York Developments Pty Ltd & Anor v Liverpool City Council

Land and Environment Court (NSW)|2000-08-11|Before: Sheahan J, Mr P

This matter has been listed for the determination of both two preliminary questions of law raised by the respondent Council, and a notice of motion by the applicant(s) for leave to rely upon amended plans .

A copy of the relevant development application (DA 3041/00) is attached to the class 1 application and included in Exhibit C1 (pp 1-11). It was lodged on 1 February 2000. This appeal was filed on 8 May 2000 against its deemed refusal. Consent was refused by Council on 6 June 2000, pursuant to delegated authority, and the refusal notified on 13 June 2000.

The questions of law essentially concern the issue of permissibility, giving rise to a need for the court to properly characterise the applicant's proposal. The key planning control is the Liverpool Local Environmental Plan 1997 (" the LEP " - Exhibit A1 ).

The proposal is described in the DA as being for a " combination of fast food and automotive retail development " for the proposed use of " sale and service of fast food and automotive fuel/equipment ". The application was supported by a Statement of Environmental Effects (" SEE "), ( Exhibit C1 pp 12-79) prepared by Mike George Planning Pty Ltd and dated January 2000, entitled " Proposed Service Station, Convenience Store and Restaurant … ". In its introduction the SEE refers to the proposal as comprising a " proposed restaurant and service station/convenience store/carwash and automotive parts and fittings facility ".

The Notice of Determination described the proposed development as " service station, convenience store and sale of auto fuels and lubricants, fast food restaurant, carwash, auto workshop and auto parts building " ( Exhibit C1 pp 80-81).

The notice of motion seeks an order " that the applicant be granted leave to amend the development application by substituting " the following seven drawings (tendered as Exhibit A2 ):

Drawing 9902701 Revision H - proposed site plan - dated 06.07.00 Drawing 9902702 Revision C - proposed elevations - dated 22.12.99 Drawing 9902703 Revision B - proposed restaurant plan - dated 06.07.00 Drawing 9902704 Revision B - proposed areas 2 and 3 floor plan - 22.12.99 Drawing 9902705 Revision A - proposed carwash plan area 6 - dated 22.12.99 Drawing 9902707 Revision A - proposed signage details - dated 03.01.00 Drawing 9902708 Revision C - proposed landscape concept - dated 06.01.00

The development proposed by the DA is stated in the SEE ( Exhibit C1 p 22) to comprise the following elements:

· the subdivision of the land into four allotments (road widening, service station, restaurant, residual allotments for residential and open space) with reciprocal rights of way between the restaurant and service station. · the construction of a restaurant · the construction of a service station incorporating a convenience store, carwash and automotive workshops · acoustic fencing to the adjoining residential land · signage as indicated on the drawings · associated parking (103 spaces) and landscaping.

The DA refers to the subject land as lot 2 in DP 830771 and lot 75 in DP 2475, but the notice of determination refers to it as lots 74 and 75 in DP 2475. In any event, the subject site is part of an undeveloped area of land at the intersection of Cowpasture and Hoxton Park Roads at Hoxton Park. The remainder of the land not required for the proposed development is to be subdivided into a residue allotment which will enable completion of planned residential development and the development of roads and a park. That residue land is not part of this application, but an indicative subdivision layout was provided with the DA.

The SEE states that the proposal is submitted: …in response to the demands associated with population and business growth in the catchment of the site which is unable to be adequately satisfied within zoned commercial areas. It will provide a range of motorist oriented services, which have not been expressly addressed in planning for retail services in the release areas. The proposed site is ideal for the purpose because of its location and accessibility by car. Further, high levels of traffic make the site less suitable for residential use.

The DA was supported also by an objection under SEPP 1 directed against a restriction which would deny vehicular access to both the Cowpasture Road and Hoxton Park Road frontages of the proposed development site.

The SEE asserted substantial compliance otherwise with the statutory planning framework, but acknowledged some allegedly minor non-compliance with the DCP standard for parking space width and landscaping matters. It was contended in the SEE that these non-compliances were minor, justified and in accord with the underlying intent of the DCPs.

The SEE notes that the site " has been the subject of previous applications for similar but generally larger scale development ".

It is suggested by the DA documents and the SEE that there are short-term proposals for drainage works, road-widening and reconstruction of the intersection, involving construction of a large roundabout. That part of the land located precisely at the current physical intersection of the two roads, is zoned 5(a) Special Uses, and is affected by a drainage easement. The roads themselves are zoned 5(c) Special Uses - Arterial Road.

The site area available for development (19837.4m2 of 25084.4m2) is identified in figure 2 of the SEE, with frontages of approximately 150m to Hoxton Park Road and 135m to Cowpasture Road.

The court was asked to assume that all necessary conveyancing steps would be taken to ensure that the site identified for development will at the relevant time be truly a corner block, and zoned Residential 2(a) (see Exhibit C4 ).

The integrated service station/convenience store component was to have a total floor area of approximately 400m2, of which a maximum of 240m2 would be available for the retailing of convenience goods, and 160m2 for oils and other proprietary automotive products.

The carwash and vacuum facility were proposed for a clearly defined area of approximately 1,000m2, of which approximately 205m2 would be building.

