S GAUCI PTY LTD v BLACKTOWN CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER and COLE JJA and GILES AJA 12 November 1996, 12 November 1996 [1996] NSWCA 462 TOWN PLANNING — development application — consent refused by Council — "existing use" of business — Environmental Planning and Assessment Act 1979 s106-s108 Sheller JA The appellant, S Gauci Pty Ltd, has operated a road side stall or shop on premises known as lot 403, Great Western Highway, Minchinbury since 1960. On 6 May 1977 the Local Government Appeals Tribunal decided an application by the appellant seeking, in essence, to erect a building for use for retail of fruit and vegetables and certain ancillary items on the site. The Tribunal saw no reason to refuse the application but confined or restricted the use of the building on the site to the retail sale of fresh fruit and vegetables as primary or dominant items and the retail sale of soft drinks, cigarettes, cigars, tobacco and cigarette papers, confectionery, homemade jams, homemade or home-produced honey, eggs and like items as ancillary or secondary items. The Tribunal granted the application subject to the condition that no use other than that to which I have just referred, should at any time be made of or carried out on the subject properties at or in relation to the building without the prior written consent of the Council. In 1993 the appellant submitted a development application for the sale and display of small goods at "our existing retail shop". The details of the proposed development were described in the development application as: "The sale and display of small goods such as coffee, tea, canned goods, sauces, iced confectionery, bread, dairy items, etc within the existing retail area." By notice of determination of 3 August 1993 the respondent, Blacktown City Council, refused to consent to the development described in the notice of determination as expansion of the existing Minchinbury Fruit Market for the sale of small goods and groceries. Various grounds of refusal were set out: "1. The proposal will create a 'de facto' supermarket. 2. The proposal has the potential to adversely affect the viability of planned local centres in the locality which adequately provide a range of grocery items to meet the needs of the community. 3.The proposed development is unsatisfactory in relation to the Heads of Consideration (d), (g), (0) and (r) under s90(1) of the Environmental Planning and Assessment Act 1979 as detailed in TPR 355 (D)." On 22 September 1993 the appellant appealed from this determination by way of Class 1 proceedings under s17 of the Land and Environment Court Act 1979 to that Court. Bannon J heard the proceedings and delivered an ex tempore decision on 5 July 1994. He ordered that the appeal be allowed in part, the development application be approved and consent be granted to the sale of iced confectionery, tea, coffee, vegetable oils, milk and cream and packaged breads 2 UNREPORTED JUDGMENTS from the premises. This appeal is brought from that decision pursuant to s57 of the Land and Environment Court Act and, accordingly, the appeal is limited to a question or questions of law. The appellant relies upon an amended notice of appeal in which there were found three grounds to which I will return. Before doing so, I set out the following facts. The land the subject of the application was zoned 2(a) Residential under the Blacktown LEP 1988. Under the LEP, shops and roadside stalls are prohibited on the premises. His Honour found that the appellant enjoyed existing use rights for its fruit and vegetable shop and referred to that as being a non- conforming use. He found that the present permitted uses of the site were the selling of fresh fruit and vegetables, soft drinks, cigarettes, confectionery, jam, eggs and like items. His Honour said: "In Minchinbury there is a planned shopping centre with a supermarket. Recently there has been a change of ownership of that supermarket, one result being that the supermarket is now starting to compete with the applicant by selling fruit and vegetables. No doubt the applicant wishes to respond by breaking into the sale of groceries. From a commercial viewpoint, that is understandable " His Honour said that the Court had to decide whether to permit the expansion or change of an existing use. In 1992, in a break with Council planning policy, the Council permitted the development of a butcher shop within the existing development. This was a use quite distinct from a fruit and vegetable shop. A former service station which now retailed petrol and oil and had attached to it what could only be described as a grocery shop was located nearby, also on the highway. S106 of the Environmental Planning and Assessment Act 1979 defines "existing use". S107 provides for the continuance and limitation of existing uses. S108 permits the making of regulations for, inter alia, (b) the change of an existing use to another use and (c) the enlargement or expansion for intensification of an existing use. At the relevant time reg54 provided for the change of existing uses with consent and reg52A provided for the enlargement, expansion or intensification of existing uses. The matters for consideration in each case include those set out in s90 of the Act. The first ground in the amended notice of appeal was that his Honour erred in considering the application to be one for an expansion of an existing use. It was submitted that, in fact, the appellant had requested to change from three existing uses to add a fourth. Alternatively, it was submitted that it was not within his Honour's power