particular, in so far as it was indicated that the operation would or could include items falling outside the twelve categories, and would or could include items which were not ancillary to items within those categories and/or were not to be sold in the manner subsidiary to the sale of items within those categories, what was proposed fell outside the definition of bulky goods salesroom.

[103]

WAS THE APPLICATION OF 15 FEBRUARY 2001 A NULLITY? Submissions 76 Mr. Craig submitted that the application was for a development which was prohibited within zone 4(b), being a development not permissible either with or without consent, and the application was therefore a nullity: Chambers v. Maclean Shire Council [2003] NSWCA 100, 57 NSWLR 157. The characterisation of the development was a jurisdictional fact (Woolworths Limited v. Pallas Newco Pty. Limited [2004] NSWCA 422, 61 NSWLR 707), and the development proposed by the application fell outside the definition of "bulky goods salesroom or showroom" and thus fell within the definition of "shop" (rather than being within the residual category in cl.9(3) of the LEP); and this development was not capable of satisfying the jurisdictional pre-conditions of cl.10(10) of the LEP. 77 Alternatively, he submitted, the development did not comply with the requirements of cl.51(a) of the LEP: since the available area was just 2,666 sq. metres, the proposed use had to be only for categories within cl.51(a) the floor areas for which aggregated to less than this figure, such as furniture, electrical goods and outdoor products. Clause 51(a) conditions the power to grant consent for bulky goods salesrooms or showrooms within the 4(b) zone, limiting that power to those within the description in the clause, which is framed in objective terms, not depending on the opinion or satisfaction of the Council. Mr. Craig submitted that the indicators referred to in Pallas Newco for identification of jurisdictional facts applied to these requirements. 78 Mr. Craig submitted that the defects in the application could not be cured by amendment. The case of Currey v. Sutherland Shire Council [2003] NSWCA 100, 129 LGERA 223 was distinguishable because that related to a case in which the statutory requirements were amended between application and determination. In any event, he submitted, at the point of determination any power to amend an application was lost. 79 Mr. Robertson submitted that what was proposed in the application was not a prohibited development, but at most a development not complying with a development standard (cl.51(a)) that could be waived under SEPP 1: Poynting v. Strathfield Municipal Council [2001] NSWCA 270, 116 LGERA 319. Clause 51(a) was not a matter of jurisdiction: it was not a matter falling within cl.9(1) or 9(2) in the LEP, but rather a matter which the Council was required to have regard to under cl.9(4). Even if the application were construed as an application for consent for a shop, this was permissible in certain circumstances: cl.10(10) of the LEP. However, even accepting that the Statement of Environmental Effects and the Hirst letter were part of the development application, the application on its true construction was for consent for a bulky goods salesroom, coupled with proposals that the application asserted would be within that use. If that assertion was erroneous, the application could be amended (Regulation 55) or could be granted subject to conditions to ensure that the use was as a bulky goods salesroom (s.80A). Accordingly, it was not a nullity: Currey at [34].

[104]

Decision 80 The application, read with accompanying material, purported to be an application for consent for a bulky goods salesroom, but some of the accompanying material elaborated on what was proposed to be done; and it follows from my decision as to the meaning of "bulky goods salesroom" that what was proposed would not in fact qualify as use as a bulky goods salesroom. This was because it did not propose a limitation of what was to be sold to items within the twelve categories, and items ancillary to those items and sold in such a way as to be subsidiary to the sale of those items. On the contrary, it proposed the sale and display of unspecified goods in bulk "such as" goods in some of those twelve categories, as well as other goods. 81 However, these indications as to what was proposed were coupled with submissions that this qualified as use for a bulky goods salesroom; and in those circumstances, in my opinion, these indications were not sufficient to make the application something other than what it purported to be, namely an application for consent for a bulky goods salesroom. 82 An additional problem with the application was that, for reasons given by Mr. Craig, the use it proposed did not comply with cl.51(a) of the LEP. 83 In my opinion, both the problems I have identified could have been overcome by amendment of the application, pursuant to regulation 55, so as to make it fully comply with both the requirements for a bulky goods salesroom and with cl.51(a): I think this conclusion is supported by Currey. In addition, in my opinion, cl.51(a) is a development standard compliance with which can be dispensed with under SEPP 1 (Poynting); and this is a further reason why non-compliance with cl.51(a) would not make the application a nullity. It is not to the point that the ability to amend is lost at the point of determination: in my opinion, that consideration relates to the validity of the consent rather than to the validity of the application. 84 In the events that happened, the application was not relevantly amended, and that leads on to the next two questions I have mentioned. 85 Having regard to the views I have expressed above, it is not necessary for me to decide whether an application that was in truth an application for use as a shop would have been a nullity; and not necessary to consider the relevance to this question of cl.10(10) of the LEP. In my opinion, that clause is irrelevant to this case, in circumstances where the application was in truth an application for consent for use as a bulky goods salesroom, and was dealt with as such by the Council.

