OTR 208 PTY LTD and CITY OF VINCENT - [2025] WASAT 117

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   OTR 208 PTY LTD and CITY OF VINCENT [2025] WASAT 117
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   22 JULY 2025
DELIVERED          :   24 OCTOBER 2025
FILE NO/S:   DR 138 of 2024
BETWEEN:   OTR 208 PTY LTD
Applicant
AND
CITY OF VINCENT
Respondent

Catchwords:

Development and resources - Planning - Refusal of application for development approval - Preliminary legal questions - Existing use rights - Non-conforming use rights - Discontinuance - Nature of test - Whether discontinuance occurs upon cessation of activities - Whether subjective intention is relevant to discontinuance - Whether approval is required for proposed works - Whether works fall within relevant exceptions from requirement for approval

Legislation:

Local Government Act 1919 (NSW), s 309(2)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 60, cl 61
Planning and Development Act 2005 (WA), s 4, s 172, s 257B(3)
City of Vincent Local Planning Scheme No. 2, cl 18(2), cl 22, cl 22(1), cl 22(1)(a), cl 22(1)(b), cl 22(2), cl 22(2)(a), cl 22(2)(b), cl 23
Town of Vincent Town Planning Scheme No. 1

Result:

The land at 41 - 43 Angove Street, North Perth has the benefit of non-conforming use rights for use as a service station
The proposed works the subject of the application require development approval

Category: B

Representation:

Counsel:

Applicant	:	Ms R Young SC and Ms I Mosole
Respondent	:	Mr K De Kerloy SC and Mr C Slarke

Solicitors:

Applicant	:	Lavan
Respondent	:	McLeods

Case(s) referred to in decision(s):

Aquatic Airways Pty Ltd v Warringah Shire Council (1990) 71 LGRA 10
Auburn Council v Nehme [1999] NSWCA 383; (1999) 106 LGERA 19
Calvary Health Care Tasmania Inc v Hobart City Council (2006) 15 Tas R 271; 144 LGERA 107
City of Gosnells v Reid [2024] WASCA 155
Ex parte New Gamble Brickworks Pty Ltd (1962) 9 LGRA 258
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431
House of Peace v Bankstown CC [2000] NSWCA 44; (2000) 48 NSWLR 498
Hudak v Waverley MC (1990) 70 LGRA 130
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147; (2019) 101 NSWLR 1
Interslice Pty Ltd v CCA Investments - Bass Hill Pty Ltd [2025] NSWCA 175
Lederer v Sydney City Council (2001) 119 LGERA 350
Leeming v Port Adelaide CC [No 2] (1987) 62 LGRA 277
Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448; 34 LGRA 151
OMSB Pty Ltd and Shire of Ashburton [2025] WASAT 24
Park Street Properties v South Melbourne City Council [1990] VR 545
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; (1980) 44 LGRA 346
Point Grey Development Company Pty Ltd and Shire of Murray [2019] WASAT 106
Rosenblum v Brisbane CC (1957) 98 CLR 35
Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; (2020) 243 LGERA 89
Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16
Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council (2001) 117 LGERA 43
Stewart and Town of Cottesloe [2019] WASAT 100
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Warr and Town of Cambridge [2020] WASAT 126
Woolahra MC v TAJJ Investments Pty Ltd (1982) 49 LGRA 123
Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

From about 1967, land at 41 - 43 Angove Street, North Perth (Land) was used as a service station.
In 2002, development approval was granted which changed the approved use of the Land to 'service station and vehicle sales premises' (2002 DA).
In May 2018, the planning scheme under which the 2002 DA had been granted was revoked and replaced with another scheme. However, the use of the Land as a service station and for vehicle sales remained one for which approval could be granted.
The applicant (OTR) purchased the Land in late 2021, shut down the service station and fenced the Land, which has remained securely fenced ever since.
In August 2023, OTR applied for development approval to carry out works on the Land in order, it says, to facilitate the reopening of the service station.
In February 2024, the new scheme was amended so as to prohibit the use of the Land as a service station.
In August 2024, OTR's application was refused on grounds which included that the Land lacks non-conforming use rights for use as a service station.
OTR has applied for review of that refusal. Two preliminary questions have been formulated as follows:
(a)Issue 1: Does the [Land] have the benefit of existing use rights or non-conforming use rights for use as a 'service station'?
(b)Issue 2: If the answer to Issue 1 is yes, is clause 23 of the City of Vincent Local Planning Scheme No. 2 engaged or is clause 60 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) engaged, such that development approval is required?
For the reasons that follow, both questions are answered 'Yes'.
Accordingly, the matter should be programmed through to a hearing on the merits of the proposed works.

The Land

As noted above, the Land is located at 41 - 43 Angove Street, North Perth, on the corner of Woodville Street. It is more accurately described as Lot 701 on Deposited Plan 302447 and Lot 18 on Plan 1874.
The Land contains a building and other improvements which are consistent with its previous operation as a service station and motor vehicle sales yard.
The building faces north (toward Angove Street) and opens (by way of roller doors and windows) onto a paved/bituminised forecourt, which is partly covered with a canopy, under which are three petrol bowsers and a kerosene bowser. The main building's rear (southern wall), within which is a window, backs onto a lane/right of way and its eastern boundary opens by way of a roller door onto the footpath of Woodville Street.
To the west of the Land is another property at 45 Angove Street (Lots 700 and 16) (Adjacent Lot). Against the western boundary of the Land is an area marked for the parking of five vehicles.

Issue 1

Pre-2002 Historical Planning Facts

Attached to written submissions filed on behalf of the respondent (Respondent's Submissions) was a Schedule of 'Admitted Facts'. The following is taken from, and largely repeats, paras 5 to 9 of that Schedule:
(a)Until the establishment of the Town of Vincent on 1 July 1994, the Land was located within the City of Perth.
(b)Aerial photographs indicate that the main building on the Land has been present since 1953.
(c)The respondent's records indicate that the Land was used as a service station from about 1967.
(d)The City of Perth Zoning By-Law 64 (ZBL 64) was operative at the time the service station use commenced. ZBL 64 provided, relevantly, that a Class C5 land use could commence on the Land without obtaining planning approval. The Class C5 land use was defined as '[m]otor repairing and servicing shops including retailing of automotive fuels, lubricants and accessories'.
(e)On 19 October 1992, the City of Perth granted approval to modify the existing service station on the Land, demolish the dwelling on the Adjacent Lot and extend the service station to that lot, and to convert existing dwellings on the lot to the west of the Adjacent Lot (1 Albert Street) into offices associated with the extended service station. However, that approval was not acted upon.