Two workshop buildings were proposed, having areas of 685m2 and 290m2, with the larger building to be used for display, sale and fitting of automotive spare parts, and the smaller for the display, sale and installation of car radios and mobile phones. The SEE says: the floor area of the larger unit is required to accommodate the range of products associated with this type of use. The existing Super Cheap Auto store on Elizabeth Drive provides an example . [Mr Hemmings, on behalf of the Council, tendered photographs of that Elizabeth Drive enterprise ( Exhibit C2 )].

The proposed restaurant was said to be a hamburger restaurant, with a total of 72 seats in an internal dining area, plus a drive-through servery with a capacity to accommodate 8-12 cars. The building was to have a total floor area of approximately 365m2.

The proposed hours of the operation were stated to be 6am-10pm seven days per week for the carwash, and 6am-12midnight seven days per week for the remainder of the proposal.

A report prepared by Dobinson & Associates concluded that the proposal would have no significant traffic implications, and the recommendations made by Steven Cooper Acoustics were embraced by the application.

The proposal was asserted to have no adverse visual impact in the circumstances and to be appropriately integrated with surrounding residential areas to ensure no adverse impacts on residential amenity.

The SEE contended that the additional considerations for convenience stores and service station developments, specified in cl 30A of the LEP, were satisfied by the proposal.

In the SEPP 1 objection (p 38 of the SEE - Exhibit C1 p 57) the following comments appear: … there is a strong argument for permitting limited development of 'highway oriented' uses on arterial road frontages. Service stations, restaurants and car maintenance facilities fall within the category of 'highway oriented' development.

The primary function of service stations is to provide the fuel and ancillary services to satisfy motorists' requirements, while the function of the arterial road system is to accommodate the heaviest traffic flows. Those complementary roles provide a strong logic for locating service stations on the arterial road frontage.

A large proportion of the patronage of fast food restaurants is also drawn from motorists on the arterial road system, emphasising the need for a high level of access for fast food restaurants off the arterial road system. Where a fast food outlet is part of a service station, this association is reinforced.

The site plan associated with the DA in Exhibit C1 (p 5) was drawing " 9902701 Revision E ", which was apparently delivered to Council on 27 April 2000 but appears to bear a 1999 date. The other plans with the DA in Exhibit C1 (pp 6-11) were numbered 9902702-6, and 9902708 and all marked " Revision A ". No drawing 9902707 appears to have been included. However, Drawings 9902707A and 9902708A, entitled respectively proposed signage details and proposed landscape concepts, were tendered as Exhibit C3, and were stated to have accompanied the DA. The signage depicts a range of uses to be advertised on the one structure. The " 07 " drawing in Exhibit A2 is the same drawing as that in Exhibit C3 .

The Managing Director of York Developments Pty Ltd, Gerry Burges, was authorised to swear an affidavit on behalf of both that company and Polo Properties Pty Ltd on 6 July 2000. He has been, and remains, the person responsible for the coordination and preparation of the subject development application, and the person authorised by the applicants to liaise with the Council.

Attached to his affidavit is a chronology indicating a series of consultations between himself and Council officers between 13 August 1999 and the lodgment of the DA on 1 February 2000 , and further negotiations thereafter.

The affidavit annexes some items of correspondence. On or about 26 April 2000 , Council officer Turisi faxed the following message to Mr Burges: Following our discussions, the auto parts area would need to be reduced so it would have an overall floor area of 250m2 and relocated with the auto workshop so as it is integrated with the other uses under the service station activity.

I would like to see a fresh plan (draft) prior to any formal plans being prepared.

As noted above, plan 9902701E was delivered on 27 April 2000 in response.

On 5 May 2000 , Turisi wrote to Burges in the following terms: I refer to previous discussions regarding the above application and in particular, to the issue of development scale and it's overall integration.

After having perused the draft amended plans, I advise that Council maintains its original concern regarding the development's integration.

Given this, the use is considered to be independent of the service station activity and constitutes a separate activity.

Despite numerous attempts to resolve the matter, it is clear that a resolution is unlikely. Consequently, I advise that Council will determine the application on the basis of the original development plans . I trust the assessment of those plans is your intended course of action. [emphasis added]

Burges says that on 9 May 2000 he met with Turisi and other Council officers and provided a further amended draft plan being drawing 9902701 (Opt 2) Revision G.

Burges then, on 15 May 2000 , wrote a lengthy " without prejudice " letter to Turisi making, inter alia, the following assertions:

· after 5 pre-DA meetings he was advised by a Council officer to lodge the DA. · the applicant amended the DA as " recommended " by the fax, on or about 26 April. · following Council's letter of 5 May 2000, regarding the independence of the uses from the service station activity, the applicant, as advised, moved the automotive parts and workshop next to the service station building. " We fully embraced those changes you put forward and altered our plans again …". · many other amendments were made at the suggestion of Council officers and one councillor. · Burges was surprised to learn at the meeting on 9 May " that our redrawn plans still did not satisfy your requirements and you could not recommend consent from Council ". · Burges was then surprised by Council's letter of 5 May " in light of the trouble taken to amend the development application so that it was consistent with your preferred approach to development on the subject site ".

