JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : DCSC PTY LTD and PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL [2016] WASAT 104
MEMBER : MR P McNAB (SENIOR MEMBER)
HEARD : 26 MAY 2016
DELIVERED : 25 AUGUST 2016
FILE NO/S : DR 475 of 2015
BETWEEN : DCSC PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords:
Town planning Development application Preliminary question - Service station - Retail sale of petrol and convenience goods Land use classification Whether use correctly classified as 'Convenience Store' or 'Service Station' under local planning scheme Whether Convenience Store definition contemplated only incidental sales of petrol - Evidence indicating substantial sales of fuel products - Integrated sales model - Extent to which composite use of site envisaged by definition - Application of 'best fit' approach to land use classification - Interpretative approach to land use definitions Whether permissible to have regard to draft Scheme amendment as extrinsic material Words and phrases: 'best fit'; 'but including'; 'convenience store'
Legislation:
City of Busselton Local Planning Scheme No 21, cl 4.3.2, Pt 13 Sch 1
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1 cl 37(1)
Planning and Development Act 2005 (WA)
Result:
Preliminary decision given in applicant's favour
Summary of Tribunal's decision:
A preliminary question arose as to whether a proposed Puma Energy petrol station was properly classified under the applicable Town Planning Scheme as 'Convenience Store' or 'Service Station'. The proposal had elements of both the retail sale of petrol and the retail sale of convenience store type goods. The Tribunal regarded it as an 'integrated' operation. The respondent had considered the proposal to be a 'Service Station'; the applicant contended that 'Convenience Store' was a more accurate characterisation of the proposed land use.
Shortly before the preliminary question was reserved for consideration, the Tribunal had dealt with the same issue for another Puma Energy petrol station, but under a different Town Planning Scheme. The definitions considered in that earlier decision were broadly similar to those considered in this case; however, the sale of convenience goods was permitted under both definitions. The Tribunal in that earlier Puma Energy decision had classified the proposed use as a composite use involving both the sale of convenience goods and substantial petrol sales. Thus, the use was found to be 'Convenience Store'.
Here, the respondent argued that the words in the definition of 'Convenience Store' authorising the sale of petrol ('but including the sale of petrol') did not permit other than incidental sales of fuel. The agreed facts, drawing in part upon the facts found in the earlier Puma Energy decision, showed here that petrol sales were likely to be substantial, and not incidental.
The Tribunal did not accept the respondent's contentions, finding that the best fit for the classification of the applicant's proposed land use was 'Convenience Store'. The words of conjunction 'but including the sale of petrol' in the definition were best read, as other legal sources permitted, as if they meant 'and also the sale of petrol'. There was no warrant to read a limitation of 'incidental' sales of fuel into the definition. After all, the concept of incidental use in town planning law and practice was well established and if the drafter had intended to impose that limitation then 'nothing [would be] easier than to say so in plain words'. The town planning cases demonstrated a 'practical and common sense' approach was needed in establishing the 'best fit' in land use classification questions.
The Tribunal declined an invitation issued by the respondent to have regard to a current amendment proposed for the Town Planning Scheme. The Tribunal held that Australian law did not permit such an amendment (which was equivalent to a Bill passed by Parliament awaiting enactment) to be considered as extrinsic material for the purposes of ascertaining the meaning of the current Scheme.
The preliminary question was therefore resolved in the applicant's favour.
Category: B
Representation:
Counsel:
Applicant : Mr M Hotchkin
Respondent : Dr S Willey
Solicitors:
Applicant : Hotchkin Hanly
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
AAD Design Pty Ltd v Brisbane City Council [2011] QPEC 54
APN Outdoors and City of Cockburn [2014] WASAT 32
C v Director General of the Department of Youth and Community Services [1982] 1 NSWLR 65
Magic Hand Car Wash Franchisor Pty Ltd and Town of Claremont [2015] WASAT 133
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238; (2008) 60 SR (WA) 11
Pacific Flight Catering Ltd v LSG Sky Chefs New Zealand Ltd [2013] NZCA 386; [2014] 2 NZLR 1
Province of Bombay v Municipal Corporation of Bombay [1947] AC 58
Puma Energy Australia and City of Cockburn [2016] WASAT 36
R v Dart [2011] SADC 158
Shahin v City of Unley [2003] SASC 298; (2003) 128 LGERA 308
Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88
Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
West Coast Enterprises Pty Ltd v Shire of Exmouth [2007] WASAT 316
Yu v Brisbane City Council [2005] QPEC 78; [2006] QPELR 102
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1 In September 2015, DCSC Pty Ltd applied for the development approval of a Puma Energy petrol station with a proposed land use classification of a 'Convenience Store' with associated development (described below). The proposed petrol station is to be located on land in Dunsborough in the Shire of Busselton (Shire). Under the Shire's town planning scheme, a 'Convenience Store' land use includes, amongst other things, 'the sale of petrol'.
