Brown Falconer Group P/L v Cc Mt Gambier & Ors

3 On 28th August, 1997, Woolworths (acting through its agent Brown Falconer Group Pty Ltd, the appellant in these proceedings) applied to the Council to undertake a development on part of the shop land, which development was described in the development application as being a "petrol filling station". The site of the proposed petrol station has a frontage to Commercial Street East and is proposed to occupy part of the car park located on the shop land. It has an area of 1,190 square metres or thereabouts. I shall refer to it as the "petrol site". With the application went a series of plans showing both the shop land and where the petrol site was proposed on it, the location of the existing shopping centre and its car park, and plans of the proposed petrol filling station. The whole of the shop land, including the petrol site, lies within a Commercial Zone as prescribed by the City of Mt Gambier provisions of the Development Plan, within which zone a "petrol filling station" is, subject to complying with applicable conditions (if any), prescribed as a complying development within the meaning of subsection 35(1) of the Development Act.

4 The Council declined to classify the proposed development as a petrol filling station. By letter dated 18th September, 1997, it advised Woolworths that:-

"Council has determined that the proposed development is a non-complying kind of development pursuant to the City of Mt Gambier Development Plan. Pursuant to the definitions contained in Schedule 1 of the Development Regulations, the development is not a 'petrol filling station' as it does not involve servicing of motor vehicles. Council will describe the development as follows:- 'To construct a shop for the retailing of motor fuels and ancillary goods and erect advertising signage on the site of an existing shopping complex.'

A shop or group of shops with gross leasable area greater than 450 square metres is a non-complying development in the Commercial Zone according to the City of Mt Gambier Development Plan. Consequently it is considered that the proposed development is an extension to the existing shopping complex (which exceeds 450 square metres) and therefore a non-complying land use. As a non-complying land use the development would be dealt with as a category 3 development in terms of notification."

5 Woolworths responded to this letter in a variety of ways, one of which was to amend its application. By amended plans submitted to the Council in February, 1998, Woolworths added a service bay to the proposed petrol station. There is little doubt that this was done in response to the contention, in the Council's letter of 18th September, that the proposed development did not meet the definition of "petrol filling station" as set out in the Development Regulations, and that the sole reason for including the service bay was to bring the proposal squarely within the definition of "petrol filling station".

6 In the course of his submissions, Mr Beamond suggested to me that the Development Act conferred upon the Council no right to accept the amendment because, he said, the inclusion of the service bay changed the essential nature of the proposed development. In support of this submission he pointed to the terms of subsection 39(4) of the Development Act, the terms of which subsection are, in part, as follows:-

(ii) to vary any plans, drawings, specifications or other documents that accompanied an application,

(provided that the essential nature of the proposed development is not changed)."

7 Whilst, without doubt, the inclusion of the service bay changed the proposed development from one which did not fall within the definition of "petrol filling station" to one which did, there is no evidence before me upon which I can properly base a finding that such a change also involved a change in "the essential nature of the proposed development", as those words are used in subsection 39(4). I am inclined to the view that it did not involve such a change. Be that as it may, the Council accepted the amendment and dealt with the application accordingly. In the circumstances, I do not consider it appropriate for me to proceed upon the basis suggested by Mr Beamond, namely that I view the amended plans submitted to the Council in February, 1998, as an entirely new application in accord with subregulation 20(4) of the Development Regulations. In any event, I do not think that anything turns on this issue.

8 I pause in this recitation to note that by application dated 16th January, 1998, Woolworths (acting again through its agent Brown Falconer Group Pty Ltd but citing the owner of the land as a wholly owned subsidiary company, namely Mt Gambier Shopping Centre Pty Ltd) applied to the Council for approval to undertake a development described, in the application, as being "redevelopment of existing car park". The relevance of that application is that, in addition to seeking certain changes to the car park layout, it sought to excise the petrol site from the shop land. The plan accompanying the application showed the petrol site with the designation "future proposed development". Whilst there was some debate before me concerning the purpose and effect of this application, I accept the view put for Woolworths by Mr Hayes that the principal purpose of this application was and is to gain a planning authorization to vary the supermarket approvals granted in 1979 in such a way as to facilitate the development of the petrol site and, furthermore, to make consequential changes to the supermarket car park. I regard the evidence given by Mr Hutchison, a planning consultant, to the effect that the purpose of the application is to facilitate certain changes in the drainage arrangements as little more than speculation on his part.