[107]

WHAT WAS THE EFFECT OF CLAUSE 51? Submissions 91 Mr. Craig's primary submission was to the effect that any use authorised by the consent had to conform with cl.51(a), rather than that the consent itself was invalid because of non-compliance with cl.51(a). He submitted that the application must be construed as complying with cl.51(a), that is as proposing a use conforming to cl.51(a), so that consent to the application could be within power; and such consent should be construed as limited to that use. In addition, each occasion of use was itself a development requiring consent, and if such occasion of use was not in conformity with cl.51(a), it was a prohibited development under s.76B(b) of the Act; and thus consent could not permit use for which consent could not have been granted. He also submitted that, by implication, condition 1 to the consent incorporated the requirements of cl.51(a); and that there was no authority for the contention that, once consent was granted, cl.51(a) was exhausted. 92 Mr. Craig also submitted that, since cl.6(2)(a) of the LEP meant that "used" in cl.51(a) meant "proposed to be used", cl.51(a) precluded the grant of consent unless what was proposed at the time of consent complied with the standards set out in cl.51(a), and for reasons given above, they did not. Even though cl.51(a) may be a development standard which can be dispensed with pursuant to SEPP 1, it is, in the absence of an objection, still a prohibition on consent if it is not complied with. 93 Mr. Robertson submitted that the requirements of cl.51(a) were merely something the Council had to be satisfied of before the grant of consent, and did not have any application once consent was granted. He submitted that the requirements of cl.51(a) were in any event satisfied, because it was sufficient for compliance that there be floor space appropriate to each of the categories sold, and there was no requirement that floor spaces be aggregated where more than one category is sold: that is, it is sufficient to sell all of the items set out in cl.51(a) if there is a floor space of at least 1000 square metres. Mr. Robertson also submitted that it was sufficient that the proposed use could comply with cl.51. 94 In any event, he submitted, cl.51 was a development standard that could be waived pursuant to SEPP 1; and it was not a non-discretionary development standard within s.79C because it was not identified as such. He submitted that the correspondence between Warehouse (and Hirst) and the Council amounted to an objection under SEPP 1, having regard to its reference to the underlying objective of the development standard; the onus was on Woolworths to prove invalidity, and it made no attack on the Council's decision-making; and validity was supported by the presumption of regularity. He also submitted that the point that the approval was invalid because of non-compliance with cl.51(a) was not taken below and was not within the cross-appeal. 95 Mr. Craig submitted that SEPP 1 had not been relied on by Warehouse in its pleading or in the conduct of the case, but was raised for the first time in final submissions before the primary judge. In any event, the primary judge had implicitly rejected any contention that there had been an objection under SEPP 1. The correspondence could not in fact amount to an objection, because there was no identification of a standard with which the development did not apply or objection that it would be unreasonable or unnecessary to require compliance. The Council records indicating that SEPP 1 was not involved in the application made it clear that the Council had not dealt with the application on that basis.

[108]