2 Because of the value of the development, the relevant decision-maker for this development application is not the Shire but the Southern Joint Development Assessment Panel (respondent).
3 The respondent declined to classify the proposed land use as 'Convenience Store', instead classifying it as 'Service Station'. The complaint of the applicant was as follows:
The applicant applied for the development of the land under the use class of 'Convenience Store', a permitted use under the [Shire's town] [p]lanning [s]cheme provided it complies with development standards under the Scheme.
'Service Station' as defined under the [town planning scheme] is a discretionary use. Although it is not dealt with expressly in the [Shire's] reasons for refusal [of development approval], the respondent dealt with the Application as an application for a 'Service Station' use, and refused the application on discretionary grounds. Had the use been properly classified as 'Convenience Store', the Application should have been assessed against development standards under the Scheme and approved.
Thus, on 22 April 2016, Parry DCJ, then a Deputy President of this Tribunal, by order of the Tribunal reserved as a preliminary issue for resolution the following question:
Whether the proposed land use is correctly classified as 'Convenience Store' or as 'Service Station' under the City of Busselton Local Planning Scheme No 21.
4 Shortly before then, on 13 April 2016, the Tribunal had determined Puma Energy Australia and City of Cockburn [2016] WASAT 36 (Puma Energy), which, amongst other things, had dealt with whether land use for a Puma Energy petrol station was correctly classified, under a different town planning scheme, as 'Convenience Store' or 'Petrol Filling Station'. The Tribunal held that 'on the evidence, the proposed use is correctly classified as "convenience store" under the [town planning scheme]'.
5 I will return to Puma Energy in more detail, below.
Agreed facts
6 In order to resolve the preliminary issue, the parties have agreed upon the following matters (some document references have been omitted):
1. The applicant is the owner of Lot 108 Dunn Bay Road, Dunsborough (Land), located in the municipality of the City of Busselton and is subject to the City of Busselton Local Planning Scheme No 21 (Scheme).
2. The Land is zoned 'Business' … under the Scheme.
3. The proposed development (Proposed Development) comprises:
(a) 9 shop front car parking bays for the use of customers,
(b) 2 staff parking bays,
(c) 6 bays adjacent to each of the fuel bowsers (i.e. 3 double sided bowsers);
(d) a retail building comprising 188 m2 of net lettable area on the western side of the site to be used for the sale of convenience goods;
(e) a canopy of 300 m2 with a height of 5.7 metres, covering the refuelling bays and bowsers and providing sheltered access to the retail building;
(f) air and water service areas;
(g) 3 underground fuel storage tanks; and
(h) proposed operating hours of 24 hours per day, 7 days per week.
4. The building in the Proposed Development also includes a 'service area' of 40 m2 and a smaller area where bins will be retained and collected.
5. The type of goods that will be available for retail purchase at the Proposed Development includes:
(a) groceries and personal care items;
(b) a large selection of drinks;
(c) fresh bread and milk;
(d) some takeaway foods;
(e) snacks and convenience foods;
(f) telecommunication cards;
(g) magazines; and
(h) automotive supplies.
6. The goods listed at sub-paragraphs 5(a) to 5(g) are of a kind commonly sold in supermarkets, delicatessens and newsagents.
7. The Applicant submitted a 'Development Application Report Proposed Convenience Store report dated September 2015.
8. The Respondent refused the applicant's application for approval of the Proposed Development on 14 December 2015 and gave notice of its refusal under cover of letter dated 23 December 2015.
7 The respondent's written submissions properly acknowledge that the proposed development here 'comprises both - as a matter of fact - [a] substantial retail petrol sales operation … and a substantial retail convenience store/shop …'. Indeed, as will be developed below, it is critical to the respondent's case that if petrol sales are not incidental to other retail selling then the facts here cannot satisfy the definition of 'Convenience Store'.