9 The Council is yet to determine that application.

10 The Council sought legal advice with respect to both applications. By letter of 18th March, 1998, it advised Woolworths that:-

"Council has recently considered legal advice from its lawyers, Mellor Olsson, in regard to the amended plans associated with the petrol outlet and the application to amend the carparking area of the Woolworths complex.

At its meeting held on 17th March, 1988, Council resolved that both applications be dealt with as non-complying kinds of development."

11 The letter also advised Woolworths of the Council's decision to categorize both applications as relating to category 3 developments for the purposes of Section 38 of the Development Act.

12 Woolworths instituted two appeals to this Court against those decisions, one relating to the petrol station application and the other to the car park application which application, I have said, includes the deletion of the petrol site from the shop land. Both appeals were against the Council's decision to categorize those applications as being for non-complying development. Both appeals were heard together by Judge Trenorden on 21st May, 1998. Her Honour's judgement and consequential orders were delivered on 29th June, 1998.

13 As I construe Her Honour's judgement, its principal conclusions are as follows:-

Although the proposed petrol station will be closely identified with and related to the Woolworths supermarket situated on the shop land, it will not take on the character of a shop.

The proposed petrol station will be a "petrol filling station" as defined by the Regulations.

The Council's decision to deal with the petrol filling station as a non-complying development was wrong.

The second application, ie, the application dated 16th January, 1998, is not an application for a non-complying development.

Commonsense requires that both the first and the second applications be dealt with together.

14 The terms of Her Honour's orders are as follows:-

"1. The decisions of the respondent Council made on 18th March, 1998, in respect of development applications by the appellant numbered 381/0410/97 and 381/0026/98, are reversed.

2. The said applications are remitted to the respondent Council for assessment."

15 Following the judgement and orders of Judge Trenorden, the Council further considered the applications. At the meeting of the Environmental Services Committee of the Council on 7th July, 1998, a motion, including the following resolution, was passed:-

"The applications be dealt with on merit, that is as 'consent' kinds of development requiring category 3 notifications. The applications also be referred to the Environment Protection Authority for consultation purposes."

16 This resolution was adopted by the Council at its meeting held on 16th July, 1998, and Woolworths advised accordingly by letter the next day. After sending that letter, Council received a letter of representation from Woolworths' solicitors, Clelands, making recommendations with respect to how the Council should deal with the applications. By letter dated 1st September, 1998, the Council advised Woolworths that, following consultation with its solicitors, it confirmed the advice set out in the previous letter of 17th July. By notice of appeal dated 16th September, 1998, Woolworths appealed to this Court against the decision of the Council to classify the petrol station application as one to be dealt with as a consent (rather than a complying) kind of development and as being for a category 3 development. The grounds of appeal set out in the notice are as follows:-

1. The respondent erred in deciding that the said application be dealt with as being for a consent (rather than a complying) kind of development.

2. The development the subject of the said application is a petrol filling station.

3. The subject land is situated within a Commercial Zone of the respondent. A petrol filling station is a kind of development which is complying in that Zone.

4. The Development Plan does not prescribe any conditions with which a petrol filling station in the Commercial Zone of the respondent must comply to be a complying development in that Zone.

5. In the above circumstances the application should be dealt with as being for a kind of development which is complying.

6. The proposed development is within the ambit of the operation of clause 1, or clause 6(b), of Part 1 of Schedule 9 to the Development Regulations 1993 and regulation 32(1) thereof. In the circumstances the application should be dealt with as being for a category 1 development.

7. In the alternative the proposed development is within the ambit of the operation of clause 1(b) of Part 2 of Schedule 9 to the said regulations and regulation 32(3)(a) thereof. In the circumstances the application should be dealt with as being for a category 2 development."

