West Coast Enterprises Pty Ltd and Shire Of Exmouth

[2007] WASAT 316

WEST COAST ENTERPRISES PTY LTD and SHIRE OF EXMOUTH [2007] WASAT 316

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 316
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:234/2006	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR P McNAB (MEMBER)	Delivered:	13/12/07
No of pages:	20	Judgment Part:	1 of 1
Result:	Application for review allowed
Category:	B
PDF Version

Parties:	WEST COAST ENTERPRISES PTY LTD SHIRE OF EXMOUTH
Catchwords:	Town planning Development application Service station Convenience store Shop Proper characterisation of land use to be applied Dual characterisation Whether proposed retail operation properly a shop permitted as an incidental use in service station definition found in scheme Discussion of the concept of a convenience store Convenience store definition contemplated incidental sale of petrol Whether shop selling convenience items in service station now recognised as ancillary Concern over establishment of supermarket Tribunal determined sole land use as service station with shop Maximum nett lettable area (NLA) prescribed for convenience store but not for shop Construction of scheme Whether condition can and should be imposed limiting NLA Development approved as service station with NLA and other conditions Tribunal guided by maximum NLA fixed for convenience store Application for review allowed
Legislation:	Building Code of Australia 1996 Building Regulations 1989 (WA) Health (Food Hygiene) Regulations 1993 (WA) Local Government Act 1995 (WA) Occupational Safety and Health Regulations 19996 (WA) Planning and Development Act 2005 (WA) Shire of Exmouth Town Planning Scheme No 3, cl 32.4, cl 5.6.1(a), cl 8.3 State Administrative Tribunal Act 2004 (WA), s 31
Case References:	BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110 BP PLC (formerly known as BP AMOCO PLC) v Woolworths Ltd (2004) 212 ALR 79 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Gallway Investments Pty Ltd and City of Rockingham [2006] WASAT 212 Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431 Napoli v City of Stirling [2004] WATPAT 182 Neumann and City of Swan [2007] WASAT 30 Pacific Seven Pty Ltd v City of Knox (1993) 11 AATR 325 Seldan Pty Ltd v Liquor Licensing Commission and Wonga Park Village Supermarket Pty Ltd, (Unreported, Supreme Court of Victoria, 15 May 1990) Shahin v City of Unley (2003) 128 LGERA 308 Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299
Orders	1. The application for review is allowed.,2. The decision under review is set aside and in lieu thereof planning approval is given to the applicant to develop a service station at Lot 8, corner of Murat Road and Nimitz Street, Exmouth in accordance with the amended plans lodged with the Shire upon the following conditions:,(i) Building plans to show building floor levels and levels of driveways and parking areas in relation to the crown of the road adjacent to the site to Australian Height Datum (AHD) in accordance with advice the proponent is to obtain from the Department of Water in relation to flood levels. Such plans to be submitted with the building licence plans.,(ii) Drainage and/or fill of the site to be to the specification and satisfaction of the Shire of Exmouth and such plans to be submitted and approved prior to the issuance of a building licence.,(iii) All fire fighting equipment to be clearly indicated on plans submitted for a building licence.,(iv) All required exit doors and means of egress to be nominated and clearly indicated on the plans submitted for a building licence.,(v) The development shall comply with the Building Code of Australia 1996, Building Regulations 1989 (WA) and the Local Government Act 1995 (WA).,(vi) The applicant is to obtain a building licence prior to commencement of any building works.,(vii) The applicant is to ensure the development is designed in accordance with the Building Regulations 1989 (WA) and the Building Code of Australia 1996 in relation to access for the disabled.,(viii) All signs associated with the development to be to the satisfaction of the Shire of Exmouth and shall be the subject of separate approval by the Shire of Exmouth prior to erection or painting.,(ix) All existing buildings and structures shall be removed from the site. The applicant is requested to liaise with the Shire of Exmouth Building Department with regard to obtaining the necessary demolition licence.,(x) The development shall be carried out in accordance with the details indicated on the submitted sketch plan/working drawings unless otherwise required or agreed in writing by the Shire of Exmouth. All features indicated on the submitted drawings shall be implemented unless otherwise required or agreed in writing by the Shire of Exmouth.,(xi) Vehicle parking, manoeuvring and circulation areas to be suitably constructed sealed, drained, kerbed and marked to the specifications of the Shire of Exmouth.,(xii) Car parking areas and roadways to be a minimum of 86 millimetres below the floor level of all buildings.,(xiii) Parking areas not being used for general storage or any purpose other than the parking of motor vehicles.,(xiv) All uncovered car parking bays have to be a minimum of 5.5 metres by 2.7 metres with a 6 metre wide access way between rows.,(xv) All stormwater from roofed and paved areas shall be collected and disposed on site.,(xvi) Sanitary facilities for staff/employees to be in accordance with the Occupational Safety and Health Regulations 1996 (WA) and the Building Code of Australia 1996.,(xvii) The applicant shall comply with the Health (Food Hygiene) Regulations 1993 (WA).,(xviii) Public toilets shall be provided for restaurants and dining rooms according to the number of seats/tables, and in accordance with the Building Code of Australia 1996 and the Health (Food Hygiene) Regulations 1993 (WA).,(xix) Refuse/bulk bin areas being provided for and shown on the plans submitted for a building licence.,(xx) A landscaping plan submitted to, and approved by, the Shire of Exmouth prior to the issuance of a building licence. The landscaped area is to be fully reticulated.,(xxi) Any further approvals required under a written law from any state government department shall be obtained prior to commencement of the use.,(xxii) A site remediation plan to be submitted with an application for a building licence.,(xxiii) The colour of the building walls and roof to accord with Council's colour palette.,(xxiv) A plan to be lodged to the satisfaction of the Manager of Engineering Services that demonstrates that road train fuel delivery vehicles can safely enter and leave the site in forward gear only via entrance and exit onto Murat Road only.,(xxv) The service station vehicle crossover on Murat Road shall be constructed in a location approved by the Shire so as to allow for the street lighting and garden bed arrangements that will be constructed in the centre of Murat Road within six months as part of the Murat Road redesign project.,(xxvi) The shop use shall remain at all times incidental to the primary service station use and shall comply with the further requirements contained in the Schedule to these conditions.,Schedule,1. The shop component of the development is approved only as an incidental use to the primary use of the premises as a service station and does not constitute an approval for use of the premises as a supermarket.,2. The shop component of the development shall be operated by the same entity and under the same business name as the service station component of the development.,3. The shop shall operate as a general or convenience store only and shall retail goods consistent with a shop of that nature.,4. The shop shall not operate as a supermarket, whether franchised or independently owned.,5. The shop shall be restricted in size to 300 metres squared nett lettable area.,6. The owner/operator of the shop shall not provide any supermarket or basket trolleys for the use of shopping patrons within the shop premises.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WEST COAST ENTERPRISES PTY LTD and SHIRE OF EXMOUTH [2007] WASAT 316 MEMBER : MR P McNAB (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 14 DECEMBER 2007 FILE NO/S : DR 234 of 2006 BETWEEN : WEST COAST ENTERPRISES PTY LTD