The 2002 Development Approval

On 12 March 2002, the respondent granted the 2002 DA[1] under the Town of Vincent Town Planning Scheme No. 1 (TPS1).
[1] Respondent's Section 24 Bundle of Documents dated 5 December 2024 (Exhibit 6), pages 99 - 101.
The 2002 DA provides as follows:
Approval to commence development in accordance with the application for Town Planning Approval dated 15th January 2002 for CHANGE OF USE FROM SERVICE STATION TO SERVICE STATION AND VEHICLE SALES PREMISES and the attached amended plans dated 5th March 2002 was GRANTED in accordance with the provisions of the Town of Vincent Town Planning Scheme and the Metropolitan Region Scheme subject to the following conditions: …[2]
[2] Capitalisation in original.
The approved plans[3] show:
(a)two vehicle hoists, a toilet and a 'shop/office' area within the building located on the Land;
(b)three petrol pumps and a kerosene pump; and
(c)the five car bays previously referred to, which are to be used for the display of vehicles for sale.
[3] Exhibit 6, page 101.
When the 2002 DA was granted, the Land was zoned Commercial under TPS1[4] and the TPS1 Zoning Table[5] provided that each of the use classes 'service station' and 'vehicle sales premises' was a 'AA' use.
[4] Officer's Report for the 2002 DA application: Exhibit 6, page 738.
[5] Exhibit 6, page 595.
Under TPS1, an 'AA' use was one which was 'not permitted unless the Council has exercised its discretion by granting planning approval'.[6]

Local Planning Scheme No. 2

[6] Exhibit 6, page 594.

The respondent's Local Planning Scheme No. 2 (LPS2) was gazetted on 16 May 2018.
Under LPS2, the Land was at all times, and remains, zoned District Centre.[7]
[7] Schedule to the Respondent's Submissions, paras 28 and 29.
At gazettal, the Zoning Table to LPS2 provided that the use of land in the District Centre zone: [8]
(a)for a 'service station' was a 'D' use; and
(b)for 'motor vehicle, boat or caravan sales' was an 'A' use.
[8] Exhibit 6, page 283; Schedule to the Respondent's Submissions, para 28.
Clause 18(2) of LPS2 provides that:
(a)a 'D' use is one that is 'not permitted unless the local government has exercised its discretion by granting development approval';
(b)an 'A' use is one that is 'not permitted unless the local government has exercised its discretion by granting development approval after giving special notice in accordance with clause 64 of the deemed provisions'.[9]
[9] Exhibit 6, page 284.
Amendment 12 to LPS2 was gazetted on 27 February 2024 (Am 12). By Am 12, the use class 'service station' was reclassified in the Zoning Table from a 'D' use in the District Centre to an 'X' use.[10] An 'X' use is one that cl 18(2) states 'is not permitted by this Scheme'.
[10] Exhibit 6, pages 270 and 283. The use class 'service station' was also reclassified in other zones but it is not necessary to detail those changes.
Issue 1 turns on the construction of cl 22 of LPS2. Clause 23 is relevant to Issue 2. It is convenient to reproduce them here in their entirety.[11]
[11] In addition, cl 24 of LPS2 provides for a register of non-conforming uses. It is unnecessary to quote it or to say more about this clause.
22.Non-conforming uses
(1)Unless specifically provided, this Scheme does not prevent -
(a)the continued use of any land, or any structure or building on land, for the purpose for which it was being lawfully used immediately before the commencement of this Scheme; or
(b)the carrying out of development on land if -
(i)before the commencement of this Scheme, the development was lawfully approved; and
(ii)the approval has not expired or been cancelled.
(2)Subclause (1) does not apply if -
(a)the non-conforming use of the land is discontinued; and
(b)a period of 6 months, or a longer period approved by the local government, has elapsed since the discontinuance of the nonconforming use.
(3)Subclause (1) does not apply in respect of a nonconforming use of land if, under Part 11 of the Act, the local government -
(a)purchases the land; or
(b)pays compensation to the owner of the land in relation to the nonconforming use.'
23.Changes to non-conforming use
(1)A person must not, without development approval -
(a)alter or extend a non-conforming use of land; or
(b)erect, alter or extend a building used for, or in conjunction with, a nonconforming use of land; or
(c)repair, rebuild, alter or extend a building used for a nonconforming use that is destroyed to the extent of 75% or more of its value; or
(d)change the use of land from a non-conforming use to another use that is not permitted by the Scheme.
(2)An application for development approval for the purposes of this clause must be advertised in accordance with clause 64 of the deemed provisions.
(3)A local government may only grant development approval for a change of use of land referred to in subclause (1) d) if, in the opinion of the local government, the proposed use -
(a)is less detrimental to the amenity of the locality than the existing nonconforming use; and
(b)is closer to the intended purpose of the zone in which the land is situated.

The Parties' Submissions

The respondent's position as to Issue 1 can be briefly stated.
The respondent accepts that the criteria provided by cl 22(1)(a) of LPS2 are established. That is, the respondent accepts that immediately before the commencement of LPS2 in 2018 the Land was being lawfully used as a service station and for vehicle sales.[12] Specifically, the respondent accepts the lawfulness of the use of the Land as it was undertaken pursuant to the 2002 DA until that use ceased in late 2021,[13] including from the date upon which LPS2 commenced on 16 May 2018.
[12] Respondent's Submissions, para 16(a).
[13] Respondent's Submissions, para 16(c).
However, the respondent submits that cl 22(1)(a) 'does not apply' because cl 22(2) is engaged because:[14]
(a)the use of the Land as a service station was discontinued in or by no later than December 2021;
(b)more than six months have since elapsed; and
(c)no longer period has been approved under cl 22(2)(b).
[14] Respondent's Submissions, para 17.
Central to the respondent's position is the meaning of the term 'discontinued' in cl 22(2)(a), and the cognate term 'discontinuance' in cl 22(2)(b).
The respondent submits, in effect, that those terms should be understood by reference only to relevant physical activities on the Land and that 'the concepts of abandonment and intention' are, in effect, irrelevant.[15]
[15] Respondent's Submissions, paras 18 - 39, esp 27 - 29 and 34; ts 108, 22 July 2025.
OTR's position may be described by way of three submissions.
First,[16] OTR draws a distinction between what it says are the 'existing use rights' created by cl 22(1)(a) and the 'non-conforming use rights' referred to in cl 22(2)(a).
[16] Applicant's Outline of Submissions for Preliminary Issues Hearing on 22 and 23 July 2025 (Applicant's Outline), paras 18 - 27, 42 - 46.
OTR submits that the existing use rights created by cl 22(1)(a) arise upon the coming into effect (i.e. the gazettal) of LPS2. In doing so, OTR emphasises the absence in cl 22(1)(a) of any reference to the amendment of the scheme.
By contrast, OTR notes that the term 'non-conforming use' is defined in LPS2 as having the same meaning as provided in s 172 of the Planning and Development Act2005 (P&D Act), being:
a use of land which, though lawful immediately before the coming into operation of a planning scheme or amendment to a planning scheme, is not in conformity with a provision of that scheme which deals with a matter specified in Schedule 7 clause 6 or 7.[17]
[17] Italics added.
The effect is, OTR submits, that:
(a)because the use of the Land as a service station was lawful immediately prior to the gazettal of LPS2 on 16 May 2018, it remained lawful as an 'existing use' under cl 22(1)(a) from that date;
(b)the use of the Land as a service station became a nonconforming use upon the gazettal of Am 12 on 27 February 2024, which was an amendment to LPS2; and
(c)as a result, the commencement of any six month period relevant to cl 22(2)(b) can only have occurred on and from 27 February 2024.
Second, OTR submits that the term 'discontinued' in cl 22(2)(a) must be understood by reference to matters that go beyond the mere cessation of physical activities on the Land. It submits that discontinuance 'must require abandonment of the use, in that there is no relevant intention to continue the use, rather than merely the physical cessation of the use.'[18]
[18] Applicant's Outline, para 49.
OTR further submits that, '[w]hile the service station has not operated since about December 2021, there has been no abandonment because there has been a sustained and ongoing intention to develop the subject site for a service station'.[19]
[19] Applicant's Outline, para 50.
Third, OTR submits that if there has been any discontinuance (which it denies), it has not persisted for a duration of six months.[20]

Resolution

Clause 22(1)(a) is Engaged

[20] Applicant's Outline, paras 53 - 60.

