Woolworths Limited v Warrnambool CC

Woolworths Limited v Warrnambool CC - [2005] VCAT 2211 - VCAT 2005 case summary — Zoe

[22]

After hearing argument I ruled that the question of characterisation of the particular goods is a question of fact to be decided by the tribunal, that is, what is the meaning of the words in the definitions in the planning scheme in their ordinary usage, but were not matters susceptible to expert opinion.

I consider that whilst the Tribunal in enforcement proceedings applies a stricter burden of proof, it is not bound by the rules of evidence and can inform itself as it thinks fit.

I follow the authorities argued, namely:

•

City of Springvale v Heda Nominees Pty Ltd[5] ;

•

Franceschini v MMBW[6]; and

•

Svanosio v Shire of Strathfieldsaye[7].

19.

City of Springvale v Heda Nominees Pty Ltd and Franceschini v MMBW are authority that matters of everyday knowledge or within ordinary human experience are not matters of expert opinion, and likewise that the determination of the meaning of an ordinary non-technical English word is a matter of fact and not a question of law.

In this case the relevant words are used in the planning scheme, and the issue is to determine their meaning and then decide whether or not the alleged non-complying items fall within their meaning.

These words are not used in the planning scheme in a technical, scientific or industry context, and the enquiry as to their meaning is not an enquiry as to their customary use in that context, which might be susceptible to expert evidence. Instead the words are used as ordinary language in a statutory instrument.

In relation to the application of the ruling I commented that as the tribunal will inform itself as it thinks fit, and as the opinions in the witness statements are a convenient guide to the parties' cases, I would allow the opinions of characterisation of goods in the statements to be presented by the witnesses and counsel for that purpose. However no elaboration of those opinions in evidence-in-chief or cross-examination of the witnesses on those matters would be (or was) allowed but only as to the facts observed. The reports will be accepted as evidence of observations by the witnesses and adopted by counsel for the respective party as submissions. In Bevendale PL v Whittlesea CC[8] the member agreed at [17] that the observations of the witnesses before her were not expert but factual observations and conclusions and that evidence did include evidence of characterisations of particular goods as either Restricted retail premises or Trade supplies. Cross examination was allowed but the right appears not to have been exercised.

At the time discussion took place that a determination of the characterisation of goods will no doubt require either a view of a typical Warehouse or the Warrnambool premises in the company of the parties to view the items in their setting or production to the Tribunal of the items themselves.

In further submissions it was agreed that in the interval between the first 2 days and the subsequent hearing dates I might inspect unaccompanied some WG stores to gain an understanding of the nature of the operation, and possibly of the Warrnambool store, but would not proceed to make an inspection on the question of characterisation or form any opinion as to characterisation until all the evidence had been presented. I did inspect 2-3 WG outlets.

[33]

As indicated above evidence was called as follows:

•

Mr Andrew Lacey, Counsel's Executive Manager Development Services,

•

Mr Ian Walkley, Managing Director of Colmar Brunton Research Services,

•

Mr Ian d'Oliveyra, Town Planner of Network Planning Consultants.

Each in his statement of evidence opined as to the characterisation of goods on sale in the main store and whether or not they were goods falling within the definitions of Restricted retail premises and Trade supplies., but the preliminary ruling resulted in these opinions being adopted by Counsel as submissions and being received on that basis.

I have considered as evidentiary material the inspection of the premises and the non-complying goods made in the company of the parties.

Leaving aside characterisation, Mr Lacey, Mr Walkley and Mr d'Oliveyra gave a general description of the land and the store, its situation at particular times, its location within the City of Warrnambool, its surrounds and the Gateway Plaza nearby, the main store's configuration, its relationship to the convenience store, the racking layout plans, internal signage, lists and examples of products and photographs. The essential point of difference between Mr Walkley and Mr d'Oliveryra related to the extent to which goods in the relevant categories were offered in the store and these figures differed. It was apparent that each witnesses' evidence referred to inspections at different dates, but that the main store's configuration, the categories of goods offered had changed, some goods had been removed or introduced, and locations had changed.

