Woolworths Limited v Randwick City Council

Land and Environment Court (NSW)|2016-04-20|Before: Moore J, Ms J

TABLE OF CONTENTS Introduction Clause 6.13(3)(a) of the Randwick Local Environmental Plan 2012 The nature of the building for the purposes of the clause The separate question hearing The Liquor Act 2007 and the Registered Clubs Act 1976 Relevant provisions of the LEP The proposed development The 2003 layout and interior fitout of the Club's premises The required characterisation approach The Sevenex v Blue Mountains decision The "registered club" issues The dictionary definition of "club" Business premises? Retail premises? Conclusion Orders Appendix A

Introduction

HIS HONOUR: Woolworths Limited (Woolworths) has applied to Randwick City Council (the Council) for development consent to convert the Randwick Rugby Club (the Club) premises, located on the ground floor of 102-104 Brook Street, Coogee (the premises), into a Dan Murphy's retail liquor outlet.
Woolworths has commenced proceedings in the Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the Council's refusal, on 13 November 2015, of the proposed development.

Clause 6.13(3)(a) of the Randwick Local Environmental Plan 2012

The Council has filed a Statement of Facts and Contentions in the proceedings setting out a range of bases upon which it says the proposed development should be refused. One of those bases is that the development is prohibited as the premises are located in the R3 Residential Zone and the proposed development does not satisfy the test set in cl 6.13(3)(a) of the Randwick Local Environmental Plan 2012 (the LEP). Satisfaction of this provision is necessary to permit development for the purposes of commercial premises in this zone.
The terms of cl 6.13(3)(a) have the effect of establishing a mandatory and specific gate to be passed by a development application of this nature in this zone before the Council can proceed to the broader merit assessment of such a proposal. The terms of cl 6.13(3)(a) are: Development consent must not be granted to development to which this clause applies unless: (a) the development relates to a building that existed when this plan commenced and was designed or constructed for the purpose of commercial premises;
The remaining portions of cl 6.13(3) are not engaged for the purposes of my consideration of this test.
The LEP came into effect on 15 February 2013. It is agreed that, for the purposes of cl 6.13(3)(a), that this is the relevant date for the clause. There is no dispute that, for the purposes of the first element of the portion of cl 6.13 engaged in these proceedings, that the building existed as at that date.
It is also agreed that, for the purposes of the clause, the building constitutes the premises occupied by the Club (as part of a building can be a "building" for these statutory purposes).

The nature of the building for the purposes of the clause

There is a dispute between Woolworths and the Council as to what is to be considered for the purposes of the element of the provision reading "was designed or constructed for the purpose of commercial premises". The dispute between the parties is a simple one. Mr Hemmings SC, counsel for the Respondent, adopted the position that, as summarised in his written submissions, the language makes plain that it is relevantly the design or construction at the time the plan commenced which is relevant.
On the other hand, Mr McEwen SC, counsel for the Applicant (with him, Ms Reid, barrister), submitted that this element of the clause, from its face, requires consideration of an analysis of what was the state of the design or construction of the building at the time of its original approval and/or construction.
The written submissions for Woolworths say, at [17]: Clause 6.13(3)(a) does in fact make it clear that such inquiries are relevant. One must look to whether the building was designed or constructed for the purposes of commercial premises. Enquiry of what was designed or constructed necessarily infers a reference to historical events by use of the past tense.
Although Mr Hemmings sought assistance from the first and second objectives of cl 6.13 because they relate to activities in a present tense sense, I do not consider that these assist. As Mr McEwen correctly pointed out, the first element of cl 6.13(3)(a) defines the point of time for the building's existence. On an ordinary consideration of the language used in the second part of the provision, the use of the conjunctive to link the two elements of the provision, when coupled with the use of the past tense in the second element, makes it clear that that which needs to be examined is the nature of the purpose of the building at the time it was designed or constructed. It is in light of that enquiry that it is necessary to determine whether that purpose was of commercial premises or not at that time.

The separate question hearing

If the Council's contention that the proposed development does not satisfy this test is correct, that will be dispositive of the proceedings, mandating their dismissal. As a consequence, on 9 March 2016, a separate question dealing with this contention was set down for determination. The terms of the separate question, one in two parts, are: Does the development application seek consent for development which does not relate to a building that was designed or constructed for the purpose of commercial premises pursuant to cl 6.13(3)(a) of Randwick Local Environmental Plan 2012? Having regard to the answer to question (a), is it open to the consent authority to grant approval to the development application?