I agree with the parties' common position that cl 22(1)(a) is engaged.
The parties proceeded on the agreed basis that the Land was being lawfully used as a service station and for vehicle sales, pursuant to the 2002 DA, until at least September 2021.[21]
[21] Respondent's Submissions, para 16 (as amended at the hearing).
That is, the parties were agreed that:
(a)the Land was, as a fact, used as a service station and for vehicle sales until at least September 2021; and
(b)that use was lawful as a result of the 2002 DA, which continued to have effect, notwithstanding the gazettal of LPS2 in 2018.

The Land Continued to be Used as a Service Station until Late 2021

The facts support the first of those two propositions, at least as it concerns the use of the Land as a service station. In particular, the evidence of Mr Kim Pomario and Mr Andrew Caspar was to that effect.
Mr Pomario's evidence was that he first visited the Land at a date he cannot specifically recall between February and May 2021 and that he noted various improvements, including the fuel canopy, the bowsers and a workshop, and that he observed the site being operated as a 'Wesco Fuel' business involving 'the sale of fuel and car repairs'.
His evidence was also that:
(a)OTR entered into a contract to buy the Land and the Adjacent Lot on 26 May 2021 (Contract);
(b)the Contract became unconditional on 23 September 2021;
(c)settlement of the Contract occurred on 23 November 2021;
(d)by the Contract, OTR bought only the Land and the Adjacent Lot. OTR did not purchase the service station business because OTR's 'purpose in purchasing the [Land and the Adjacent Lot] was to redevelop it into an OTR service station and thereby continue the existing service station operation through an OTR service station, not as a Wesco fuel station'.
Mr Caspar's evidence was to the fact that he has visited the Land on several occasions and that he took photos on his first visit on 16 September 2021. Those photos appear to show the Land operating as a service station. His evidence was that because the 'business trading from the site was operational, photos are predominantly of exterior buildings and the streetscape'.
None of that evidence was materially challenged and I am satisfied, and I find as a fact, that the Land was being used as a service station until at least September 2021 and, more likely, November 2021.

The Use of the Land as a Service Station was Lawful

I also agree that the use of the Land as a service station was lawful, because the 2002 DA, which authorised that use, continued to have effect, notwithstanding the revocation of TPS1, being the scheme under which the 2002 DA was granted.

The 2002 DA Authorised the Use of the Land as a Service Station, Separate and Distinct from its Use for Vehicle Sales

As noted above, the 2002 DA permitted the change in the use of the Land from 'SERVICE STATION TO SERVICE STATION AND VEHICLE SALES PREMISES'.
While the respondent accepted that, therefore, the use of the Land as a service station up to and including late 2021 was lawful, its position leaves open the possibility that what the 2002 DA authorised may be different to what is proposed by OTR for the future use of the Land.

The respondent's written submissions do not expressly address that possibility and neither did Mr De Kerloy SC expressly address the issue in oral closing submissions. However, he did cross-examine Mr Caspar in a manner that raised the issue.
OTR submitted that the 2002 DA authorised two separate and distinct uses ('service station' and 'vehicle sales premises') and did not authorise a third use that amounts to a combination of the two.[22] I agree.
[22] ts 48 - 49, 22 July 2025.
In Gull Steytler J, with whom Kennedy and Ipp JJ agreed, described the issue before them as:[23]
whether it was open to the town's council to categorise the application as one for approval of a dual use of the site in the form of 'shop' (in the case of each of the fast food sales area and the area marked 'shop' on the plans) and 'service station' or whether the combination of these uses on the one site were such as to require that combination to be categorised as a third and hybrid use not mentioned in [the zoning tables] (there having then been no definition of 'convenience store' in the Scheme). I should mention that there was no contest as to the proposition that a single development application might properly propose concurrent but distinct uses on the one site: (citations omitted)
[23] Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd(1999) 102 LGERA 431 (Gull), 444 [48].
His Honour described the approach to be taken as follows:
The classification of the proposed uses should not be carried out either in a mechanical or in an arbitrary way. If, in a particular case, the manner in which two uses are to be combined on a particular site makes it inappropriate to categorise the resulting use as a dual use with each use falling within a definition in the Scheme, perhaps because the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the Scheme, then there should be no such categorisation. Where, on the other hand, the character of each use remains unaffected by the fact that one site is shared between them there is no reason why the categorisation of each use should be any different than if each had been effected from its own site. If either use is unacceptable within the particular location it would not be approved. That consequence would not be altered by the fact that another, permitted, use would be effected from the same site.
While Gull concerned an application for a proposed use, rather than for an existing use authorised by a development approval, there does not appear to be any reason why the same approach should not be taken here.
For the following three reasons, I am satisfied that what was approved by the 2002 DA was two separate uses.
First, that result corresponds with the express wording of the 2002 DA, which references two land uses, both of which are defined in TPS1 (being the scheme under which it was granted) and both of which are uses which the Zoning Table prescribed as 'AA' uses.[24] The 2002 DA does not reference another, third, use which might be considered a hybrid of the two.
[24] Exhibit 6, page 595.
Second, condition (iv) of the 2002 DA requires that 'a maximum of five (5) vehicles shall be displayed for sale at any one time'[25] and the approved plans show those five numbered car spaces as adjacent to Angove Street.[26]
[25] Exhibit 6, page 101.
[26] Exhibit 6, page 99.
The plans thereby mark out a separate area for vehicle sales which was physically separated from fuel sales and vehicle servicing. While any vehicle purchases would, I imagine, have been settled in the 'Shop Office' (also shown on the plans), which would also have been where payment for the sale of fuel or for vehicle servicing occurred, it could not be said, in my view, that 'the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the Scheme'.[27]
[27] See, Gull, 446 [52].
Third, recourse to the application for development approval[28] makes plain that the use of the Land for the purposes of vehicle sales was 'additional' and a 'supplement' to the use of the Land as a service station.[29]
[28] Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147; (2019) 101 NSWLR 1, [46] - [80]; Interslice Pty Ltd v CCA Investments - Bass Hill Pty Ltd[2025] NSWCA 175, [73]. See, also, City of Gosnells v Reid [2024] WASCA 155, [14] - [19].
[29] Exhibit 6, pages 728 and 731. However, it was generally agreed that such recourse could be had if the approval explicitly referred to and thereby incorporated the extraneous material. That is the case here.
For these reasons, I am satisfied that the 2002 DA approved the use of the Land for the purpose of a service station and, separately, for the purpose of vehicle sales.