17 The appeal was duly listed for hearing on Monday 12th October, 1998.

18 However, several days before the appeal was due to be heard, namely the 2nd October, 1998, Noseda Petroleum Pty Ltd, Berkefeld Petroleum Pty Ltd and Mr Alan Harrison applied, pursuant to subsection 17(1) of the Environment, Resources and Development Court Act, to be joined as parties to the appeal. The applicants for joinder will, should the proposed petrol station proceed, be trade competitors of Woolworths. All three operate petrol stations in the same street as and within 700 metres of the subject land. They opposed the granting of a licence to Woolworths pursuant to the Petrol Products Regulation Act 1985 at the licence hearing conducted by the Petroleum Products Retail Outlets Board. Having heard interested parties, I decided to grant the application to be joined. My reasons are set out in a judgement delivered on 8th October, 1998 - see judgement No.0E519. As a consequence of this, Mr Henry appeared for them at the hearing of the appeal and placed before me extracts from the transcript of the hearing conducted by the Petroleum Products Retail Outlets Board.

19 Upon the appeal coming on for hearing, Mr Hayes appeared for Woolworths, Mr Beamond for the Council and Mr Henry for the parties joined. Included within the copy documents is a record of the first proceedings, ie, the documents tendered, the transcript and the judgement of Judge Trenorden in those proceedings. The copy documents also include documents relating to what has occurred since the completion of the first proceedings. Mr Beamond called Mrs Blackmore, the Senior Planning Officer of the Council, who gave evidence relating, amongst other things, to the reasons for the decision of the Council now under appeal.

20 The hearing proceeded in two stages. It did so because, part way through the hearing, Mr Hayes made a submission to the effect that the judgement and orders issued by Judge Trenorden on 29th June, 1998, raised an estoppel the effect of which was to preclude re-argument of the question of whether the first application is for a development which falls within the definition of "petrol filling station". This submission required me to determine two things, namely, first, what issue or issues Judge Trenorden decided in her judgement of 29th June, and, secondly, whether the principles of estoppel apply in the circumstances of this case. I adjourned the hearing for the purpose of considering these questions.

21 As I construed Her Honour's judgement, it dealt principally with the question of whether the relationship between the Woolworths supermarket and the proposed petrol station will be such that the petrol station should be construed as an extension of the existing shop rather than as a petrol station. Her Honour stated the issue before her in these terms:-

"What must be considered is whether the proposed petrol filling station is so closely identified with the shop use that it takes on the character of a shop."

22 In her judgement, Her Honour expressed the following conclusion:-

"The petrol filling station would be closely identified with Woolworths, but it would not take on the character of a shop. It cannot take on that character because it is a use identified by the regulations and the Development Plan, and specifically excluded from the meaning of 'shop'. Leaving aside the definitions of 'shop' and 'petrol filling station', it would be contrary to the plain meaning of the language to describe what is proposed as a shop. In common palance, it would probably be described as a service station. Given the nature of what is proposed, it would be an affront to common sense to treat the proposed development as a shop. What is proposed is not a shop; it is a petrol filling station."

23 Having considered both the portions of Her Honour's judgement to which I have referred and the judgement as a whole, I came to the conclusion that Her Honour decided that the proposed petrol station will be a "petrol filling station" within the meaning of both the Development Plan and the Regulations. On this basis I concluded that, had the proceedings before me been between only Woolworths and the Council, the Council would have been estopped from arguing, in these proceedings, that what is now proposed is not a "petrol filling station". However, as I have said, the parties in these proceedings are not the same as in the proceedings before Her Honour Judge Trenorden: three additional parties have been joined. Thus I concluded that, as a consequence of such joinder, the principles of estoppel do not apply and the issue of whether what is proposed constitutes a "petrol filling station" is still an issue for decision in these proceedings: see judgement no.OE520 delivered 5 November, 1998.