Decision 96 In my opinion, cl.51(a) operates at the time of consent and requires that consent not be granted unless the proposed use conforms to its requirements. In my opinion also, it plainly requires aggregation of spaces where more than one of the categories is being sold: this accords with the language, and also with the policy of prescribing minimum areas for specified categories. 97 Thus, cl.51(a) requires that, when consent is given, the "proposed use" is in accordance with cl.51(a). This could be so if the use proposed by the applicant was in accordance with cl.51(a), or if the use proposed by the applicant could be in accordance with cl.51(a) and the consent or the LEP required that any use pursuant to the consent must be in accordance with cl.51(a). But in my opinion, unless the consent or the LEP so required, the mere fact that the use proposed by the applicant could be in accordance with cl.51(a) would be insufficient, because it would not then be the case that the proposed use is in accordance with cl.51(a). 98 It is plain from the development application and accompanying material that the areas proposed to be used in respect of the categories set out in cl.51(a) would not comply with that clause. As submitted by Mr. Craig, since the available area was 2,666 square metres, the proposed use had to be only for categories within cl.51(a) the floor areas for which aggregated to less than this figure, such as furniture, electrical goods and outdoor products. 99 Accordingly, at least unless the purported consent in this case or the LEP required that use pursuant to the consent be in accordance with cl.51(a), the purported consent itself was in contrary to the terms of cl.51(a). 100 The consent imposed no explicit condition that the use comply with cl.51(a), and it was Warehouse's position that there was no such continuing requirement either from the consent or the LEP. Woolworths contend to the contrary, as set out above. 101 In my opinion, the relevant use for which consent was required was use as a bulky goods salesroom, this being a use permitted with consent, that is, consent for use as a bulky goods salesroom. Clause 51(a) in its terms applies at the time of granting consent, and hence the relevant use at that time must be a future use: accordingly, cl.51(a) must apply to what is the proposed use at that time. If a use in conformity with cl.51(a) is proposed at that time, then consent can be granted, and what is then permitted is use as a bulky goods salesroom, which need not necessarily be in accordance with cl.51(a). This view may seem contrary to the intention of the LEP and cl.51(a) in particular; but in my opinion it follows from the wording of the LEP and cl.51(a). Although consent could not have been given for a proposed use not in conformity with cl.51(a), such use is not a prohibited development, because the relevant development is use as a bulky goods salesroom, not use as a bulky goods salesroom in conformity with cl.51(a). 102 If an applicant at the time of consent overtly proposed to change the use some time in the future so as not to be in conformity with cl.51(a), then in my opinion the "proposed use" would not at the time of consent be in conformity with cl.51(a), and cl.51(a) would forbid the grant of consent; and it is of course open to the Council to avoid the difficulty that the use might later change to one not in conformity with cl.51(a), by imposing a condition of consent that the standards in cl.51(a) continue to be complied with. 103 In this case, no express condition was imposed; and I do not think there is any basis on which such a condition can be implied. Nor do I think that the LEP itself imposes such a continuing requirement. 104 Accordingly, in my opinion, the granting of consent was contrary to the terms of cl.51(a), at least unless compliance was dispensed with pursuant to SEPP 1. 105 In my opinion, there is no substance in Mr. Robertson's contention that Woolworths has not negatived the operation of SEPP 1. The application of cl.51(a) was always squarely in issue in the case, and in my opinion it was for Warehouse to allege and prove that it had been dispensed with under SEPP 1; and it did not raise SEPP 1 until submissions below. Furthermore, in my opinion, Warehouse did not in its correspondence with the Council identify cl.51(a) as a standard with which the proposed development did not comply or object to its application to the development; so that, while accepting that explicit reference to SEPP 1 is not essential for an objection, there was nothing in the correspondence that could be construed as an objection. Since SEPP 1 was not pleaded, Warehouse cannot rely on absence of objection to the Council's decision-making or the presumption of regularity; and to the extent that there is evidence of the Council's decision-making, it is that SEPP 1 was not applied. 106 The next question is whether the non-compliance with the terms of cl.51(a) invalidated the consent purportedly granted by the Council. 107 This could be the case if the requirements of cl.51(a) are matter of jurisdictional fact, so that a breach determined by a court makes the decision a nullity, subject to the validating effect of the limitation provision in s.101 of the Act (see Pallas Newco). 108 Some of the matters relied on in Pallas Newco as indicators of jurisdictional fact may apply less strongly to cl.51(a) than to the identification of developments permissible in particular zones. 109 First, the intention of the legislative scheme that there must be objective compliance is less clear in the case of a standard which arguably is a matter to be considered under cl.9(4) of the LEP rather than under cl.9(1) or (2). 110 Second, cl.51(a) does not use the terminology of prohibition. However, the terminology "may … only if" is to similar effect; and the clause indirectly engages the expression "must not" in s.76B of the Act and the offence under s.125. 111 Third, there is the flexibility in the application of cl.51(a) itself through SEPP 1. 112 Fourth, it could be argued that cl.9(4) suggests that cl.51(a) is not preliminary to decision-making, but rather is to be adjudicated upon in the decision-making process. However, much the same can be said about s.79C(1)(a)(i) of the Act, which is wide enough to include matters that are plainly jurisdictional. 113 It may also be argued that clauses in the LEP similarly expressed in terms of objective fact (for example, cls.17 and 74) are matters of degree calling for judgment by the Council, suggesting that they may not be jurisdictional; and suggesting in turn that cl.51(a) (and cl.30) are also not jurisdictional. Clauses 17 and 74 are in the following terms: 17. Bushland The Council may grant consent to development on land shown on the map with heavy diagonal hatching only if: (a) it substantially retains the existing vegetation; (b) it does not detract from the scenic qualities of the locality, and (c) it does not adversely affect native fauna.

[109]