The Liquor Act 2007 and the Registered Clubs Act 1976

Prior to the commencement of the hearing, written submissions were filed by Mr Hemmings and Mr McEwen. As a consequence of my reading of these submissions, I raised, at the commencement of the hearing, the fact that I considered it desirable that the parties consider, and address, matters arising out of relevant provisions of the Liquor Act 2007 (the Liquor Act) and the Registered Clubs Act 1976 (the Clubs Act) as potentially impacting on the proceedings. I also considered the extent (if at all) that the judgment delivered by Young JA in Sevenex Pty Limited v Blue Mountains City Council [2011] NSWCA 223; 183 LGERA 1 might also inform in my determination of the separate question.
In order to assist the parties consider these matters (as neither set of written submissions had addressed them), the commencement of the proceedings was delayed to permit the parties to consider the provisions identified by me and any other provisions in the LEP they considered were to be relevant as a consequence.
Despite the necessity for the advocates to consider this unanticipated material, the hearing proceeded expeditiously and was completed within the day allocated to it.

Relevant provisions of the LEP

In addition to the relevant portion of cl 6.13 of the LEP earlier set out, there are a number of other provisions that need to be examined. These comprise definitions contained in the dictionary to the LEP and the Land Use Table for the R3 Residential zone. These are set out below. The relevant definitions are those of "business premises"; "commercial premises"; "registered club"; and "retail premises". These definitions are in the following terms: business premises means a building or place at or on which: (a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or (b) a service is provided directly to members of the public on a regular basis, and includes a funeral home and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital. commercial premises means any of the following: (a) business premises, (b) office premises, (c) retail premises. registered club means a club that holds a club licence under the Liquor Act 2007. retail premises means a building or place used for the purpose of selling items by retail, or hiring or displaying items for the purpose of selling them or hiring them out, whether the items are goods or materials (or whether also sold by wholesale), and includes any of the following: (a) bulky goods premises, (b) cellar door premises, (c) food and drink premises, (d) garden centres, (e) hardware and building supplies, (f) kiosks, (g) landscaping material supplies, (h) markets, (i) plant nurseries, (j) roadside stalls, (k) rural supplies, (l) shops, (m) timber yards, (n) vehicle sales or hire premises, but does not include highway service centres, service stations, industrial retail outlets or restricted premises.
The Land Use Table element for the R3 zone is in the following terms: Zone R3 Medium Density Residential 1 Objectives of zone ∞ To provide for the housing needs of the community within a medium density residential environment. ∞ To provide a variety of housing types within a medium density residential environment. ∞ To enable other land uses that provide facilities or services to meet the day to day needs of residents. ∞ To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. ∞ To protect the amenity of residents. ∞ To encourage housing affordability. ∞ To enable small-scale business uses in existing commercial buildings. 2 Permitted without consent Home occupations; Recreation areas 3 Permitted with consent Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Business premises; Car parks; Child care centres; Community facilities; Dual occupancies; Dwelling houses; Group homes; Home businesses; Hostels; Hotel or motel accommodation; Multi dwelling housing; Neighbourhood shops; Office premises; Passenger transport facilities; Places of public worship; Recreation facilities (indoor); Recreation facilities (outdoor); Residential flat buildings; Respite day care centres; Restaurants or cafes; Roads; Semi-detached dwellings; Seniors housing; Serviced apartments; Shops 4 Prohibited Funeral homes; Any other development not specified in item 2 or 3
As can be seen, business premises and shops are permitted in the zone. Registered clubs are not but the Club has existing use rights at the premises for this purpose.
Of the three elements within the definition of "commercial premises", it is the agreed position of the parties that, for the purposes of cl 6.13, "office premises" can be disregarded.

The proposed development

The development application sought approval to use the premises for the purposes of a shop (a Dan Murphy's retail liquor outlet). Development for the purpose of a shop is permissible development with development consent as provided for in the Land Use Table of the LEP. This position, of course, is subject to satisfaction of cl 16.3(3)(a) which acts as a constraint on such development in the R3 zone where the premises are located.