24 I advised the parties accordingly and the hearing resumed on that basis. Further evidence was placed before me concerning the relationship between Woolworths and the proposed petrol station. That evidence consisted principally of portion of the transcript of the evidence placed before the Petroleum Products Retail Outlets Board in the course of Woolworths' application for an appropriate licence under the Petroleum Products Regulation Act 1995. On the evidence before me, my findings with respect to the proposed relationship between the supermarket and the proposed petrol station are as follows:-

The petrol station is to be constructed on what is presently part of the Woolworths' supermarket land.

The points of access and egress to and from the petrol station will not be to and from a public roadway but via the shop land.

The petrol to be supplied to the petrol station will be imported into Australia by Woolworths.

The purpose of the petrol station is to provide a "one stop shop" for customers of Woolworths and thus to increase Woolworths share of the relevant retail market.

Although the general public will be able to purchase fuel from the petrol station, its principal purpose is the sale of fuel to Woolworths' customers rather than to the wider public.

People spending $30 or more at the Woolworths' supermarket will be issued with a voucher entitling them to a 2c per litre discount at the petrol station.

The staff of the petrol station will be Woolworths' staff.

It is presently intended that the hours of the petrol station will coincide with the hours of the Woolworths' supermarket, although should (upon the establishment of the petrol station) demand indicate that more extensive hours may be appropriate, increased hours of operation will be considered.

The petrol station will be operated by a company which is a wholly owned subsidiary of Woolworths.

25 Much, although not all, of the evidence placed before me in these proceedings was placed before Judge Trenorden. The additional evidence did not, in my view, change the general tenor or thrust of the evidence placed before Judge Trenorden. It added, perhaps, a few more details. For the reasons given by Judge Trenorden, with which reasons I respectively both agree and adopt, I have come to the same conclusion as did Her Honour, namely that the proposed petrol station will be a "petrol filling station" as that term is defined by the Development Regulations. It seems to me that none of my findings change, in any way, the nature, character or function of the proposed petrol station or have any significant planning ramifications.

26 This conclusion brings me to the principal issue between the parties. As stated, when the Council first dealt with the application for the petrol station it dealt with it on the basis that it related to an extension to an existing shop and thus classified it as a non-complying form of development. Judge Trenorden said that such classification was wrong - what was proposed should not be viewed as an extension to a shop but as a petrol filling station. Upon receipt of Her Honour's judgement and orders, the Council accepted that the proposed petrol station should be regarded as a "petrol filling station" as defined but construed the development application as being also an application to vary the development approval for the supermarket which it issued in October, 1979. The Council declined to view the development application as relating solely to a complying development, ie, the petrol station, but viewed it as also being an application to vary the 1979 approval. On this basis the Council made the decision the subject of this appeal, namely to deal with the application as being for a "consent" kind of development requiring category 3 notification.

27 Mr Beamond put to me that such an approach is entirely consistent with Judge Trenorden's judgement and orders.

28 It is now generally accepted that where the holder of a development authorization wishes to vary a condition or some other part of that development authorization (other than in some minor or inconsequential way), the proper procedure is to make a development application seeking such variation: Remove All Rubbish Co Pty Ltd v City of Munno Para [1991] SASC 2991; (1991) 56 SASR 254. The facts of life in the world of development control are such that there are occasions when a planning authority receives an application for a planning authorization relating to an existing development which is the subject of an earlier approval, the approval of which application will necessarily involve the undertaking of development on the land to which the earlier approval applies. For example, a council may have issued an approval authorizing the establishment of a vineyard on a 50 hectare allotment - the owner of the allotment desires to build a manager's house in one corner of the vineyard and submits a development application seeking approval to do so - the application makes no reference to the existing approval and seeks simply approval to construct a dwelling - the approval is granted and the dwelling constructed. Life being as it is, such approval is unlikely to include both an approval for the dwelling house and an approval to vary the approval granted years before with respect to the vineyard. In those circumstances, it is generally accepted that the application to construct the dwelling includes, by necessary implication, an application to vary the earlier approval, and the approval of the dwelling carries with it, again by necessary implication, approval to vary the vineyard by the construction of the dwelling.