74 Restrictions on development in heritage conservation areas The Council may consent to the erection of a building or the alteration of an existing building within a heritage conservation area only if: (a) it would not diminish the heritage significance of the conservation area, and (b) it would be compatible with the existing character of buildings and other items in the conservation area in terms of: (i) height, scale and proportions, and (ii) overall form and massing, including pitch and form of roof, and (iii) the setting, including any building alignment affected, and (iv) the colour, texture, size and type of finish of the materials to be used on the exterior of the building, and (v) the character, size, proportion and arrangement of door and window openings. 114 However, there are other provisions of the LEP (for example, cl.26 and cl.37) that refer to Council's satisfaction or opinion; and this tends to suggest that it is the objective fact being referred to in cl.51(a); and the High Court decision in Corporation of the City of Enfield v. Development Assessment Commission [2000] HCA 5, 199 CLR 135, shows that matters of degree can be jurisdictional facts. The definition of "special industry" involved in that case (see footnote 16 at [6]) plainly raised questions of degree; and the joint judgment of the majority (at [49]-[50]) held that these questions were for the Court to decide, but that if the Court was in doubt, it was open for it to resolve the doubt by giving weight to the determination of the Commission. 115 My initial view was that, on balance, the requirements of cl.51 were jurisdictional facts, and that view is supported by Handley JA. Basten JA gives persuasive reasons for the view that these requirements are matters to be considered by the Council pursuant to s.79C(1) of the Act; but even if it is accepted that what cl.51 in substance requires is the Council's satisfaction as to these matters, it can be seen, without any investigation of the Council's decision-making process, that the proposed use could not possibly be considered as complying with cl.51, at least unless a decision to that effect was reached by reference to a "wrong and inadmissible test": see R. v. Connell; ex parte the Helton Bellbird Collieries Ltd. (1994) 69 CLR 407 at 431. I agree with Basten JA that this would be sufficient to invalidate the decision. Accordingly, whichever view is preferred, the purported consent was invalid. 116 As submitted by Mr. Robertson, this point does not appear to have been squarely raised in this way below, and is not within the particulars of the cross-appeal; but it does fall within the grounds of the cross-appeal. The point does not require investigation into the decision-making process of the Council; and it would be fanciful in the extreme to suggest that, notwithstanding what was in the application and accompanying material, Warehouse did in fact propose to use the premises in accordance with cl.51(a), or that the Council could have rationally formed the opinion that it did so propose. No such suggestion was made. In those circumstances, the point is a question of law, which could not have been affected by the way the case was conducted below. This is not a case where Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418 precludes the raising of this point.

[111]

ORDERS 121 I propose that the following orders be made: 1. Cross-appeal allowed. 2. Order 2 made on 3 February 2004, Order 2 made on 8 June 2004, and Order 1 made on 13 December 2004 (as amended on 12 January 2005) set aside. 3. Declare that purported consent 1937/01 granted by the second respondent on 6 April 2001 was not a valid consent, and that the application pursuant to which that consent was purportedly granted has not been determined. 4. Order that the appellant be restrained from carrying out, causing, or permitting or suffering the use of the premises known as "The Warehouse" at Unit 1 in Lot 10 in DP 788368 as 1-3 Sappho Road, Warwick Farm for the purposes of a bulky goods salesroom or storeroom or for the purpose of a shop (in both cases as defined in the Liverpool Local Environmental Plan 1997 (as amended)), except pursuant to a valid consent granted under the EPA Act. 5. Order 4 stayed for a period of 28 days. 6. The appellant to make any application to the Land & Environment Court for an adjournment of the proceedings and any further stay of Order 4 within 7 days of the date of these orders. 7. Appeal dismissed. 8. Appellant to pay the respondents' costs of the appeal and cross-appeal. 122 BASTEN JA: This appeal is brought from judgments of the Land and Environment Court, in relation to a development consent obtained by Warehouse in relation to use of premises as a bulky goods salesroom. Pursuant to s 123 of the Environmental Planning and Assessment and Assessment Act 1979 (NSW) "any person" can take proceedings for enforcement of an environmental and planning law. Where a challenge is brought with respect to the validity of a development consent, there are limitations imposed by s 101 of the EP&A Act. However, Warehouse accepts that s 101 provides no obstacle to the proceedings instituted by Woolworths, the public notification of the decision being ineffective to engage that provision: Judgment [30]-[35]. 123 It may reasonably be inferred that the proceedings were instituted by Woolworths in order to constrain the business activities of a competitor. As counsel for Warehouse emphasised, care must be taken in construing the requirements of environmental and planning laws to ensure that their scope and operation are determined to effect their proper purposes and not to limit competitive commercial behaviour. The need for such caution may be accepted: however, it does not follow that environmental and planning constraints, properly construed, may not have a direct effect on commercial competition. This is not a case in which it was suggested that such an effect would be inconsistent with a Commonwealth law, nor that such an effect required the reading-down of the EP&A Act in order for it to operate satisfactorily in conjunction with other State laws. 124 The focus of the appeal by Warehouse was on the conclusions reached by the Court below that the use made of the premises by Warehouse breached the requirements of the development consent. However, the logically anterior question is whether the consent was valid, a question determined by the primary judge adversely to Woolworths, but which was the subject of a cross-appeal by Woolworths. 125 The thrust of Woolworths' submissions may be summarised as follows: (a) clause 51(a) of the Local Environmental Plan, set out at [44], imposes a mandatory requirement on the minimum areas of floor-space to be used for the sale, storage and display on identified classes of items; (b) the development application lodged by Warehouse identified a proposed use which did not comply with the requirements of cl 51(a); (c) the application was therefore a nullity and the consent to such an application cannot be a valid consent; (d) in the alternative to (c), if the application was not a nullity, nevertheless, the consent was invalid because - (i) the consent permitted a use which was not within the terms of cl 51(a), or (ii) the consent should be construed as subject to an implied condition requiring compliance with cl 51(a) and, so construed, was not a consent to the application made.