The letter concluded: Obviously, our plan and scale of development must now comply as the latest plan now reflects all of your … recommendations. In light of this can you please advise what else we need to do to have the development proposal approved .

Burges wrote to Turisi again on 31 May 2000 , having had no response to the letter of 15 May 2000. He had been informed that " Council's legal firm believes that the auto workshop component is prohibited ". The letter queries that advice in view of the negotiations that had taken place in respect of the size and location of a building for that purpose.

Burges received, on or about 1 June 2000 , a " without prejudice " reply to his letters of 15 and 31 May. That response is not annexed to the affidavit, but Burges wrote back to Turisi on 16 June 2000 submitting a new service station building plan, 9902704 - Int. B Revision A, and a new site plan 9902701 - Int. B (with no revision number) which Mr McClellan says was and is " the substance of the newest plan " as put before the court, namely Revision H (in Exhibit A2 ). The letter of 16 June said:

We have redesigned the development to satisfy Council's requirements with the following design changes: 1. We have increased the residential component from approximately 6,000 sq. metres to 7,300 sq. metres. 2. We have reduced the commercial area from approximately 14,000 sq. metres to 12,550 sq. metres. 3. We have designed a completely integrated service station building where all activities are totally connected and accessible within the building. 4. We have reduced the sale by retail of spare parts and accessories for motor vehicles to your suggested 250 sq. metres (as per your facsimile dated 26 April 2000). 5. We have reduced the installation of accessories, inspecting, repairing and servicing of motor vehicles to your suggested 290 sq. metres (as per your facsimile dated 26 April 2000). We have implemented all of the design characteristics advised to us by Council and we ask Council to inspect these plans and advise us of any further changes that may be required.

We remain committed to resolve the issues with this development application while Council and ourselves still have the opportunity to control the development and the final design. I am available to meet with Council to discuss any outstanding issues to find a suitable solution.

I note that by that stage, not only had this appeal been lodged (8 May), but the Council had determined the matter (6 June), and the relevant notice of refusal had been issued (13 June).

The Council's reasons for refusal were stated to be as follows ( Exhibit C1 - p80-81): 1. The proposed development is a prohibited use under Clause 9 of Liverpool Local Environmental Plan 1997. 2. The proposed development is contrary to the definition of 'Service Station' under Clause 6 of the Liverpool Local Environmental Plan 1997 given it constitutes more than one 'place'. 3. The proposed development is contrary to objective (1)(b) Clause 39 of Liverpool Local Environmental Plan 1997 given it may adversely affect the amenity of the locality. 4. The proposal development is contrary to 'General Restrictions on Development' in residential zones under Clause 40 of Liverpool Local Environmental Plan 1997. 5. The proposed scale, design and siting of the development is contrary to the definition of 'Service Station' under Liverpool Local Environmental Plan 1997. 6. The proposed development is not compatible and sympathetic in design with existing and future adjoining residential areas under Clause 30A (d) of Liverpool Local Environmental Plan 1997. 7. The proposed advertising signage fronting Hoxton Park Road and Cowpasture Road is contrary to Council's Development Control Plan No. 35 - Outdoor Advertising. 8. Submissions received in respect to the application. 9. The proposed development is likely to have an adverse economic impact upon surrounding shopping centres of Carnes Hill and Hoxton Park. Given this, the development is contrary to Clause 30A (c) of Liverpool Local Environmental Plan 1997. 10. The proposed development is not in the public interest. 11. The proposed development site plan and Statement of Environmental Effects (Ref: Drawing No. 99027 E dated 3 March 1999) implies subdivision of the commercial component of the development. This is contrary to Liverpool Local Environmental Plan 1997. 12. The proposed 3 metre high acoustic wall along the southern and eastern boundaries of the service station will have an adverse visual impact upon the locality. 13. The proposed hours of operation of the development will have an adverse impact upon the amenity of the locality.

The site plan which accompanied that letter is at p18 of the Burges affidavit 99027, 01 Int B, was and is " the substance of the newest plan " as put before the court in Revision H.

The following definitions occur in cl 6 of the LEP: Advertisement means the display of symbols, messages or other devices for promotional purposes or for conveying information, instructions, directions or the like, whether or not the display includes the erection of a structure, or the carrying out of a work.

Arterial road means: (a) a road shown on the map as being within the 5(c) zone, or (b) a road declared to be a main road, controlled access road, secondary road or a tollway under the Roads Act 1993, or (c) a road shown on the Council's adopted Road Hierarchy (a copy of which is available from the office of the Council) as an arterial road or a sub-arterial road.

Bulky goods salesroom or showroom means a building or placed used for the sale by retail or auction, or the hire or display, or any of the following: … (h) automotive parts and accessories, or …

Business premises means a building or place in which there is carried on an occupation, profession, service, light industry or trade which provides a service directly and regularly to the public but, in the Table to clause 9, does not include a building or place elsewhere defined in this clause.

Convenience store means a shop selling a variety of small grocery goods, whether or not goods are available for hire there.

Highway service centre means a place which has direct access to a freeway or controlled access road and provides petrol and diesel fuel outlets, toilets, restaurant facilities (for either sit-down or take-away meals, or both), parking for cars, buses and trucks and emergency repair facilities.