The 2003 layout and interior fitout of the Club's premises

The proposed development for the Club was approved by the Council by a notice of determination dated 28 February 2003. Condition 1 of the conditions of consent, as is conventionally the case, listed the plans for which approval had been given. Amongst them was Plan A103 PL, a plan entitled "Ground Floor Furniture Layout". This plan shows not only the proposed furniture layout but the various operational aspects proposed for the premises in its use by the Club.
A number of other plans of the premises were contained within the bundles of documents tendered.
Despite the large volume of material contained in the five volumes of the agreed bundles, little of it (other than the provisions of the LEP) needs to be referred to extensively.
Although there was, as earlier noted, a limited dispute between the parties about timing matters in consideration of the portion of cl 6.13 of the LEP engaged by these proceedings, it is sufficient, in my assessment, simply to reproduce the approved Ground Floor Furniture Layout plan to provide an illustration of the nature and location of the various activities within the premises as a consequence of the February 2003 development consent. The plan is reproduced as an appendix to this decision.
Woolworths' written submissions summarise that which was designed or constructed, drawn from an analysis of the Ground Floor Furniture Layout plan. This shows that the elements approved can properly be understood to be:

a commercial catering kitchen;
a servery;
toilet facilities (9 female, 4 male and 1 disabled access);
three wet bars;
a keg storage room;
a games room;
seating areas for the service and or consumption of food and drink by patrons of the club;
administration offices; and
an entry foyer

It is not contested that the range of activities approved to be undertaken within the building are aptly illustrated by the plan that I have selected for reproduction, although the detailed internal fitout and location of those activities may have differed over time since the building was designed or constructed. What conclusion should be drawn from this range of facilities is a matter of dispute between the parties.

The required characterisation approach

Although a deal of the submissions related to general characterisation questions in the context of a Chamwell-style analysis (see Chamwell Pty Ltd v Strathfield Municipal Council [2007] NSWLEC 114; 151 LGERA 400), I am satisfied that the appropriate consideration is more confined and requires analysis in the context of the relevant statutory provisions for "registered clubs" which impose boundaries or limits on the nature of the activities of such bodies.

The Sevenex v Blue Mountains decision

In Sevenex v Blue Mountains City Council, Young JA discussed, at [31], how the concept of business and retail uses work together in considering the relevant provisions of the Blue Mountains Local Environmental Plan 1991. His Honour said: The real question here is whether the proposed change of use is another commercial use in that the building is being used: (a) for retail premises; or (b) for business premises, noting that (b) involves a service provided directly to the public on a regular basis. So far as a retail business is concerned, the applicant's submission is that what is actually proposed to be sold on the lower ground floor are tickets from the ticketing office and photos of patrons with the exhibits and that the sale of tickets brings the activity within the concept of a retail business. The distinction between "retail premises" and "business premises" is that the former directs attention to the sale and hire of items - tangibles, whereas "business premises" directs attention to the provision of services - intangibles. It is put that the proposed use qualifies under both or either of the headings.

The "registered club" issues

As the premises are currently used for the purposes of a registered club, it is necessary to consider whether or not, in the confined definitional and statutory framework for a registered club, such an enterprise can fit within the definition of either "business premises" or "retail premises" and thus "commercial premises" for the purposes of satisfying cl 6.13(3)(a) of the LEP.
This involves consideration of not only the provisions of the LEP but also how, linking from the definition of "registered club" in the LEP, the relevant provisions of both the Liquor Act and the Clubs Act define and/or confine the nature of the permitted operations of the club at the premises in this definitional context.

The dictionary definition of "club"

Mr Hemmings handed up a copy of the page of the Macquarie Dictionary that included the definition of "club". He relied on two elements of that definition in support of his submissions. Those two elements are in the following terms: A group of persons organised for a social, literary, sporting, political, or other purpose, regulated by rules agreed by its members. The building or rooms owned by or associated with such a group, sometimes lavishly decorated and furnished, and offering dining, gambling, theatrical and other facilities to members.
I did not understand Mr McEwen to cavil with the appropriateness of these definitional elements from the Macquarie Dictionary.

Business premises?

