Garvey and City Of Swan
[2008] WASAT 93
•8 MAY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: GARVEY and CITY OF SWAN [2008] WASAT 93
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 8 MAY 2008
FILE NO/S: DR 42 of 2008
BETWEEN: BRIAN JOHN GARVEY
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning - Development application - Existing service station facilities to be incorporated into large industrial shed to be used for fast food, mechanical workshop and builders' business - Preliminary issue - Classification - Whether proposed development classified as "service station" - Meaning of "petroleum products" - Words and phrases: "petroleum products"
Legislation:
City of Swan Local Planning Scheme No 17
City of Swan Town Planning Scheme No 9
Planning and Development Act 2005 (WA), s 238(4), s 252(1)
Result:
Proposed development is not classified as "service station"
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr P Russell (Public Sector Employee)
Solicitors:
Applicant: Self-represented
Respondent: City of Swan
Case(s) referred to in decision(s):
Drummoyne Municipal Council v Cavallaro (1982) 46 LGRA 416
Moore River Co Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr BJ Garvey applied for development approval to erect a large industrial shed over existing service station facilities to be used for "fast foods, mechanical workshop and builders' business". The proposed development does not include the bulk retail of fuel for motor vehicles. The City of Swan refused to grant development approval for the proposed development on the basis that it is not classified as a "service station".
Mr Garvey sought review of the City's decision. The parties identified a preliminary issue as to whether the proposed development is classified as a "service station". The argument turned largely on the meaning of the words "petroleum products" in the definition of "service station" and, in particular, on whether "petroleum products" are restricted to motor vehicle fuels.
The Tribunal determined that the proposed development is not classified as a "service station". The expression "petroleum products" relevantly means motor vehicle fuels. Although the proposed development includes the sale of 5 litre cans of emergency gasoline/diesel, and LPG cylinders, it could not be classified as a "service station" in the absence of the bulk retail of motor vehicle fuels which are dispensed through a bowser mechanism into motor vehicle fuel tanks.
Preliminary issue
On 4 January 2007, Mr BJ Garvey applied to the City of Swan (City or Council) for approval to carry out the following development at No 2532 Great Northern Highway, Bullsbrook (site):
"3745 x 1500 x 5400 high industrial shed built over existing service station facilities, to remain therein, to be used for fast foods, mechanical workshop and builders' business".
In a letter dated 31 January 2008 Mr Garvey said that the proposed development would also retail packaged lubricants, packaged kerosene, packaged greases, 5 litre cans of emergency gasoline/diesel, plastic‑bottled kerosene, white spirit and a range of automotive accessories such as spark plugs, oil and air filters, sealants and jumper leads. Mr Garvey said that he intends to stock "bulk fuel when same becomes economically viable". The letter also describes the proposed development as incorporating a new restaurant facility, a roadhouse facility and a workshop for carrying out greasing, tyre repairs and "minor mechanical repairs (including LPG vehicle installations, windscreen replacements)".
Mr Garvey has subsequently said that he also intends to stock LPG refilled 4.5 kilogram and 9 kilogram cylinders.
The proposed development does not include the bulk retail of fuel for motor vehicles dispensed through bowsers.
On 5 February 2008, the City refused to grant development approval for the following two reasons:
"1.The application does not include the bulk retail of motor vehicle fuel (be it petrol, diesel or LPG) and as such is not considered to fall within the category of 'Service Station'.
2.The proposed retail of food for consumption on and off the premises and the use of a workshop area for greasing, tyre repairs and other minor mechanical repairs is considered to be classified as 'Fast Food Outlet' and 'Motor Repair Station' under the City of Swan Town Planning Scheme No 9 where both of which are 'Not Permitted Uses' within the 'Service Station' zone."
On 6 February 2008, Mr Garvey applied to the State Administrative Tribunal (Tribunal) for review of the Council's decision under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). Mr Garvey asked the Tribunal to make the following decisions:
"1.Make a ruling that 'petroleum products' does not mean the bulk retail of motor fuel (be it petrol, diesel or LPG).
2.Approve the applicant's application for approval to commence development dated 4/1/07."
On 18 February 2008, the City of Swan Town Planning Scheme No 9 (TPS 9) was replaced by the City of Swan Local Planning Scheme No 17 (LPS 17). The site was zoned "Service Station" under TPS 9 and is zoned "General Rural" under LPS 17.
The parties have identified a preliminary issue in the proceedings as to whether the proposed development is classified as a "service station" as defined in TPS 9 or LPS 17. The argument between the parties principally concerns the meaning of the expression "petroleum products" which appears in the definition of "service station" in each of the schemes.
The President of the Tribunal has formed the opinion under s 238(4) of the PD Act that the application is likely to raise complex or significant planning issues and has referred the preliminary issue and any consequential determination for decision by me.
Is the proposed development classified as a "service station"?
The term "service station" is defined in TPS 9 and in LPS 17 as follows:
"'Service Station' means land and buildings used for the supply of petroleum products and automotive accessories and for carrying out greasing, tyre repairs, and minor mechanical repairs to motor vehicles but does not include panel beating, spray painting, major repairs or wrecking, and may include a roadhouse in a predominantly rural area." (TPS 9)
"'service station' means premises used for ‑
(a)the retail sale of petroleum products, motor vehicle accessories and goods of an incidental/convenience retail nature; and
(b)the carrying out of greasing, tyre repairs and minor mechanical repairs to motor vehicles,
but does not include premises used for a transport depot, panel beating, spray painting, major repairs or wrecking." (LPS 17)
The term "roadhouse" is defined in both TPS 9 and LPS 17 as follows:
"'Roadhouse' means land and buildings used for the predominant purpose of a service station but incidentally including a café or restaurant and/or a shop".