Applicant

AND

SHIRE OF EXMOUTH
Respondent

Catchwords:

Town planning - Development application - Service station - Convenience store - Shop - Proper characterisation of land use to be applied - Dual characterisation - Whether proposed retail operation properly a shop permitted as an incidental use in service station definition found in scheme - Discussion of the concept of a convenience store - Convenience store definition contemplated incidental sale of petrol - Whether shop selling convenience items in service station now recognised as ancillary - Concern over establishment of supermarket - Tribunal determined sole land use as service station with shop - Maximum nett lettable area (NLA) prescribed for convenience store but not for shop - Construction of scheme - Whether condition can and should be imposed limiting NLA - Development approved as service station with NLA and other conditions -

(Page 2)

Tribunal guided by maximum NLA fixed for convenience store - Application for review allowed

Legislation:

Building Code of Australia 1996

Building Regulations 1989 (WA)
Health (Food Hygiene) Regulations 1993 (WA)
Local Government Act 1995 (WA)
Occupational Safety and Health Regulations 19996 (WA)
Planning and Development Act 2005 (WA)
Shire of Exmouth Town Planning Scheme No 3, cl 32.4, cl 5.6.1(a), cl 8.3
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Application for review allowed

Category: B

Representation:

Counsel:

Applicant : Mr M Hardy
Respondent : Mr D Nicholson

Solicitors:

Applicant : Hardy Bowen
Respondent : McLeods

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

BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110
BP PLC (formerly known as BP AMOCO PLC) v Woolworths Ltd (2004) 212 ALR 79
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Gallway Investments Pty Ltd and City of Rockingham [2006] WASAT 212