My decision is made on the basis of the inspection of the store on 1 July 2005. The final racking layout plan dated March 2005 with Mr d'Oliveyra's witness statement was used for that inspection and cross referenced with the schedule was set out in Appendix 1. I do not consider the differences between the witnesses referred to in the preceding paragraph changes are significant.

Other information provided to the tribunal not the subject of formal evidence was the documents, correspondence and photos provided by Council setting out the history of the matter, dictionary definitions, general information about WG, its website and advertising provided by the applicant, the lease and other sundry exhibits.

[35]

Mr Wright's first proposition was that WG is a national retail chain standardised operation in Victoria, NSW, Queensland, South Australia, Western Australia and New Zealand as a discount or bargain department store. He relied on material from WG's website (Exhibit 23) which described its group structure, some overall financial and operating statistics, core purpose and values, a statement of what's in our stores, it's history and future, proposals for expansion, store format and a description of the Australian operation. The web page on Australia states that WG has merchandise over 25 categories. Product is selected on the basis of customers'/market demands and the 2000 acquisition of the Australian business gave Warehouse Group an excellent foothold in the tough Australian discount variety retail market. The business started in Australia with 117 figures existing stores, in NSW, Victoria and Queensland and associated warehouse/distribution centres.

The website material stated that since WG's acquisitions in Australia it has opened 55 new stores, including 22 new format stores and closed 12 old stores during the 2003 financial year, and increased the retail footprint of many existing stores. As a result WG in Australia now operates 130 stores, increasing the total retail space from 151,000 m² on acquisition to more than 270,000 m². WG plans to double the size of its Australian business over the next 5 years, but regards effective supply chain management is the key to profitability.

Mr Wright referred to the Tribunal's decision in Bevendale Pty Ltd v Whittlesea City Council[13] where at paragraphs [54 - 56] the Tribunal reached the following conclusion:

Having heard the evidence, the arguments and conducted a site visit my assessment is that, viewing the matter in its totality, the true character of the use is a "shop". Some goods sold either fall within the primary categories of goods specified in the permitted definitions, or serve the primary categories of goods specified in the permitted definitions (eg furniture cleaner) but on the whole, the sale of those goods is minimal in comparison to otherwise broad and unrestricted nature of goods sold in general, so that does not change the real character of the premises, which is as a shop prohibited in this zone.

Whether one applies the "real and substantial purpose" test of Pacific Seven v Sandringham CC [1982] VicRp 14; [1982] VR 157 or analyses which goods fall outside the permitted categories applying the Davey v Brightlite Nominees Pty Ltd test [1984] VicRp 76; [1984] VR 957, the fact remains that substantial categories of goods sold do not comply with the permitted categories, even allowing for grey areas of ancilliary goods.

Goods can be sold or activities conducted on the subject land that fall within the ancilliary capacity to the restricted retail or trade supplies items, and the test one would assess them by is following the principles laid down in the Pacific Seven Pty Ltd v Knox CC guidelines above, or applying the Wright QC principles previously mentioned.

[44]

He referred to the retail hierarchy policies in Victoria based on the identification and consolidation of activity centres with regional activity centre at the top with sub-regional, local and neighbourhood activity centres serving the needs for community on a more localised basis in descending order, which is reflected in the Warrnambool Planning Scheme at Clause 22.03-1 identifying the Warrnambool central activities district to be developed and maintained as the primary commercial node with retail office service and highway related uses, in contrast with the secondary commercial role identified for Gateway Plaza in Clause 22.03-2, identified as one of two main areas for restricted retail sales (Clause 22.10).

