The Construction Issue
17 I have already set out the relevant provisions of the LEP and the development consent. In considering their construction, it is necessary, also, to have regard to the definition of "shop" in the LEP, which is as follows:-
" Shop means a building or place used for the purpose of retail sale, auction sale, hire or display for the purpose of sale or hire of goods, materials and merchandise, but does not include a building or place elsewhere defined in this plan."
18 "Bulky goods, salesroom or showroom" is defined as in condition 10 to the development consent, set out above. "Warehouse" is also defined. The definition was referred to in argument but has no apparent relevance to any issue in the case.
19 It may be noted that the validity of the development consent was not in issue before his Honour. Accordingly, it may be taken that in construing it, a construction should be adopted which does not lead to its invalidity. This is important because, under objective 1c of Zone 4(c) special industrial, retail development is allowed only "(ii) for the display and sale of bulky goods". Such development is permitted "only with development consent".
20 It is plain that the LEP contemplates that a building or place where such retail development may be permitted must qualify as a "Bulky goods salesroom or showroom", as defined in the LEP. Accordingly, "a building or place used for the sale of foodstuffs or clothing" could not be made the subject of development consent in Zone 4(c), as a bulky goods salesroom or showroom, these uses being specifically excluded from the definition.
21 Consequently, in construing the development consent in the present case, it must be assumed that it did not embrace permission to use the premises for the sale of foodstuffs or clothing.
22 As already noted, the Notice of Development Consent required, by condition 1, that the "Development shall take place in accordance with the approved plans, excepting as modified by the following conditions", the relevant condition being condition 10, as set out above. The submissions of the appellant focused largely upon the approved plans, it being asserted that, as a matter of construction, the Council would not have sought to remove, by the imposition of the condition, uses which, on the face of the plans were, apparently, the subject of permission. Accordingly, submissions were made based upon the contents of the plans.
23 At page 201 of Blue appeal book, volume 1, there appears, attached to the reproduced Notice of Development Consent, a copy plan, described as "Development Consent Approved Plans" and bearing the endorsement of Development Consent No. 992/2000. The accuracy of the copy was not in dispute. However, at page 656 of Blue appeal book, volume 3, there appears what was described in argument as being a "blown-up" version of the approved plan. In fact, it is an enlarged photo-stat of the plan previously referred to. The significance of the difference in size is that the smaller plan, attached to the development consent, contains markings upon it, which are illegible. On the blown-up plan, these markings can be read, in some cases with considerable difficulty. Legibility has been enhanced by the addition of handwritten translations in a number of cases. Both plans are, basically, layout plans for the floor area of the building. They contain representations of the positions of shelving and other storage facilities together with checkout facilities. The shelving and storage areas are labelled, in the manner just described, with the descriptions of the goods intended to be stored or displayed in them.
24 It appears that, at the hearing before Lloyd J, there was objection to the introduction into evidence of the blown-up plan. However, the plan became an exhibit and it is clear that his Honour had regard to it, in formulating his decision. Although complaint was made about this, by the respondent, in argument before this Court, I do not consider that it can affect the outcome of this appeal. Although there may well have been some difficulty occasioned to relevant officers of the Council in interpreting the plan, when considering whether approval should be granted to the proposed use of the building, it would seem that, in the course of discussion between the relevant officers and those acting on behalf of Warehouse, an understanding was reached as to the way in which the proposed layout was to be utilised in the business.
25 No evidence was given by any Council officer in the proceedings. However, some correspondence and internal memoranda were received in evidence. I am satisfied that these documents cannot be used in the construction of the development consent, which must be interpreted with regard only to the documents forming part of it. However, they provide an indication that the question whether the proposed development was one which could properly be described as a "Bulky goods salesroom or showroom" was an important question for the Council officers, when considering the appropriateness of approval. It would appear that initial objections on the part of town planning personnel were met by the production to them of information, which satisfied them that the use of the building would conform to the definition. There was no evidence as to the content of this information, which appears to have been supplied in discussion.
