Arnott Nominees Pty Ltd v Council of the City of Ipswich [1992] QPEC 8

) ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE 23rd March, 1992 P. & E. Application No. 7 of 1992 BETWEEN: ARNOTT NOMINEES PTY. LTD. Applicant COUNCIL OF THE CITY OF IPSWICH Respondent REASONS FOR JUDGMENT - ROW D.C.J. - 26th March, 1992 Arnott Nominees Pty. Ltd. (the applicant) seeks herein a declaration pursuant to s.2.24 of the Local Government (Planning and Environment) Act 1991 that the use by the applicant of land described as Subdivision 1 of Portion 87, County of Stanley, Parish of Ipswich and situated 2A Glebe Road, East Ipswich as a late night shop is not limited as to the hours for trading. Under the Planning Scheme for the City of Ipswich gazetted 10th July, 1976 (the 1976 Scheme), the subject land was included within the Local Commercial Zone. In that zone, shops were purposes for which development may be permitted without the consent of the respondent under and pursuant to Column III ·of the Table of Zones . follows:- In the 1976 Scheme, "shop" was defined as "Any land, building or other structure used or intended for use for the purpose of displaying and/or offering goods for sale by retail. The term does not include catering shop, general store, take-away food premises, showroom, hotel, motel, vehicle sales premises, service station or any industry as defined herein". General store was defined as follows:- -- 1 of 6 -- 2 "Any land or any building or any part thereof not exceeding 100 square metres in total floor area used or intended for use for the sale by retail of general merchandise including food. The term does not include a shop as herein defined". It is common ground between the parties that the area utilised by the applicant is 180 square metres. In those circumstances, the subject use within the provisions of the 1976 Scheme was for the purposes of shop. It is to be noted that there is no limitation in such definition of shop in relation to trading hours. Under the Planning Scheme for the City of Ipswich gazetted on 28th October, 1989 (the 1989 Scheme), the subject land is included within the Local Commercial Zone. In the 1989 Scheme, shop is defined as follows:- "Any premises used or intended for use for the sale or display or offering for sale of goods to members of the public where the gross floor area of any building used does not exceed 500 square metres. The term includes incidental storage of such goods on the same premises but does not include an art and craft establishment, general store, hardware shop, late night shop, major shopping development, shopping centre, or showroom as herein defined or any other purpose elsewhere specifically defined herein". General store is defined as follows:- "Any premises used or intended for use for the sale of display or offering for sale by retail of general merchandise, including food, for the day to day needs of the surrounding neighbourhood where:- (a) (b) the total area so used is not greater than 250 square metres; and the premises are not open for business before 6 a.m. d II or after 9 p.m. on any ay ... Late night shop is defined as follows:- "Any premises which would be a general store except that the premises are open for business whether or not infrequently before 6 a.m. or after 9 p.m." -- 2 of 6 -- ) 3 The affidavit of Mark Carrington Krause, a director and secretary of the applicant, establishes that the business carried on upon the subject land involves the sale of retail grocery, delicatessen, newsagency lines and an agency on-line gambling ( Gold Lotto). The said business has been carried on since February, 1988. Between February, 1988 and 28th May, 1990, the business traded between the hours of 6 a.rn. and 10 p.rn. After 28th May, 1990 the business traded on a 24 hour basis for a one week period and thereafter from 6 a. m. to midnight until 3rd August, 1990 when an undertaking was given by the applicant to the respondent to confine the trading hours from 6 a.m. to 9 p.rn. pending the outcome of an appeal which had been instituted in the Local Government Court against a decision of the respondent limiting the hours of trading to between 6 a.m. and 9 p.m. Prior to the decision of the respondent, the applicant had applied to the respondent for town planning consent and for the registration of a lawful fettered use in relation to the existing use. By ) letter dated 7th February 1991 the respondent advised the applicant that the exact nature of the lawful fettered use which it proposed to enter in the register was described as "late night shop (operating between the hours of 6 a.m. and 10 p.m.)". Under the 1989 Scheme, "existing use" is defined as follows:- "The use of premises for purposes for which they were lawfully used immediately before the appointed day of which consent was granted before the appointed day if the consent had not expired or been revoked." The appointed day is the day upon which the Order in Council notifying that the Governor in Council has approved the Town Planning Scheme is published in the Government Gazette namely -- 3 of 6 -- ~ .,. ~ ; ( \ ' ' ,·- ....... 