(Page 3)

Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431
Napoli v City of Stirling [2004] WATPAT 182
Neumann and City of Swan [2007] WASAT 30
Pacific Seven Pty Ltd v City of Knox (1993) 11 AATR 325
Seldan Pty Ltd v Liquor Licensing Commission and Wonga Park Village Supermarket Pty Ltd, (Unreported, Supreme Court of Victoria, 15 May 1990)
Shahin v City of Unley (2003) 128 LGERA 308
Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299


(Page 4)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This review dealt with a proposed service station to be built in the Shire of Exmouth. The Shire of Exmouth's local government had refused planning approval under their town planning scheme.

2 The applicant proposed a modern integrated operation on the site of a former service station. The proposal incorporated a "convenience store" and there was particular concern in the Shire of Exmouth over the size of this shop. Other matters of difference between the Shire of Exmouth and the applicant were resolved in mediation between the parties in the Tribunal.

3 The main issue concerned the size of this commercial operation and how it was to be treated for planning purposes.

4 The Tribunal considered that the proposed convenience store operation was best described as an incidental or ancillary use of the land. The Shire of Exmouth's town planning scheme seemed to contemplate that very situation by permitting a service station and incidental activities such as a cafeteria, restaurant or shop.

5 The Tribunal did not consider that the proposed development was a convenience store selling petrol; rather, it was a service station with a shop selling convenience goods.

6 Accordingly, the review was allowed and the development was permitted to proceed upon certain conditions.

7 These conditions included a maximum floor size for the shop part of the operation. The maximum floor size was fixed by reference to a limitation for convenience stores selling petrol (set out in the town planning scheme) as this floor size would assist in preventing the shop from becoming a mini-supermarket.

Introduction

8 This application concerns a review of a decision by the Shire of Exmouth (Shire) in relation to its refusal of a development application lodged on 31 January 2006 for planning approval for the construction of a new service station and associated shop (a "convenience store") located at Lot 8, corner of Murat Road and Nimitz Street, Exmouth (subject land).

(Page 5)

9 Originally it was proposed by the applicant that the subject land would have a large building on the site comprising an office, a food preparation and display area (takeaway food), a storage area, cool rooms, aisles and racks for the display of various items, and a counter for the payment of fuel purchases. The subject land would also have the standard service station items such as a petrol bowser area, a car wash, car vacuum bays and associated parking.

10 The total area of the subject land is 2974 square metres. The area of the large building was proposed to be some 690 square metres and it was originally suggested that the "convenience store component" would be housed in an area below 300 square metres "nett lettable area" (NLA). The significance of this floor space calculation will become apparent later in these reasons.

11 On the store side, the applicant originally wished to include the sale of petroleum products, motor vehicle accessories, fishing supplies, the hire of DVDs and videos, and "an as yet undetermined use at the south-western portion of the building", described as "a yet to be determined tenancy". That proposed use is not a matter in issue in this review.

12 The subject land has been described by the Shire's officers as "currently a visual eyesore characterised by a dilapidated former service station building and decommissioned fuel tanks". The status of any current permitted lawful use or development of the subject land (if any) was also not in issue in the review.

Issues for determination

13 It is unnecessary to set out fully the original grounds for refusal of that application, as the mediation processes in the Tribunal led to a modified proposal which was eventually reconsidered by the Shire in June 2007 by an order of the Tribunal pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA). The modified proposal, in summary, provided for revised plans with revised calculations as to NLA of the store part of the proposal. Two of the original grounds of refusal (dealing separately with design and vehicle access issues) fell away upon reconsideration by the Shire. This left two substantive issues arising under the Shire of Exmouth Town Planning Scheme No 3 (TPS 3 or Scheme).

14 The first of these issues was the proper characterisation or characterisations of the proposed use or uses of the subject land. In particular, if the proposed use were characterised as a "Convenience Store", whether the prohibition

(Page 6)

in the Scheme's definition of NLA not to exceed 300 square metres, would be breached. In addition, if the proposed use was characterised as a "Service Station", including a "Shop", whether that would offend one of the objectives for the Mixed Use Zone of TPS 3, which was to provide for some commercial and some residential use excluding a "Shop".

15 These definitions are set out, and discussed in more detail, below.

16 It is common ground that the NLA (as revised) exceeds the 300 square metres prohibition by a figure just under 100 square metres. If this prohibition is relevant, a further question arises as to whether this limitation is a development standard which can be modified or relaxed by the Shire or, on review, by this Tribunal.

