English & Ors v Gold Coast City Council [2007] QPEC 10

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: English & Ors v Gold Coast City Council [2007] QPEC 010 PARTIES: GEORGE ROBERT ENGLISH and LYNDA KATHRYN WHITFORD First Applicants And REACTION BRAKE AND CLUTCH SERVICE PTY LTD Second Applicant V GOLD COAST CITY COUNCIL Respondent FILE NO/S: Southport 736/05 DIVISION: Planning and Environment PROCEEDING: Originating Application for Declarations ORIGINATING COURT: Planning and Environment Court of Queensland, at Southport DELIVERED ON: 26 February 2007 DELIVERED AT: Brisbane HEARING DATE: 8 December 2006 JUDGE: Alan Wilson SC, DCJ ORDER: Application dismissed CATCHWORDS: PLANNING LAW – PLANNING AND ENVIRONMENT – PLANNING SCHEMES – CONSTRUCTION – WORDS AND PHRASES – whether applicants’ premises fall within definition of Catering Business in planning scheme Cases considered: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 (CA) Blacklade Investments Pty Ltd v Brisbane City Council (1980) 38 LGRA 360 CTS Strathpine Pty Ltd v Pine Rivers Shire Council [2006] QPEC 111 -- 1 of 6 -- 2 Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205 Kingston Road Investments Pty Ltd v Logan City Council [1999] QPELR 260 Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 Woolworths Ltd v Caboolture Shire Council [2004] QPELR 550 COUNSEL: J Houston for applicants S Ure for respondent SOLICITORS: Phillips Fox for applicants King and Company for respondent [1] Mr English and Ms Whitford are the owners of premises at 21 Barrine Drive, Worongary where the second applicant, a company, of which they are the directors and Mr English is the sole shareholder, carries on a business called Barrine Drive Takeaway. Between April 2002 (when Mr English and Ms Whitford purchased the premises) and May 2003 the company used the premises for the sale of takeaway food such as fish and chips, hamburgers, pies, soft drinks, confectionary and cigarettes. [2] Since May 2003 they have used the site for the preparation of food which is loaded into seven mobile food vans. The vans then go out to various locations on the Gold Coast where they park and sell the food and also drinks, confectionary and the like. The business operates between 4.15 am and about 3.15 pm Monday to Friday, and 6.00 am to 11.30 am on Saturday. It has 10 full-time employees. [2][3] More precisely the applicants’ operations, as described in the court documents, involve receiving deliveries of goods at the premises from 4.15am onwards each weekday; the on-site preparation and manufacture of foodstuffs including salads, pasta, pies, quiches, deep fried foods, cakes and beverages; the loading of the foodstuffs and drinks (and confectionary) onto mobile vans for off-site distribution and sale; the on-site storage of the vans, and their cleaning at the end of each day. [2][4] The public do not purchase foodstuffs or other goods at the premises themselves. [5] Under the 1995 Albert Shire Planning Scheme the land was situated in the Local Shopping zone. Under the 2003 Gold Coast Planning Scheme it has been placed within the Local Business Domain. The applicants seek a declaration that their use of the land, which commenced at the time the old scheme was in force, falls within the definition of Catering Business in that scheme, and is lawful. [6] Council contends that the use is either Light Industry, or an innominate use. In the Local Shopping zone light industry is a prohibited use, and an innominate use would default to column 3 in the Table of Development and be classified as Consent Development. A catering business is in column 1 in that Table, and is a permitted development. [6][7] The 1995 Scheme defines a Catering Business as: -- 2 of 6 -- 3 “Catering Business” - Any premises used or intended for use for the purpose of any business included in Appendix 1 hereto: Appendix 1 Café Espresso Bar Fast Food Outlet Fried Food Outlet Kiosk Milk Bar Reception Room or Function Room Restaurant Snack Bar Tea Garden Tea Room The term does not include a hotel as herein defined. [8] ‘Industry’ is defined in the scheme in these terms: ‘Industry’ – includes: (1) Any of the following operations:- (a) any manufacturing process whether or not such process results in the production of a finished article; (b) the breaking up or dismantling of any goods or articles for trade, sale or gain, or ancillary to any business; (c) the extraction of sand, gravel, clay, turf, soil, rock, ore, stone, or similar substances from land; (d) repairing and servicing of articles including vehicles, machinery, buildings, or other structures; (e) any operation connected with the installation of equipment and services and the extermination of pests but not including on site work on buildings or other structures or land; (f) the dismantling of motor vehicles, whether the dismantling is carried out by one operation or by a series of operations for any purpose other than a car repair station, service station or junk yard as herein defined; and (2) any of the following ancillary operations when conducted on land upon which any of the operations listed in (1) above are carried on:- (a) the storage of goods used in connection with or resulting from any of the above operations; (b) the provision of amenities for persons engaged in such operations; (c) the sale of goods, resulting from such operations; -- 3 of 6 -- 4 (d) any work or administration or accounting in connection with such operations provided that the use does not exceed 20% of the total use area of any building or buildings so used; (3) without limiting the generality of the foregoing, any industry or class of industry particularly defined in this town planning scheme, but does not include a home occupation as herein defined. [9] The definition of Light Industry in the superseded planning scheme is as follows: ‘Light Industry’ – any premises used or intended for use for any purpose in appendix III hereto, provided that it complies with the standards of Schedule A and any other industry that complies with the standards of Schedule A. Appendix III (1) Purposes including or ancillary to any of the following:- … Food Stuff Manufacturing … [10] In a subtle argument Mr Houston of Counsel, for the