Waite v Blacktown City Council

Introduction 1 The applicant, Mr David Waite, has appealed against the refusal of his development application to use an existing produce store as a mixed business store. The development application proposes, however, more than a mere change of use. It involves additional uses to the existing produce store, which use will continue, and an addition to the existing produce store building. 2 The applicant now applies by notice of motion to substitute amended plans for those which were refused by the respondent, Blacktown City Council ("the council"). This is opposed by the council on three bases: (i) The development as shown in both the proposal which was refused by the council and as shown in the amended plans sought to be relied upon is prohibited. (ii) The amendments now sought to be relied upon are not truly amendments, being substantially different from the plans which were refused by the council and being, in truth, a new development application. (iii) The Court should in the exercise of its discretion refuse to admit the amended plans and first allow the council the opportunity to publicly notify, exhibit and consider them. Existing consents 3 The applicant's property is at No. 879 Richmond Road, Marsden Park, within the City of Blacktown. There are two existing development consents that apply to the land: (a) on 4 September 1998 the council granted consent for the erection of a rural shed for the purpose of a produce store, the sale of farm supplies and the sale of baby animals; and (b) on 21 February 2001 the council granted consent for the erection of a new dwelling and for the existing dwelling on the land to be used as a rural workers dwelling. 4 The applicant has erected the rural shed and is using it for the approved use of a produce store and for the sale of baby animals. The applicant is also using the rural shed for the sale of fruit and vegetables. This latter use appears to be outside the terms of the existing consent to use the rural shed as a produce store. A produce store is defined in the controlling environmental planning instrument, Blacktown Local Environmental Plan 1988 ("the LEP") as "a building or place used for the sale of stockfeeds, grains, seeds, or other similar products used for agricultural or farming purposes". The sale of fruit and vegetables does not seem to be the sale of products for agricultural or farming purposes. The present development application 5 The plans which were the subject of the council's refusal, show an addition along one side of the existing rural shed to contain a meat and smallgoods preparation room and an adjacent room containing two refrigerated display cases that is obviously intended as a sales area. The interior of the existing shed shows shelving, a six door freezer, areas designated for drinks, dairy, milk, bread, papers, ice cream, two trolley bays and two cash registers, and an area outside for bagged ice. The plans also seek consent for an awning at the front of the existing shed. The approved rural worker's dwelling is shown as to be used as an office and a takeaway food shop. 6 The amended plans upon which the applicant now seeks to rely are accompanied by a statement of environmental effects which describes the present proposal in the following way: It is proposed to extend this existing approved fruit and vegetable produce market to incorporate a butcher, a delicatessen, and a take away food bar. As such, the premises would remain as its primary use as a fruit and vegetable produce market, with a secondary mixed business store. The additional following items would be retailed from the premises, in addition to the existing fruit and vegetables currently approved to be retailed from the site: · Dairy products · Smallgoods · Meats within a small butcher/deli section · Hot foods and cut sandwiches, and tea and coffee beverages · Fowl, fish and seafood products · Fresh flowers and plants · Bread and bread related products · Packaged food and non-alcoholic drinks · Refrigerated fresh foods · Newspapers, periodicals, and magazines · Potting mixes and packaged animal manures It is proposed to include the retail component existing uses of this retail fruit market to retail pre-prepared and pre-packaged cheese and meats as well as delicatessen items from the premises, in addition to the existing retail of fruit and vegetables, as part of a mixed business. It is also proposed to prepare and retail take away fast food and sandwiches from the premises. Physical building works proposed to accommodate the above are an additional wing to the southern elevation to this shed, as shown in the plans attached. This wing would incorporate a cold room area for the preparation and storage of fruit and vegetables, and would contain a new delicatessen and butchery shop front area for the retail of cheese, processed meat and smallgoods, and meat. The store would contain a total floor space of 656 square metres, being a increase of 218.6 square metres. Within the northern front portion of the existing building is proposed a take away food area, as shown on the submitted plans. This food area would retail only pre-prepared and packaged foods, which would be produced and packaged off site. This food would include the following: · Hot chips · Meat pies · Sausage rolls · Hot dogs · Cut sandwiches 7 The amended plans differ from those that were considered by the council in a number of respects. The layout within the existing produce store is no longer shown. The rooms in the proposed extension on the southern side of the existing rural shed are now described as "meat slicing/packaging" and the adjacent sales area as "packaged meat". A takeaway food shop (shown on the plan as "food bar") is shown in the opposite side of the existing produce store. A glazed shop front is shown across the whole of the front of the building. A pet food store is included in the existing produce store. The approved rural workers dwelling is shown as to be used for "office, staff and public toilets". The plans show an external plant retail area. Is the proposed development prohibited? 8 The land is zoned 1(a) (General Rural Zone) under the Blacktown Local Environmental Plan 1988 ("the LEP"), in which zone "shops" are expressly prohibited, but a "mixed business" and a "produce store" are permissible with development consent. 9 The LEP defines "shop" as meaning "a building or place used for the purposes of selling, hiring, displaying of offering for sale by retail goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause". 10 A "mixed business" is defined as meaning "a store trading principally in groceries, smallgoods and associated small items". 11 A "produce store", as noted above, is defined as meaning "a building or place used for sale of stockfeeds, grains, seeds, or other similar products used for agricultural or farming purposes". 12 The existing development consent for a produce store limits the use to the sale of products used for agricultural or farming purposes. It clearly does not authorise the use of the premises for the sale of other products, such as fruit and vegetables. The use of the premises as a retail fruit and vegetable market would appear to be a prohibited use falling within the definition of "shop". The question for determination, however, is whether the uses shown on the amended plans now sought to be relied upon and particularised in the statement of environmental effects are within the definitions of either "produce store" or "mixed business". If not, then those uses would likewise be prohibited. 