17 It is worth recording at this point that the Shire's officers, in their report to the Shire for the June 2007 reconsideration meeting, noted the advice of the solicitors to the Shire that if there were concerns about the extent of the convenience store operation then a condition could be imposed upon the proposed use in the following terms:

"The shop use shall remain at all times incidental to the primary service station use and shall comply with the further requirements contained in the Schedule to these conditions.

Schedule

1. The shop component of the development is approved only as an incident use to the primary use of the premises as a service station and does not constitute an approval for use of the premises as a supermarket.

2. The shop component of the development shall be operated by the same entity and under the same business name as the service station component of the development.

3. The shop shall operate as a general or convenience store only and shall retail goods consistent with a shop of that nature.

4. The shop shall not operate as a supermarket, whether franchised or independently owned.

(Page 7)

4. The shop shall be restricted in size to ____ NLA [reproduced as is].

5. The owner/operator of the shop shall not provide any supermarket or basket trolleys for the use of shopping patrons within the shop premises."

18 In April 2007, the Shire unanimously voted not to depart from its previous refusal and this was so on the stated ground that the proponent "has not reduced the nett lettable area in accordance with the previous motion [refusing planning approval] from 15 June 2006".

19 Thus, the matter before the Tribunal is whether the correct and preferable decision is to approve the proposed development (in its current form) given the matters in TPS 3 which have been referred to above. The Tribunal does not understand that there is any issue with any other aspect of the proposed development other than the question of the shop/convenience store aspect of the proposal.

20 The Tribunal will now turn to consider, in more detail, the planning framework which is applicable to the review.

Planning controls

21 The subject land is zoned "Mixed Use" under TPS 3. Clause 5.6.1(a) provides the following objective for the Mixed Use Zone:

"(a) to provide for a mix of land uses including light and service industries, some commercial  (excluding a shop), and some residential." (emphasis added)

22 A "Shop" is defined in TPS 3 as follows:

"shop: means any building wherein goods are kept, exposed or offered for sale by retail, or within which services of a personal nature are provided (including a hairdresser, beauty therapist or manicurist) but does not include a showroom, take-away food outlet or any other use specifically defined elsewhere in the Scheme."

23 It may be noticed here that Mr Nicholson, counsel for the respondent, accepted that as certain uses, such as a showroom, are expressly excluded from the definition of "Shop", it followed that "commercial uses within the scope of those categories of exemption may
(Page 8)

be accommodated within the Mixed Use Zone to the extent [that] they are consistent with the other objectives and requirements of the zone".

24 A "Convenience Store" is not a use that is listed in the Scheme's Zoning Table. It is not a use class which is excluded from the Mixed Use Zone under cl 5.6.1(a). A "Convenience Store" is defined in TPS 3 as follows:

"convenience store: means any land and/or buildings used for the retail sale of convenience goods being those goods commonly sold in supermarkets, delicatessens, and newsagents but including the sale of petrol and operated during hours which include but may extend beyond normal trading hours and providing associated parking. The buildings associated with a convenience store shall not exceed 300 square metres nett lettable area." (emphasis added)

25 Clause 3.2.4 of TPS 3 requires that if a use of land for a particular purpose is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the definition of one of the use categories, then the Shire or, on review, this Tribunal, may do any of the following:

"(a) determine that the use is consistent with the objectives of the particular zone and is therefore permitted; or

(b) determine that the proposed use may be consistent with the objectives of the zone and thereafter follow the 'SA' advertising procedures of [cl] 8.3 in considering an application for planning approval; or

(c) determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted."

26 Importantly, a "Service Station" is defined in TPS 3 as follows:

"service station: means any land or buildings used for the supply of petroleum products and motor vehicle accessories and for carrying out greasing, tyre repairs and minor mechanical repairs and may include a cafeteria, restaurant or shop incidental to the primary use; but does not include transport depot, panel beating, spray painting, major repair to motor vehicles, or wrecking of vehicles." (emphasis added)

(Page 9)

27 Such a use is classified as "SA" in respect of the Mixed Use Zone under TPS 3. A planning approval can only be given in accordance with the notice provided for in cl 8.3 of TPS 3. It is common ground that such notice had been given on or about 13 April 2006.

