Pro-Star SVC STN v Petrol Prod Outlets Board & Ors No. Scgrg-98-261 Judgment No. S6704

[1998] SASC 6704

PRO-STAR SERVICE STATION PTY LTD v PETROLEUM PRODUCTS RETAIL OUTLETS BOARD, CITY OF SALISBURY AND MOBIL OIL AUSTRALIA LIMITED

Matheson J

The third defendant, Mobil Oil Australia Limited (“Mobil”), applied to the second defendant, City of Salisbury (“the Council”), for Provisional Development Planning Consent for what it described in its application as “Petrol Filling Station + Shop” on land at the junction of Globe Derby Drive and Port Wakefield Road, Bolivar, being land within Allotment 23FP114584 (“the subject land”).  It is located within the Recreation Zone in the Council’s Development Plan.  The Council was required by Regulation 16 of the Development Regulations 1993 (“the Regulations”) to determine the nature of the proposed development. It decided to assign to the application a category called a “Category 1 development”. In this connection, it is necessary to refer to s38 of the Development Act 1993 (“the Act”). So far as material, it reads:

“       38. (1)  There will be three categories of development for the purposes of this section -

(a) .. Category 1 development;  and

(b) .. Category 2 development;  and

(c) .. Category 3 development.

(2)  ... the following provisions apply in relation to the assignment of developments to those categories:

(a).... the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan, the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail within the area to which the Development Plan relates;  and

(b)... any development that is not assigned to a category under paragraph (a) will be taken to be a Category 3 development for the purposes of this section.

(3) - (4) ...

(5)  Where a person applies for a development assessment of a Category 3 development, notice of the application must be given, in accordance with the regulations, to -

(a).... the persons referred to in subsection (4);  and

(b)... any other owner or occupier of land which, according to the determination of the relevant authority, would be directly affected to a significant degree by the development if it were to proceed;  and

(c)... the public generally.

(6) ...

(7) Where notice of an application for consent in respect of a Category 2 or Category 3 development has been given under this section, any person who desires to do so may, in accordance with the regulations, make representations in writing to the relevant authority in relation to the granting or refusal of consent.

(8) - (9) ...

(10) In addition to the requirements of subsections (7), (8) and (9) -

(a).... ...

(b).. in the case of a Category 3 development - the relevant authority must allow a person who made a representation and who, as part of that representation, indicated an interest in appearing before the authority, a reasonable opportunity to appear personally or by representative before it to be heard in support of the representation.

(11) ...

(12) Where representations have been made under this section, the relevant authority must -

(a).... give to each person who made a representation notice of its decision on the application and of the date of the decision and, in the case of a Category 3 development, of the person’s appeal rights under this Act; and

(b)... in the case of a Category 3 development - give notice to the Court -

(i).... of its decision on the application and of the date of the decision; and

(ii)... of the names and addresses of persons who made representations to the relevant authority under this section.

(13) - (16) ...”  (My emphasis.)

Section 86(1)(b) of the Act provides that a person who is entitled to be given a notice of the decision in respect of a Category 3 development under s38 may appeal to the court against that decision (subject to the limitations imposed by that section).

The Council gave Mobil Provisional Development Consent to the proposed development subject to 24 conditions.

The plaintiff operates a service station known as “Caltex Bolivar” at Lot 7 Port Wakefield Road, Bolivar, approximately 3 kms north of the subject land. It contends that the proposed development should have been categorised as a Category 3 development.  The plaintiff has now applied for an order in the nature of certiorari to remove the Council’s decision into this court to be quashed, and for other relief.

For completeness, I also set out Regulation 16:

"16. (1) If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination.

(2) If the relevant authority is of the opinion that an application relates to a kind of development that is described as non-complying under the relevant Development Plan, and the applicant has not identified the development as such, the relevant authority must, by notice in writing, inform the applicant of that fact.”

Regulation 17 also deals with non-complying development.

One of the objectives that applies in the Recreation Zone of the Council’s Development Plan is Objective 6 which includes this passage:

"A petrol filling station incorporating convenience goods shopping may be appropriate to serve the needs of nearby residents and passing motorists.”

Principle 10 of the Zone’s Principles of Development Control states:

"A petrol filling station and associated convenience shop should:

(a)     only be located within Allotment 23 FP 114584;

(b).... not have a gross leasable floor area greater than 300 square metres in total; and

(c).... be designed to provide ingress and egress from Globe Derby Drive only.”