Planning framework
8 In addition to the matters agreed and set out above, the following subjects in the planning framework may be noticed, arising under the City of Busselton Local Planning Scheme No 21 (LPS 21).
9 The subject land (Lot 108), as has been mentioned, is located in the Business zone under LPS 21.
10 'Convenience Store' is defined in LPS 21's definitions section (Pt 13, Sch 1) to mean:
[any] land and buildings used for the retail sale of convenience goods being those goods commonly sold in supermarkets, delicatessens and newsagents, but including the sale of petrol and operated during hours which include, but which may extend beyond, normal trading hours and providing associated parking. The buildings associated with a convenience store shall not exceed 300 m2 net lettable area.
11 Under the Zoning Table of LPS 21 (Table 1), a 'Convenience Store' land use is a 'P' use within the Business zone, meaning that, pursuant to cl 4.3.2 of LPS 21, 'the use is permitted [under LPS 21] providing [that] the use complies with the relevant development standards and the requirements of [LPS 21]'.
12 'Service Station' is defined in LPS 21's definition section (Pt 13, Sch 1) to mean:
... any land or buildings used for the retail sale of petroleum products and motor vehicle accessories and for carrying out greasing, tyre repairs, minor mechanical repairs to motor vehicles but does not include a transport depot, panel beating, spray painting, major repairs or wrecking.
13 A 'Service Station' is a 'D' land use under the Zoning Table, indicating that the use is not permitted unless there is an exercise of discretion by the Shire to grant planning approval: cl 4.3.2 of LPS 21.
14 On the respondent's case, the land use 'Shop' may also be relevant. That expression is defined in Sch 1 to mean:
… any building wherein goods are kept, exposed or offered for sale by retail, or within which services of a personal nature are provided (including a hairdresser, beauty therapist or manicurist) but does not include a showroom, fast food outlet or any other premises specifically defined elsewhere in this part.
15 'Shop' is also a 'P' land use within the Business zone.
Previous decisions of the Tribunal
16 In Puma Energy, the relevant town planning scheme there under consideration (see at [24]) contained the following land use definitions for 'Convenience Store' and 'Petrol Filling Station'. For convenience of reference, the definitions in this case from LPS 21 are reproduced, in italics, immediately below each definition:
convenience store: means premises -
(a) used for the retail sale of convenience goods commonly sold in supermarkets, delicatessens or newsagents, or the retail sale of petrol and those convenience goods;
(b) operated during hours which include, but may extend beyond, normal trading hours;
(c) which provide associated parking; and
(d) the floor area of which does not exceed 300 square metres net lettable area.
LPS 21: [any] land and buildings used for the retail sale of convenience goods being those goods commonly sold in supermarkets, delicatessens and newsagents, but including the sale of petrol and operated during hours which include, but which may extend beyond, normal trading hours and providing associated parking. The buildings associated with a convenience store shall not exceed 300 m2 net lettable area.
petrol filling station: means land and buildings used for the retailing of fuel and petroleum products and may include a convenience store with a floor area not exceeding 300 square metres, but does not include a workshop for mechanical repairs or the servicing of vehicles or machinery.
LPS 21: any land or buildings used for the retail sale of petroleum products and motor vehicle accessories and for carrying out greasing, tyre repairs, minor mechanical repairs to motor vehicles but does not include a transport depot, panel beating, spray painting, major repairs or wrecking.
17 Importantly, the Tribunal noted in Puma Energy, at [11], that:
As the defined meanings of both of these use classes in the Scheme refer to the retail sale of petrol or fuel and the retail sale of convenience goods or goods in a convenience store, the definitions are poorly drafted and somewhat confusing.
18 It will also be noticed that, in respect of both definitions, LPS 21's definition of 'Service Station' has less in common with Puma Energy's 'Petrol Filling Station' definition, whilst the two definitions of 'Convenience Store' are broadly similar to each other. In particular, a convenience store element ('and may include a convenience store') is missing from LPS 21's definition of 'Service Station'.