He referred to the history of these policies and the precursors of restricted retail premises under the peripheral sales definitions identifying a type of retailing needing a large display area, a lower than yield/turnover per m² and the need for lower rents per m² combined with large and bulky items for display and accessible loading arrangements for customers, creating a high demand for this type of land used within industrial areas where buildings are bigger and rents are cheaper than in the main street or prime business and commercial areas. He submitted the planning system in Victoria accepts the legitimacy of this retail format allowing under the definition of shop an almost unlimited range of goods for sale, but a restriction of the type of goods allowed to be sold where the use is confined to restrictive retail sales and/or trade supplies. See Tripodi v. City of Whittlesea and d'Amore Supermarket Pty Ltd[21].

The principles of interpretation that Mr Wright asked the tribunal to apply are summarised as

•

The tribunal should not construe Restricted retail premises in a way that extends the goods referred to in it beyond what the planning context requires, which in this case is beyond what might be broadly described as the concept of bulky goods;

•

The tribunal is entitled to have regard to the fact that the evolution of the definition, the purpose of the zone and the planning policy are all large predicated upon the goods for sale being bulky and requiring large floor areas;

•

The tribunal should regard to the ordinary and every meaning of the words used in the definitions, for example he submitted household appliances should not include kitchen utensils, crockery and cutlery, buckets, mops, brooms and the like.

Mr Canavan said Woolworths erroneously seeks to confine the goods permitted to be sold under the definitions of Restricted retail premises and Trade supplies to bulky goods and goods to the trade. However he did not question Mr Wright's argument as to the general principles that the meaning of the words in the definitions must be construed in the context of the legislation, although I agree with him that on consideration of the detail of particular definitions and particular items, difficulties will arise, for example a video, whether pre-recorded or not, is not bulky, thus the ordinary meaning of the words may be seem at odds with the general policies. In the sense I must also take into account that the policies and zones of the planning schemes are expressed separately from the definitions in clause 74, it is true that the definitions and the policies are related, but in enforcement order proceedings where the strict definition of a word is the basis on which an enforcement order is or is not made, the actual meaning of the word in its ordinary usage is crucial and there is no exercise of discretion under the policies in determining that meaning.

[45]

Mr Canavan argued that any other class of goods besides Restricted retail, Trade supplies or convenience store, which incorporates the sale of non-restricted retail goods which is ancillary to the use of Restricted retail goods, would also be allowed (see clause 64 of the planning scheme)

Relying on the cases of Cascone and Vella v. City of Whittlesea[22], Pacific Seven Pty Ltd v. City of Knox[23], Lizzio v Ryde MC[24], he submitted that the use of the land for Restricted retail premises was the dominant purpose and accordingly its use for non-restricted retail premises can be regarded as merely incidental or ancillary to that dominant purpose and therefore lawful. Put another way he submitted that it is clear from Cascone that if the combination of uses is such that the proportion of the secondary purpose is trifling or insignificant, it will be regarded as ancillary.

His submission was that the authorities supported the proposition that uses may be ancillary if they are either a necessary adjunct to the dominant use, or they arise out of and enhance the primary and dominant use. To the extent that the main store sells some goods that are outside the definitions of restricted retail trade supplies or convenience shop, he submitted their sale is ancillary to the sale of the other goods.

Mr Wright did not dissent from the proposition that an activity can be considered as ancillary to the dominant use, where, although quite different from the dominant use, it is a necessary adjunct to the primary use or which grows out of or develops from the primary use to enhance that use, but his primary submission was that because of the very nature of the definition of Restricted retail premises being in terms of a list of categories of goods, the definition does not permit the sale of goods that are not either

•

within a category specified in the list, or

•

items which are ancillary to the goods within a category.

These cannot, he said, be a necessary adjunct to the sale of goods within the categories, would in effect add new categories and constitute a de facto expansion of the definition and a back door amendment of the scheme.