applicants, submitted the various businesses appearing in Appendix 1 to the definition of Catering Business could be grouped into: (a) café, milk bar, snack bar and kiosk; (b) espresso bar, tea garden and tea room; (c) restaurant; (d) fast food outlet, fried food outlet; and (e) reception room, or function room. Each category, he said, indicated the definition contemplated a wide range of establishments selling food and beverages, but with differing levels of formality. He also pointed to some variations and overlapping within the categories, like McDonalds Family Restaurants which might be identifiable as both restaurants, and fast food outlets; and, restaurants of other kinds which provide both dine-in and take-away services. Some would also, of course, offer a delivery service. [10][11] It is not too great a step, according to this submission, to accept that the pre- prepared food produced at this business is, because it is to be provided without delay, properly described by the phrase ‘fast food’; and, that the premises are simply an ‘outlet’ at which that food is prepared, before distribution. In the result, it was submitted, the business is properly described as a ‘fast food outlet’. (I was also taken to the dictionary definition of ‘cater’ which, it is accepted, encompasses the preparation of food at one place which is then transported to another for delivery, distribution and consumption.) [12] Council contends that the definition has to be considered within the wider context of the planning scheme. The use involves transporting the ‘catering’ product away from the immediate local area, when the Statement of Intent for the Local Shopping Zone looks to premises like this for the satisfaction of local shopping and commercial needs ‘essential to a residential community’. As Row DCJ said in Blacklade Investments Pty Ltd v Brisbane City Council (1980) 38 LGRA 360, at 363-4: -- 4 of 6 -- 5 The statement of intent provides guidelines as to the planning intent of the respondent as set out in the legal provision of the town plan and is helpful in determining how a discretion should be exercised. 1 [13] It has also been said, however, that phrases like this should not be construed too pedantically 2 . Recently, in CTS Strathpine Pty Ltd v Pine Rivers Shire Council [2006] QPEC 111 Rackemann DCJ was not persuaded that any special or particular meaning, suggested by things like the Statement of Intent, could or should prevail if the words under consideration have, themselves, an ordinary, plain, and apparent meaning 3 . [13][14] Neither approach avails the applicants. Read in conjunction with the Statement of Intent, the definition of Catering Business in the 1995 scheme can only sensibly be construed as envisaging something which involves a retail element on the premises themselves and the provision of food, drink and refreshment both within, or within and without the relevant premises, which can be accessed by the local community – with, perhaps, the additional feature that some foodstuffs might be collected, or delivered, from those premises. [13][15] If the Statement of Intent is ignored, the result is the same. While the words Catering Business might, without the particular descriptions of businesses set out in Appendix 1, be thought to include the applicants’ operations, the term is plainly qualified by its own apparent parameters, gleaned from the introductory phrase – ‘any premises used or intended for use for the purpose of any business included in Appendix 1 hereto’. None of the listed types of business can be sensibly or meaningfully stretched to describe the applicants’ operations on these premises. [13][16] In particular, this business does not fall within the particular category in Appendix 1 relied upon by the applicants, a ‘fast food outlet’. There are ready examples of businesses which plainly fall within that definition (McDonalds, Kentucky Fried Chicken, Hungry Jacks, Pizza Hut, Dominoes, and Eagle Boys) some of which, I accept, may not provide ‘dine-in’ facilities at all but are simply a venue for the collection of foodstuffs; or, the place where they are made, and from whence they are delivered. [13][17] What distinguishes the applicants’ operation, again, is the absence of any on-site retail element, when that is a common aspect of all of the businesses listed in Appendix 1. The seven mobile food vans are the retail outlets, an aspect of the operation which is alien to any of the ordinary activities associated with the businesses listed in the Appendix. The majority of the uses in Appendix 1 also anticipate the consumption of food and drink on the premises or, at least, the facility to do so. [13][18] Nor am I persuaded, however, that the applicants’ operations constitute ‘food stuff manufacturing’ which would bring them within the definition of ‘light industry’. The type of food preparation carried out on the premises (cooking pasta and quiches, and preparing a sea food mix from prepared ingredients etc.) cannot 1 And, see Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205, per Quirk DCJ at 208 2 Kingston Road Investments Pty Ltd v Logan City Council [1999] QPELR 260, at 262 per Skoien SJDC 3 CTS Strathpine Pty Ltd v Pine Rivers Shire Council at paras [32], and [33]; and, see Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337; and Woolworths Ltd v Caboolture Shire Council [2004] QPELR 550 -- 5 of 6 -- 6 sensibly be characterised as ‘manufacturing’. 4 What the applicants do here is more akin to ‘… merely representing the same material but in a different size or shape …’ 5 . It is also, again, typical of the activity to be expected in many of the businesses listed in Appendix 1. [13][19] I was not taken to any other definition within the scheme which might conceivably provide a ‘best fit’ for the applicants’ operation 6 . If it is assumed there is none which might sensibly apply, the use appears to be an innominate one. 4 See, eg, ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 (CA) per Kirby P at 78; and, Clarke v Biddle [1997] QPELR 67 at 70 per Quirk DCJ. 5 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (supra) at 78 6 An exercise approved in Noosa Shire Council v Staley [2002] QPELR 441 at [14] -- 6 of 6 --