[112]

The relief sought by Woolworths in the Court below, based on these contentions, included a proposed declaration that the consent was invalid and of no effect. If that were so, it followed that use of the premises in the manner proposed, whether strictly in compliance with the consent or not, was unlawful. 126 Hodgson JA has held that the application was what it purported to be, namely an application for consent to the use of the premises as a "bulky goods salesroom or showroom". Such a use was a lawful use, if consent were forthcoming. His Honour has further held that the indication in the materials accompanying the application, which suggested that the intended use of the premises by Warehouse would not comply with cl 51(a), did not mean that the application was a nullity: see [83] above. It followed that the consent, limiting use to use in accordance with the definition of "bulky goods salesroom or showroom" was not other than a consent to the application made: see [90]. However, relying on the material accompanying the application to demonstrate that the proposed use was not in compliance with cl 51(a), his Honour has held that the granting of the consent was in breach of that clause: see [104] above. 127 The validity of the consent is said to depend upon the question "whether cl 51(a) is jurisdictional": see [107] above. His Honour has accepted that the condition imposed was "jurisdictional" and accordingly that breach of it led to invalidity of the consent. The trial judge came to a different conclusion upholding the validity of the consent. 128 At [108]-[114] his Honour considers whether the requirements of cl 51(a) constitute a "jurisdictional fact", as identified by this Court in Woolworths Ltd v Pallas Newco (2004) 61 NSWLR 707 ("Pallas Newco"), and in accordance with the reasoning in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 ("Enfield Corporation"). (For a helpful critical analysis of Enfield Corporation, viewed in its legal and historical context, see Aronson, M "The Resurgence of Jurisdictional Facts" (2001) 12 PLR 17.) 129 The term "jurisdictional fact" is a label which can identify a limit on the availability of a power vested in a public authority. Where there is a challenge to an activity, such as a use of land, the lawfulness of the use must be determined by the Court. Where the respondent asserts that lawfulness follows from the grant of a permission, such as a development consent given by a council, the complainant may reply that the consent was invalid, and the activity was therefore unlawful. In such a case, the validity of the consent may be challenged by a collateral attack. But where, as here, that reliance has been anticipated at the outset and the complaint seeks a declaration that the consent was invalid, the challenge to validity is direct. 130 In the present case, the challenge to the validity of the consent depended on whether the proposed use was one for which consent could be given: a question relating to the power of the public authority. That in turn depended on the characterisation of the proposed use, as identified in a development application which sought to engage a specific provision of the local environment plan. A preliminary question is to ask on whom the jurisdiction is conferred to decide this question authoritatively. No doubt the Council from whom consent is sought will need to satisfy itself that it has the power to grant the application. But if its opinion with respect to the application is challenged in a court, the question will be whether its opinion is reviewable only on the standard grounds on which judicial review is permitted, or whether the Court is required to decide the question of characterisation for itself, independently of any view formed by the Council. 131 The answer to this question must depend upon the terms of the legislative instruments conferring power, in accordance with the principles set out in the authorities noted above and with special reference to the decision in Pallas Newco, dealing with a local environment plan under the EP&A Act. 132 In that case, Spigelman CJ identified elements in the statutory scheme under the EP&A Act which his Honour noted as supporting the view that the characterisation of the relevant use was a matter to be determined authoritatively by the Court: at [30]-[37] and [45]. Other factors suggested a different conclusion, but were not, as his Honour concluded, persuasive: [86]. 133 In reaching that conclusion, his Honour gave significant weight to "the proper construction of s 101" of the EP&A Act, a privative clause which seeks to impose a time limitation of three months on any proceedings questioning the validity of a consent. That conclusion was based upon the proposition that the word "validity" in s 101 was intended to protect decisions from jurisdictional error, and would hence provide a bar to any challenge to the validity of a consent after three months, even where the use of land proposed was a prohibited use, to which consent could not be given: [77] and [78]. 134 The relevance of that argument stems from the proposition which his Honour outlined in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 72, identifying questions of convenience as relevant to statutory construction: "Another factor, relevant to determining the intention of Parliament, is the inconvenience that may arise from classifying a factual reference in a statutory formulation as a jurisdictional fact. Statutes are construed on the basis that Parliament did not intend to cause inconvenience, although it can do so, and often has."