The 2002 DA Continued to Have Effect Despite the Revocation of TPS1 By LPS2 in 2018

In the recent decision of Smargiassi[30] Chief Justice Quinlan held that the development approval on which the appellant in that case relied ceased to have effect upon the revocation of the scheme under which it was granted where that scheme was replaced with one which prohibited the use permitted by the approval.[31]
[30] Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16 (Smargiassi).
[31] Smargiassi, [117] - [149], esp [117] - [124].
In doing so, his Honour referred[32] to the NSW Court of Appeal's decision in Nehme[33] with approval. In that case, Handley JA (with Meagher and Beazley JJA agreeing) said:
25[A] consent is not a general licence to carry out development, and in particular is not a general licence to continue to use the land for the authorised purpose. It is a particular licence to carry out development which is conditionally prohibited by a planning instrument. Its function is merely to make lawful development which is prohibited by that instrument without consent.
26The use of land which is authorised by a valid consent is lawful while the planning instrument under which it was granted remains in force. In the absence of appropriate transitional provisions, the effect of a consent will not extend beyond the life of the planning instrument under which it was granted. The repeal of that planning instrument, and its replacement by another, will, without more, deprive that consent of further effect.
27Where the new planning instrument absolutely prohibits the use previously authorised by a consent, that consent can have no direct operation on that prohibition. The irrelevance of that consent as a protection against that prohibition will not be affected by a transitional provision which continues that consent in force, or deems it to have been granted under the new planning instrument. The prohibition being absolute, the existence of a past consent is an irrelevance.
28A party with the benefit of an existing consent therefore requires further protection against the absolute prohibition in the new planning instrument. This has been given in the past by existing use provisions either in the new planning instrument or in the Act. Such provisions enable existing uses which were lawful, immediately before the new planning instrument came into effect, to be continued. A former consent remains important because it may establish a lawful origin for an existing use, but it will have no further effect under the new planning instrument. In particular it cannot as a mere consent prevent the enforcement of an absolute prohibition on that use in the new planning instrument.
[32] Smargiassi, [114] and [132].
[33] Auburn Council v Nehme [1999] NSWCA 383; (1999) 106 LGERA 19 (Nehme).
However, Quinlan CJ qualified his support for the preceding passages in Nehme by saying that 'it is necessary to … identify whether there are any "appropriate transitional provisions" that extend the life of a consent or development approval beyond the life of the planning instrument under which it was granted'.[34]
[34] Smargiassi, [133].
His Honour referred, in that context, to the decision of the NSW Land and Environment Court in Lederer,[35] which concerned circumstances where, as is the case here but which was not the case in either Nehme or Smargiassi, the new planning scheme which revoked and replaced the former scheme under which the relevant approval was granted did not prohibit the use approved by the consent/approval.
[35] Lederer v Sydney City Council (2001) 119 LGERA 350 (Lederer), [121] - [124].
In Lederer, Lloyd J held that 'there is no reason why a consent granted under the Act should not be regarded as being "in force", simply because the repeal of an environmental planning instrument has changed the considerations which will govern the grant of future consents and, possibly, also the consequences which will flow from having or not having an extant consent'.[36]
[36] Lederer, [122]. See, also, House of Peace v Bankstown CC [2000] NSWCA 44; (2000) 48 NSWLR 498, [35] - [36].
Until Am 12, there was nothing in LPS2 which could be said to do anything more than 'change[ ] the considerations which will govern the grant of future consents' save for cl 22 which, in my view, constitutes an 'appropriate transitional provision' which extends the life of an extant approval.
Accordingly, and for these reasons, I agree with the parties that the 2002 DA continued to have effect pursuant to cl 22(1)(a), notwithstanding the revocation of TPS1 and its replacement with LPS2.

Clause 22(1)(b) is Not Engaged

There was a difference between the parties as to whether cl 22(1)(b) was engaged - OTR submitted that it was and the respondent that it was not.
Given my finding as to cl 22(1)(a), nothing turns on this point.
However, for completeness, I find that cl 22(1)(b) is not engaged by the facts of this case because that clause is concerned with, and limited to, approvals concerned with 'development' in the narrow sense of that term; that is, the sub-clause is not concerned with approvals that concern the 'use' of land, only with its 'development'.
That is evident in the contrast between the language used in each of cl 22(1)(a) and cl 22(1)(b) - the former refers to the 'continued use of the land' while the latter speaks of the 'carrying out of development'.
While the term 'development' is defined in s 4 of the P&D Act to mean 'development or use of any land …', the law in this State has long recognised that, depending on the context, the term 'development' may be used in a narrow sense to mean 'activities which result in some physical alteration to the land'.[37]
[37] University of Western Australia v City of Subiaco (1980) 52 LGRA 360, 363 - 364.
Similar provisions to cl 22(1)(b) of LPS2 have previously been held by the Court of Appeal to reflect that distinction.[38] The Chief Justice in Smargiassi reached the same view.[39] Accordingly, the same result must follow here.

The Use of the Land as a Service Station Has Not Been Discontinued

[38] Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; (2020) 243 LGERA 89 (IVO Nominees), [38] - [44].

[39] Smargiassi, [146] - [147].

As noted above, the respondent's case is that the use of the Land as a service station was 'discontinued' when OTR fenced the Land in late 2021 because that was the time when the physical activities associated with the use of the Land as a service station ceased.[40]
[40] ts 109 - 110, 22 July 2025.
I disagree for the following three reasons.
First, the law in this State is quite clear that 'discontinuance' is not to be determined by simply asking whether activities on the relevant land have ceased.
Second, and as an expansion of the first point, the subjective intention of the relevant landowner is relevant to (although not determinative) of the question whether a particular land use has been discontinued.
Third, OTR's subjective intention, as evidenced by its actions, was at all relevant times, and remains, that the Land is to be used for the purposes of a service station.
I will address these matters in turn.