Industry means the manufacturing, assembling, altering, repairing, renovating, ornamenting, fishing, cleaning, washing, dismantling, processing or adapting of any goods, articles, materials, liquids or gases for commercial purposes but, in the Table to clause 9, does not include a land use elsewhere defined in this clause.

Restaurant means a building or place, the principal purpose of which is the provision of food to people for consumption on the premises or to provide take-away meals.

Service station means a building or place used for the sale by retail of motor vehicle fuels and lubricants, whether or not the building or place is also used for any one or more of the following: (a) the sale by retail of spare parts and accessories for motor vehicles, (b) the cleaning of motor vehicles, (c) installation of accessories, (d) inspecting, repairing and servicing of motor vehicles (other than body building, panelbeating, spraypainting or suspension, transmission or chassis restoration), (e) the retail selling or hiring of small consumer goods or services or both.

Shop means a building or place used for selling items, whether by retail or auction, or for hiring or displaying items for the purpose of selling or hiring them (whether the items are goods or materials).

Clause 8 nominates the zones, and cl 9 and its associated table sets out those uses which are permitted. Those not " ticked " in the table are prohibited, and in the case of the 2(a) zone they include advertisements, bulky goods salerooms or showrooms, business premises, convenience stores, highway service centres, industries, restaurants, service stations and shops.

Clause 9(4) provides that the Council may grant consent to development only if it has regard to the general objectives and other objectives of the plan, the objectives of the zone and the other provisions of the plan. The objectives of the 2(a) zone are set out in cl 39(1) in the following terms: (a) to identify land to be used for housing, primarily dwelling houses, and also dual occupancy housing, integrated housing, multiple dwellings and housing for aged or disabled persons that, in each case, is compatible with existing housing, and (b) to permit other types of buildings, if they do not adversely affect the amenity of the locality, and (c) to permit development which serves residents of the zone, and (d) to permit residents to work at home if that does not adversely affect the amenity of the locality.

Clause 10 sets out " special provisions " in respect of " development which also needs consent ", and Clause 10 (19) relevantly provides as follows: Service stations, restaurants and convenience stores Development for the purpose of one service station, one restaurant or one convenience store (or any combination of not more than one of each of them) may be carried out, but only with consent, on land: … (b) which is in the 2(a) zone, which has frontage to Camden Valley Way, Cowpasture Road or Kurrarjong Road and which is on a corner allotment or is likely to be on a corner allotment as shown by a development control plan.

Clause 11 makes provision for business identification signs and for other signs to be development without consent.

Clause 30 deals with convenience stores in these terms: Consent may be granted for a convenience store only if it has a gross floor area used for retail selling (not including floor space used for the sale of petrol, oil, petroleum products or automotive products) which does not exceed 240 sq m.

Clause 30A was added in 1998 and makes the following special provision for " Convenience stores and service stations" . Before determining an application for consent for development for the purpose of service stations, restaurants and convenience stores, the Council must consider: (a) whether there will be minimal impact on traffic movement and carparking on arterial roads and on existing and future streets in nearby residential areas, and (b) whether the site of the proposed development will be accessible to existing and future adjoining residential areas in terms of pedestrian and vehicular accessibility, and (c) the likely trade catchments, and (d) whether any buildings or works proposed are compatible and sympathetic in design with the existing and future adjoining residential areas.

Clause 40 imposes the following " General restrictions on development ":

Consent may be granted for a building on land in the 2(a), 2(b), 2(c) or 2(d) zone only if it would be compatible with the character and amenity of both the existing and likely future nearby residential areas in terms of: (a) its scale, bulk, design, height, siting and landscaping, and (b) its operation, and (c) traffic generation and car parking, and (d) noise, dust, light and odour nuisance, and (e) privacy, and (f) stormwater drainage, and (g) hours of operation, and (h) overshadowing

The " Questions of Law " documents filed on 14 and 15 June 2000 pose the following questions: 1. Is the use of a building or place for any one or more of the following purposes capable of being characterised as a use for the purpose of a service station as defined in clause 6 of Liverpool Local Environment Plan 1997 if such use operates in a way which is independent and not merely incidental to the use of that building or place for the sale by retail of motor vehicle fuel and lubricants: (a) the sale by retail of spare parts and accessories for motor vehicles; (b) the cleaning of motor vehicles; (c) installation of accessories; (d) inspecting, repairing and servicing of motor vehicles; or (e) the retail selling or hiring of small consumer goods or services or both?

Whether the development described in development application 3140/00 lodged by the Applicant with the Respondent on 1 February, 2000 is permissible under Liverpool Local Environmental Plan 1997 (with the consent of the Respondent).

The Council submits that this DA, however it is described in the materials submitted by the applicant, or indeed in any issued by the Council, is a proposal for a conglomerate of five independent, separate, and separately advertised uses or enterprises, among which that which can properly be characterised as, or embraced by the term, " service station " is an independent and severable use, to which the other functions must, but here cannot, be found to be minor, and subservient and/or ancillary.