26 It is difficult to determine what significance should be accorded to the approved plans, as forming part of the relevant development consent. They clearly enough demonstrate an intention to conduct a retail type business, through the display of goods for sale in the fixtures and storage areas depicted in the plan. The layout of the fixtures and display areas within the floor space, would, of course, be important for the determination of health and safety issues relevant to Council's consent. However, the reference in the plan to the intended contents of the shelving, fixtures and display areas, could hardly have been intended to fix for all time, as part of the consent, these particular uses. Were this so, any changes in the use of the shelving and display areas, as shown on the plan, by way of alteration of their prescribed contents, would be a breach of the development consent. As the consent operates in rem this would, obviously, be an absurd situation. Moreover, any approval of the plan and its contents would necessarily have to conform to the zoning.
27 It is clear that his Honour, when considering his decision, had regard to the descriptions of the proposed contents of the shelving. I have already set out above his findings as to what the plans showed. It is clear that, as a result of his view of the premises and a consideration of other evidence in the case, relating to the contents of the shelving and display areas, he observed some disconformity between the plans and the actual use to which the shelving and the fixtures were being put, in the conduct of the appellant's business.
28 I am satisfied that, having regard to the fact that the Council could only grant approval in accordance with the zoning and to the fact that the plan itself could not, by incorporating descriptions of goods to be sold, extend the range of permitted uses, Council would see it as both proper and necessary to approve the plans, subject to an overriding condition that the use of the premises should conform to the relevant LEP definition. This is precisely what the Council has done in its Notice of Development Consent. Accordingly, I do not agree with the appellant's submission that particular significance should be attached to the fact that the plans were described as "approved". They were "approved" only in so far as they complied with the zoning requirements.
29 From what I have said so far, it is clear that I respectfully agree with the approach taken by his Honour, when he said, as indicated above, "that the floor plan is modified by, relevantly, condition 10, which restricts the use to a "Bulky goods sales room and showroom as defined in the Fairfield LEP."
30 The next question, therefore, is the determination of the nature and extent of the restrictions imposed by the requirements of condition 10.
31 At the outset, it may be noted that there was no dispute that the sale of a number of small items which, as a matter of convenience, might "be packaged for a particular customer for ease of taking them away from the premises" does not, relevantly, amount to "bulky goods" retailing (see per Pearlman J, The Council of Sutherland Shire v Michael Bassett Tijuana (No. 15) Pty Limited, unreported, 22 February 1994). In this regard, it is clear from the evidence and his Honour's findings, that there were, indeed, a very large number of small items for sale in the appellant's premises. The packaging of them into bulky parcels in the course of an individual purchase, could not bring the business within the definition.
32 As his Honour indicated, the scope and content of the definition depended upon principles considered in Sutherland Shire Council v Telope Pty Limited, (1994) 85 LGERA 103. It is the contention of the appellant that the principles enunciated in that case are capable of reasonable extension, so as to bring within the LEP definition and condition 10 the business it conducted in the subject premises, as it was described in his Honour's findings. As so described, it was contended that it was not a "shop", but was a "bulky goods salesroom or showroom."
33 In Telope, the respondent had sought development approval from the Council for the construction of a building, which was to comprise three retail showrooms and associated parking. The local environmental plan permitted "bulky goods salesroom or showrooms, provided that development consent had been obtained." The relevant definition of "bulky goods salesroom or showrooms" was identical with the one being considered in this case.
34 The learned primary judge, Stein J, considered the contentions of the Council that at least two of the three proposed showrooms did not fall within the definition. He did not uphold these contentions but granted consent to the development on various conditions. The Council, in an appeal to this Court, which was limited to questions of law, submitted that Stein J had erred in his interpretation of the definition. It is convenient to set out the facts as they were stated in the judgment of Gleeson CJ, as follows( at p 104):-
"Stein J had before him detailed evidence of the use that was proposed to be made of the three showrooms. The plans for the development of the site provided for direct vehicular access to each showroom.