Discontinuance is not Merely a Cessation of Activities

In Smargiassi, Quinlan CJ was concerned with provisions from two Shire of Collie planning schemes - cl 4.10 of TPS5 and cl 22 of TPS6. The terms of cl 22 of TPS6 were identical to those of cl 22 of LPS2 in the present case.[41] The terms of cl 4.10 of TPS5 were different but his Honour dealt with the two provisions together, saying:[42]
In accordance with both cl 4.10 of TPS 5 and cl 22 of TPS 6, and as recognised in the chapeau of paragraph 16 of the Statement of Claim, a non-conforming use will cease to be lawful if it has been discontinued for six months or more. In that context a use will not be 'discontinued' simply because it is 'marked by some interruptions or breaks which are not of such a kind to bring about a termination or abandonment of the use'. Whether a use has 'continued', and conversely whether it has been 'discontinued', is therefore a question of fact and degree that must have regard to the practical realities of the use of land and to the context and purpose of planning controls.
[41] Smargiassi, [46].
[42] Smargiassi, [360].
The quote in the middle of the above passage is from Banool,[43] which concerned the proper construction of s 309(2) of the Local Government Act 1919 (NSW). That section provided as follows:
Nothing in this section shall preclude the continuance of the use of any building for any purpose for which the same was used immediately before the date of the proclamation aforesaid, or the alteration, enlargement, rebuilding or extension of any building used for any such purpose whether or not such alteration, enlargement, rebuilding, or extension involve the use of adjoining land which immediately before the date of the proclamation was in the same ownership or for such other purpose as the council thinks reasonable in the circumstances.
[43] Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 (Banool), 144.
Mason J, with whom the rest of the Court (Barwick CJ, McTiernan and Gibbs JJ) agreed, held:
The expression 'the continuance of the use' in its natural and ordinary sense may be conveniently rendered as 'the continued use'. So understood the expression connotes neither a use which is commenced afresh after prior termination or abandonment, nor a continuity of use which is necessarily uninterrupted or unbroken. Rather does it suggest a use which is still continuing, notwithstanding that it may be marked by some interruptions or breaks which are not of such a kind to bring about a termination or abandonment of the use.
…
Confirmation for this view is, I think, to be found in the nature and character of the sub-section. It makes lawful a use which would otherwise be a breach of the general prohibition made in the public interest. It mitigates the impact of the prohibition in relation to the use to which premises are put at the relevant date. But there is no apparent policy consideration which would serve to explain why there should be any relaxation of the general prohibition in favour of those who at some future date, long after the earlier use terminated, propose to commence afresh the use to which the premises were put at the relevant date.
Given the identical terms of cl 22 with the relevant provision in TPS6 in Smargiassi, I consider myself bound to reject the respondent's submission that 'discontinuance' occurs upon the physical cessation of activities.[44]
[44] Although not binding on me, the decision of Senior Member Willey in Warr and Town of Cambridge [2020] WASAT 126 (Warr), [100] is to the same effect.
But, in any event, I respectfully agree with the conclusion and reasons given by his Honour, which are consistent with and apply longaccepted principles and authority.
As such, the question whether a land use has been discontinued is not to be considered by reference only to whether relevant physical activities have ceased to be carried out on the land.
Rather, whether a use has been discontinued is a question of fact and degree and regard must be had to all of the facts and circumstances, including 'to the practical realities of the use of land and to the context and purpose of planning controls'.[45]

Subjective Intention is Relevant to the Question whether Discontinuance has Occurred

[45] Smargiassi, [360].

A necessary corollary of the respondent's submission that 'discontinuance' for the purposes of cl 22(2)(a) of LPS2 occurs when there is a cessation of activities on the Land, is that the subjective intention of the occupier of the land is irrelevant to the question.
The respondent's written submissions made that proposition explicit, saying that construing cl 22(2) such that discontinuance occurs when there is a cessation of activity 'focusses on and adheres to the statutory text, in which the concepts of abandonment and intention are absent. It avoids the very practical problems which could exist if intention (including subjective intention) was required to be divined …'[46]
[46] Respondent's Submissions, para 34.
In contrast, OTR says that 'discontinued' in cl 22(2) 'must require abandonment of the use, in that there is no relevant intention to continue the use …'.[47]
[47] Applicant's Outline, para 49.
In my view OTR's submission should be accepted.
I have already referred to the High Court's decision in Banool (above).
That case concerned an application for approval to demolish buildings across four lots, one of which had existing use rights as a service station. It was proposed to develop the lots with new buildings, one of which was proposed to be used as a service station. The local government refused building permission on grounds that included that the proposed buildings could not be used for their proposed purposes. Banool sought declarations that they could.
Having determined the meaning of the 'continuance of the use' (as described above), Mason J then applied that meaning to the facts in relation to each of the four lots. The local government submitted that, as the service station had not been used for the four years since Banool had applied for building permission, the use had been abandoned. The Court (per Mason J) rejected that submission, saying:[48]
It is plain enough that the respondent has at all times intended that the premises should be used as a service station and for car parking and that the only reason why that intention has not been executed is that the Council refused to grant the application and that litigation has ensued. In the circumstances the lapse of time, since the premises were last used as a motor garage, although considerable, is not enough to warrant the conclusion that the existing use was abandoned or terminated.
[48] Banool, 149.
The principle implicit in this passage - that intention is relevant to the question whether a use of land has been discontinued - has been applied several times since then, in several jurisdictions and across different legislative provisions.[49]
[49] See, for example, Woolahra MC v TAJJ Investments Pty Ltd (1982) 49 LGRA 123, 125; Hudak v Waverley MC (1990) 70 LGRA 130, 136 -137; Leeming v Port Adelaide CC [No 2] (1987) 62 LGRA 277, 292; It is to be contrasted with the relevance of intention when determining whether land was, at the time when the planning scheme took effect, actually being used: Rosenblum v Brisbane CC (1957) 98 CLR 35, 45; R v City of Oakleigh; Ex parte New Gamble Brickworks Pty Ltd (1962) 9 LGRA 258, 264 - 265.
The respondent's case is to the effect that those cases were concerned with different statutory provisions and that focus must be given to the particular language used in cl 22(2); that is, 'discontinued'. Moreover, it submits that having regard to intention will result in considerable uncertainty which its preferred approach - the sole focus on when the physical activities ceased - avoids.

To the extent that that submission seeks to draw a distinction between cases concerning statutory regimes different to the regime in this State, I disagree.
As I have said, Quinlan CJ in Smargiassi was dealing with two planning schemes, the relevant provisions of one of which was identical to cl 22 of LPS2.[50]
[50] As noted above, the decision in Warr, [100] - [102] is also to the same effect.
At para [145] his Honour distinguished between existing use rights associated with a development approval, which he said cannot be abandoned, and 'non‑conforming rights', which he said 'can be abandoned'.[51]
[51] Smargiassi, [145]. Emphasis in the original.
That footnote associated with that last proposition is a reference to Dr Willey's learned text Planning and Environmental Law in Western Australia.[52]
[52] S Willey, Planning and Environmental Law in Western Australia, 2021, LawBook; see, also, Senior Member Willey's discussion of the issue in Warr, [104] - [123].
That footnote cites para [15.20] but that is clearly a typographical error. It is almost certainly intended to be a reference to para [15.210]. In both that and para [15.90], which are mutually cross-referenced, Dr Willey discusses abandonment and discontinuance. In both paragraphs he describes the relevant inquiry as being first, how the premises are being used in fact and, second, if the premises are not being used, 'whether there is a relevant intention to continue the use in fact which once was used in fact'.
The proposition that subjective intention is relevant to the question of discontinuance is entirely consistent with the broader principle, stated above at para [81], that discontinuance is a question of fact and degree, and that interruptions or breaks short of abandonment will not amount to a discontinuance.
In my view, Quinlan CJ's referencing of Dr Willey's text at para [145] of Smargiassi is authority for that proposition and, with respect, I agree.
It may be that the respondent's criticism of the test as enunciated has some strength and a test for discontinuance that is concerned only with physical activities would result in greater certainty than the current test. But in circumstances where I am satisfied that the law is clear, it is not my task to consider its suitability.