Mr Garvey contends that the expression "petroleum products" in the definitions of "service station" in TPS 9 and LPS 17 refers to all petroleum refinery products ‑ of which he has provided a list of some 89 ‑ and is not restricted to motor vehicle fuels such as petrol, diesel or LPG.
In contrast, the City contends that "petroleum products" are relevantly motor vehicle fuels dispensed by a bowser mechanism. The City contends that the proposed sale of 5 litre cans of emergency gasoline/diesel and LPG refilled 4.5 kilogram and 9 kilogram cylinders is a minor component of the overall proposal. The City suggests that the proposed development is classified as "motor vehicle repair" and "fast food outlet" which is prohibited development on the site under TPS 9 and LPS 17.
The word "petroleum" is defined in The Macquarie Dictionary (4th Ed, 2005, Macquarie, Sydney) at page 1070 as follows:
"1. An oily, usually dark-coloured liquid (a form of bitumen or mixture of various hydrocarbons), occurring naturally in various parts of the world, and commonly obtained by boring. It is used (in its natural state or after certain treatment) as a fuel, or separated by distillation into petrol, naphtha, benzene, lubricating oil, paraffin oil, paraffin wax, etc; rock oil. 2. → petrol (def. 1)."
The first definition of the word "petrol" which is referred to in the second definition of "petroleum" is:
"A mixture of volatile liquid hydrocarbons, as hexane, heptane, and octane, used as a solvent and extensively as a fuel in internal‑combustion engines; gasoline."
It is apparent from these dictionary meanings, and from the clear emphasis generally in the scheme definitions of "service station" on motor vehicle products and services, that the expression "petroleum products", when used in the defined meaning of "service station" in TPS 9 and in LPS 17, relevantly means motor vehicle fuels such as petrol, diesel and LPG. The expression does not include all petroleum refinery products.
This is also apparent from the following observation of Reynolds JA, with whom Samuels and Mahoney JJA agreed, in the New South Wales Court of Appeal in Drummoyne Municipal Council v Cavallaro (1982) 46 LGRA 416 at 419:
"To my mind, the words [service station] mean a place or building used principally for the sale by retail of petrol, oils and other petroleum products, and a use may nevertheless still answer that description when it covers other services in respect of motor vehicles which are regarded as ancillary to that principal use."
Thus, the expression "petroleum products", when used in the definition of "service station", refers to motor vehicle fuels such as petrol, diesel or LPG which are characteristically dispensed through a bowser mechanism into motor vehicle fuel tanks. As the proposed development does not involve the bulk retail of motor vehicle fuel, it cannot be classified as a "service station" under either TPS 9 or LPS 17. As the City submits, the sale of cans of emergency gasoline/diesel and LPG refilled 4.5 kilogram and 9 cylinders is a minor and incidental aspect of the proposed development. The sale of these products does not warrant the classification of the proposed development as a "service station".
Furthermore, the proposed development cannot be classified as, or as including, a "roadhouse" within the meaning of either TPS 9 or LPS 17. "Roadhouse" means land and buildings used for the predominant purpose of a service station, but incidentally including a café or restaurant and/or a shop. In the proposed development, the land and buildings would not be used for the predominant purpose of a service station. Rather, the restaurant and fast food components of the proposed development would each be a dominant purpose, not an incidental use to the predominant purpose of a service station.
Finally, the mechanical workshop and builders' business proposed would each involve a separate, dominant use that does not fall within the definition of "service station". Although a "service station" includes greasing, tyre repairs and minor mechanical repairs to motor vehicles, the nature of mechanical works at the proposed workshop described in Mr Garvey's letter dated 31 January 2008, which include LPG vehicle installations and windscreen replacements, fall outside the limited nature of mechanical repairs contemplated within the definition of "service station". The proposed builders' business is plainly not contemplated by the definition of "service station".
It follows that the proposed development is not classified as "service station" under either TPS 9 or LPS 17.
Conclusion
The proposed development is not classified as a "service station" under either TPS 9 or LPS 17.
In his submissions in reply dated 29 April 2008, Mr Garvey requests that, if the preliminary issue is answered in the way in which it has been, the application for review should not be dismissed, as he will request "the granting of leave to make application for further or other relief in the light of such decision".
It is not clear what, if any, "other relief" can be granted by the Tribunal in the circumstances. As the proposed development is not classified as a "service station", it appears that the application for review should be dismissed and the decision of the City should be affirmed. Although the Tribunal may grant leave to amend a development application, it does not have power to allow an amendment that results in a new proposal and is not in substance the same proposal: Moore River Co Pty Ltd and Western Australian Planning Commission [2006] WASAT 269 at [13] ‑ [14]. It would appear that if the proposed development were modified to satisfy the definition of "service station" it would not be in substance the same proposal as that considered and determined by the City in this case.
However, in fairness to Mr Garvey, the application should not be dismissed at this time, but rather, should be referred to a directions hearing at which he can make any application he wishes.
Orders
The Tribunal makes the following orders:
1.The preliminary issue is answered as follows:
"The proposed development is not classified as a 'service station' under either the City of Swan Town Planning Scheme No 9 or the City of Swan Local Planning Scheme No 17."
2.The proceedings are listed for a directions hearing at 9 am on 15 May 2008 which the parties may attend by telephone by prior arrangement with the State Administrative Tribunal.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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