The largest of the three showrooms, comprising 971 square metres, was to be occupied by Brash's Ltd, and was to be used for the retail sale of television sets, sound systems, video recorders, radios and microwave ovens. The range of goods to be sold would include items (such as large television sets, microwave ovens, or sound systems) that would ordinarily be regarded as bulky, and other items (such as small television sets, or radios), that would not individually be so regarded.
The second showroom, comprising 495 square metres, was to be occupied by a business trading under the name of Sleep City, and was to be used for the display and sale of bedroom furniture. It does not seem to be in dispute that this showroom, if considered alone, would fall within the definition.
The third showroom, comprising 250 square metres, was to be used by Bristol Paints for the storage, sale and display of paint, wallpaper and associated home decorator items. The evidence showed that more than 50 per cent of sales of accessories and paint were to trade customers, whereas most of the wallpaper sales were by way of retail. Once again, some of the items to be sold would ordinarily be regarded as bulky and others not. There was evidence as to the size and weight of the goods in question."
35 The main question in the case was the meaning of the word "require", where used in the definition, it being contended by the Council that it was equivalent, in meaning, to "necessitate". This argument was rejected. Gleeson CJ, in a passage concurred in by the other members of the Court, said (at page 106):-
The definition presently in question, in its practical application, turns upon either or both of two specified consequences which may result from the size, shape, or weight of goods being sold (or hired or displayed) at particular premises. One consequence is that there is a requirement for a large area for handling, storage or display. The other consequence is that there is a requirement for direct vehicular access to the site by members of the public for the purpose of loading items into their vehicles after purchase.
That does not mean that the definition can only be satisfied if it can be shown that it would be impossible to carry on the business without either a large area for handling, storage or display or direct vehicular access for the purpose mentioned. Rather, what is meant is that either or both of those features should be dictated by the business end to which it is directed. In the present case, for example, all three showrooms are provided with direct vehicular access so that members of the public may load items into their vehicles after purchase. The question is not whether this is an absolute physical necessity. The question is whether the provision of such vehicular access is dictated by the nature of the business to be carried on in the premises is plainly adapted to the needs of the business, and is, therefore, relevantly required by the business."
36 Stein J had held that, in order to meet the definition, the major proportion of the goods on sale in each of the premises should properly be characterised as bulky goods. Gleeson CJ did not agree that this was a pre-requisite. His Honour said (at p. 106):-
It has not been suggested that each and every item available for sale at any of the three showrooms would be a large item, or of such size, shape or weight as to require either a large area or direct vehicular access to the showroom. Thus, for example, Bristol Paints would have available for sale by retail, to ordinary members of the public, some individually and relatively small tins of paint. Some of the radios and other items, and even some of the television sets, to be sold by Brash's would be relatively small in size and easily portable. Equally, however, it is not in dispute that a substantial number of the items on sale at both of those places would be very large, and the same is even more obvious in relation to Sleep City.
It was submitted on behalf of the appellant that, at least in relation to the Brash's and Bristol Paints showrooms, even if the definition were not given the strict interpretation contended for, there would be two uses of the premises, one for "bulky goods sales room or showrooms", which is permissible with consent, and the other for "shops", which is a use for which consent cannot be given.
Where a trader has for sale a range of goods, varying in size from small to large, and having available such a range is an ordinary incident of the type of business in question, it is normally inappropriate for a purpose such as the present to regard the trader as carrying on two independent activities one of selling small items and one of selling large items: cf Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157. Suppose, for example, that we were simply concerned with a shop that specialised in selling television sets. Some television sets are very bulky indeed, and other are small and portable. It may be assumed that it is an ordinary incident of such a business for a retailer to carry a comprehensive range of sizes. In such a case the carrying on of the business would dictate the keeping of a comprehensive range of goods, of all shapes and sizes, including a substantial number of large items, and the use of the premises would satisfy the definition for they would be used for the sale by retail of items of such a size, shape or weight, as to require (for example) direct vehicular access to the site by members of the public for the purpose of loading items into their vehicles after purchase. Provided a substantial number of such items were available for sale, so that their sale could not be regarded as merely incidental to the business, their availability would relevantly characterise the use of the premises.
