Posted on August 14, 2017 by Megan Hawley
‘Retail Premises’ need not involve direct sales to the public
The Court of Appeal has confirmed that in order for a development to comprise ‘retail premises‘ the development does not need to involve sales direct to the public.
The issue came up in a case regarding the purpose for which a building occupied by the Randwick Rugby Club (Club) had been constructed.
A provision of the applicable local environmental plan (LEP) applied if the building was constructed for the purpose of ‘commercial premises’.
Under the LEP (and also under the Standard Instrument – Principal Local Environmental Plan) ‘commercial premises’ are defined to include ‘business premises‘ and ‘retail premises‘.
The definition of ‘business premises‘ refers to the provision of services ‘directly to members of the public’.
In contrast, the definition of ‘retail premises‘ does not include any reference to sales direct to members of the public, but does refer to selling items ‘by retail’.
The Club contained a bistro and bars and sold food and drink to its members and their guests.
The Court referred to the definition of ‘retail‘ in the Macquarie Dictionary which was ‘the sale of commodities to household or ultimate consumers, usually in small quantities (opposed to wholesale)’.
The Court held that the selling of food and drink to Club members and their guests fell within that dictionary definition, as it involved sales to the ultimate consumer, and the food and drink was not intended to be on-sold.
Because there was no additional wording in the definition of ‘retail premises’ requiring sales direct to the public at large the Court of Appeal concluded that the building was constructed as ‘retail premises‘.
On the basis of this decision, when determining whether any particular development involves retail sales, the key question to consider is not whether there are sales to the public, but whether the goods are being sold to a household consumer or the ultimate consumer.
The decision can be read here.
Leave a comment
in focus comments policy
LTL welcomes your feedback and comments on our posts. all comments, however, will be moderated and we reserve the right not to publish any comment for any reason.
LTL in focus is primarily designed for public sector and development professionals dealing in the fields of planning, environment and government. you may, therefore, wish to consult your organisation’s social media policy before you post any comments. it should go without saying that we expect all comments to maintain a level of respect and professional courtesy.
In making a comment you are required to provide your email address, this will not be published on the site. if the moderator chooses to publish your comment, the name you provide will be published with your comment – it is your choice whether you provide your full name or just your first name. if you provide your full name, we may seek to verify your identity prior to publication of your first comment. If you wish your comment to be directed only to the author or moderator please make that clear – marking it NFP or Not For Publication is the easiest way. thank you for your support and happy reading – matthew mcnamara, ceo.