28 Finally, it is necessary to briefly mention the definition of "Local Shop" appearing in TPS 3 which is as follows:

"local shop: means a building or part of a building wherein the only goods offered for sales are foodstuffs, toiletries, stationery or goods of a similar domestic nature intended for day to day consumption or use by persons living or working in the locality of the shop."

Planning experts' evidence

29 Mr Sean Fairfoul, an experienced town planner, gave evidence for the applicant.

30 Mr Fairfoul characterised the development proposal as an "integrated use including service station, convenience store, shop, restaurant and car wash/vacuum facility". However, he argued that the "predominant use" of the subject land could be "defined by the service station use"; he therefore considered that the other uses such as "a convenience store, shop, [and] an eating area are clearly incidental and would not operate on the site without the fuel sale component". He further suggested that while the convenience store component of the proposal formed "the major use of the building in terms of floor space occupied", in his opinion, the overall use of the subject land was "for the purposes of the sale of fuel".

31 On the other hand, Mr Nick Boegel, a professional planner employed by the respondent, was of the view that the development proposal provided for three distinct uses of the subject land; namely a service station, a car wash/vacuum facility and a convenience store.

32 Mr Boegel accepted that it was commonly the case that the service station developments "incorporate an incidental retail component" and he said that the definition of "Service Station" had been drafted with that in mind (see the terms of the definition set out above). He said, however, that a comparative exercise as regards the gross floor space of the proposed development with a different service station and two supermarkets in the town centre showed that there was a significant amount of floor space devoted to the retail component of the development. For example, his calculations showed that the "Farmer

(Page 10)

Jack's" supermarket in Exmouth had a gross floor space of some 630 square metres which was 30 square metres less than the adjusted gross floor space for the convenience store part of the proposed development. Therefore, he concluded that such a use could not be seen as incidental to the primary service station use.

33 He drew attention to the fact that if the proposed retail component could be characterised as a "Shop" as independent of rather than as incidental to the primary use, then it could not be permitted within the Mixed Use Zone. Mr Boegel then went on to argue:

"If, on the other hand, the proposed retail component of the development is classified as a 'Convenience Store' then it still must satisfy the requirement contained within the definition of 'Convenience Store' that the buildings associated with such use not exceed 300 square metres of net [sic] lettable area."

The respondent's case

34 Mr Nicholson argues, following generally the lead given by BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110, that the scale of petrol sales (for example, "six petrol bowsers by 12 cars at a time"), amongst other things, precludes the classification of the development as a "Convenience Store" incidentally selling fuel. That part of the proposal should be regarded separately as a "Service Station". Likewise, the scale of the retail component means that it could not be considered as reasonably incidental to a "Service Station" (or for that matter, a "Convenience Store"). If the retail component were considered to be an independent use, then, if it were a "Shop", it is precluded from approval in the subject zone. Alternatively, if it were considered to be a "Convenience Store" as an independent use, then the NLA exceeds the permissible maximum, a limitation which is not capable of variation: Spectator Investments Pty Ltd and City of Joondalup [2005] WASAT 299 at [18].

The applicant's case

35 As the Tribunal understands the applicant's argument, Mr Hardy submits that various distinct uses, albeit the proposal might be described as integrated, such as a "Shop", "Convenience Store" and "Service Station" could each be approved for the subject land (to the extent necessary). In so far as the NLA prescribed maximum is exceeded, he argues that this is a development standard that could be varied by the Tribunal, citing both this Tribunal's and the former Tribunal's decisions which indicate "a more flexible approach" than, say, the position in New South Wales. If

(Page 11)

the characterisation of a "Shop" as an independent but incidental use is unavailable, or if the NLA maximum limit is incapable of being relaxed, Mr Hardy argues that the development approval is still capable of approval to the extent permitted with a condition imposed limiting the approval accordingly: see Gallway Investments Pty Ltd and City of Rockingham [2006] WASAT 212 at [40].

Discussion of the relevant law and planning principles

36 What, conceptually, is a "convenience store"? In Seldan Pty Ltd v Liquor Licensing Commission and Wonga Park Village Supermarket Pty Ltd, (Unreported, Supreme Court of Victoria, 15 May 1990), the Court had this to say:

"A convenience store has come to mean a place from which odd items are purchased as a matter of convenience, either because it is located near to the consumer, or is open at times which are convenient.

The concept of a convenience store is, to use a dreadful expression, adopted from the social workers, multifaceted. A wide range of goods are sold. That range is selected by the proprietor to suit the convenience of customers, as is also the case with mixed businesses or milk bars. Premises from which a particular product, or range of products are sold may cease to be convenience stores and become specialty shops, the parameters can never be defined and each case demands subjective investigation. I am bolstered in this view by the opinions expressed by McClelland CJ of the Land and Environment Court of New South Wales in Food Plus v Warringah Shire Council (1983) 50 LGRA 76 and Caltex Oil (Aust) Pty Ltd v Holroyd Municipal Council (1983) 49 LGRA 77.

There is no need to call expert evidence as to what is a convenience store. … The notion takes with it an implication that the major part of a household's shopping may be done at a large supermarket or shopping complex, but the odd or incidental item, either forgotten at the time of the major purchases, or suddenly found to be required, is bought from a proximate convenience store selling a range of products similar to those of milk bars and mixed businesses. … The class of premises encompassed by milk bars, convenience stores or

(Page 12)

mixed businesses are like those known in earlier times as the 'local corner store' or the 'local shop'. These were in the past places of community congregation, and milk bars and convenience stores are often now places at which people meet to chat as well as to shop. … Thus the scale, product range, locality and ambience of premises all become relevant in deciding whether they fall within the prohibited class [under the regulatory and licensing law there considered]."

37 These general views are not necessarily inconsistent with the Scheme definition set out above (which refers to "delicatessens"); however, they tend to perhaps emphasise the notion of a traditional local corner store (or equivalent), as such shops are or were known.

38 The ambiguity in the relationship between petrol selling, incidental shopping and convenience stores is illustrated by certain remarks in BP PLC (formerly known as BP AMOCO PLC) v Woolworths Ltd (2004) 212 ALR 79. That case, dealing with Trade Marks, traced the history of petrol station development in Australia and elsewhere. The Court noted, at page 82, that a convenience store associated with a petrol station was "a sort of mini-supermarket where motorists can purchase food items along with car accessories". Such a concern about "mini-supermarkets" possibly explains the NLA limitation in the TPS 3 definition of "Convenience Store". Whatever differences may exist between convenience stores and other shops, floor size might well be a significant indicator, particularly as regards classifying retail activities incidentally or otherwise associated with the selling of petroleum products and related services.

39 Turning to the question of the characterisation of land use in such circumstances, the Tribunal notes this comment from Planning & Environment Victoria (Butterworths Looseleaf Service) at par 5.5.21 (emphasis added):

"In Pacific Seven Pty Ltd v City of Knox (1993) 11 AATR 325 at 329 the tribunal stated that in general terms there were two types of ancillary uses - 'the first is where the ancillary activity is quite different to the primary use, but a necessary adjunct to the primary use, such as the office located within a department store. In such instances, so long as the office deals with the administration of that business or industry, then it will not be classified as a separate use, but as part of the use constituted by the business or industry. But if other administrative work

(Page 13)

entirely unrelated to the business or industry in question is carried out, then that aspect of the office activity would cease to be ancillary to the primary use and would become a use in its own right which would need to comply with the planning scheme'. The tribunal went on to say the second type of ancillary uses are those types of activities which grow out of or develop from the primary use and are intended to enhance it. For example, the sale of convenience goods has come to be accepted as being ancillary to a petrol station."

40 On the other hand, in New South Wales it has been observed in Local Government Planning and Environment NSW Vol C (Butterworths Looseleaf Service) at par 460 075, emphasis added:

"[T]here may be situations where the distinction between ancillary and minor uses is unclear. In Baulkham Hills SC v O'Donnell (1990) 69 LGRA 404; BC9002336, Meagher JA said at 409-10:

'Notwithstanding the principles laid down in [Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157], it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensues or not.'

His Honour then went on to say:

'But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is 'ancillary to', or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses illustrate the point: they show that a "convenience store" and a petrol station are two independent uses, although the former is clearly ancillary to the latter.'"

41 In this State this same discussion is mirrored in Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431. There, the Full Court (Kennedy, Ipp, Steytler JJ) held (following
(Page 14)

Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 and approving BP Australia Pty Ltd v City of Perth) that it was open to the local authority to find that a proposed 24 hour service station with a convenience store and other facilities gave rise to two independent uses of the land on the shared site: a "Service Station" and a "Shop". That case - whatever statements of general principle were made - was not, however, dealing with a planning scheme, as here, that textually contemplates a "shop incidental to the primary use" of a "Service Station".

