Bunnings found to be a shop not a shopping centre

On 19 May 2020, the Court of Appeal delivered judgment in BWP Management Limited & Anor v Ipswich City Council [2020] QCA 104. The case, which had already been through the Land Court and the Land Court of Appeal, was simple in its premise – for the purpose of the levying of Council differential rates, should two Bunnings stores in the Ipswich area be properly categorised by Ipswich City Council (Council) as ‘Drive-In Shopping Centre’, or ‘Shop – Single’ as the Applicant contended. Unsurprisingly, the Applicant’s position would result in lower Council rates for the Bunnings stores.

In Council’s budget, ‘Shop’ was not defined, but ‘Drive-In Shopping Centre’ was defined to mean:

‘a premises or a cluster of premises that:
(a) is used wholly or predominately for carrying out a retail business; and
(b) is contained within one or more buildings or structures on one or more levels; and
(c) provides off-street parking for customer vehicles.’

The Court of Appeal (comprised of Morrison, McMurdo JJA and Boddice J) concluded that the Bunnings stores were ‘within the text of the definition’ of ‘Drive-in Shopping Centre’[1] but that the stores were also within the description of ‘Shop – Single’. Neither the Applicant nor Council quibbled with that finding (which was the same conclusion the Land Court reached).

The Court was faced with the question of how to properly categorise the stores when they met the definition of two distinct rating categories.

As a starting point, the Court resoundingly rejected the idea that the meaning of the words of a statutory definition can be construed by reference to the term which is defined, for reasons that would involve circularity.[2]  Simply put – in interpreting the meaning of ‘Drive-In Shopping Centre’, any ambiguity cannot be resolved by looking at the definition of ‘shopping centre’. 

The Court also rejected the significance that the President of the Land Court placed in the Macquarie Dictionary definition of ‘Shop’ being ‘a building where goods are sold retail’ because the land use codes used to categorise land for rating purposes speak to the use of the land, not the structures upon the land.

The Land Appeal Court reasoned that the use of the land was better categorised as a ‘Drive-In Shopping Centre’ because it was the more specific of the two definitions. The Court of Appeal disagreed.

What appeared to sway the Court of Appeal was the submission from the Applicant that in ordinary speech, a single shop, with car parking for its customers on the same land, would not be considered a shopping centre.[3] If nothing else, the Court of Appeal reasoned:

‘a shopping centre involves a premises from which more than one business is conducted.  In ordinary speech, the distinction between a shopping centre and a single shop is clear.’[4]

In interpreting the meaning of the definitions, the Court of Appeal held it was legitimate, indeed necessary, to consider the terms of the instrument as a whole, including the category ‘label’ of ‘Drive-In Shopping Centre’. This was not, the Court of Appeal opined, circular reasoning, but instead the interpretation of the instrument as a whole.

Consequently, the Bunnings store was held to be properly categorised as ‘Shop – Single’ as advanced by the Applicant, rather than as a ‘Drive-In Shopping Centre’ as contended by Council.

Key takeaway

This case serves as a useful reminder that when preparing differential rates categories, local governments should make sure they are clear in the wording of their categories and try to avoid overlap wherever possible.

Many thanks to Patrick O’Brien, Lawyer, for his assistance in putting together this article.

[1] BWP Management Limited & Anor v Ipswich City Council [2020] QCA 104, [52].

[2] BWP Management Limited & Anor v Ipswich City Council [2020] QCA 104, [51].

[3] BWP Management Limited & Anor v Ipswich City Council [2020] QCA 104, [57].

[4] BWP Management Limited & Anor v Ipswich City Council [2020] QCA 104, [57]. 

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