It was, therefore not essential for the respondent to demonstrate that the major proportion of the goods to be offered for sale were bulky goods, although Stein J's finding of fact to that effect made his conclusion easier to reach."
37 It is Warehouse's contention that these passages justify a finding in its favour in the present case, it being submitted that, as the trial judge had found that about 40% of the display shelving and areas were occupied by goods which could properly be described as "bulky", this was sufficient to bring the use of the premises within the definition. This submission had been rejected by the trial judge, who, as already indicated, had found that the business could only properly be characterised as "shop" and was therefore prohibited under both the zoning and the consent. `
38 It was also contended on behalf of the appellant that his Honour erred in finding, as determinative, that the vast majority of the goods on display in the premises were non-bulky, being, relevantly, small and portable. This, it was said, was of no significance provided that it could be said that the number of bulky goods for sale rendered their presence as being more than merely incidental to the conduct of the business. Reliance was, therefore, placed upon the roughly 40% occupation of shelving and display space by goods that could properly be characterised as "bulky". It was submitted that this, in itself, was sufficient to require that the business be appropriately characterised as a "bulky goods salesroom or showroom", notwithstanding that the bulky goods were small in number in comparison with other items of merchandise.
39 I do not accept this submission. I consider that it misunderstands the true import of the reasoning in Telope. It must be borne in mind that the premises under consideration in Telope could be properly characterised as specialised selling areas. They were premises to be used, respectively, for the sale of electrical goods, bedroom furniture, and paint, wallpaper and home decorating items. None of the proposed uses, in respect of which development consent was sought, contemplated the wide extent of merchandising, approval for which was sought in the present case. In my opinion, the reference in the reasoning in Telope to the existence of ranges of goods for sale, in which bulky items would be included along with small and portable items, is of paramount significance. In regard to such a range, the presence of small portable items would not prevent its characterisation as being one for the sale by retail of bulky goods, provided only that such bulky goods were not merely incidental to the range. In other words, it was necessary that the range could properly be characterised as one for the sale of bulky goods, in which the associated small and portable goods, however numerous, could properly be regarded as ancillary to the bulky goods.
40 Consequently, provided that, in the case of the electrical goods shop, there was a substantial number of bulky goods, such as large television sets, the fact that the range also contained small and portable electrical goods would not prevent an overall characterisation of the business as being one for the sale by retail of bulky goods; provided, of course, that it was appropriate in the conduct of the business that there be relevantly large handling areas and/or vehicular access. The same reasoning applied to the sale, for instance, of paints, where large bulky containers of paint constituted a significant part of the merchandise, even though, in association with them, there was offered for sale a range of small tins of paint, which did not need display and handling areas of the same size and which were transportable without the use of vehicular access.
41 I am quite satisfied that the principles enunciated in Telope cannot rationally be extended to cover a situation where the conduct of a business in premises involves, in addition to the display for sale of one or more ranges of goods which could, consistently with Telope be described as ranges of bulky goods, the display of other ranges of merchandise which contain large numbers of small portable goods but no significant quantity of bulky goods. A business, so conducted in my opinion, could not properly meet the definition of a bulky goods saleroom or showroom. In my view, it was correctly submitted, on behalf of the respondent, that if Telope were extended in this way, it would be possible to characterise any large or middle range department store as being a bulky goods saleroom or showroom. This would, quite clearly, be contrary to the obvious policy of the zoning, which was to keep out of industrial areas businesses of this kind, which were appropriate to ordinary shopping areas. In this regard, the attention of this Court has been drawn to evidence in the case pointing to what, in my view, is this obvious policy. It was not referred to by his Honour and, for my part, I find no need to refer to it in these reasons.
42 Accordingly, I am quite satisfied that his Honour's description of the business currently conducted in these premises, as set out in his Honour's reasons and referred to above, required that it be characterised, not as a bulky goods showroom or salesroom but simply as a shop, in which the business of general merchandising was being carried on.
43 As a matter of construction, therefore, the requirements of the zoning under the LEP and of the restrictions imposed by condition 10 could not permit of the present mode of conduct of the appellant's business in the subject premises.