[114]

No doubt that strong presumption is significantly diminished in relation to administrative tribunals, but different factors may be relevant in relation to a representative body, such as a local council. (See generally, Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004) at 231-232.) 135 In Pallas Newco the President agreed with the Chief Justice at [36], as did Handley JA. Handley JA did not place weight on s 101, because his Honour was not satisfied that such a provision would apply to civil proceedings to restrain prohibited development in contravention of s 76B of the EP&A Act: at [144]-[145]. 136 Sheller JA also agreed with the Chief Justice, although with some hesitation - at [179]-[180], because his Honour considered that the case was not distinguishable from Enfield: at [181]. His Honour noted doubt attending the operation of s 101 in this context, and appears not to have placed reliance upon it for his conclusion: at [176]. The final member of the Court, Cripps A-JA, also expressed doubt as to the correct conclusion, at [218], but agreed with the Chief Justice, in part because of the effect and operation of s 101, as expressed in the reasons of the Chief Justice. 137 On one view, the statutory scheme of the EP&A Act is of limited relevance in determining whether the application of a particular criterion falls for decision by the council as consent authority, or can only be authoritatively decided by a court with jurisdiction to enforce the prohibitions contained in the EP&A Act. As Spigelman CJ noted in Pallas Newco at [25] the EP&A Act envisages that classifications of land use may be adopted in a planning instrument, expressed to turn on the opinion or satisfaction of the consent authority. Further, at [57] his Honour continued: "Determining whether a factual reference is jurisdictional in the context of classification under an environmental planning instrument will depend on the way the classification is expressed. The degree of flexibility which the Act permits with respect to the description of uses is such that Parliament must be taken to have authorised the adoption of classifications which are not jurisdictional as well as those which are jurisdictional." 138 Accordingly, in the present case, the answer to this question must turn on the structure and terminology of the Liverpool Local Environmental Plan 1997 ("the LEP"), albeit read as part of the legislative scheme derived from the EP&A Act. 139 The structure of the LEP, being the source of the power of the consent authority is reasonably straightforward. Part 1 identifies the objects of the LEP, the land to which the LEP applies and the Council as the consent authority. It also provides for the effect of the LEP on other environmental planning instruments and sets out various definitions, including the definition of "bulky goods salesroom or showroom": cl 6(1) set out above at [39]. 140 Part 2 of the LEP establishes a range of zoning classifications, including relevantly to the premises the subject of the present application, "4(b) Industrial - special". Clause 9 identifies the circumstances in which development may be carried out without consent, only with consent, or not at all. Clause 9(4) provides that the Council "may grant consent to development only if" the Council has regard to various factors including the objectives and "the other provisions of this plan". 141 The scope of cl 9 is ambiguous: if it were construed as providing that the definition of the permissible uses is a factor to which the Council must "have regard" one would infer that characterisation of a use proposed in a development application would be a matter for the Council to determine. On the other hand, the provision could be construed as requiring the Council to have regard to the various provisions of the plan, as would be expected, in exercising its power to grant a consent, but only in relation to a valid application. It would thus mirror s 79C(1)(a)(i) of the EP&A Act. In that case, the characterisation might properly be seen as a matter for authoritative determination only by a court. 142 The answer to this question is, in terms of principle, obscure. Nevertheless, the approach adopted in Enfield Corporation and Pallas Newco is consistent with the conclusion that the characterisation of the use should be treated as a jurisdictional fact, in the absence of a provision which clearly identifies that the characterisation depends on the opinion of the Council. 143 The relevant issue may thus be defined as the characterisation of the development application to determine whether it was or was not an application for a "bulky goods salesroom or showroom", in accordance with the definition of that term in cl 6 of the LEP. That exercise of characterisation, however, does not require consideration of matters relevant to the exercise of the Council's power once properly engaged and in particular, for reasons given below, does not require consideration of cl 51 of the LEP. 144 It is not clear that the primary judge dealt with the matter in this way. The judgment appears to include in an assessment of the proposal contained in the development application a consideration of the construction of cl 51. His Honour had regard both to the development application and the submission made in support of it. He concluded at [44]: "Although the development application did not stipulate that the site would be used for the purposes of a bulky goods salesroom, the submission was capable of being interpreted as a use that could comply with the provisions of the LEP."

[115]