For example, as Mr Hemmings submits, a service station may traditionally have sold a few parts and accessories, but the shop component here is proposed to be large, like the one depicted in Exhibit C2 , and really amounts to a " bulky goods salesroom …", a use which is prohibited in the 2(a) zone. He argues that, as the applicant must successfully rely on the " exception " provided by cl 10(19) of the LEP, the applicant bears the onus of establishing that its proposal comes within that " exception ". Vines v Djordjevitch (1955) 91 CLR 512. [I note that he appears to raise no objections to the restaurant component].

On the other hand, Mr McClellan argues that cl 10(19) is " enabling ", rather than an " exception", and so permits development of a " service station ", as understood in common and modern parlance, on " key " and suitable corner sites, within the 2(a) zone, and adjoining major or arterial roads. Mr McClellan submits that the definition of " service station " in the LEP (see par 41 above) clearly contemplates a multi-faceted development on such sites and does not require only one building to be constructed.

Further, Mr McClellan submits, this proposal includes the traditional key or essential prerequisite of " service station ", namely sale of petrol, oils and related products, and its other elements are covered by the definition in the LEP. The real dispute, in his view, is one of merit, not permissibility.

What is embraced by the concept of "service station" has evolved over the passage of the years.

In 1982 Hope JA, in the NSW Court of Appeal, noted in Randwick Municipal Council v John G Simpson &Associates Pty Ltd 47 LGRA 118 (at 121) that it was " common with service stations in NSW" to find:

· the structures necessary for the purposes of selling petroleum products, · the usual type of structures used for the provision of service, repairs and lubrication operations, and · a small retail section where cigarettes, confectionery and like items might be purchased,

…there is no doubt that an approval for the use of land as a service station authorized the use of it for the purposes of selling petrol and other petroleum products by retail, for the provision of service, repair and lubrication operations, and for the selling on a small scale of items which might be required by motorists such as cigarettes and confectionery.

Before the court in Simpson was a proposal to retain " the petrol and petroleum products retailing activities", but convert " the areas previously used for the provision of service, repair and lubrication operations to a retail shop selling pre-packaged food drinks and related items" , and carry out " alterations to the structures to make them suitable for these purposes ".

The Court of Appeal had already determined in Drummoyne Municipal Council v Cavallaro (1982) 46 LGRA 416, a few months earlier, that the meaning of the expression " service station " was well established, over time from 1956, to cover (per Reynolds JA at 419): a place or building used principally for the sale by retail of petrol, oils and other petroleum products, and a use [which] … covers other services in respect of motor vehicles which are regarded as ancillary to that principal use.

Such a " single use " was picked up by later statutory definitions of " service station " in planning instruments. Those definitions have also evolved over the years to embrace what might be called the contemporary " needs " of motorists.

The LEP in this case distinguishes between " highway service centre ", " service station ", " convenience store " and " shop ". [See also Food Plus Pty Ltd v Warringah Shire Council (1983) 50 LGRA 76 (at 88 per McClelland CJ)].

Generally " a shop is not a shop if it is also a service station " ( Food Plus , at 88). If a shop is co-located with a service station the test to be applied would be that set out by Glass JA in Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 (at 161) namely: Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.

What, then, are the elements of the proposal as considered and refused by the Council on 6 June 2000, and/or as now to be argued on appeal to this court? They seem to be, in both cases:

· Restaurant, with take-away and drive-through options. · " Filling " facility · Canopy over " filling " facility · a building in which fuel buyers will pay for their purchases, and in which they and other patrons may buy lubricants etc, and/or buy what have become known as " convenience store " items · a facility for washing and cleaning vehicles · a building or buildings for the display, sale and fitting of "automotive spare parts, or for display, sale and installation of car radios and mobile phones " · workshop facilities where part/accessory fitting, and repair/maintenance work, and car inspections, may be carried out · relevant and associated signage, car parking, landscaping, and provisions for ingress and egress, etc.

What is not proposed here? The following relevant components are not included:

· Body building · panel beating · suspension, transmission or chassis restoration · truck or bus parking facilities

Given this combination of inclusions and exclusions, all the " use " elements, both positive and negative, of the LEP's definition of " service station " appear to me to be satisfied. [If mobile phones are not " accessories for motor vehicles " they are presumably " small consumer goods " available for sale or hire].

All elements are certainly not proposed to be in only one building, but the definition in the LEP refers to " a building or place ".

The LEP does not define " place ", but in ordinary parlance it is a " particular portion of space " (as defined in the Macquarie Dictionary), and can also be a building or part of a building.

I am satisfied that a defined block of land, such as the subject site, would, in ordinary parlance, be regarded as a " place ", and I reject, as completely artificial, Mr Hemmings' attempt to notionally divide the land and the various proposed structures into individual " places ", allied to particular components of the proposal.

The subject site is a " place " where the applicant proposes to conduct the five activities listed in Question 1, in conjunction with, and incidental to, the traditional primary service station function of supplying fuel.

Some of the uses may also satisfy or fit within the LEP's definitions of " bulky goods salesroom ", " shop ", " convenience store ", " business premises " or " industry ", but they are specifically embraced also by the LEP's definition of " service station ".

I would, therefore, answer Questions 1 and 2 "y es " - the proposal in its various manifestations is permissible, and the appeal can and should proceed to a determination on its merits, provided that, when all proposed conveyancing steps have been taken, the whole of the development site is zoned 2(a) and is truly a corner block with a frontage to Cowpasture Road.