.................. Principle 11 states that Farming and Horticulture (except wholesale nursery) are complying kinds of development in the Zone.  Principle 12 sets out a number of “kinds of development” which it states are non-complying in that Zone, including:

"Restaurant, except additions or alterations to an existing restaurant located within the Globe Derby Park complex.

Shop other than a shop not exceeding 300 square metres incorporated in a petrol filling station.”

Principle 13 states:

"The following kinds of development are listed as Category 1 in the Recreation Zone:

Petrol filling station incorporating a shop having a gross leasable floor area not exceeding 300 square metres within Allotment 23 FP 114584."

Regulation 3(1) of the Regulations provides that in those Regulations and in any Development Plan, the terms set out in Schedule 1 have, unless inconsistent with the context, or unless the contrary intention appears, the respective meanings assigned by that schedule. Relevant definitions included in Schedule 1 are:

A Petrol Filling Station is defined to mean:

":... land used for the purpose of fuelling and servicing motor vehicles (including the sale of goods where the area used for the sale of goods is not greater than 50m2), but does not include a Motor Repair Station.”

.................. A Motor Repair Station is defined to mean:

"... any land or building used for carrying out repairs (other than panel beating or spray painting) to motor vehicles.”

A Shop is defined to mean:

"(a) ...

(b)     A restaurant; or ...

(c) - (d) ...

but does not include:

(e) - (h) ...

(i)     A Petrol Filling Station.’

(j) - (m) ...”

A restaurant is defined to mean:

"... land used primarily for the consumption of meals on the site.”

Site is defined to mean:

"... the area of land on which a building is built, or proposed to be built, including the curtilage of the building, or in the case of a building comprising more than one separate occupancy, the area of land on which each occupancy is built, or proposed to be built, together with its curtilage.”

Amongst the affidavits admitted by me was one from Alexander Grabkowski who deposed as follows:

"1....... I have been actively involved in the proposal by Mobil Oil Australia Limited (‘Mobil’) to develop a petrol filling station at premises located at the Corner of Globe Derby Drive and Port Wakefield Road, Globe Derby (‘the site’).

2...... I am authorised by Mobil to swear the within affidavit on its behalf.

3...... The site provides for the following:

......... 3.1    a bowser area under the canopy;

......... 3.2    a separate diesel fuelling area for trucks;

......... 3.3    a sales room including office and store room; and

......... 3.4    a McDonald’s.

4...... There will be four multi-purpose product pumps under the canopy plus one diesel auto LPG dispenser and one single LPG dispenser.

5...... In addition the site will provide air, oil, water and window cleaning materials for motor vehicles attending the site.

6...... The site will trade 24 hours a day.

7...... The sales room will sell a full range of Quix convenience store items and auto accessories and spare parts.

8...... In addition the site will provide:

......... 8.1    an emergency phone;

......... 8.2    police and emergency services contacts;

......... 8.3    public telephone;

......... 8.4    automatic teller machine;

......... 8.5    Australia Post Box;

......... 8.6    and public toilets.”

The affidavit of the Council’s Development Officer Planning, George Pantelos, was also admitted.  He deposed, inter alia, as follows:

"4....... Before the development application was lodged with the Council on the 26th day of November 1997, I had had several discussions with the agent for the third defendant, Mobil Oil Australia Limited, in relation to the proposed development which was to be the subject of the development application.

5...... As part of the preliminary discussions referred to in paragraph 4, I was supplied with a draft floor plan of the proposed development which incorporated, amongst other things, a McDonald’s outlet with drive-through (‘the McDonald’s component).  A restaurant is a form of development within the Recreation Zone designated as non-complying by virtue of Principle of Development Control 12 for the Zone.

6...... The agent for the third defendant advised me that the McDonald’s component would sell food that was mostly consumed off-site. I advised the agent that the McDonald’s component of the proposed development would not constitute a restaurant as defined in Schedule 1 to the Development Regulations 1993 but rather a shop if it sold food which is primarily consumed off-site. I suggested that his advice regarding the extent of take away food to be sold at the McDonald’s component of the proposed development be confirmed.

7...... I subsequently received a letter dated the 3rd day of November 1997 from McDonald’s indicating that the take-away trade associated with the McDonald’s component of the proposed development would account for more than half of McDonald’s business.  ...

8...... On the basis of the information referred to in [the letter] I formed the view that the McDonald’s component of the proposed development was one for a shop rather than a restaurant as defined in Schedule 1 to the Development Regulations 1993.”

The letter from McDonald’s referred to in par7 of his affidavit read as follows:

"I have been asked to write to The City of Salisbury concerning the proposed McDonald’s facility contained within the Mobile Service Centre development near the corner of Globe Derby Drive and Port Wakefield Road, Bolivar.

The information I have been asked to supply relates to the take-away and eat-in components of our business.

Specifically I can confirm that for this particular facility we anticipate our take-away trade to account for over 50% of McDonald’s business.  This expectation is derived from the sites location on Port Wakefield Road (A major arterial road leading out of Adelaide to major destinations such as Port Pirie, Port Augusta, Whyalla, Alice Springs and even Perth) which carries the type of customer we expect will purchase the McDonald’s product for consumption whilst travelling.

Should The City of Salisbury require further information we would be happy to assist where possible.”

.................... It is necessary now to focus more precisely on what the agreed plan of the Proposed Development described as the “building areas”.  The total building area was 371 square metres.  The “McDonald’s” area was 184 square metres.  The area occupied by the Mobil salesroom was 85 square metres.  The area of the so-called “common tenancy” which included toilets and restroom was 72 square metres.  There were 8 car parking spaces between the bowser area and the Mobil salesroom, and 26 car parking spaces adjacent to the main entrance to McDonald’s on the eastern side of the building.  Customers wanting “take away” would normally be expected to stop at one of two so-called “order/cash” stops on the western side.  There were 42 seats - each of which was alongside a table - for customers inside the McDonald’s area.

.................... It is necessary also to refer to s35 of the Act which provides:

"35. (1) If a proposed development is of a kind described as a complying development under the regulations or the relevant Development Plan, the development must be granted a provisional development plan consent (subject to such conditions or exceptions as may be prescribed by the regulations or the relevant Development Plan.

(2) Subject to subsection (1), a development that is assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent.

(3) A development that is of a kind described as a non-complying development under the relevant Development Plan must not be granted a provisional development plan consent unless -

(a).... where the relevant authority is the Development Assessment Commission - the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent;

(b)... in any other case - the Development Assessment Commission concurs in the granting of the consent.

(4) If a development is of a kind described as a non-complying development under the relevant Development Plan, no appeal lies against -

(a)     a refusal of consent or concurrence under this section; or

(b)... a condition attached to a consent or approval that is expressed to apply by virtue of that non-compliance under the Development Plan.

except in relation to a proposed development that has, or will, become necessary by reason of -

(c)... a change, or a proposed change, in the law regulating an existing use of land; or

(d)... an order under Division 5 or 6 of Part 6.”

........................... The plaintiff contends first that the proposed development contains a component which is a non-complying kind of development, namely a restaurant, and second, that the Mobil component is not properly to be regarded as a petrol filling station.

........................... Mr Manos strongly criticised the contents of the letter from McDonald’s, supra.  He submitted that there was no firm basis for the statement that take-away trade will account for over 50%.  He asked, rhetorically, what does the 50% relate to - number of meals, number of customers, revenue, number of cash registers, in-house facilities etc?  He pointed out that a very substantial dining area was proposed, and that it was to be serviced by twenty-six car parks.

........................... However, I agree with Mr Besanko QC, counsel for Mobil, that the decision of the Council really involved a question of fact and degree, rather than a question as to the proper interpretation of the Regulations or Development Plan. He referred me to Corporation of the City of Enfield v Development Assessment Commission & Anor (1997) 69 SASR 99. In a judgment with which Doyle CJ and Lander J agreed, Bleby J said at pp118-119:

"          Nevertheless, where planning issues and questions of assessment and judgment are concerned, this Court should give considerable weight to the decision on such matters of a specialist tribunal.  The proper classification of this development as a “special industry” includes a qualitative assessment of the likely effect on occupiers of one piece of land of an activity carried out on another piece of land.  In this regard I adopt, with respect, a dictum of White J in R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400 at 416:

‘It will always be a question of fact and degree as a matter of practical judgment (cf Corporation of City of Noarlunga v Fraser (1986) 42 SASR 450, per White J) whether a particular development falls one side of the line or the other. Normally this question of fact and degree is left to the practical good sense of the planning authority, here the council. Since the rights of notification, representation, and appeal have been completely repealed with respect to these centres, councils should exercise this practical judgment with even more care than hitherto. I think that a court in prerogative proceedings should only be prepared to find, as a matter of fact and degree in its practical judgment, that the development is seriously at variance with the plan when the variance is clearly established. In grey areas of uncertainty, the court would be likely to defer to the practical judgment of the responsible planning authority.’