His submission was that questions of ancillary use would arise only in relation to non-retail activities, for example a coffee shop area or a child minding area for customers. He did not dispute the proposition that where the nature of the goods was directly related to goods falling within the specific categories that could be described as ancillary, such as furniture polish in relation to furniture or, in my view, blank video tapes in conjunction with pre-recorded videos. His argument was that a significant proportion of the display area is dedicated to goods that are not within one of the defined categories and are in no way related to any of the defined categories and that these cannot be ancillary and to that extent their display and sale amounts to a separate and definable use of the land for the purposes of "shop" not compliance with the planning scheme.

This matter was discussed extensively in Bevandale v. City of Whittlesea[25], essentially I agree with the propositions put by Mr Wright in the matter. The extent to which the ancillary defence applies will depend on the degree and extent of the goods claimed to be ancillary and the extent of their display in individual categories and globally in relation to the whole store. I will make findings on this issue in relation to my discussion of the particular categories on non-complying goods below. However I do not accept that the ancillary defence allows the use of the land for the sale or hire of additional categories of goods in significant quantities where those goods do not fall within the definitions of Restricted retail premises or Trade supplies.

[55]

With some exceptions I find that these goods are not furniture and furnishings within the definition of Restricted retail premises.

Some exceptions have been conceded by Woolworths, namely framed pictures (15), framed mirrors (17), shower curtains (20), door curtains and hanging rods (22), fabric cushions (27 & 29), cushions (35), outdoor cushions (40), framed pictures and fabric cushions (70). I also find that timber entertainment centres (43) are furniture and furnishings.

The essential debate between the parties is the width of the meaning that should be given to the words furniture and furnishings and Mr Canavan submitted that the words should be given a broad meaning including any goods used for ornamental as well as functional purposes, any goods with which a home is fitted, thus items such as artificial flowers, statures, candles, vases, towels, doonas, pillows, sheets, photo frames, quilts, blankets, face washers, tea towels, table clothes, underlays, throws, and napkins are properly regarded as furnishings. The applicant's argument to the contrary is that this interpretation will extend the expression beyond what the planning context requires, which in this case is beyond what might be broadly described as concepts of bulky goods, and items such as bed linen, bath towels and bath mats which, together with many other items are properly described as Manchester, should not be accepted as within these words.

Subject to the exceptions I consider that the items should not be included in the definition of furniture and furnishings having regard to the planning context of the scheme. Whilst the reference to "bulky" goods in the policies relating to the Business 4 Zone and the retail hierarchy are not determinative nor specifically referred to in Clause 74 as discussed above, they do indicate the way in which the definitions should be applied.

Likewise I find the ordinary meaning of the words furniture and furnishings include the items principally referred to in the dictionary definition, such as tables, chairs, beds, desks, cabinets or necessary accessories. These are necessarily the larger more permanent items in the fitting out of a household. To adopt Mr Canavan's interpretation would result in the tribunal ignoring the context and including in furniture and furnishings anything which might be used in a household. I find items such as mattress overlays, quilts and blankets and bed coverings (13) are not furniture and furnishings but manchester. I find artificial flowers (14) to be decorative items and not furniture and furnishings. I find many of the items of which there are a large number, such as bath towels, pillow cases, should be properly described as manchester and not as furniture and furnishings.

I find a bird aviary (53) is not within the commonly understood meaning of furniture or furnishings, but rather pet supplies.

Whilst, like manchester, kitchenware, glassware, crockery, cutlery and cooking equipment, and the numerous items included in 57, 58, 59 are goods used in a household, I find they do not fall within the commonly understood meaning of furniture and furnishing,s and reach the same conclusion for novelty cookie jar (62). I find electric light fittings (70) are not furniture or furniture, but rather Electric light fittings as in paragraph (c) of the definition or fixtures or items bought for portable or convenient use from time to time. It will be rare to find any of the items claimed by WG as furniture or furnishings in an ordinary "furniture store".

I also find that the goods, subject to the exceptions, are not ancillary in any of the senses discussed above, and have particular regard to their substantial number and the large amount of display space occupied.