19 In Puma Energy, it was common ground (see [72]) that the proposed development 'satisfie[d] paragraphs (b), (c) and (d) of the definition' of 'Convenience Store'. As to paragraph (a) of the definition, the Tribunal in Puma Energy said, at [91]:
… the expression of paragraph (a) of the definition of the land use 'convenience store', which is in two limbs separated by the disjunctive 'or', indicates that the primary focus or emphasis of the land use definition of 'convenience store' is on both premises used for 'the retail sale of convenience goods commonly sold in supermarkets, delicatessens or newsagents' (limb 1) and premises used for 'the retail sale of petrol and ... convenience goods [commonly sold in supermarkets, delicatessens or newsagents]' (limb 2).
20 After reviewing the extensive evidence on the matter, the Tribunal concluded, at [92], as follows (emphasis added):
[Counsel for the applicant] submits that, on the evidence before the Tribunal, the proposed development falls within the composite expression in the second limb of paragraph (a) of the definition of 'convenience store', thus satisfying that paragraph of the definition, and is therefore correctly classified as 'convenience store' … We accept this submission, because, on the evidence before the Tribunal, the proposed development involves 'the retail sale of petrol and ... convenience goods [commonly sold in supermarkets, delicatessens or newsagents]', within the meaning of this composite expression in limb 2 of paragraph (a) of the definition of 'convenience store', and the primary focus and emphasis of the proposed development is on both the retail sale of petrol and the retail sale of convenience goods. On the evidence, we also find that, because the primary focus and emphasis of the proposed development is on the retail sale of petrol and convenience goods commonly sold in supermarkets, delicatessens or newsagents, rather than on the retailing of fuel and petroleum products, the proposed development is not correctly classified as 'petrol filling station' under [the Scheme].
21 The respondent summarises this finding, I think correctly, as a conclusion that a 'composite use' under that Scheme had been established.
22 The extent to which the facts in Puma Energy might be relevant to this matter is considered below.
23 Puma Energy also considered, and then distinguished, the Tribunal's decision in West Coast Enterprises Pty Ltd v Shire of Exmouth [2007] WASAT 316 (West Coast Enterprises). Again, the same issue as here arose, namely, the proper classification of a service station, described there as a 'modern integrated operation'. In West Coast Enterprises, the Tribunal concluded as follows, at [43]:
In short, this is not a case of a convenience store incidentally selling petrol; rather it is a petrol station which includes an incidental shop, an evolutionary development recognised in both planning instruments and in planning practice. This conclusion is built upon the principle … that ancillary uses can be those types of activities which 'grow out of or develop from the primary use' and are intended to enhance it, such as 'the sale of convenience goods [which] has come to be accepted as being ancillary to a petrol station': Pacific Seven Pty Ltd v City of Knox (1993) 11 AATR 325[.]
24 The definitions in the Shire of Exmouth's town planning scheme, considered in West Coast Enterprises, and reproduced below for comparative purposes, were as follows:
Convenience store: means any land and/or buildings used for the retail sale of convenience goods being those goods commonly sold in supermarkets, delicatessens, and newsagents but including the sale of petrol and operated during hours which include but may extend beyond normal trading hours and providing associated parking. The buildings associated with a convenience store shall not exceed 300 square metres nett lettable area.
Service station: means any land or buildings used for the supply of petroleum products and motor vehicle accessories and for carrying out greasing, tyre repairs and minor mechanical repairs and may include a cafeteria, restaurant or shop incidental to the primary use, but does not include transport depot, panel beating, spray painting, major repair to motor vehicles, or wrecking of vehicles,
(Italicised words in the body of the text, above, are not included in the corresponding definition in LPS 21.)
25 As will be noticed, apart from the addition of the words 'and may include a cafeteria, restaurant or shop incidental to the primary use' in the definition of 'Service Station', the two definitions are, as the respondent correctly submitted, 'nearly identical' to the corresponding definitions in LPS 21.
26 In Puma Energy, at [106], the Tribunal considered these definitions in West Coast Enterprises to be not just different but 'materially different' from those under consideration in Puma Energy. Further, and perhaps more importantly, the Tribunal in Puma Energy said, at [107]:
In West Coast Enterprises, the Tribunal found, as a matter of fact and degree, that the shop proposed in that case was 'incidental to the primary use of the land as a "service station" ' (at [42]). In contrast, on the evidence [in Puma Energy] the proposed retail sale of convenience goods commonly sold in supermarkets, delicatessens or newsagents at the site is not ancillary or incidental to the proposed sale of petrol.