42 In any event, in the Tribunal's view, having regard to "question[s] of fact and degree in all the circumstances of the case", the applicant's proposal, particularly if subject to the conditions suggested above by the respondent's solicitors, would be a shop of the type expressly contemplated as incidental to the primary use of the land as a "Service Station". The main area of sales - apart from non-fuel automotive and petroleum related items - would presumably be those items of basic food stuffs, other "convenience goods" and other items commonly now expected to be found in such shops (however described) incorporated into petrol stations. The applicant has indicated additional items related to fishing and tourism but such retail items would not be unexpected in places such as Exmouth. They do not cause the characterisation of use to change.

43 In short, this is not a case of a convenience store incidentally selling petrol; rather it is a petrol station which includes an incidental shop, an evolutionary development recognised in both planning instruments and in planning practice. This conclusion is built upon the principle referred to above (and fairly acknowledged in the evidence of Mr Boegel) that ancillary uses can be those types of activities which "grow out of or develop from the primary use" and are intended to enhance it, such as "the sale of convenience goods [which] has come to be accepted as being ancillary to a petrol station":Pacific Seven Pty Ltd v City of Knox (1993) 11 AATR 325 (cited above). This position is also consistent with the opinion of Mr Fairfoul, whose evidence ought to be accepted.

44 Thus, the proposal here resembles that discussed in Shahin v City of Unley (2003) 128 LGERA 308, at page 310 (emphasis added), where the development under consideration was described by the Court as an "integrated service station complex" which included a "shop and administrative area of 450 square metres". The main building was proposed to "incorporatea shop selling a variety of retail convenience goods, a product display area, an office, cool rooms, ancillary storage and toilets. Purchases of fuel [would] be made from this shop." Such an

(Page 15)

integrated service station appears to be consistent with the corresponding notion of the "single planning unit" discussed, for example, in Neumann and City of Swan [2007] WASAT 30. It is, however, unnecessary to pursue this issue given the findings of the Tribunal in this matter on the incidental nature of the proposed shop.

45 Given the specific nature of the shop here under consideration, the Scheme's general definition of a "Shop" (and, for that matter, "Local Shop") do not control or detract from the characterisation of the proposed development as a "Service Station" incorporating a "shop incidental to the primary use". Thus, the prohibition on a "Shop" in the Mixed Use Zone of TPS 3 has no application to this development. Such a reading of the Scheme produces, in the Tribunal's view, the best fit in terms of the characterisation of proposed land use and resolves any apparent inconsistencies (if there be any) in the text of the Scheme.

46 There only needs to be added, as a condition, a maximum NLA figure to reinforce the nature of the incidental retail operation proposed. The danger of the shop becoming a mini-supermarket, which is expressly avoided by the Scheme's limitation on NLA imposed for a "Convenience Store", signals the general approach that the Tribunal ought to take as regards a shop selling convenience and related items incidental to its retail fuel operation. That is, where the circumstances suggest, require or permit it, a maximum NLA of 300 square metres will generally be appropriate, at the very most, for such a shop. This is the respondent's fall-back position expressed in its draft conditions filed with the Tribunal.

47 In Napoli v City of Stirling [2004] WATPAT 182 the former Tribunal, at [34], noted that in relation to the particular definitions in the town planning scheme there under consideration:

"It would seem a reasonable proposition to this Tribunal that the size of a Corner Store/Service Shop is intended by the Scheme to be less than that of a Local Convenience Store. Its size should certainly be below 300 [square metres] gross floor area."

48 The Tribunal is not persuaded by anything advanced in the applicant's case that there is any reason of particular substance for exceeding that figure. Moreover, if the size of the floor space were to be significantly increased there would be a danger of the emergence of an independent non-incidental use which, as has already been indicated, is problematic in terms of TPS 3 approval. Accordingly, a 300 square metre limitation on NLA will be imposed as a condition of planning approval.
(Page 16)

This limitation will be included in the 26 conditions, as suggested by the respondent and also urged to be done, if necessary, by the applicant.