This language is consistent with the view that it was a matter for the Council to determine whether the application did comply, and it was sufficient for the Court reviewing its decision to be satisfied that such a conclusion was reasonably open. Consistently with this view, his Honour indicated that "the issues determined in [ Chambers v Maclean Shire Council (2003) 57 NSWLR 152] do not arise": [48]. However Chambers was a case which treated the characterisation of the development application as a jurisdictional fact to be determined by the Court. Accordingly, it would appear that the approach his Honour adopted was not consistent with Chambers , following Enfield Corporation , and hence not consistent with the analysis set out above. (His Honour's decision was handed down a year before Pallas Newco .) 145 In my view, the answer to the characterisation question is correctly determined by Hodgson JA at [80]-[81] above. The application was properly characterised as one to which the Council could consent. I would not, however, consider in this context the operation of cl 51: c.f. [82]-[85] above. 146 It is convenient to consider next the operation of cl 51 because, in my view, this is determinative of the proceedings. It is necessary first to consider the correct approach to be adopted by the Court in relation to this question. 147 Clause 51 of the LEP does not in terms define the kind of application for which consent is required, pursuant to cl 9. Rather, it is formulated as a constraint upon the circumstances in which consent may be granted. It is a mandatory constraint on the exercise of power: consent "may be granted … only if" the criteria identified in paragraphs (a) and (b) are satisfied. However, because it qualifies the power to grant, rather than the subject matter of an application, it falls within the matters which a consent authority is required to take into account pursuant to the obligation imposed by s 79C(1) of the EP&A Act, set out at [30] above. Clause 51 should therefore be understood as a provision which requires the consent authority to determine whether the application seeks approval for a use which conforms to its requirements. That assessment is not to be made by the Court. 148 In considering whether the matters identified by cl 51 should be treated as jurisdictional facts, Hodgson JA at [113]-[114] notes that other provisions of the LEP are expressed to depend upon the satisfaction or opinion of the Council, a fact which "tends to suggest" that cl 51(a) establishes an objective requirement for determination by the Court, even though it may depend on matters of evaluative judgment. Differences in terminology within an instrument are undoubtedly relevant to the proper construction of particular provisions. However, context may be critical as to whether the inference is to be drawn that a change in terminology was intended to indicate a change in meaning: see The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 50. The maxim expressio unius, as has often been said, "must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument:" Saunders v Evans (1861) 11 ER 611 at 615, cited in Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1981-82) 148 CLR 88 at 94. 149 The LEP, read as a whole, reveals disparate terminology which reflects no clarity of purpose, sufficient to justify a different construction of different provisions. Hodgson JA cites cl 37 of the LEP as an example of a provision which expressly requires the formation of an opinion by the Council. It appears in Part 5 of the LEP dealing with rural zones. It provides for general restrictions on development in the circumstances identified, namely: "Consent for development on land in [identified zones] may be granted only if each building or work resulting from carrying out the development would, in the opinion of the Council, be compatible with the character and amenity of nearby areas (both existing and likely future) in terms of: (a) its scale, bulk, design, height, siting and landscaping, and (b) its operation, and (c) traffic generation and car parking, and (d) noise, dust, light and odour nuisance, and (e) privacy, and (f) stormwater drainage, and (g) hours of operation, and (h) overshadowing."

[118]

followed by the standard paragraphs (a)-(h), although the word "height" is omitted from par (a). It is not possible to derive from these linguistic changes an intention to permit the Council to make a final judgment as to the identified characteristics in some zones, but not in others. 150 Further, because the Council did not provide reasons for its decision to grant consent, a challenge to such a decision is not without its difficulties. However, such a decision is not unexaminable and may be challenged on the ground that it fails to comply with the mandatory requirements of cl 51. The available approach in a case such as this is that identified by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 253 at 360, where his Honour considered a similar situation in relation to the Commissioner of Taxation, who had not made known the reasons for his conclusion. "The conclusion he has reached may, on a full consideration of the material that was before him, be capable of explanation only on the ground that he has made some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law." 151 That is the approach which should be applied in relation to this aspect of the matter. At [96]-[103] above, Hodgson JA demonstrates why the proposed use in the present case would not comply with cl 51(a). In my view that reasoning, with which, subject to a minor qualification, I agree, satisfies the exercise outlined in Avon Downs. In other words, given the nature of the application and the detail of the proposed use revealed in the accompanying material, the supposition that the Council gave proper, genuine and realistic consideration to cl 51, correctly understood, would appear to be a false supposition. Accordingly, the consent was not validly given. 152 My tentative qualification as to the reasoning adopted by Hodgson JA concerns the suggestion at [101] that the proposed use, which might otherwise be in conformity with cl 51, might not be so if the applicant had, at the time the consent was granted, expressed an intention to use the land in a manner which did not conform with cl 51. If at some future time, a developer could lawfully change an approved use in some respect, it is not self-evident that the approval would be invalid because the developer had evinced an intention so to act at the time it sought the consent. Because cl 51 does not in its terms have an on-going operation, questions of future conduct must be judged against the terms of the consent actually given, including any valid condition, as is recognised in the second half of [101] and [102]. However, his Honour's reference to a proposal to change the use later is correct in the sense that the Council would be required to identify carefully the proposed use of the land, which may, in truth, be the changed use. 153 As his Honour further notes, at [94] above, Warehouse also argued that cl 51 was a "development standard", as defined in s 4(1) of the EP&A Act and was therefore capable of being overridden by a grant of consent by the consent authority: see State Environmental Planning Policy No. 1 - Development Standards, cl 7. However, cl 6 of that policy provides, so far as relevant: "6. Where development could, but for any development standard, be carried out under the Act … the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying grounds of that objection." 154 Warehouse sought to argue that it had made such a "written objection" although not one which referred expressly to SEPP 1. I agree with Hodgson JA that no such objection was made in the present case. Whether or not an application can qualify as a written objection under this clause, even though the SEPP is not referred to, it cannot be treated as such if it does not in substance comply with the requirements of cl 6. The material placed before Council in support of the development application was squarely directed to establishing that the relevant provisions of the LEP were complied with and that consent was therefore appropriate. There was nothing to suggest the alternative and inconsistent approach, namely that the relevant standard did not apply. The argument presented by Warehouse to the contrary should be rejected. It is not necessary to decide whether or not cl 51 is a "development standard" and I express no view on that issue. 155 It follows, in my view, that the cross-appeal filed by Woolworths should be upheld and the Court should declare that the consent 1937/01 granted on 6 April 2001 was invalid and of no effect. It was not suggested in this Court that, if Warehouse did not enjoy the benefit of such a consent, it had any present entitlement to use the premises as a bulky goods salesroom or showroom, whether in accordance with cl 51 of the LEP or otherwise. Accordingly, I agree with orders 4 and 5 proposed by Hodgson JA. All of the orders made by the primary judge should be set aside and the appeal by Warehouse should be dismissed. If there are further issues of a consequential nature relating to the terms on which final relief should be granted, they may be dealt with in the Land and Environment Court and the matter should accordingly be remitted to that Court for it to deal with any such limited application. I agree that Warehouse should pay Woolworths' costs of the appeal and cross-appeal and its costs in the Court below. **********