The applicant's approach might be said to have the effect of requiring the tribunal to go to a level of detail, not encouraged by the authorities (see [54] above), but in making my findings an effort has been made to step back and gain a picture of how the items or groups of items should be regarded as a whole in the context of the purposes of the planning policies and consistency.

[57]

Woolworth's submission was that the goods in the appendix set out in the rows designated household appliances or ancillary to that category did not in fact fall within the meaning of those word in the definition of Restricted retail premises, that their sale was not ancillary to the sale of goods in that category and therefore the use of the land for their sale or hire was prohibited.

These goods are listed in rows 47 - 51, 54 - 56, 60 - 61, 63 and 64 of the appendix.

The Macquarie Dictionary (Revised Third Edition) 2002 defines

•

äppliance as: 1. an instrument, apparatus, or device especially one operated by electricity and designed for household use; and

•

household as: adj 2. of or pertaining to a household; domestic: household furniture. 3, used for maintaining or keeping a house.

In making my findings of these items I use the same methodology adopted for furniture and furnishings in relation to the level of detail considered and the application of the meanings of the words.

Woolworths does not maintain that all household appliances must be operated by electricity, and Mr Canavan submitted that the category includes non-electrical devices, but Mr Wright submitted that the phrase requires an element of electrical or mechanical functions, and I agree with this view.

I also take the view that the word household and its definition requires that the appliance must relate to a household or be used for maintaining and keeping a house, which involves consideration whether the goods are used in relation to the household, in or outside the house or for personal use as opposed to a use related to the household.

A significant group of items is home theatre sound systems (47), (51), DVD recorders (48), portable radio and accessories (49 and 50), home theatre speaker systems (60), DVD players (61), portable CD players (63) and CD carry cases and CD storage cases (64). I find that all these items are not household appliances within the definition of Restricted retail premises.

Whilst they include an element of electrical function I do not consider that they are used for maintaining or keeping a household, nor do they come within the concept inherent in the word appliance of carrying out some function of doing work or performing a household task, like an electric toaster or juice maker. Further, as a group, these goods in my view are described in ordinary English usage as entertainment systems, audio and video systems or sound systems and not as appliances.

A number of these items like portable CD players, CD carry and storage cases and portable radios and accessories are not of or pertaining to a household or used for maintaining or keeping a household. They are rather personal items which an individual member of a household might use at his or her convenience and are adapted for use both in and outside the household.

I find telephones and accessories (50 and 63) are household appliances as they are used for maintaining and keeping a household and are related to a household.

I find that electric power boards, extension cords and sundry electrical accessories (54) are not household appliances, as they do not have a mechanical or electrical function, but are merely a conduit for electricity.

I find electric massagers, hair dryers, toothbrushes etc., hair clippers and grooming devices (55 and 56) are not household appliances, but rather goods for personal use of individuals in a household, as opposed to items used for keeping or maintaining a household or having a particular relationship with the household, but I find irons (205) as being commonly regarded as an electrical appliance. I find the items shopping bags and disposable plates, knives, forks, and sundry clearance items (63) and computer accessories (64) not to be household appliances for the same reasons.

[62]

Mr Canavan argued that the word video includes both blank and pre-recorded videos. He submitted that it is something of an anomaly that pre-recorded audio and visual recordings on video are permissible under Restricted retail premises, whilst pre-recorded audio recordings on CD are not, but he said the area of store dedicated to these goods is very limited and is properly regarded as ancillary to the sale of home stereo equipment as household appliances and car stereos (automotive supplies).

Mr Wright submitted that the reference to videos as a reference to pre-recorded videos, typically movies, is not a reference to blank video tapes and does not include such items as blank DVDs or CDs which are more popularly regarded or described as computer supplies. He also referred to the intention of the inclusion of videos in the definition of Restricted retail premises as being designed to facilitate video stores located outside the Business 1 Zone.

I find that the word video in common usage particularly relates to the transmission or reception of a TV image or computer image on a screen. It is a visual image.

I do not agree with Mr Canavan that a definition of Restricted retail premises includes audio or music CDs, as these do not convey a visual image but sound only, even though the media is similar. Accordingly, I would exclude music CDs and blank audio CDs from the definition and so find.

There is the further issue as to whether video is confined to video cassettes or includes DVD disks. I find that the word would include pre-recorded visual images on a DVD disk or any other media. Technology in these areas is moving fast and a purposive approach to the interpretation of the Planning Scheme indicates that video stores in Business 4 Zones should not be excluded from the definition of videos in Restricted retail premises because they are converting to DVD disks as the media for selling and hiring recordings of visual images. Whilst the media is changing the product remains the same.

I also find that the sale of blank video cassettes and blank DVD disks is ancillary to the sale of pre-recorded material.

I find that CD storage units, CD holders and blank CDs are not within the definition of videos as they relate to music or audio material only. CD carry cases and storage units are different products from DVD carry cases or storage units.

I also find that the goods found above not to be videos are not ancillary to videos in any of the senses discussed above, but rather the addition of an extra range of non-complying goods and have regard to their number and the amount of display space occupied.

[64]

Woolworth's submission was that the goods in the appendix set out in the rows designated as Trade supplies or ancillary to those categories did not in fact within the meaning of the definition of Trade supplies, that their sale was not ancillary to the sale of goods in that category and therefore the use of the land for their sale or hire was prohibited

These goods are listed in rows 1 - 4, 45, 46, 52, 58 & 65 of the appendix,

In coming to my findings on these items I follow the methodology discussed under the heading Furniture and furnishings as to consideration of the level of detail.

There appears no dispute between the parties that the definition Trade supplies should be interpreted by reference to the nature of the goods supplied rather than by the end user of those goods as determined by Deputy President Mcnamara in S.T.Y. Building Supplies (Shepparton) Pty Ltd v. Greater Shepparton City Council and Bunnings Properties Pty Ltd [26]. A reading of the decision and the definition requires that in order for the Tribunal to make a finding whether or not the relevant goods are goods for use in one or more of the relevant trades in paragraphs (a)-(h) of the definition, it must make a finding (as the Deputy President did in S.T.Y. Building Supplies) that they are in fact used in that trade or activity.

Whilst not fully argued it appears the words in the definition for use in, eg in c_ommerce,_ means that the specified commercial activity involves the consumption or processing of the relevant goods in that activity, rather than their resale. Using resale as the test might deprive the definition of any limits on its meaning and enable the sale of any goods as trade supplies.

In the present case while paragraphs (a) Automotive Repairs and Servicing, (b) Building, (e) Landscape Gardening and (f) the Medical Profession, are relatively specific, The industries or activities in paragraphs (c) Commerce, (d) Industry, (g) Primary Production, or (h) Local Government, Government Departments or Public Institutions, are broad and non-specific.

As these proceedings seek an enforcement order, Woolworths bears the onus of proof of establishing that the relevant goods are not used in the list of trades and activities set out in the definition. It is not for WG to prove the contrary.

The parties agreed that the task of categorisation is a question of fact to be determined by the tribunal according to the ordinary English meaning of the words used in the definition. In many cases, the characterisation of the relevant goods displayed in the main store is sufficiently obvious to enable the tribunal to decide, without further evidence, whether or not they fall within the definition.

It might not be obvious enough in some instances, and a finding may need further evidence. No evidence was brought by Woolworths as to the characterisation of any of the relevant goods in this context. If the matter is uncertain and there is no evidence, the enforcement application in relation those goods should fail as the case is not proven.

Turning to the relevant items of goods I make the following findings:

•

I find the goods in rows 1-5 of the appendix are Trade supplies. They consist of paints and painting materials and various building tools and equipment. There is an extensive range similar to that found in a Bunnings store. I apply STY Building Supplies[27] as authority. Whilst these items may have a considerable retail and DIY market the nature of the goods as a matter of ordinary knowledge are goods used in building and industry.