29 This was the general thrust of the submissions put to me on behalf of the Council and the joined respondents. They pointed to the 1979 planning approval pursuant to which the shop land was developed. The petrol site lies entirely within the shop land - it is to occupy portion of the car park which was established pursuant to the 1979 approval. The application to establish the petrol station contains no reference to the earlier approval. The respondents contend that the approval of the petrol station application will, by necessary implication, confer the right to undertake the development so approved and thus, again by implication, carry with it an approval to vary the 1979 approval. Thus, they say, the Council's decision to deal with the petrol station application as involving both a petrol station and a not insignificant variation to the existing shopping centre - calling for an examination of the impact which the construction of the petrol station will have on the existing supermarket - is correct. To regard the application as being nothing more than to establish a petrol station without regard to the impact which its establishment will have on the supermarket is unsound and flies in the face of reality.

30 Mr Hayes acknowledged that, prior to the lawful establishment of the proposed petrol station, two approvals must be obtained, namely an approval for both the petrol station and the variation of the 1979 approval in a manner consistent with the establishment of the petrol station. It does not matter in which order such approvals are granted, as long as both are in force at the time at which the establishment of the petrol station occurs on the petrol site. However, he said, irrespective of what the situation may be with respect to development applications elsewhere, the application for an approval to establish a petrol station on the petrol site was for a "petrol filling station" and for nothing else. It was not and was never intended to be an application to vary the 1979 approval. In those circumstances, he said, it is an application for approval of a complying development and thus one to which, in the words of subsection 35(1) of the Development Act, the Council "must" grant provisional development plan consent.

31 As stated, Woolworths has made two development applications to the Council, the first, in August, 1979, being for a "petrol filling station", and the second, in January, 1998, being for "re-development of existing car park". Neither application, by its terms, refers to the 1979 approvals. Both applications were accompanied by plans that clearly show that the use of the petrol site as part of the supermarket car park is to be discontinued. The plans accompanying the application to re-develop the car park show, in addition to a revised car park layout, the petrol site as vacant with the words "future proposed development" written within its boundaries.

32 Mr Hayes submitted that, properly construed, the application to re-develop the car park includes, by implication, an application to vary the 1979 approval in such a way as to authorize the lawful use of the petrol site in accord with the approval to be separately granted with respect to the petrol filling station. The fact that the plan accompanying the car park re-development application specifically shows the petrol site as not only excluded from the car park but also as proposed for future development must, he said, lead to that conclusion. Thus it is wrong to construe the application relating to the petrol station as including an application to vary the 1979 approval.

33 Upon the commencement of these proceedings, the Council's processing of both applications ground to a halt. Mr Beamond submitted that, in the circumstances, I should ignore the car park application - it may be refused by the Council (and no appeal instituted) or it may be withdrawn by Woolworths. I should not assume that it will result in an approval.

34 Mr Hayes acknowledged that the car park application may not result in the issue of an approval. He said, however, that that did not detract from his submission that the application to establish the petrol station did not include an application to vary the 1979 approval. When I asked him whether Woolworths would be able to lawfully proceed with the establishment of the petrol station if it gained an approval to do so but the car park application was refused, he answered in these terms:-

"Mr Hayes: Woolworths, if this is approved as a complying development, will be left with a shopping centre consent, which it has, and if they took advantage of this development, they would be left with a consent which is no longer the consent they got. They would need - and that is the reason for the other application - to realign or renumber or whatever - delete, if that is the case - the car parks which were the subject of the previous consent and then would have to do it with the approval of the council.

His Honour: That raises again the question I directed to you just before lunch. Are you saying that if Woolworths gets approval for this as a complying development, it will not be able to use it until it gets the approval of the second application?

His Honour: Well, when you say it 'may well be', do you say it may not be?

Mr Hayes: I don't want to commit myself, because that does mean looking at the history of that site. .....

Now, having dealt with both (applications), or not dealt with one, or dealt with one and not the other, the consequences would have to be looked at at the relevant time. I am not sure what those necessarily will be.

His Honour: That is what I'm asking. Supposing I make the order sought and effectively direct the council to deal with this as a complying development and the council approves it and the council then refuses the second application. Woolworths accepts that refusal. Normal planning practice is that they have got a consent to proceed with a complying development and they would be entitled to proceed with it, wouldn't they?