27 Dr Willey, counsel for the respondent, submitted that the effect of West Coast Enterprises was that 'the Tribunal did not [there] find that the words "but including the sale of petrol" in the definition of "convenience store" [which also appear in the corresponding definition in LPS 21] permitted the inclusion of a substantial petrol sales operation' (emphasis added). Here, as is acknowledged above, it was agreed that there are significant (that is, 'substantial') sales of petrol contemplated by the applicant.
28 Other cases cited in the present case, and also considered in West Coast Enterprises, were there summarised as follows, at [41]:
In this State [the] discussion [elsewhere in Australia about land use in these service station/convenience store/shop cases] is mirrored in Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431. There, the Full Court (Kennedy, Ipp, Steytler JJ) held (following Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 and approving BP Australia Pty Ltd v City of Perth [(1994) 10 SR (WA) 110]) that it was open to the local authority to find that a proposed 24 hour service station with a convenience store and other facilities gave rise to two independent uses of the land on the shared site: a 'Service Station' and a 'Shop'. That case - whatever statements of general principle were made - was not, however, dealing with a planning scheme, as here, that textually contemplates a 'shop incidental to the primary use' of a 'Service Station'.
The extent to which Puma Energy controls the outcome in this case
29 During the course of the hearing, the Tribunal raised the extent to which at least the factual substratum of Puma Energy was, or could be made, relevant to the present case. Mr Hotchkin, counsel for the applicant, offered the following, if the consent of the other side could be obtained:
… a more practical option, is that [the Tribunal] would accept that it's just another Puma store rolled out in the same way as the Puma store in the Puma Energy case, and essentially the findings there would largely be replicated, or at least not be materially different.
30 Shortly thereafter, the following exchange took place between the Tribunal and counsel:
HOTCHKIN, MR [Counsel for the applicant]:
My instructions are that … the predictions [of component sales etc] that [were] the subject of evidence in the Puma Energy case … would basically be replicated as the predictive basis in this matter, but as I said … because of the way the definitions [in LPS 21] hold, it really doesn't matter.
[THE TRIBUNAL]:
All right. Well, maybe that's all we need; that you invite me to draw inferences saying it's broadly similar and, Dr Willey [counsel for the respondent], are you happy to leave it on that basis, that I can draw that inference? If it doesn't really materially affect your case …
WILLEY, DR:
No. It doesn't, Senior Member, and so I'm happy to proceed on that basis.
(T:8 and 9; 26.05.16)
31 On the face of it, and subject to consideration of the respondent's submissions, with this entirely proper concession in mind, the agreed facts might suggest a comfortable fit ('best fit') with LPS 21's land use definition of 'Convenience Store'. On the 'best fit' approach in town planning, see, for example, the discussion in Magic Hand Car Wash Franchisor Pty Ltd and Town of Claremont [2015] WASAT 133 (Magic Hand), at [17] citing APN Outdoors and City of Cockburn [2014] WASAT 32.
32 I will return to this issue, below.
Respondent's arguments to the contrary
33 The respondent nevertheless argues (and seeks to distinguish Puma Energy) as follows (emphasis added):
The question is what do the words 'but including the sale of petrol ...' [in the definition of 'Convenience Store' in LPS 21] mean in addressing the question of the whether the Proposed Development is a 'convenience store' for the purposes of the Scheme? It is plain that petrol may also be sold. However, the sale of petrol is not emphasised in the definition - it is only included as one of the range of goods that may be offered. That is, petrol sales may be an incidental use.
The Applicant's case (necessarily) is that the definition of 'convenience store' connotes a composite use focused on both the retail sale of convenience goods and the retail sale of petrol. That is, the Applicant asks the Tribunal to treat the phrase 'but including the sale of petrol' as meaning that the 'convenience store' use is a composite use in the same manner as found in Puma Energy.
That construction - to the extent that it asserts a dual focus on both convenience goods and petrol - cannot be supported. The words 'but including' are significant in this context. Construed properly, the words 'but including' confirm that the sale of petrol is but one of the offerings that may be incidentally available in addition to the predominant use (being 'goods commonly sold in supermarkets, delicatessens and newsagents').
The Respondent submits that for the Tribunal to find that the Proposed Development is a convenience store would be to read the words 'but including the sale of petrol' to actually mean 'as well as the retail sale of petrol' or 'and the retail sale of petrol' or 'together with the retail sale of petrol'. Such constructions are not open based on the Scheme text.