Legislation Cited (1)

Environmental Planning and Assessment and Assessment Act 1979(NSW)

Cases Cited (19)

The Warehouse Group (Australia) Pty. Ltd. v. Woolworths Ltd. & Anor. [2005] NSWCA 269 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 253 Chambers v. Maclean Shire Council [2003] NSWCA 100, 57 NSWLR 157 Corporation of the City of Enfield v. Development Assessment Commission [2000] HCA 5, 199 CLR 135 Currey v. Sutherland Shire Council [2003] NSWCA 100, 129 LGERA 223 Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1981-82) 148 CLR 88 Mison v. Randwick Municipal Council (1991) 23 NSWLR 734 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 CASES CITED: Patrick Autocare Pty. Limited v. Minister for Infrastructure Planning & Natural Resources [2004] NSWLEC 687 Poynting v. Strathfield Municipal Council [2001] NSWCA 270, 116 LGERA 319 R. v. Connell; ex parte the Helton Bellbird Collieries Ltd. (1994) 69 CLR 407 Saunders v Evans (1861) 11 ER 611 Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418 The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Woolworths Limited v. Pallas Newco Pty. Limited [2004] NSWCA 422, 61 NSWLR 707

4 Warehouse appealed from both decisions, and Woolworths cross-appealed against the decision that consent 1937/01 was valid. The following issues were raised on appeal: the definition of a "bulky goods salesroom"; whether clause 51(a) of the LEP imposed a mandatory requirement on the minimum areas of floor space for specific uses; whether the application was a nullity as not being for use as a bulky good salesroom or for lack of compliance with cl.51(a); whether consent 1937/01 was consequently invalid; and whether the use was brought into conformity with clause 51. HELD (1) To qualify as a bulky goods salesroom, premises must be used for the sale of goods in the categories specified in clause 6 of the LEP, and apart from items ancillary to these goods, not for the sale of goods outside those categories. (2) Although some of the material accompanying the application indicated that the use would not qualify as a use of a bulky goods salesroom, nor comply with cl.51(a) of the LEP, the possibility of amending the application to overcome these defects meant that the application itself was not a nullity. Non-compliance with cl.51(a) did not make an application a nullity: Poynting v Strathfield Municipal Council [2001] NSWCA 270. (3) The condition requiring the use to conform to the definition of "bulky goods salesroom" was not such an alteration that the consent was not a consent to the application. (4) Cl. 51(a) operates at the time of consent and requires that consent be granted only if the proposed use conforms to its requirements. (5) Thus, the granting of consent was contrary to the terms of cl.51(a), and was invalid because (per Handley JA) compliance with cl.51(a) was a jurisdictional fact or because (per Basten JA) the Council acting properly could not have considered that the requirements of cl.51(a) were met. **********

(1949) 78 CLR 253

(1991) 23 NSWLR 734

(1938) 59 CLR 369

(1994) 69 CLR 407

(1950) 81 CLR 418

(1979) 144 CLR 45

(1999) 46 NSWLR 55

(2000) 199 CLR 135

(2004) 61 NSWLR 707

(1949) 78 CLR 529

(2000) 48 NSWLR 498

(1987) 11 NSWLR 67