For the purposes of my consideration in these proceedings, it is appropriate to start with the definition of "business premises" and, in particular, the concept of providing services to "the public".
The element of the building involved in these proceedings is operating as a registered club. The term "registered club" is one defined in the LEP as earlier set out.
From its terms, this definition takes one to consideration of the relevant provision in the Liquor Act, s 10(1)(c). This provision is in the following terms: 10 Types of licences and authorisation conferred by licence (1) The following types of licences may be granted and held under this Act: (a) …, (b) club licence, …, (f) ... (2) A licence authorises the licensee to sell or supply liquor in accordance with this Act and the conditions of the licence. (3) The authorisation conferred by a licence is subject to this Act and the regulations.
This then leads to two further provisions of the Liquor Act. The first is s 18(1), a provision in the following terms: 18 Authorisation conferred by club licence (1) A club licence authorises the licensee to sell liquor by retail on the licensed premises to a member of the club (or a guest of a member of the club) for consumption on or away from the licensed premises.
The second is s 19(1), a provision in the following terms: 19 Club licence - general provisions (1) A club licence may only be granted to a club that: (a) meets the requirements specified in section 10 (1) of the Registered Clubs Act 1976, and (b) otherwise complies with the requirements of that Act.
Thus, in turn, s 19(1) of the Liquor Act engages the provisions of s 10(1) of the Clubs Act. That provision is lengthy and it is not necessary to reproduce it.
A proper analysis of these provisions, in my view, however leads to a prima facie conclusion that such services as are provided by a "registered club" are not ones that are provided to the public but are only ones provided to members of the registered club or their guests.
Mr McEwen, however, resisted such a conclusion and submitted that the facultative provision of s 23 of the Clubs Act, a provision permitting authorisation to be granted that would enable functions to be conducted on club premises where access to such functions was not confined to members of the club or their guests. The relevant portions of s 23 read: 23 Functions on club premises (1) The Authority may, on application by or on behalf of a registered club, grant an authorisation (a club functions authorisation) to the club to permit persons: (a) who are not members of the club, or (b) who are under the age of 18 years, to attend, in a specified part of the club premises, functions of a cultural, educational, religious, patriotic, professional, charitable, political, literary, sporting, athletic, industrial or community nature. Any such function may include a wedding. (2) A club functions authorisation is to designate function areas (that is, each part of the club premises on which the functions concerned are permitted to be held) and access areas (that is, each part of the club premises through or by means of which persons attending those functions are to be permitted to obtain entry to or to depart from a function area). (3) A club functions authorisation is subject to the following conditions, but only to the extent that it authorises functions for minors on the club premises: (a) at least 7 days notice must be given to the local police before any function is held, (b) the notice must specify the name and nature of the function, the number of minors attending, the number of adult supervisors, details of the security arrangements and such other particulars as may be prescribed by the regulations, (c) the secretary of the club and person conducting the function must comply with any directions given by the local police or the Authority with respect to the conduct of functions for minors, (d) liquor must not be sold, supplied, disposed of or consumed in the area in which any function is held, (e) gaming machines must not be located in the area in which any function is held and any area of the club in which gaming machines are located must not be accessible to any minor attending the function, (f) such other conditions as may be prescribed by the regulations. Note. Section 23A also makes provision for the conditions to which a club functions authorisation is subject. (4) A registered club and the secretary of the club are each guilty of an offence if: (a) any conditions of a club functions authorisation held by the club are contravened, or (b) a function is held pursuant to the club functions authorisation otherwise than in accordance with the approval of the governing body of the club. Maximum penalty: 20 penalty units in the case of the registered club and 10 penalty units in the case of the secretary. (5) It is a defence to a prosecution of a secretary of a club for an offence under subsection (4) if it is proved that: (a) the secretary had taken all reasonable precautions to avoid commission of the alleged offence, and (b) at the time of the alleged offence the secretary did not know, and could not reasonably be expected to have known, that the alleged offence had been committed.
For the purposes of my consideration in these proceedings, I set aside the fact that there is no evidence that the Club has such an authorisation (Mr McEwen having indicated that if I considered I needed to have regard to whether or not such an authorisation was held for these premises, the Applicant would seek time to be able to provide evidence that it did if that were the case).
However, I consider it appropriate to proceed to deal with this consideration at a level of generality as I am satisfied that, given the conclusion I have reached on that basis, it is unnecessary to know whether the Club holds such an authorisation.
Although such an authorisation removes the barrier to access for a registered club for the limited purposes permitted by the authorisation, such an authorisation does not have the effect of setting aside the restrictions on access on a universally applicable and open-ended basis. There will, necessarily, remain limits on access to the general public, with those limits being set by the extent of boundaries in the authorisation. There will, nonetheless, necessarily remain restrictions that confine some areas of, and/or times for use of, the club's facilities to members (accepting that there are a range of membership categories, including temporary memberships) and guests of those members who have the right to invite guests to use the facilities of the club.
Although the extent of the spatial and temporal limitations may vary from authorisation to authorisation, nonetheless I am satisfied that, at the relevant level of generality, it is not able to be said that access to such club premises pursuant to a s 23 authorisation is available to the public for the public to utilise such services as provided on the premises of a registered club. In this context, it is appropriate to be reminded of the definition of "public" (when used as a noun), a definition from the Macquarie Dictionary relevantly in the following terms: Public -noun 8. Also, the general public. the people constituting a community, state, or nation.
This is a definition of broad generality, not one able to be ascribed, in any general sense, to those given the ability to access and use the Club's premises. It therefore follows, on the specific basis set out by Young JA in Sevenex that the premises, for the purposes of cl 6.13(3)(a) of the LEP, cannot constitute "business premises" and, therefore, cannot use that limb of the definition of "commercial premises" as a way through the preliminary gate set by the LEP.