[LPS 21] permits a 'convenience store' to include the sale of petrol as an incidental use within its range of goods. What the definition of 'convenience store' does not permit is a 'convenience store' together with what - as a matter of fact and degree - is a substantive 'service station' operation. That is, it does not permit a 'convenience store' as a composite use in the sense found in Puma Energy …
The only [LPS 21] definition that emphasises the retail sale of petrol is 'service station' … a 'convenience store' that falls within the definition outlined in the Scheme is a convenience store with an incidental petrol offering as part of the range of goods available.
34 As may be seen from these extracts from Dr Willey's written submissions, the respondent places considerable weight upon the words 'but including …' as indicating only incidental sales of petrol were ever contemplated, in order to meet the definition's true purpose.
Analysis
35 Mr E A Driedger in his seminal work Legislative Forms and Precedents (2nd ed, 1976) says this of the conjunction 'but' found in statutes and other legal instruments (at page 41, original emphasis):
The principal co-ordinating conjunctions found in legislation are and, but, or, nor; and the preposition except coupled with that may also be regarded as a conjunction. The conjunctions but and except that serve to introduce qualifying rules; and the conjunctions and and or introduce additional or alternative rules.
36 However, this general proposition must be qualified in two respects. First, as Barwick CJ observed in Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208 at 213 (emphasis added), context remains important:
[T]he final words of the [statutory provision there under consideration] clearly have an impact upon what the sub-section as a whole provides. Even so, these must be read, not as displacing or rendering nugatory the earlier words of the sub-section. Their meaning and operation must be read with and accommodated to the rest of the section. The introductory conjunction 'but' carries with it a sense of subordination of what it introduces rather than a sense of negation or displacement of what has gone before[.]
37 Hence, Black's Law Dictionary (6th ed, 1990) gives the expression 'and also' as one of the accepted legal meanings for 'but', no doubt with an eye on a wider relevant legislative context that suggested a more accurate reading of the drafter's intention.
38 Secondly, in any case, for town planning instruments, even those bestowed with the force of law, some allowance should be made in respect of their drafting, which is 'largely the work of town planners, not parliamentary counsel'. Such instruments, as is now well-established, should, if practicable, 'be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose': see the citations in Magic Hand, at [11] - [16].
39 The failure of the drafter here (whether a town planner or parliamentary counsel) to expressly use the word 'incidental' to articulate the limitation suggested by Dr Willey is, to say the least, curious. Control (or specification) of 'incidental' land use activity is, after all, a well-established genre, and an instantly recognisable concept in town planning law and practice: see, for example, the discussion of 'incidental' use in both Puma Energy (at [89]); West Coast Enterprises and Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88. Speaking generally, most town planning schemes nowadays seek to regulate incidental development to varying degrees: cf Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1, cl 37(1) ('model provisions').
40 Further, as I have had occasion to remark elsewhere, to 'adapt and apply' the words of the Privy Council 'it must always be remembered that, if it be the intention of the [drafter, here to specify incidental use], nothing is easier than to say so in plain words.': Province of Bombay v Municipal Corporation of Bombay [1947] AC 58, at 63, cited in Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238; (2008) 60 SR (WA) 11 at [39].
Conclusions
41 In my view, there is no occasion for reading down the phrase 'but including the sale of petrol' in the definition of 'Convenience Store' in LPS 21 to the intent that the word 'incidental' is inserted somewhere into that phrase. On the other hand, reading the conjunction as if it meant 'and also including the sale of petrol' does not distort the underlying purpose of the definition which is to permit convenience stores to also sell petrol, sales of which product may be, in my view, 'significant'. This is especially so on what appears to be the Puma business or economic model revealed in this case and in Puma Energy. This is a model which, no doubt, applies to other petrol franchises with convenience store operations integrated with the sale of petrol: cf the reference to an 'integrated service station complex' found in Shahin v City of Unley [2003] SASC 298; (2003) 128 LGERA 308, cited at [44] in West Coast Enterprises.
42 Whatever the conclusion reached in Puma Energy as to 'composite use' (where, unlike here, the Scheme referred to 'convenience' store or 'convenience' goods in both definitions), the facts agreed here firmly position the applicant's proposal as a 'Convenience Store' use within the meaning of LPS 21.