That case concerned, among other things, whether a decision of a planning authority that a development was “seriously at variance with” the provisions of a development plan was amenable to judicial review.  King CJ said (with which I also agree) at p403:

‘Care will be required on the part of the court, when such an issue comes before it on an application for judicial review, to confine itself to its legitimate role in supervising the legality of the planning process.  The court must ensure that it does not become involved in matters of planning merits which are proper for the consideration of the appellate tribunal but which are not jurisdictional in character.  An alleged serious departure from the plan can be the basis of intervention by the court on judicial review only if the existence and seriousness of the departure can be discerned plainly by the court from the material before it without the necessity of resolving debatable issues relating to planning merits.’

Those passages seem to me, with respect, to encapsulate the proper role of this Court in dealing with judicial review applications which seek to attack the jurisdiction of a planning authority to make a determination which is under challenge, and where the challenge to jurisdiction involves factual and planning issues.”

......... Mr Besanko also pointed out that the definition of “restaurant” refers to the consumption of meals on the site, not to the preparation of meals on the site.  If it was the latter, he conceded that Mobil would fail.

......... I acknowledge that the McDonald’s letter should perhaps have been more comprehensive, and that it is unfortunate that its accuracy has not been tested.  It is true that the decision I have to make is finely poised, but in the end I am not persuaded on judicial review that the Council erred in the planning judgment it formed.

......... Mr Manos submitted in the alternative that if the McDonald’s was not a restaurant, it was a “shop”, but not a shop incorporated in a petrol filling station, because the proposed development did not include a petrol filling station.

The terms ‘Service Station’ and ‘Service Centre’, which were used in the Planning Report prepared on behalf of Mobil and lodged with the application, are not terms recognised by the Development Plan or Schedule 1. At least in 1972 the phrase “service station” was defined in the City of Brisbane Town Plan. It is quoted in Esso Standard Oil (Australia) Ltd v Bennett & Ors (No 2) 27 LGRA 1. I refer to that case solely for the purpose of quoting the definition, and to show how widely those words can be defined, and to show such a station’s potential range of services:

"Any land, building or other structure or any part thereof used only for all or any of the following purposes, namely:-

(a)     The sale by retail of -

(i).... Petrol and automotive distillate or any derivatives therefrom, capable of use in internal combustion engines;

(ii)    Lubricating oils and greases;

(iii).. Batteries and tyres;

(iv)   Accessories and other things associated with vehicles motivated by internal combustion engines;

(v).... Power and lighting kerosene;

(b).... The carrying out of all or any of the following operations, namely:-

(i)     The fitting, removal and exchange of tyres;

(ii)    The repairing of tubes;

(iii)   The supply of air;

(iv)   The charging of batteries;

(v)     The lubrication and greasing of motor vehicles;

(vi)   The adjustment of carburettors;

(vii). The cleaning and adjustment and replacement of spark plugs;

(viii) The receipt of tyres for retreading and other processes and the redelivery thereof;

(ix).. Running repairs of a minor nature and of a type which do not normally immobilise a vehicle for a period longer than two hours; and

(c).... The rendering of minor services incidental to any of the foregoing.”

.................. It is useful to start with the definition of “motor repair” station in the Regulations, supra.  Clearly, the drafter had it in mind premises used for repair of motor vehicles that did not involve any panel beating or spray painting.  The definition does not use the word “service”.  Clearly, too, the words “repair” and “service” are not synonymous.  The New Shorter Oxford English Dictionary defines “repair” as “the action or process of restoring something to unimpaired condition by replacing or fixing worn or damaged parts”.  As Mr Besanko pointed out, changing spark plugs or fixing punctures are repairs, and stations providing these services must be motor repair stations, rather than petrol filling stations.

.................. The same dictionary defines “service” as “provision of a facility to meet the needs or for the use of a person or thing”.  In my opinion, in the context of the definition of “petrol filling station”, the word “service” must encompass the more minor activities such as providing petrol, oil, water and air.  I do not consider that the fact that these services are “self-serve” services relevantly alters their character.

.................. I have reached the conclusion that the proposed development did include a petrol filling station, and fell within the terms of Principle 13, above, and that the Council correctly treated it as a Category 1 kind of development.

.................. The application is dismissed.