Mr Hayes: Yes, and they are entitled to proceed with that complying development. What the consequences of so proceeding would be remain to be seen. It is not a question of: is one dependent on the other? It is a question of saying, well, is there anything to stop them proceeding with the approval which they have got? The answer to that is: no, there isn't, but it may have some other consequences down the track.

It may mean, for example, that the owner of the Woolworths or Woolworths itself will find themselves in a situation where their current consent is at stake. I don't know. That might be one of the consequences."

35 In my view, the problem cannot be swept under the carpet. Whenever an authority is required to consider whether it will issue a planning approval it must consider the practical consequences - in both legal and planning terms - of the issue of such approval. A similar obligation lies upon this Court when requested to make an order which may have those consequences. Neither the authority nor this Court can appropriately take the view that it will either issue an order the issue of such approval and then sit back to see what the consequences of its issue will be. It seems to me that the consequences of the issue of an approval are a significant factor to be considered by the authority when determining the nature of the development applied for as required by Regulation 16 of the Development Regulations. I can see no other appropriate course. It was the course adopted by the Council on this occasion. After the receipt of Judge Trenorden's order, the Council categorized the application for the petrol station as being for both a petrol filling station and an application to vary the 1979 approval.

36 The question of whether the Council was correct in so classifying the application calls for a determination of the consequences of approving the petrol station application. Having considered the matter, I do not think that Part 4 of the Development Act supports Mr Hayes' submission that, if the Council approves only the petrol station application, Woolworths will not be able to lawfully act on that approval until it obtains another approval varying the 1979 approval. I refer specifically to Section 32 and part of Section 33, the terms of which are as follows:-

"32. Subject to this Act, no development may be undertaken unless the development is an approved development.

33. (1) A development is an approved development if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of, each of the following matters (insofar as they are relevant to the particular development) ....."

37 As I construe those provisions, when a development becomes an approved development it may be lawfully undertaken. If, in this case, the Council treats the petrol station application relating to a complying development and grants provisional development plan consent in accordance with the requirements of subsection 35(1) of the Act, it is likely that provisional building rules consent will follow and the Council will be required to grant an approval which would mean that the proposed petrol station will become "an approved development" within the meaning of Section 32. The consequence of this would be that the development could be then lawfully undertaken. The Council would not be legally entitled to withhold a development authorization on the basis that no authorization has been granted to vary the 1979 approval, for the petrol station authorization would be taken to include all approvals and authorizations required under the Development Act to lawfully undertake the development.

38 The principle that the issue of an unconditional planning approval embraces everything necessary to lawfully undertake the approved development under the relevant legislation is well established. I refer to two authorities, the first of which is Drummoyne Municipal Council v Lebnan [1974] HCA 34; (1974) 131 CLR 350, wherein Gibbs, J at page 358, said:-

"It was then submitted on behalf of the appellant that, assuming the building application to be deemed to be a development application also, the clause does not have the effect that the grant of approval to the building application operates as a consent to the development application. This submission is supported by the opinion expressed by Helsham J. in Warringah Shire Council v Arthur H. Gillott Pty Ltd, but with the greatest respect, I cannot accept it. The effect of cl.31 (3) was that the building application had a twofold operation - it was deemed to be an application for a development consent as well as an application for a building approval. In my opinion it follows that an unqualified approval to the building application would amount to an approval to everything which it was deemed to embrace and in other words amount to a development consent as well as to a building approval. No doubt a responsible authority has the power (subject to any right of appeal) to limit the effect of its approval, and to refuse a development consent while granting a building approval. However, in the present case the appellant approved of the application without any relevant qualification. Since the application was deemed to be, inter alia, an application for the consent of the responsible authority under the Ordinance, the approval took effect in part as an approval of that deemed application. On the proper construction of cl. 31 (3) and in the circumstances of the case the appellant as the responsible authority under the Ordinance gave its consent for the purposes of the Ordinance when it approved of the erection of the building under Pt XI of the Act."