It is a well established principle that leave should not be granted to an applicant to rely on amended plans where the amendments will make so " substantial " a difference to the proposal as originally submitted as to amount to a fresh application. Willoughby Municipal Council v LGAT and Manchil Pty Ltd [1974] 2 NSWLR 415; Cambridge Credit Corp Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590.

The DA in this matter, as reflected in the various documents lodged, including the original plans, encompassed the provision on the site of various structures for the uses referred to above.

After some unsuccessful, or at least inconclusive, negotiations the Council notified the applicant that the DA would be determined on the basis of those original plans, although, as I have recounted, many amendments had been suggested, and/or been discussed, and then made to them.

The applicant did not concur in those plans being a true representation of the proposal it then had before Council, and wanted considered and determined by Council. Documents provided to consent authorities after lodgment of the original DA are often taken as part of the DA and reflected in the ultimate consent or refusal. Sydney Serviced Apartments v North Sydney Municipal Council (No.2) (1993) 78 LGERA 404.

In this case, when the Council proceeded to determine, and refuse, the application, it dealt with the plans 9902701 revision E and 9902702-8 revision A ( Exhibits C1 and C3 ), and not with those submitted during negotiations, as supplementary components of the DA, with the aim of meeting Council's concerns.

The current proposal of the applicant ( Exhibit A2 ) is represented by drawings 9902701H, 02C, 03B, 04B, 05A, 07A and 08C. Some of the locations and dimensions of the component buildings, and the relationships between/among them have changed, but there will still be on the site, as there have been all along:

· a restaurant, · petrol bowsers, · convenience store, · an area for the retailing of fuels and lubricants and the retail selling or hiring of consumer goods or services or both, · an area for sale by retail of spare parts and accessories for motor vehicles, · an area for the installation of accessories, and the inspecting, repairing and servicing of motor vehicles, · an area for cleaning and washing of motor vehicles, · a canopy, · signs, and · landscaping, carparking, ingress, egress, etc.

The car cleaning area has been moved in a north-easterly direction across the site, but major features of how the whole proposal relates to its setting are little changed.

The floor plans of some of the areas have changed, but overall there is a reduction in the area of land to be occupied by buildings and carparking. What were to be four " areas " in two buildings have become one long building with more flexible divisions between pairs of areas, and there would appear to me to be more landscaping for screening purposes.

Mr McClellan for the applicant contends that the activity and range of uses, as depicted in the amended plans, are, therefore, substantially the same development, albeit in a different configuration. He asserted that the Council has had the amended plans since 16 June 2000, but, on the basis of their dates, that simply cannot be correct in respect of all of them.

I do not see the need to accept Mr Hemmings' submission that I should refer the latest plans to a Commissioner for determination of the substantiality or otherwise of their differences from the originals, as Cowdroy AJ did in Ross Karp & Associates Pty Ltd v Randwick City Council (1999) 106 LGERA 397. In that case the amended plans had never been before the Council at all (see 399). In this case they have largely been before the Council, or at least its officers, and early determination of the key question raised by the Notice of Motion would serve the interests of all.

I have concluded that Exhibit A2 does not present a substantially different development from that in Exhibit C1 , and leave will be granted for the applicant to rely on those later plans listed in its Notice of Motion.

However, as the Council, or at least its delegated officer, has - for reasons not made clear to the court - determined its stance on the proposal on the basis of plans the applicant had, with Council's knowledge, moved away from, the appeal should not be set down for hearing until Council has had sufficient time to review and deal with the proposal as it is now framed for the court's consideration.

I will, therefore, stand the matter over to the Registrar's callover list on Wednesday 13 September 2000.

The orders of the court will therefore be: 1. Question 1 as posed in the " Questions of Law " filed by the respondent is answered " yes ". 2. Question 2 as posed in the " Questions of Law " filed by the respondent is answered " yes , provided that, after the applicant has completed all necessary conveyancing steps it proposes, the whole of the development site is zoned 2(a) and has a frontage to Cowpasture Road ". 3. Leave is granted to the applicant to amend the development application by substituting the seven (7) plans nominated in par 1 of its Notice of Motion filed 14 July 2000 ( Exhibit A2 ). 4. The appeal is stood over to the Registrar's callover list on Wednesday 13 September 2000. 5. There will be no order as to costs. 6. All exhibits may be returned except Exhibit A2 .

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(b) which is in the 2(a) zone, which has frontage to Camden Valley Way, Cowpasture Road or Kurrarjong Road and which is on a corner allotment or is likely to be on a corner allotment as shown by a development control plan.

45. Clause 11 makes provision for business identification signs and for other signs to be development without consent.

46. Clause 30 deals with convenience stores in these terms:

Consent may be granted for a convenience store only if it has a gross floor area used for retail selling (not including floor space used for the sale of petrol, oil, petroleum products or automotive products) which does not exceed 240 sq m.

47. Clause 30A was added in 1998 and makes the following special provision for "Convenience stores and service stations".