43 The relevant task of a planning court or tribunal in this regard has been described by Rackemann DCJ in Yu v Brisbane City Council [2005] QPEC 78; [2006] QPELR 102 at [16] (internal citations omitted) as follows:
In determining the description which is applicable, the Court must undertake its task of characterisation in a practical and common sense way to determine the appropriate genus which best describes the activities in question. Where there are two or more defined purposes which are apt to cover a particular proposal, a 'best fit' approach is appropriate. What must be characterised is the proposal the subject of the application, rather than some further or other application which might be made at another time.
44 Characterisation of a use 'naturally involves an analysis of the factual circumstances surrounding a proposal'. This is no narrow inquiry: see AAD Design Pty Ltd v Brisbane City Council [2011] QPEC 54 at [21].
45 Assuming that the sale of convenience goods incidental to the sale of petrol is permitted under the definition of 'Service Station' in LPS 21 (which neither refers expressly to the same, nor to a 'Shop' use cf West Coast Enterprises), a 'practical and common sense' approach, indeed perhaps any rational approach, leads plainly to a characterisation of use as 'Convenience Store' as the better fit, when consideration is given to the true meaning of 'but including the sale of petrol' in the definition in light of the agreed facts here.
Use of draft Scheme amendment
46 Finally, mention should be made of the fate of the respondent's invitation to the Tribunal to consider 'Amendment 1' to LPS 21. That Scheme amendment (an 'Omnibus Amendment') has been advertised, is currently before the Minister, and is apparently at an advanced stage of approval. Its Gazettal would give it legal effect as an amendment to LPS 21. If so enacted, it would, according to Dr Willey make 'the definition of "service station" … consistent with the Tribunal's analysis in Puma Energy in that the definition would include a composite use focused on both the retail sale of petrol and the retail sale of convenience goods'. The proposed development would then, it was submitted, 'clearly be a "Service Station"' under the amended Scheme.
47 Amendment 1 is said to be a relevant matter under the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 (deemed provisions), cl 67(b). That clause provides that the following is a matter to which 'due regard' is to be had by a determining authority:
the requirements of orderly and proper planning including any proposed local planning scheme or amendment to [the] Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving[.]
48 See generally, Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [198] [200].
49 Whilst there is an obvious and long recognised benefit in making discretionary planning decisions consistent with what are considered to be 'seriously entertained' (now 'seriously considered') draft planning instruments, that can have nothing to do with what are essentially jurisdictional issues, where the common law is clear on the impermissibility of consulting various 'proposed' amending instruments to discover the meaning of the principal instrument.
50 Given the current task of the Tribunal, an amendment to a Scheme is, in my view, analogous to a Bill passed by Parliament awaiting enactment. Whatever the position maybe elsewhere (cf Pacific Flight Catering Ltd v LSG Sky Chefs New Zealand Ltd [2013] NZCA 386; [2014] 2 NZLR 1 at [14] and [35]) the preponderance of Australian authority is clear and disparaging of any reliance on such an instrument: see the cases cited in Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011) at page 100. See also the discussion in R v Dart [2011] SADC 158 at [16] [18] where the Judge cites, as does Pearce and Geddes, this passage from C v Director General of the Department of Youth and Community Services [1982] 1 NSWLR 65 per Waddell J (at 71, emphasis added):
It seems to me that on the question of interpretation of earlier legislation regard should not be had to the terms of later legislation which will not commence until a date to be proclaimed and which is, accordingly, not yet law. While the enactment of such later legislation can no doubt be regarded as expressing the intention of Parliament as to the meaning which should be given to the earlier, that intention should, I think, also be regarded as conditional upon the legislation becoming law on a date to be proclaimed. Although it happens very seldom, it is always possible that the necessary proclamation will not be made and that the legislation will not pass into law. It seems to me that while such a possibility exists it would be wrong for a court to take the terms of later legislation into account in interpreting earlier.
51 I do not read cl 67(b) of the deemed provisions as overruling the position at common law set out above. I therefore decline to use Amendment 1 in the manner contended for by Dr Willey.
Final orders
52 For these reasons, the preliminary issue is determined in the applicant's favour.
53 The Tribunal's orders are therefore as follows:
1. The preliminary issue as to whether the proposed land use is correctly classified as 'Convenience Store' or as 'Service Station' under the City of Busselton Local Planning Scheme No 21 is answered as follows:
The proposed use is correctly classified as 'Convenience Store'.
2. The matter is adjourned into the Planning List for directions on a date to be fixed.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER