Outline of argument Markets V Johnston

SECOND RESPONDANTS OUTLINE OF DEFENCE ON PRELIMINARY POINT

 

Introduction

  1. The Second respondent sought from the “City of Salisbury” (council) Development panel; consent to operate a market event “Farm direct community markets” every Saturday between the hours of 8.00 am and 1.00 pm and an educational market event every Wednesday between the same hours.

 

  1. The council accessed the market as a category 3 allowing publication notices for input from the local community and business traders.

 

  1. The Panel/council granted development plan consent to the development described as a Farmers market independent of the existing hotel.

 

  1. The subject land (northern carpark area) is within the “Open space zone” which supports community events of a variety of natures.

 

  1. The market area is not a premise under the act or by way of legal interpretation of which I will debate later in this document.

 

  1. The Appellant alleges that the Market is a “shop or group of shops” and therefor is non- complying

 

  1. The second respondent argues the Market is a regular community event, held on open land, and that the temporary stalls (trestles) cannot be defined as a shop or group of shops for a variety of reasons.

 

  1. To try and argue that a transient market/stall is a shop, carries with it many connotations that would affect a variety of community events, from Markets and fetes to festivals and casual events.

 

  1. Parliament’s intention would never have been to undermine longstanding community events, or to have a stall defined as a shop.

 

  1. Market insurances, stall holders insurances and the stall holder contracts add further weight to the argument “A stall is not a shop”

 

THE ISSUES;

 

  1. The term shop is described in schedule 1 of the Development regulations 2008 (SA) as meaning “premises used primarily for the sale by retail or display of goods, food stuffs, merchandise or materials.”

 

  1. The Second respondent agrees that the market/event is used for the sale of goods, food stuffs, and merchandise.

 

  1. The issues raised by the appellant’s arguments thus far create debate around several issues “Primarily use” “Premises” and a final definition of “what is a shop”.

 

THE ISSUE OF PRIMARILY

 

  1. The Market has consent approval to operate at certain times and days, the terms of the development approval cannot constitute the primary use of the land, which as open space that is used for a variety of purposes, the primary use is that of operating as a car park.

 

  1. Even if we were to apply the ground cover as a fixture, the appellant’s argument fails here. The transient nature of the markets approvals, do not allow for any permanence nor primary use.

 

  1. The market may or may not operate at any one time or date allowed by the councils consent, due to a variety of reasons that can affect any open air events of a similar nature.

 

  1. The very nature of a “Market” is one of an event, one that is neither regular nor impeding on the land itself, and there for cannot be the primary use of the land.

 

  1. The primary use of the land in its entirety is that of a hotel and carpark, so from this perspective the markets operation cannot be the primary use, as required by the Development Acts intention and words.

 

  1. The Hotel and Carpark have in the past been used for community events, in each case, prior to and after the event the Hotel and Carpark return to its primary use.

 

  1. Neither the site nor the stalls themselves are able to be exclusively occupied as a direct result of their transient nature and the approvals under which we operate.

 

 

THE ISSUE OF PREMISES;

 

  1. Premises…..is defined by the legal dictionary as; 1) in real estate, land and the improvements on it, a building, store, shop, apartment, or other designated structure. The exact premises may be important in determining if an outbuilding (shed, cabana, detached garage) is insured or whether a person accused of burglary has actually entered a structure.

 

  1. Conservative and Unionist Central Office v Burrell [1982] 1 WLR 522 CA at 525 per Lawton LJ.

As Bennion states (Statutory Interpretation 3rd ed 1997 p 434):

 

“Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court.”

 

  1. Turner v York Motors Pty Ltd (1951) 85 CLR 55 at 75, after referring to the decisions of the State courts, Dixon J said: “According to Lord Chelmsford, speaking for the Privy Council, the word ‘premises’ in popular language is applied to buildings … This statement is confirmed by the Oxford New English Dictionary … the word ‘premises’ is no doubt a vague one but in legislation of this sort there are great advantages in a test of its application which is objective and consists in a readily ascertainable physical fact. Having regard to the history of the provision and the dictionary meaning of the word ‘premises’, I think that we should adhere to the rule laid down that bare land without buildings, if let for the purpose of occupation as bare land, does not constitute premises.” If land is let upon terms that the tenant shall or may erect buildings which are not removable by him but will pass with the freehold, then I should say that the land and building when erected would form premises.

       Emphasis added.

  1. The Appellant has argued that land itself can be premises, so I will quote further from informed and robust legal debate on the interpretation.

 

  1. The language from reg. 8 of the National Security {Landlord and Tenant) Regulations. In three jurisdictions the word “ premises ” as there used was interpreted as not including “ vacant land without more ” but as requiring something in the nature of buildings before land could be considered “ premises ” {Simms v. Lee (1) ; McNamara v. Quinn (2); Re Mayne (3)

 

 

  1. The Appellant has argued that in Turner N York Motor that Williams J, used the words “It is wide enough to include bare land” in his overview of the case, although there was some debate in the reasons given by Dixon J and Williams J for arriving at the conclusion that “premises” in that legislation did not include vacant land.

 

I feel the matter was settled the following year by the decision in Bonnington & Co Pty Ltd v Lynch (1952) 86 CLR 259 at 264

 

In the joint judgment of five justices including Dixon CJ and Williams J where the Court said:     “The definition of ‘prescribed premises’ … has been taken to show that on the land there must be some building or structure or perhaps artificial work, which colloquially might be described as ‘premises’, and that accordingly vacant or bare land cannot constitute ‘prescribed premises’. Such a view was adopted in the Supreme Court of more than one State and to it this Court subscribed in York Motors Pty Ltd v Turner

 

  1. The Appellant may have argued here, that artificial work indeed exists, in the form of Car parking facilities, which would take the argument back to “Primary use” as of course a car park, but he chose not to.

NOTE: Mcnamara v Quinn [1947] VicLawRp 16; [1947] VLR 123 (19 September) At page 124,

On behalf of the complainant, i~ was contended that these Regulations did not govern the matter as they only required such notice from the lessor of “any prescribed premises”, and since there was no building on the land in question it was not “prescribed premises’

 

  1. The second respondent there for submits that the judgement in Bonnington & Co Pty Ltd V Lynch ought to be adopted in construing the definition of “premises” in the development Act.

 

  1. The Appellant also goes as far as trying to argue that “Service trade premises” is defined to mean premises, I make note here of the similarity to the “Land” debated in Turner V York motors, where the land was fenced, as would be a trade premises, therefore being able to exclude others.

I also note here again, that the entirety of the land in both cases had a singular use, (primary use) and that the lease agreements of whatever nature they might be, awarded sole use to a party. The market approval being debated does not enjoy sole use.

 

  1. The ability of land to exclude others may indeed enable a debate in relation to the use of the word premises, but in the case of the Markets in question, the open space being used does not have the ability to exclude others, and neither do the stalls themselves.

 

  1. The term “Timber yard” IS specifically excluded from the definition of shop in the development act, yet Timber Yards” at times have structures on the land, and fencing to enable them to exclude others. The market again has neither adding weight to the council’s approval.

 

  1. The Supreme Courts in two States held that the definition of “Premises” did not include bare land (McNamara v. Quinn [1947] VicLawRp 16; (1947) VLR 123 ; Re Mayne (1947) QWN 40 ). Roper C.J. in Eq. in a third

 

 

ARE STALLS SHOPS?

 

  1. The second respondent argues that if the land itself is not a premises and if the primary use is that of a car park, then the stalls cannot be shops in the definition of the legislation.

 

  1. The dictionary description ought to play a part in the interpretation of the definition, being;

Stall 1(stôl)

 

  1. A compartment for one domestic animal in a barn or shed.
  2. A booth, cubicle, or stand used by a vendor, as at a market.
  3. A small compartment: a shower stall.
  4. An enclosed seat in the chancel of a church.
  5. A pew in a church.
  6. Chiefly British A seat in the front part of a theater.
  7. A space marked off, as in a garage, for parking a motor vehicle.
  8. A protective sheath for a finger or toe.
  9. The sudden, unintended loss of power or effectiveness in an engine.
  10. A condition in which an aircraft or airfoil experiences an interruption of airflow resulting in loss of lift and a tendency to drop.
  11. stalled, stall·ing, stalls

 

  1. Stallholder

(ˈstɔːlˌhəʊldə)

n

(Commerce) a person who sells goods at a market stall

 

  1. The full court in Skaventzos V Vander-lee indeed made the point that a roadside stall was excluded as being a shop, going onto pose the question “What distinguishes a stall from other kinds of shops”

 

The court concluded it is the transient and unsubstantial character of the structure at which the retail selling of goods is conducted, that is the determining factor.

 

 

  1. The Second respondent agues here again, that the stalls utilising the market in question come and go, they are indeed transient, and unsubstantial in nature (I refer to the affidavit of Gary Temple the market manager) on page one of that document.

 

CONCLUSION

 

  1. The Primary use of the land is that of a car park, making the appellants application fail from the onset, as the market is not the primary use of the land.

 

  1. A Premise by way of its definition/intent cannot be vacant land, therefor the market/stalls do not meet the criteria of being a shop as described in the development act.

 

  1. Premises MUST constitute a defined area of land that is both exclusively occupied with a degree of permanence; The Market is neither an exclusive use nor is awarded any permanence by the council’s approval.

 

  1. The Market is a community event of a semi regular basis which is supported by development planning and its transient nature precludes it from being defined as a shop, it could be argued that as an event, development planning approvals may not have even been required.

 

 

  1. The existing development consent of merit use, and the development panel’s approval for the markets ought to stand.

 

  1. Note; Planning policy terms in relation to the South Australian development act, state’;

Community land means land used for the provision of social, recreational or educational facilities for the local community.

The second respondent could argue with conviction that the markets are a community event, therefor exempt from the need for development approvals.

 

The term Open space in the act, has a similar feel and application; Public and private recreational areas and facilities of an open character which are not classed as a development.

(schedule 3 Development regulations 2008 clause 2(1)(e)

 

 

 

Mark Aldridge (second respondent)

 

 

 

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2 Responses to “Outline of argument Markets V Johnston”

  1. Rude Record Says:

    Go well and Beat the Man as RUDE [reusers (and repairers) of unloved discarded excess] encourage each week on our blog.

  2. WHAT WOULD YOU DO? Protect our markets or all community events? | Mark M Aldridge Blog Says:

    […] https://markaldridge.wordpress.com/2015/12/02/outline-of-argument-markets-v-johnston/ […]

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