Before determining an application for consent for development for the purpose of service stations, restaurants and convenience stores, the Council must consider:

(a) whether there will be minimal impact on traffic movement and carparking on arterial roads and on existing and future streets in nearby residential areas, and

(b) whether the site of the proposed development will be accessible to existing and future adjoining residential areas in terms of pedestrian and vehicular accessibility, and

(d) whether any buildings or works proposed are compatible and sympathetic in design with the existing and future adjoining residential areas.

48. Clause 40 imposes the following "General restrictions on development":

(a) its scale, bulk, design, height, siting and landscaping, and

49. The "Questions of Law" documents filed on 14 and 15 June 2000 pose the following questions:

1. Is the use of a building or place for any one or more of the following purposes capable of being characterised as a use for the purpose of a service station as defined in clause 6 of Liverpool Local Environment Plan 1997 if such use operates in a way which is independent and not merely incidental to the use of that building or place for the sale by retail of motor vehicle fuel and lubricants:

(a) the sale by retail of spare parts and accessories for motor vehicles;

(d) inspecting, repairing and servicing of motor vehicles; or

(e) the retail selling or hiring of small consumer goods or services or both?

2. Whether the development described in development application 3140/00 lodged by the Applicant with the Respondent on 1 February, 2000 is permissible under Liverpool Local Environmental Plan 1997 (with the consent of the Respondent).

50. The Council submits that this DA, however it is described in the materials submitted by the applicant, or indeed in any issued by the Council, is a proposal for a conglomerate of five independent, separate, and separately advertised uses or enterprises, among which that which can properly be characterised as, or embraced by the term, "service station" is an independent and severable use, to which the other functions must, but here cannot, be found to be minor, and subservient and/or ancillary.

51. For example, as Mr Hemmings submits, a service station may traditionally have sold a few parts and accessories, but the shop component here is proposed to be large, like the one depicted in Exhibit C2, and really amounts to a "bulky goods salesroom ...", a use which is prohibited in the 2(a) zone. He argues that, as the applicant must successfully rely on the "exception" provided by cl 10(19) of the LEP, the applicant bears the onus of establishing that its proposal comes within that "exception". Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512. [I note that he appears to raise no objections to the restaurant component].

52. On the other hand, Mr McClellan argues that cl 10(19) is "enabling", rather than an "exception", and so permits development of a "service station", as understood in common and modern parlance, on "key" and suitable corner sites, within the 2(a) zone, and adjoining major or arterial roads. Mr McClellan submits that the definition of "service station" in the LEP (see par 41 above) clearly contemplates a multi-faceted development on such sites and does not require only one building to be constructed.

53. Further, Mr McClellan submits, this proposal includes the traditional key or essential prerequisite of "service station", namely sale of petrol, oils and related products, and its other elements are covered by the definition in the LEP. The real dispute, in his view, is one of merit, not permissibility.

54. What is embraced by the concept of "service station" has evolved over the passage of the years.

55. In 1982 Hope JA, in the NSW Court of Appeal, noted in Randwick Municipal Council v John G Simpson &Associates Pty Ltd 47 LGRA 118 (at 121) that it was "common with service stations in NSW" to find:

· the structures necessary for the purposes of selling petroleum products,

· the usual type of structures used for the provision of service, repairs and lubrication operations, and

· a small retail section where cigarettes, confectionery and like items might be purchased,

...there is no doubt that an approval for the use of land as a service station authorized the use of it for the purposes of selling petrol and other petroleum products by retail, for the provision of service, repair and lubrication operations, and for the selling on a small scale of items which might be required by motorists such as cigarettes and confectionery.

56. Before the court in Simpson was a proposal to retain "the petrol and petroleum products retailing activities", but convert "the areas previously used for the provision of service, repair and lubrication operations to a retail shop selling pre-packaged food drinks and related items", and carry out "alterations to the structures to make them suitable for these purposes".

57. The Court of Appeal had already determined in Drummoyne Municipal Council v Cavallaro (1982) 46 LGRA 416, a few months earlier, that the meaning of the expression "service station" was well established, over time from 1956, to cover (per Reynolds JA at 419):

a place or building used principally for the sale by retail of petrol, oils and other petroleum products, and a use [which] ... covers other services in respect of motor vehicles which are regarded as ancillary to that principal use.

58. Such a "single use" was picked up by later statutory definitions of "service station" in planning instruments. Those definitions have also evolved over the years to embrace what might be called the contemporary "needs" of motorists.

59. The LEP in this case distinguishes between "highway service centre", "service station", "convenience store" and "shop". [See also Food Plus Pty Ltd v Warringah Shire Council (1983) 50 LGRA 76 (at 88 per McClelland CJ)].

60. Generally "a shop is not a shop if it is also a service station" (Food Plus, at 88). If a shop is co-located with a service station the test to be applied would be that set out by Glass JA in Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 (at 161) namely:

Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.

61. What, then, are the elements of the proposal as considered and refused by the Council on 6 June 2000, and/or as now to be argued on appeal to this court? They seem to be, in both cases:

· Restaurant, with take-away and drive-through options.

· a building in which fuel buyers will pay for their purchases, and in which they and other patrons may buy lubricants etc, and/or buy what have become known as "convenience store" items

· a building or buildings for the display, sale and fitting of "automotive spare parts, or for display, sale and installation of car radios and mobile phones"

· workshop facilities where part/accessory fitting, and repair/maintenance work, and car inspections, may be carried out

· relevant and associated signage, car parking, landscaping, and provisions for ingress and egress, etc.