Any Discontinuance of the Use of the Land as a Service Station Could Not Begin Prior to the Gazettal of Am 12

As I have previously stated, Am 12 was gazetted on 18 February 2024. From that date, the use of the Land as a service station, which had previously been lawful pursuant to the 2002 DA, became prohibited.
OTR submitted that it was on that date, due to the gazettal of Am 12, that the use of the Land as a service station became a 'nonconforming use', being the term used in cl 22(2)(a), and as defined in s 172 of the P&D Act.
OTR further submitted that, until the use became non-conforming, it could not be discontinued pursuant to cl 22(2)(b). That is, OTR submitted that any period of discontinuance can only begin after the use in question becomes non-conforming.
The respondent's position is quite different. It submitted was that a six-month period of discontinuance relevant to cl 22(2) could begin at any time, including a time when the use of the Land was lawful under the 2002 DA.
Indeed, the respondent submitted that the discontinuance in the present case began in late 2021,[53] so that it had already been in effect for well over six months prior to the gazettal of Am 12 in February 2024. As I understand the submission, the result of the respondent's preferred construction of cl 22(2)(a) is that cl 22(1)(a) never took effect at all.
[53] Respondent's Submissions, paras 38 - 39.
In my view, the respondent's submission should be rejected and OTR's submission should be accepted.
To allow a period of discontinuance to begin while the 2002 DA continued to have effect would be contrary to the well established principle that a planning permission, such as the 2002 DA, cannot be abandoned.
In Nehme, Handley JA, with whom the other judges agreed, having considered both UK and Victorian authority,[54] held:[55]
there is no general principle of planning law in this State that a valid consent which has not lapsed and is capable of being implemented can be extinguished by abandonment. … On the contrary, subject to the express provisions of the Act, such a consent remains in force indefinitely.
[54] Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132; Park Street Properties v South Melbourne City Council [1990] VR 545.
[55] Nehme, [24].
That passage immediately precedes those paragraphs which Quinlan CJ quoted and relied upon in the passages from Smargiassi referred to above, at para [63].
Later in Smargiassi, Quinlan CJ said this:[56]
144… For completeness I would also observe that the distinction sought to be drawn by the plaintiff in this case between 'existing use rights' and 'non-conforming use rights' was misconceived. As Dr Willey noted, '[t]he concept of "existing use rights", in the context of planning law, can be somewhat confusing'. Indeed it can. … In some contexts, 'existing use' is simply a synonym for 'non-conforming use'. In another, different, sense 'existing use rights' refers to rights based on an existing development approval, notwithstanding that there has been a 'change in land use' that is 'within the scope of what is currently permitted' by that approval. In that context, the notion that a development approval cannot be abandoned makes obvious sense.
145Nevertheless, and at the risk of labouring the point, that is not this case. In this case, for the reasons I have explained, the 2006 Approval was not an 'existing development approval' after the commencement of TPS 5. From that point in time, there was, relevantly, no development approval that could be 'abandoned'. As stated in Auburn Council v Nehme at [29], '[t]here is … nothing in the speech of Lord Scarman in Pioneer Aggregates which deals with the continuing effect of a consent under a planning instrument after its repeal'. Non-conforming use rights, of course, can be abandoned, as they depend for their continued vitality on the actual use of the land in question.
[56] Smargiassi, [144] - [145]. Citations omitted.
For the reasons set out above at paras [62] - [68], the 2002 DA continued to have effect after the revocation of TPS1 by the gazettal of LPS2 in 2018.
Accordingly, in my view, the 2002 DA could not be abandoned by OTR until the gazettal of Am 12 on 24 February 2024 when the use of the Land as a service station became non-conforming. As such, the fact that there were no activities carried out on the Land consistent with its use as a service station between late 2018 and 24 February 2024 is not relevant to the question of discontinuance.

The Use of the Land for the Purpose of a Service Station Was Not Discontinued for At Least Six Months after 24 February 2024