39 The High Court's decision in the Drummoyne case was followed by the Full Court in the matter of Foura v City of Henley and Grange (1977) 17 SASR 10, a case in which a question before the Court was whether an approval granted under the Building Act carried with it an approval under the Planning and Development Act. Pursuant to the provisions of the then Planning and Development Act, an application lodged with a council pursuant to the provisions of the Building Act was deemed also to be an application for approval under the Planning and Development Act. In that case, Mr Foura had lodged a building application with the Council seeking approval of proposed building work, as a consequence of which he had received an approval subject to certain conditions, one of which read "subject to conditions laid down under the Planning and Development Act". The Council contended that Mr Foura could not lawfully undertake the proposed building work until he had also gained an approval under the Set Back Regulations made pursuant to the Planning and Development Act. The Court, following the Drummoyne decision, held that the condition in question should be construed as specifying the manner in which the approved work should be undertaken rather than as reserving to the Council the right to prohibit the undertaking of the work until a further approval had been granted. The issue of the approval was taken to include all approvals required under the Planning and Development Act, including those specifically required by the Set Back Regulations.

40 The judgements in the Drummoyne and Foura cases recognize that a planning authority, when issuing an approval, may impose conditions or adopt some other course requiring the issue of a further approval, perhaps under the same legislation, prior to the approval granted coming into force. Unless it does so, the approval granted is deemed to be all embracing. However, if in this case the Council accepts the petrol station application as being for a complying development which it must approve pursuant to subsection 35 (1) of the Act, it can only lawfully impose "such conditions or exceptions as may be prescribed by the regulations or the relevant development plan." It cannot lawfully impose a condition the effect of which will be to estop Woolworths from lawfully acting on the petrol station approval until it has obtained the car park approval. Thus, the Council would be legally obliged to issue, at the end of the approval process, an all embracing development authorization approving the lawful undertaking of that development. Such development authorization would extend beyond the approval of the petrol station to include the variation of the 1979 approval. Hence I conclude that the Council's decision to regard the petrol station application as being a merit application rather than for a complying kind of development was correct.

41 In so saying, I have not overlooked Mr Hayes' submission that such an approach will wreck violence upon the terms and clear intention of subsection 35 (1) of the Act. The purpose of that subsection, he said, is to guarantee developers that they will receive a provisional development plan consent if they submit an application for a complying development which meets all applicable conditions. The subsection clearly and unequivocally grants such a guarantee and, he said, neither a planning authority nor this Court should take it away. However, I do not think that my conclusion in this matter flies in the face of the subsection. Where a developer proposes a complying development the provisions of the subsection will speak accordingly. However, where the development in question has both a complying component and a component which is not complying, it cannot be classified as a complying development and the provisions of the subsection have no force: Pro-star v Petroleum Products Retail Outlets Board - Supreme Court judgement No.56904 delivered 4 November, 1998. The inescapable fact is that the petrol station development involves more than merely a petrol station. It will involve removal of portion of the car park approved in 1979 and access and egress to and from it over another portion of the car park. As a development, the petrol station will be integrated with the existing supermarket development. I do not think that the fact that a later application seeking to excise the petrol site from the shop land and make other changes to the car park, ie, the application of January, 1998, changes that situation at all. It seems to me that, in so far as that application seeks to excise the petrol site from the shop land and to make consequential changes to the existing car park, it is superfluous.

42 The decision of the Council which gave rise to these proceedings was that the two applications before it be dealt with on merit, that is, as consent kinds of development requiring category 3 notifications. The appellant now seeks a declaration that the petrol station application is for a complying kind of development which should be dealt with as a category 1 development. In the alternative, the appellant seeks a declaration that it is a category 2 development. For the reasons I have given, I do not think that the application is for a complying development, and that the Council's decision to deal with it as a merit or a consent kind of development is correct. Furthermore, having considered the terms of both Regulation 32 of and the 9th Schedule to the Development Regulations, I do not think that the development proposed can be reasonably regarded as being either a category 1 or a category 2 development. Thus, pursuant to subsection 38(1) of the Act, it must be taken to be a category 3 development.

43 My conclusion is that this appeal should be dismissed. I order accordingly.