13 The statement of environmental effects states that "the premises would remain as its primary use as a fruit and vegetable produce market, with a secondary mixed business store". That use is a prohibited use, being outside the definition of both "produce store" and "mixed business". Mr G R Apps, senior statutory planner of the council, conceded in his evidence that mixed businesses also sell items of fruit and vegetables as part of the mixed business. But if the primary use is that of a fruit and vegetable market, as stated in the statement environmental effects, then that must be regarded as the use for which the premises is being used (Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161 per Glass JA). Since it is intended to maintain the retail fruit and vegetable market as the primary use - a prohibited use - then any addition to that use would also be prohibited. 14 I note that the statement of environmental effects describes the retailing of fruit and vegetables as "currently approved to be retailed from the site". But this does not appear to be so. As I have noted above, that is not a use which falls within the definition of "produce store", which is the only currently approved use of the existing rural shed. 15 As Glass JA recognised in the Foodbarn case, however, one purpose (or use) may operate in a way which is independent and not merely incidental to another purpose which may be prohibited. If, notwithstanding the statement of environmental effects, the proposed use is not a secondary use but an independent use, the question then becomes whether, if the proposed use can be regarded as a separate independent use, it is prohibited. 16 The amended plans upon which the applicant now seeks to rely upon show the food bar area in a separate part of the rural shed from the proposed meat slicing and packing and packed meat sales areas. Whilst Mr Apps conceded under cross examination that the proposed use could fall within the definition of mixed business, he did not regard the area marked "food bar" as an ancillary use. He relied upon the fact that the food bar is shown as segregated from the rest of the mixed business component and appears to have a completely separate function. 17 In my opinion, the size of the area designated as "food bar", as shown on the amended plans, and the fact that it is completely segregated from the rest of the mixed business component suggest that it cannot be regarded as part of the mixed business, neither can it be regarded as ancillary to the mixed business. It accordingly falls within the definition of "shop" in the LEP, which is a prohibited use. The meat slicing and packaging and packaged meat sales area may, however, be permissible as part of a mixed business provided it is truly part of a mixed business. If it is intended to operate this area as a butcher shop, however, that would not be a mixed business. 18 The use of the area outside the building and shown as a "plant retail area" on the amended plans now sought to be relied upon is not a use encompassed by the existing consent for a produce store. It also falls within the definition of "shop" in the LEP and is thus prohibited. 19 As to the proposed use of the existing rural workers dwelling as an office and (staff and public) toilets, it was conceded by Mr Apps that it is not unusual to have such uses as ancillary to any business. It follows that this part of the proposal is not prohibited, provided it is not proposed to use that building for professional offices. 20 I conclude, therefore, that the amended plans which are now sought to be relied upon by the applicant is for development that is largely prohibited, although some aspects of it appear to be permissible with consent. In Chambers v Maclean Shire Council (2003) 126 LGERA 7, the Court of Appeal held (at 15) that a development application to a council for prohibited development is not a development application in terms of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). Accordingly neither the council, nor this Court on appeal, has the power to consent to it. In these circumstances there is no utility in now permitting the applicant to rely upon the amended plans. Substantially different plans? 21 It appears that there are three significant changes in the amended plans which are now sought to be relied upon. Firstly, the change in location of the takeaway food bar area from the rural worker's dwelling to the existing rural shed. Secondly, there is a change to the appearance of the front of the rural shed amounting, in what appears from the plan, to be a long glass-fronted shop front. Thirdly, it is now proposed to use an open area, outside the rural shed presently on the land, as a plant retail area. 22 The Court has no jurisdiction to entertain an original application. The Court cannot entertain an amendment which converts what was before the council into a fresh application. Therefore if amendments convert the original concept into something substantially different from the original development application, the Court does not have the power to consider it (Willoughby Municipal Council v Local Government Appeals Tribunal and Manchil Pty Ltd (1974) 2 NSWLR 415 at 420, per Samuels J; Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590 at 598, 602, per Hope JA). In Cambridge Credit, Hutley JA (at 612) adopted the phrase "differs in any material respect", and the description of the constraint as "not to approve development which differs in any material respect from that described in the development application", citing Else-Mitchell J in Peter Rommel & Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99 at 107-108. It is also follows that the comparison must be between the development application as originally made and the amendments that are now sought. 23 It is sufficient to state the changes shown on the amended plans to state the obvious. The changes are significant. In particular, the change to the appearance of the front of the rural shed and the introduction of the outdoor plant retail area could conceivably have off-site impacts. The changes are so substantially different from the original proposal as to amount to a fresh application. In this respect I am unable to accept the opinion to the contrary expressed by Mr J R Boers, the applicant's consultant urban planner, who, I note, also prepared the statement of environmental effects. 24 Accordingly the Court does not have jurisdiction to entertain the amended plans which are now sought to be relied upon by the applicant. Discretionary considerations 25 Even if the development application as amended was for lawful uses and the amendments did not amount to a fresh application, the Court nevertheless retains a discretion as to whether to admit the amended plans. 26 In the present case I would exercise the Court's discretion in favour of the council. Considerations of fairness and public involvement suggest that the council should in the first instance have the opportunity of considering the amended application, following the same kind of public notification process that preceded the assessment of the original development application. The adjoining landowners, in particular, may wish to make submissions on the impact upon them of the development as now proposed. Orders 27 The formal order is that the applicant's notice of motion dated 23 January 2004 is dismissed. I hereby certify that the preceding 27 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.