The relevant evidence in this regard is that of Mr Pomario, Mr Caspar and Mr Hidding.
I have previously detailed some of Mr Pomario's evidence. He is the CEO of PC Infrastructure Pty Ltd, which is a member of the Peregrine group of companies and 'is a design, development and project management company'. OTR is also a member of the Peregrine group of companies. [57]
[57] Exhibit 3, paras 2, 7 and 11.
His evidence includes that:
(a)OTR was 'established as a special purpose vehicle to hold … [the Land] … and to act as the proponent in respect of any approvals required to continue operating the … [Land] as a service station';[58]
(b)OTR's purpose in purchasing the Land and the Adjoining Lot was 'to redevelop it into a OTR service station and thereby continue the existing service station operation through an OTR service station, not as a Wesco fuel station';[59]
(c)It was 'identified' in the 'environmental due diligence that the [Land's] existing fuel system was in need of replacement';[60] and
(d)He has 'maintained responsibility for the management and proposed development of the [Land]'.[61]
[58] Exhibit 3, para 13.
[59] Exhibit 3, para 27.
[60] Exhibit 3, para 28.
[61] Exhibit 3, para 30.
Mr Caspar's evidence is that he is also employed by PC Infrastructure Pty Ltd and holds the position of General Manager - Planning.
Mr Caspar's evidence is that he instructed Mr Hidding 'on or about 3 December 2021' to prepare and lodge an application with the relevant development assessment panel (DAP Application) …'.
At the hearing I gave leave for Mr Caspar to give evidence that went beyond the scope of his witness statement. Specifically, he was asked questions as to the nature of the DAP Application.
He said that the DAP Application was for the demolition of the buildings on the Land as well as the existing dwelling on the Adjacent Lot and for the redevelopment of both lots as 'an entirely new service station and convenience store'.[62]
[62] ts 13, 22 July 2025. The DAP Application was subsequently amended to limit its scope to the Land only - see below at [148].
He was taken to a copy of the refusal of the DAP Application.[63] The formal notice of refusal states that the application was lodged with the Development Assessment Panel (DAP) on 6 September 2022, was refused at a meeting of the DAP on 3 May 2023 and that notice of that refusal was given by letter dated 9 May 2023.
[63] Exhibit 6, pages 749 - 762.
It was common ground that OTR lodged an application for review of the refusal of the DAP Application on 31 May 2023 (DR 81 of 2023).[64] Although the parties have sought to mediate that matter, it remains unresolved.[65]
[64] ts 15 - 16, 22 July 2025.
[65] ts 16, 22 July 2025.
Mr Hidding's evidence was that a 'pre-lodgement meeting' for the DAP Application occurred with the City of Vincent on 20 September 2021, that he lodged the DAP Application on 25 July 2022 and it was accepted by the DAP on 9 September 2022.[66]
[66] Exhibit 4, paras 14 and 15.
Mr Pomario's witness statement said that following the refusal of the DAP Application he instructed an in-house architect to 'undertake a detailed inspection of the existing improvements' on the Land for the purposes of assessing the condition of those structures with a view to OTR operating a service station business on the Land pending review of that refusal.[67]
[67] Exhibit 3, paras 32 - 33.
Mr Caspar's evidence was that, following the refusal of the DAP Application, OTR became aware that LPS2 had been amended to prohibit the service station use on the Land and that to protect against the possibility that its application for review of the refusal of the DAP Application may not succeed, OTR 'wanted to have at least the possibility of using the existing improvements to continue to exercise the right to sell fuel from that location'.[68]
[68] ts 16, 22 July 2025.
Mr Caspar's evidence was that he instructed Mr Hidding to prepare and lodge an application for development approval 'to renovate the existing improvements on the … Land' in accordance with the asserted non‑conforming use.[69] That application was lodged on 15 August 2023.[70]
[69] Exhibit 11, para 17.
[70] Exhibit 6, page 13.
He described the application as follows:
Save for the rear existing shed which is proposed to be demolished and replaced with two staff car-parking bays to be accessed from the rear lane, I did not instruct Nik Hidding to seek approval by way of the Application to demolish the existing improvements on the Subject Land.
Each of the works the subject of the Application are for the purpose of maintaining the existing structures or to repair the existing structures on the Subject Land. The works the subject of the Application are not to alter the essential nature of the Subject Land as a service station but are to bring the site into accordance with contemporary design standards for the storage and sale of fuel by the OTR brand.
Mr Hidding's evidence was to the same effect, saying that the application was 'limited to works on the [Land] aimed at improving the existing structures on the [Land] to enable the service station to recommence trading …'.[71]
[71] Exhibit 4, para 18.
As he notes, the cover letter to the application is also to the same effect. It states that the 'proposed refurbishment works are aimed at improving the existing development, which is currently in a poor state, and will enable the service station to recommence trading …'.[72]
[72] Exhibit 6, page 14.
The application was refused at the respondent's meeting of 20 August 2024 and notice of that refusal was given by letter dated 26 August 2024. OTR sought review of that refusal by application lodged 13 September 2024.
In my view the preceding evidence very clearly demonstrates that:
(a)The subjective intention of those controlling OTR was that the Land would be, and was, purchased for use as a service station;
(b)That subjective intention was promptly put into effect by engaging Mr Hidding in December 2021;
(c)Although there is some period of about eight months between his engagement and the lodgement of the DAP Application in July 2022, there is nothing to suggest that anything occurred during that period other than that Mr Hidding worked, presumably with others, such as architects and officers or employees of OTR, on the preparation and lodgement of the DAP Application;
(d)The DAP Application, while it proposed the demolition of the buildings on the Land, anticipated the ongoing use of the Land as a service station, albeit one with a modern offering;
(e)OTR (and Mr Hidding) also acted promptly following the refusal of the DAP Application in May 2023 to both seek review of that refusal (in the same month) and to lodge a new/further application with the respondent for the approval of works in August 2023; and
(f)Equally, OTR and Mr Hidding acted promptly to seek review of the refusal by the respondent in August 2024 of the application for development approval of the works.
In short, while there have been no physical activities on the Land consistent with its use as a service station since late 2021, OTR has throughout maintained a subjective intention to recommence those activities and, significantly, has acted promptly and consistently with that intention.
Further, for most of the relevant time period, OTR was either waiting for the DAP to make a decision (July 2022 to May 2023), waiting for the respondent to make a decision (August 2023 to August 2024) or was the applicant for review of one or both of those decisions in this Tribunal.
The only possible exception to the above summary concerns the period between December 2021, when Mr Hidding was engaged, and July 2022, when he lodged the DAP Application. There is no evidence before me as to what occurred in that period, which cannot be described as brief.
In my view, that absence of evidence does not allow me to infer that the use of the land as a service station was discontinued at any time but, even if it did, I consider it most unlikely that any such discontinuance was for more than six months, given the total period between December 2021 and July 2022 is only about eight months.
In short, even if I accepted the respondent's submission that discontinuance might commence at any time (which I have previously rejected), I am satisfied that there has not been a period of discontinuance of more than six months.
If I am correct, and any discontinuance could not commence until 24 February 2024, I find that there has not been any period of discontinuance at all because, by that date, OTR had two applications before the Tribunal, both of which sought approval for works which would re-establish the use of the Land as a service station.
Consistent with the passage in Banool, that should be seen as evidence demonstrating intention and time should not, therefore, run against OTR in those circumstances.

Conclusion as to Issue 1

For the above reasons, I am satisfied that the Land has the benefit of non-conforming use rights for use as a service station.

Issue 2

Implicit in Issue 2 is an anterior question as to whether cl 60 of the deemed provisions prevails over cl 23 of LPS2 to the extent that they are inconsistent, as per s 257B(3) of the P&D Act.
Both parties made submissions in this regard; OTR submits that cl 60 prevails over cl 23 and the respondent submits that it does not. It is fair to say that the interaction of those two provisions (and cl 61 of the deemed provisions and cl 22 of LPS2) is far from straightforward.
However, it is not necessary for me to resolve that issue because, regardless of which provision applies, the answer is the same - development approval is required.

The Proposed Works

The evidence is that OTR seeks to carry out quite considerable works on the buildings and structures currently built on the Land. In that regard, no one suggested that what is proposed does not amount to 'works' as that term is defined by cl 1 of the deemed provisions.
Mr Hidding's cover letter of 14 August 2023 describes those works as to the following effect:[73]
[73] Exhibit 6, page 14.
(a)New entry doors and new shopfront windows in place of existing roller doors;
(b)The replacement of the fuel canopy;
(c)The filling in of the existing roller door that opens up onto Woodville Street;
(d)The filling in of the existing window on the southern elevation that opens onto the right of way;
(e)Replacement of fuel bowsers and underground fuel tanks;
(f)The demolition of the rear shed;
(g)The replacement of an existing pylon sign;
(h)The installation of a new 2.1m high 'refuse enclosure'; and
(i)The creation of five customer car parking bays.
Although the original plans submitted on 14 August 2023 were subsequently amended to remove the Adjacent Lot from the scope of the plans,[74] the description of each of the items of works remains unaltered.

The Maintenance and Repair Exception to cl 60 of the Deemed Provisions Does Not Apply

[74] Exhibit 6, page 34; ts 41 - 43, 22 July 2025.

It is OTR's case that while cl 60 of the deemed provisions prevails over cl 23 of LPS2, Item 16 of the Table to cl 61 of the deemed provisions applies,[75] which excludes the need to obtain development approval for 'maintenance and repair works'.[76]
[75] Applicant's Outline, paras 71 - 75.
[76] Item 16 provides an exclusion to the exception for approval where heritage issues arise. There was no suggestion that the exclusion applies here.
The phrase 'maintenance and repair works' is defined by cl 1 of the deemed provisions as follows:
maintenance and repair works means works that —
(a)are carried out to maintain or repair any building, structure or land or otherwise to prevent any building, structure or land from deteriorating or falling into a state of disrepair; and
(b)do not result in any material alteration to the building, structure or land, including any material alteration to the materials used in or on, or the design or specifications of, the building, structure or land;
That definition leaves undefined the meaning of the terms 'maintain' and 'repair'. The ordinary meaning of both terms involves the continued existence of whatever it is that is being maintained or repaired in a state that remains fundamentally unaltered.
So, for example, the Macquarie Dictionary Online defines 'maintain' as 'to keep in existence or continuance; preserve; retain', 'to keep in due condition, operation, or force; keep unimpaired', 'to keep in a specified state, position, etc'.
It defines 'repair' as 'to restore to a good or sound condition after decay or damage; mend', 'to restore or renew by any process of making good, strengthening, etc.' and 'to remedy; make good; make up for'.
Those meanings are consistent with para (b) of the definition which excludes 'material alteration' from the scope of works included in the defined term.
While, perhaps, the bricking in of an opening in the building, or the modification of existing windows to a shopfront, might not amount to a 'material alteration' in and of itself, in my view the proposed works must be considered together and not piecemeal.[77] When that is done the works, in my view, amount to a material alteration.
[77] Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; (1980) 44 LGRA 346 per Stephen J; Stewart and Town of Cottesloe [2019] WASAT 100; Point Grey Development Company Pty Ltd and Shire of Murray [2019] WASAT 106, [139] - [142].

