In Woolworths Limited v Randwick City Council [2017] NSWCA 179, Woolworths lodged a development application to convert Randwick Rugby Club’s former premises into a grocery store. The Council rejected the application. Woolworths challenged the decision. At issue on appeal was whether the building was ‘designed or constructed’ as a ‘retail premises’ within the meaning of the Local Environmental Plan (LEP).

The Court of Appeal held that the courts must look to the function of the premises at the time of design or construction; not the use to which that premises is later put. Moreover, the fact that the building was designed and constructed to be a registered club did not preclude it from also being a ‘retail premises’ selling food and drink. The building included cafes, restaurants, seating areas, a commercial kitchen, a loading dock, and storage areas. The presence of these facilities in the design and construction of the building meant that the building did fall within the meaning of a ‘retail premises’, and hence Woolworths was able to proceed with their development application.

The judges also clarified the meaning of ‘retail premises’ under the LEP. The noted that whether the premises was only accessible by members of the club was legally irrelevant. Whilst a ‘business premises’ must provide services ‘directly to the public’ under the LEP, a ‘retail premises’ has no such limitation in its definition.

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