West Coast Enterprises Pty Ltd and Shire Of Exmouth

West Coast Enterprises Pty Ltd sought a development approval to construct a service station with a shop on a parcel of land in Exmouth, which the Shire of Exmouth had previously refused. The dispute was brought before the Land and Environment Court of Western Australia. The primary issue before the court was whether the proposed retail operation within the service station could be characterised as a shop, permitted as an incidental use under the service station definition in the planning scheme. Specifically, the court had to consider whether a shop selling convenience items in a service station was now recognised as an ancillary use, as opposed to a convenience store, which has specific area limitations.

The court examined the definitions and the conceptual understanding of convenience stores within the planning scheme. It noted that while a convenience store was contemplated to involve the incidental sale of petrol, the modern concept of a convenience store seemed to encompass a broader range of convenience items. The court also weighed the tribunal's decision that the land use should be characterised solely as a service station with a shop. In doing so, the court highlighted that the planning scheme prescribed a maximum nett lettable area (NLA) for convenience stores but not for shops. The court further deliberated on whether a condition could be imposed to limit the NLA, given the tribunal's reliance on the maximum NLA fixed for convenience stores.

In its reasoning, the court found that the tribunal had erred by not considering the shop as an ancillary use to the service station. The court held that the shop's operation was properly characterised as a shop rather than a convenience store, and thus, the scheme's specific NLA condition for convenience stores did not apply. Consequently, the court allowed the application for review and directed the Shire of Exmouth to approve the development application, subject to appropriate conditions.