to specify the articles which could be sold from the premises in the way that he did. In my opinion, this ground of appeal is without substance. I have set out the form of the proposed development as detailed in the development application. In the course of his oral submissions, Mr Thompson of Counsel, who appeared for the appellant both below and on the appeal, said that the appellant sought to obtain approval for the sale of grocery items from this particular site under the application. During argument his Honour asked whether Counsel was suggesting that the sale of groceries was a subsidiary use falling within the existing use. Counsel denied this and referred to the approval given in 1977 and said that the application sought to expand that range of items. It seems to me, both in the application as it was set out in writing and as pursued before the Land and Environment Court, that what was being sought to be done was URJ S GAUCI PTY LTD v BLACKTOWN CITY COUNCIL (Sheller JA) 3 correctly characterised by his Honour in the passage to which I have already referred. In any event, it does not seem to me that in terms of the considerations to be taken into account in considering the application as put to his Honour, this particular point of difference is of any significance. In my opinion, the first ground of appeal fails. Counsel then turned to the third ground of appeal; thatt his Honour erred as, by inference, the consent prevented the applicant from competing unfettered in the Minchinbury area retail market. In his written submissions, Counsel referred to the passage in the judgment which I have quoted where his Honour dealt with the planned shopping centre. His Honour there made what could be considered to be findings of fact or possibly a statement about the appellant's belief. However that may be, it is quite plain, from the passage, that he was doing no more than indicating the reasons why the appellant wished to break into the sale of groceries, as his Honour put it. His Honour considered that application quite understandable. But there is not the slightest suggestion there or elsewhere that his Honour imposed a limitation upon the goods that could be sold from the site by reference to a desire to prevent the applicant from competing unfettered in the Minchinbury area retail market. His Honour said that the expansion proposed in his order would not seriously affect the overall planning objectives of the Council but would enable the applicant to continue to give a service to the local community by providing a few commodities which, from his observation, were often found at fruit and vegetable shops in any event. This seems to me to be an entirely reasonable approach to the application before the Court. However that may be, the challenge now made to it is not one of law. Mr Thompson referred to some passages of the cross examination of the town planner in an attempt to establish that the planning objectives of the Council had gone beyond what was appropriate for such objectives in some way. Having carefully considered those matters, I do not think that the cross examination established this. Mr Thompson referred us to what was said in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 687. in a well known passage in the judgment of Stephen J, with which other members of the Court agreed. In particular, his Honour said that the mere threat of competition to existing businesses, if not accompanied by a prospect of resultant overall adverse effect upon the extent and adequacy of facilities available to a local community, if the development be proceeded with. will not be the relevant town planning consideration. There is nothing, to my mind, in anything that Bannon J said which would suggest that he acted otherwise than in accordance with relevant town planning considerations. To my mind, this ground of appeal also fails. This brings me back to the second ground of appeal which was that his Honour erred in finding that the applicant was not permitted to engage in the packaged grocery business from an existing shop. As I understand it, this argument was based on the proposition that the existing use was that of a shop. On that basis it was said that his Honour erred in dictating what could be sold from the premises. Reference was made in this regard to what was said by this Court in North Sydney Municipal Council v Boyd's Radio and Electrical Pty Ltd (1989) 16 NSWLR 50. However, in the course of oral argument, Mr Thompson accepted that it was never put to his Honour that the shop in question was other than as his Honour found it to be, a fruit and vegetable shop, and that the existing use in question was use as a fruit and vegetable shop. In any event, it seems to me that 4 UNREPORTED JUDGMENTS his Honour's conclusions about the use were findings of fact which were clearly open to him and cannot be disturbed on this appeal. His Honour considered the application as it was made to him, both in writing and orally, allowed the appeal to the extent of permitting the sale of some of the items referred to in the written application, and made plain that he refused the application to permit the appellant to engage generally in the grocery business. For these reasons, in my opinion, the appeal should be dismissed with costs. Cole JA I agree. Giles AJA I also agree. Sheller JA: Accordingly, the order of the Court is that the appeal is dismissed with costs. Counsel for the appellant: AJJ Thompson Solicitors for the appellant: Taylor Kearney Reed and Owen Counsel for the respondent: DR Parry Solicitors for the respondent: Taylor Szekely Kelso