Orders

49 For the reasons stated above, conditional planning approval will be given to the applicant. The Tribunal therefore orders that:

1. The application for review is allowed.

2. The decision under review is set aside and in lieu thereof planning approval is given to the applicant to develop a service station at Lot 8, corner of Murat Road and Nimitz Street, Exmouth in accordance with the amended plans lodged with the Shire upon the following conditions:


i) Building plans to show building floor levels and levels of driveways and parking areas in relation to the crown of the road adjacent to the site to Australian Height Datum (AHD) in accordance with advice the proponent is to obtain from the Department of Water in relation to flood levels. Such plans to be submitted with the building licence plans.

ii) Drainage and/or fill of the site to be to the specification and satisfaction of the Shire of Exmouth and such plans to be submitted and approved prior to the issuance of a building licence.

iii) All fire fighting equipment to be clearly indicated on plans submitted for a building licence.

iv) All required exit doors and means of egress to be nominated and clearly indicated on the plans submitted for a building licence.

v) The development shall comply with the Building Code of Australia 1996, Building Regulations 1989 (WA) and the Local Government Act 1995 (WA).

vi) The applicant is to obtain a building licence prior to commencement of any building works.

(Page 17)

vii) The applicant is to ensure the development is designed in accordance with the Building Regulations 1989 (WA) and the Building Code of Australia 1996 in relation to access for the disabled.

viii) All signs associated with the development to be to the satisfaction of the Shire of Exmouth and shall be the subject of separate approval by the Shire of Exmouth prior to erection or painting;

ix) All existing buildings and structures shall be removed from the site. The applicant is requested to liaise with the Shire of Exmouth Building Department with regard to obtaining the necessary demolition licence.

x) The development shall be carried out in accordance with the details indicated on the submitted sketch plan/working drawings unless otherwise required or agreed in writing by the Shire of Exmouth. All features indicated on the submitted drawings shall be implemented unless otherwise required or agreed in writing by the Shire of Exmouth.

xi) Vehicle parking, manoeuvring and circulation areas to be suitably constructed sealed, drained, kerbed and marked to the specifications of the Shire of Exmouth.

xii) Car parking areas and roadways to be a minimum of 86 millimetres below the floor level of all buildings.

xiii) Parking areas not being used for general storage or any purpose other than the parking of motor vehicles.

xiv) All uncovered car parking bays have to be a minimum of 5.5 metres by 2.7 metres with a 6 metre wide access way between rows.

(Page 18)

xv) All stormwater from roofed and paved areas shall be collected and disposed on site.

xvi) Sanitary facilities for staff/employees to be in accordance with the Occupational Safety and Health Regulations 1996 (WA) and the Building Code of Australia 1996.

xvii) The applicant shall comply with the Health (Food Hygiene) Regulations 1993 (WA).

xviii) Public toilets shall be provided for restaurants and dining rooms according to the number of seats/tables, and in accordance with the Building Code of Australia 1996 and the Health (Food Hygiene) Regulations 1993 (WA).

xix) Refuse/bulk bin areas being provided for and shown on the plans submitted for a building licence.

xx) A landscaping plan submitted to, and approved by, the Shire of Exmouth prior to the issuance of a building licence. The landscaped area is to be fully reticulated.

xxi) Any further approvals required under a written law from any state government department shall be obtained prior to commencement of the use.

xxii) A site remediation plan to be submitted with an application for a building licence.

xxiii) The colour of the building walls and roof to accord with Council's colour palette.

xxiv) A plan to be lodged to the satisfaction of the Manager of Engineering Services that demonstrates that road train fuel delivery vehicles can safely enter and leave the site in forward gear only via entrance and exit onto Murat Road only.

xxv) The service station vehicle crossover on Murat Road shall be constructed in a location approved by the Shire so as to allow for the street

(Page 19)

lighting and garden bed arrangements that will be constructed in the centre of Murat Road within six months as part of the Murat Road redesign project.

xxvi) The shop use shall remain at all times incidental to the primary service station use and shall comply with the further requirements contained in the Schedule to these conditions.

Schedule

1. The shop component of the development is approved only as an incidental use to the primary use of the premises as a service station and does not constitute an approval for use of the premises as a supermarket.

2. The shop component of the development shall be operated by the same entity and under the same business name as the service station component of the development.

3. The shop shall operate as a general or convenience store only and shall retail goods consistent with a shop of that nature.

4. The shop shall not operate as a supermarket, whether franchised or independently owned.

5. The shop shall be restricted in size to 300 metres squared nett lettable area.

6. The owner/operator of the shop shall not provide any supermarket or basket trolleys for the use of shopping patrons within the shop premises.

I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR P McNAB, MEMBER

(Page 20)