Retail premises?

I now turn to the question of whether these premises can properly be characterised as being "retail premises". There can be no doubt that, within the broad umbrella of the range of premises listed in the definition of "retail premises" in the LEP, these premises potentially fall within this scope. This is because, at the very least, the bistro and bar facilities provided would bring the premises within the scope of the listed element of the definition of "food and drink premises".
That, however, although satisfying a necessary preliminary step for being so included, does not, in my view, amount to complete satisfaction of that which is necessary to establish that a purpose of the use of the premises is for retailing of food and drink.
I am satisfied that, consistent with the analysis of Young JA in Sevenex, "retailing", although not expressly incorporating the concept of "to the public", necessarily involves activities that must be on such a broad basis. In this regard, the relevant dictionary definition is also of assistance. The definition of "retail" contained in the Macquarie Dictionary is in the following terms: 1. the sale of commodities to household or ultimate consumers, usually in small quantities (opposed to wholesale).
Although merely distinguishing between retail and wholesale, it is also implicit that such activity must be at large, in the LEP definitional context, rather than in the statutorily limited fashion set for "registered clubs".
I am fortified in this reasoning by the restriction in s 18(1) of the Liquor Act that makes it clear that any retail sale of liquor on the licensed premises is confined to members or members guests, a restriction that, in my assessment, takes this limited scope of activity outside the broad nature of "retailing" as to be understood from the approach in Sevenex.
If this approach be correct, then the same chain of reasoning as earlier set out concerning "business premises" must be equally applicable to consideration of whether or not these premises can be categorised as falling within the definition of "retail premises". It therefore follows that, although food and drink may be sold to members and their guests or to those who might attend the premises pursuant to an authorisation granted under s 23 of the Clubs Act, such sales would not constitute retailing (to the public) but would fall within the scope of activities undertaken on premises that should be categorised as a "registered club".

Conclusion

For the reasons earlier outlined, I am satisfied that the answer to the two parts of the separate question are: 1. Does the development application seek consent for development which does not relate to a building that was designed or constructed for the purpose of commercial premises pursuant to cl 6.13(3)(a) of Randwick Local Environmental Plan 2012? 2. Answer: Yes 3. Having regard to the answer to question (a), is it open to the consent authority to grant approval to the development application? Answer: No

Orders

It therefore follows that the orders of the Court are: 1. (1) The appeal is dismissed; 2. (2) Unless, within 21 days of the date of this judgment, the Registrar is notified that some other order is sought, there is to be no order for costs; and 3. (3) The exhibits are returned.

Appendix A Woolworths Limited v Randwick City Council - plan - 7 Jul 16 (802 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2016

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