In any event, Mr Hidding's letter makes clear that several significant individual elements will be replaced wholesale, including the canopy, the fuel bowsers, the underground storage tanks and the existing pylon sign.
The replacement of those items, which in the case of the underground storage tanks and associated pipework will need to be dug up first, cannot be described as either maintenance or repair.
As to the underground storage tanks, it is self-evident that their removal will be a very considerable task, involving significant excavation works.[78] To replace the entire system of fuel delivery is fundamentally different to maintaining or repairing it. Further, the plans show that both the new bowsers and the new underground tanks will be in different locations to those that they will replace.
[78] That such excavation will be filled in and covered over does not mean that they do not amount to 'development' - OMSB Pty Ltd and Shire of Ashburton [2025] WASAT 24, [294] - [295].
The proposed works also include the erection of a new refuse enclosure. Plainly, that is neither maintenance or repair.
For these reasons, I find that the proposed works do not satisfy the definition of 'maintenance and repair works' and, therefore, do not fall within the category of exempt works provided by Item 16 of the Table to cl 61(1) of the deemed provisions.

Approval is Required under cl 23(1)(b) of LPS2

OTR's alternative submission (i.e. if cl 60 of the deemed provisions does not apply) is that none of the paragraphs to cl 23(1) of LPS2 apply to the proposed works.[79]
[79] Applicant's Outline, para 76.
For convenience' sake, I again set out cl 23(1) below:
(1)A person must not, without development approval -
(a)alter or extend a non-conforming use of land; or
(b)erect, alter or extend a building used for, or in conjunction with, a nonconforming use of land; or
(c)repair, rebuild, alter or extend a building used for a nonconforming use that is destroyed to the extent of 75% or more of its value; or
(d)change the use of land from a non-conforming use to another use that is not permitted by the Scheme.
I agree with OTR[80] that cl 23(1)(a) and cl 23(1)(d) of LPS2 do not apply, as they are concerned with the use of land, rather than its development in the narrow sense (as to which, see above at [69] to [74]).
[80] Applicant's Outline, paras 80 - 83 and 95 - 97.
I am, however, contrary to OTR's case,[81] satisfied that cl 23(1)(b) applies because the proposed works amount to (amongst other things) the alteration of a building used for or in conjunction with a nonconforming use of the Land.
[81] Applicant's Outline, paras 88 - 89.
In particular, cl 23(1)(b) requires approval for the 'alteration' of a building used for, or in conjunction with, a non-conforming use.
I note the contrast between the use of the term 'alteration' in cl 23(1)(b) of LPS2 and that of 'material alteration' in the definition of 'maintenance and repair works' in cl 1 of the deemed provisions.
I have previously found that the proposed works to the building are such as to amount to the 'material alteration' of the building. As such, they necessarily amount to its 'alteration'.
As to other works that are not concerned with the alteration of a 'building', such as the removal of the bowsers and underground storage tanks, it is my view that approval is also required.
That follows necessarily from the Court of Appeal's decision in IVO Nominees. It held that the protection given by a clause in similar terms to cl 22(1)(a) of LPS2 was limited to the protection of the nonconforming use, and any such protection did not extend to development done pursuant to such use. As such, the Court held that the clearing of trees for the purpose of the non-conforming use (rural pursuit) required approval and, in the absence of such approval, it amounted to an offence such that IVO's convictions were upheld.
In doing so, the Court noted that 'a number of cases have recognised the distinction between use and development in construing a non-conforming use clause as protecting use, but not extending to the carrying out of development'.[82]
[82] IVO Nominees [46], citing Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448 448 - 449; 34 LGRA 151, 152 -153; Aquatic Airways Pty Ltd v Warringah ShireCouncil(1990) 71 LGRA 10, 17 - 19; Calvary Health Care Tasmania Inc v Hobart City Council (2006) 15 Tas R 271; 144 LGERA 107, [15] - [20]; Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council (2001) 117 LGERA 43, [17] - [24].
I have no doubt that the works associated with the removal and replacement of the bowsers, underground storage tanks and associated pipes amount to both works and development. They will be considerable and will result in a 'physical alteration of the land', including that the bowsers will be in a different location to the current situation. Those works therefore require development approval.
Having so found, it is unnecessary to address the question of the application or otherwise of cl 23(1)(c).
Given that, it is tempting to avoid making findings about that clause, which has several inter-related difficulties with it.
However, in the event that I am held to be wrong about the application of cl 23(1)(b), it is useful to make such findings as are necessary to dispose of this question.
To that end, I find that the clause does not apply because I am not satisfied that the building the subject of (some of) the proposed works has been 'destroyed', whether to 75% of its value or otherwise.
I am of that view because, in my view, the term 'destroyed' (and its cognate verb 'destroy') is concerned with positive action or activity, rather than being the result of neglect over a period of time.
I accept that, in some cases, the result of a long period of neglect might be said to be the 'destruction' of a building but, in my view, that is not anticipated by the clause.
In any event, I am also not satisfied that the building the subject of some of the proposed works has been 'destroyed' in any material sense. Certainly, it has been neglected and shows the effect of that neglect but the evidence before me is to the effect that the building is structurally sound.[83]
[83] Witness Statement of Oliver William Nelson, dated 9 June 2025 and filed 17 June 2025 (Exhibit 5).
Mr Garmony's evidence was to the effect that the improvements add no value to that of the Land.[84] That may be so, but I do not accept that demonstrates that the buildings have been 'destroyed', it merely reflects their value.
[84] Witness Statement of Matthew John Garmony, dated 30 May 2025 and filed 3 June 2025 (Exhibit 8).
For these reasons, I am satisfied that cl 23(1)(c) does not apply to the proposed works such that development approval is required for them.
However, as I have previously found, approval is required by cl 23(1)(b) for works to the building and approval is otherwise required for the other proposed works such as the removal and replacement of the bowsers and associated underground storage tanks and pipework.

Conclusion as to Issue 2

For these reasons, the proposed works require approval.
Accordingly, the matter should be listed for directions to allow it to be programmed through to a hearing.

Orders

The Tribunal finds that:
(a)The land at 41 - 43 Angove Street, North Perth has the benefit of non-conforming use rights for use as a service station.
(b)The proposed works the subject of the application require development approval.

The Tribunal orders:
1.The matter is listed for directions before Senior Member Willey on Friday, 14 November 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FA
Associate to the Deputy President Judge Jackson
24 OCTOBER 2025