•

The items in rows 45 and 46 present some difficulty. WGs submissions is that these fall within the category of goods for use in landscape gardening. On first sight of the description of the merchandise, one might form the conclusion that these are not goods for use in landscape gardening, but rather goods sold as garden supplies to the public, generally many of which were of an ornamental nature, and gardening tools. One might expect landscape gardeners to have their own tools and equipment and that landscape gardening supplies consist of the bulk materials, such as soil, gravel, stone, wooden sleepers, paving materials, mature plants and the like. However this thought is speculation by the tribunal and there is no evidence before me as to the nature of landscape gardening and whether such goods are generally used in that activity. In the absence of further evidence I am unable to make a finding that these goods do not fall within the definition.

•

I find that vacuum cleaner bags (Item 52) are obviously not trade supplies, but rather items for domestic use. However, the other items in row 52, namely sundry hardware, fall within the definition of trade supplies for the same reasons expressed for rows 1-4.

•

Row 58 includes a wide list of items which I find are domestic items used in the home, including glassware, cutlery, cookware, plastic containers, laundry items, storage units etc. WG submits these are Trade supplies. I find they are not Trade supplies, but items primarily intended for domestic use, although there is no doubt some commercial uses in restaurants, motels and the like. The nature of the display and the goods leads to me find that they are not goods for use in commerce or industry or in any of the other categories listed in the definition.

•

I find that as a matter of ordinary knowledge childrens stationary sets (row 65) are not Trade supplies.

•

In row 66 photographic film and camera are submitted as being trade supplies. I find they are goods which are capable of use in a wide range of commercial activities and industries, particularly in building, landscape gardening and government.

[68]

•

Clause 6.1.6 throws on WG tenant the full responsibility to obtain all necessary licenses and approvals and to maintain them.

•

Clause 10.1 of the lease contains the usual quiet possession covenant so long as WG complies with its obligations under the lease.

•

Clause 11.6.1.3 designates the covenants about the use of the premises as essential terms, a breach of which entitles the landlord to terminate the lease and institute proceedings for possession.

I agree with Mr Stokans that whilst the lease requires compliance with the planning scheme, until this tribunal makes a determination, there is little Calardu could do. It would be difficult for Calardu to enforce its rights under the lease as to non-compliance with the planning scheme until the tribunal had decided the matter, even if termination of lease provisions were commenced in another jurisdiction. Certainly if this was attempted one would expect proceedings in the tribunal by way of enforcement order or for declarations would be necessary. As I am satisfied Calardu has no involvement in any of the alleged non-complying activities, it is inappropriate to make any order against Calardu at this stage.

However I do not agree that it is appropriate to delete Calardu as a party at this stage. Mr Stokans distinguished or endeavoured to distinguish this case from the decision in Bevendale v Whittlesea City Council[28] where the tribunal found a breach of the scheme, made an order against the owner, but also ordered WG to pay the owner's costs, on the basis that the owner relied on Senior Counsel's opinion indicating that the use complained of was legal. Mr Stokans said the difference here was that the lease makes no representation about the legality of the activity complained of, restricts the use of the premises to restrictive retail, and puts the onus on WG to comply. His client had no issue with the convenience store permit and the resolution of compliance with that permit.

I agree with the distinction made. Accordingly I consider that no order should be made against Calardu in the present case apart from giving to Woolworths liberty to apply, to cover the situation where (whether or not after any appeal from this decision, WG fails to comply with my order and Calardu has had a reasonable opportunity to enforce the provisions of the lease.

Costs between Calardu and the other parties are reserved.

At a glance

Court

Decision date

Source

Judgment (126 paragraphs)

Woolworths Limited v Warrnambool CC (Red Dot) [2005] VCAT 2211 (22 October 2005)

Parties

Legislation Cited (1)

Cases Cited (3)