4 28th October, 1989. As at 28th October, 1989 the subject land was being used for a purpose which, under the 1976 Scheme, was permitted in the Local Commercial Zone. In such circumstances, the use of the premises as at 28th October, 1989 was lawful. The nature of the use was for purposes of shop. The evidence of Mr. Krause establishes that the business at that time was trading from 6 a.m. to 10 p.m. Under the 1989 Scheme it is that use which was lawful and which is protected by virtue of the existing use provisions within the 1989 Scheme. Under the 1989 Scheme, that use which was carried on by the applicant comes within the definition of late night shop by virtue of its hours of operations extending beyond 9 p.m. As the use that was in existence as at 28th October, 1989 was a use which traded between the hours of 6 a.m. and 10 p .m., the applicant can obtain no further benefit from the 1989 Scheme than that which it had prior to the 1989 Scheme coming into operation. The nature of the use for which protection is given by the 1989 (~\~; Scheme relates back to that which was lawfully in existence under the 1976 Scheme. Whilst the purpose for which development may be permitted under the 1976 Scheme was for the purposes of shop, the existing use was as detailed in the affidavit of Mr. Krause, namely one which traded between the hours of 6 a.m. and 10 p.m. It is evident from the 1989 Scheme that the respondent views a shop, a general store and a late night shop as being for different purposes as a perusal of the Table of Zones reflects, e.g. in the Local Commercial Zone a general store and shop are permitted development under Column 3A whereas a late night shop is permissible under Column 4. The various definitions similarly -- 4 of 6 -- 5 reflect a varying treatment in relation to the merchandising, sale, display or offering for sale of goods to the public. Limitations of area and of hours of trading are reflected in the various definitions. As the scheme of the legislation is to protect existing lawful use rights which were in operation as at the appointed day when the 1989 Scheme came into force, I cannot see that any increased use rights can be conferred by a recognition of the existing lawful use previously in existence. In those circumstances, I am satisfied that the protection afforded by the 1989 Scheme relates to what would properly now be described as late night shop (6 a.m. to 10 p.m.). In para. 1 of the application, it is stated that upon the introduction of the 1989 Scheme, the existing use was and is an existing non-conforming use. Non-conforming use provisions apply where, under a new scheme, the existing use is a prohibited purpose or development under Column 5 of the Table of Zones in a particular zone. In the Local Commercial Zone, in the 1989 Scheme, neither general store, shop nor late night shop are prohibited development under Column 5. Late night shop is Consent Development under Column 4 and is within the definition provisions of existing lawful fettered use. A substantial argument was addressed to the Court on behalf of the applicant in relation to the provisions of the Trading Hours Act 1987 and the Trading Hours Act 1990 as to whether the 1990 Act constituted a partial repeat of parts of the 1989 Scheme or alternatively that the provisions of the 1989 Scheme were excepted or their operation excluded with respect to uses falling -- 5 of 6 -- I' ' C) 6 within the 1990 Act in so far as it applies to Independent Retail Shops. Reliance was placed on Goodwin v. Phillips ( 1908) 7 C.L.R. 1 at 7 and 15-16. Under the 1990 Act the use by the applicant is within the provision of the definition of Independent Retail Shop wherein under the 1990 Act there are no restriction of trading hours. I am unable to see the relevance of such an argument as the issue for the determination of the Court relates to a declaration as to existing use rights of the activity. The fact that some other legislation may permit the applicant to trade for unlimited hours is of no relevance. The 1989 Scheme regulates and controls the use of land within the scheme area. The facts establish that, as at the appointed date, the business was trading between 6 a.m. and 10 p.m. In those circumstances, I refuse to make the declaration sought in para.1 of the application. I dismiss the application. -- 6 of 6 --