62. What is not proposed here? The following relevant components are not included:

63. Given this combination of inclusions and exclusions, all the "use" elements, both positive and negative, of the LEP's definition of "service station" appear to me to be satisfied. [If mobile phones are not "accessories for motor vehicles" they are presumably "small consumer goods" available for sale or hire].

64. All elements are certainly not proposed to be in only one building, but the definition in the LEP refers to "a building or place".

65. The LEP does not define "place", but in ordinary parlance it is a "particular portion of space" (as defined in the Macquarie Dictionary), and can also be a building or part of a building.

66. I am satisfied that a defined block of land, such as the subject site, would, in ordinary parlance, be regarded as a "place", and I reject, as completely artificial, Mr Hemmings' attempt to notionally divide the land and the various proposed structures into individual "places", allied to particular components of the proposal.

67. The subject site is a "place" where the applicant proposes to conduct the five activities listed in Question 1, in conjunction with, and incidental to, the traditional primary service station function of supplying fuel.

68. Some of the uses may also satisfy or fit within the LEP's definitions of "bulky goods salesroom", "shop", "convenience store", "business premises" or "industry", but they are specifically embraced also by the LEP's definition of "service station".

69. I would, therefore, answer Questions 1 and 2 "y_es_" - the proposal in its various manifestations is permissible, and the appeal can and should proceed to a determination on its merits, provided that, when all proposed conveyancing steps have been taken, the whole of the development site is zoned 2(a) and is truly a corner block with a frontage to Cowpasture Road.

70. It is a well established principle that leave should not be granted to an applicant to rely on amended plans where the amendments will make so "substantial" a difference to the proposal as originally submitted as to amount to a fresh application. Willoughby Municipal Council v LGAT and Manchil Pty Ltd [1974] 2 NSWLR 415; Cambridge Credit Corp Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590.

71. The DA in this matter, as reflected in the various documents lodged, including the original plans, encompassed the provision on the site of various structures for the uses referred to above.

72. After some unsuccessful, or at least inconclusive, negotiations the Council notified the applicant that the DA would be determined on the basis of those original plans, although, as I have recounted, many amendments had been suggested, and/or been discussed, and then made to them.

73. The applicant did not concur in those plans being a true representation of the proposal it then had before Council, and wanted considered and determined by Council. Documents provided to consent authorities after lodgment of the original DA are often taken as part of the DA and reflected in the ultimate consent or refusal. Sydney Serviced Apartments v North Sydney Municipal Council (No.2) (1993) 78 LGERA 404.

74. In this case, when the Council proceeded to determine, and refuse, the application, it dealt with the plans 9902701 revision E and 9902702-8 revision A (Exhibits C1 and C3), and not with those submitted during negotiations, as supplementary components of the DA, with the aim of meeting Council's concerns.

75. The current proposal of the applicant (Exhibit A2) is represented by drawings 9902701H, 02C, 03B, 04B, 05A, 07A and 08C. Some of the locations and dimensions of the component buildings, and the relationships between/among them have changed, but there will still be on the site, as there have been all along:

· an area for the retailing of fuels and lubricants and the retail selling or hiring of consumer goods or services or both,

· an area for sale by retail of spare parts and accessories for motor vehicles,

· an area for the installation of accessories, and the inspecting, repairing and servicing of motor vehicles,

· an area for cleaning and washing of motor vehicles,

76. The car cleaning area has been moved in a north-easterly direction across the site, but major features of how the whole proposal relates to its setting are little changed.

77. The floor plans of some of the areas have changed, but overall there is a reduction in the area of land to be occupied by buildings and carparking. What were to be four "areas" in two buildings have become one long building with more flexible divisions between pairs of areas, and there would appear to me to be more landscaping for screening purposes.

78. Mr McClellan for the applicant contends that the activity and range of uses, as depicted in the amended plans, are, therefore, substantially the same development, albeit in a different configuration. He asserted that the Council has had the amended plans since 16 June 2000, but, on the basis of their dates, that simply cannot be correct in respect of all of them.

79. I do not see the need to accept Mr Hemmings' submission that I should refer the latest plans to a Commissioner for determination of the substantiality or otherwise of their differences from the originals, as Cowdroy AJ did in Ross Karp & Associates Pty Ltd v Randwick City Council (1999) 106 LGERA 397. In that case the amended plans had never been before the Council at all (see 399). In this case they have largely been before the Council, or at least its officers, and early determination of the key question raised by the Notice of Motion would serve the interests of all.

80. I have concluded that Exhibit A2 does not present a substantially different development from that in Exhibit C1, and leave will be granted for the applicant to rely on those later plans listed in its Notice of Motion.

81. However, as the Council, or at least its delegated officer, has - for reasons not made clear to the court - determined its stance on the proposal on the basis of plans the applicant had, with Council's knowledge, moved away from, the appeal should not be set down for hearing until Council has had sufficient time to review and deal with the proposal as it is now framed for the court's consideration.

82. I will, therefore, stand the matter over to the Registrar's callover list on Wednesday 13 September 2000.

1. Question 1 as posed in the "Questions of Law" filed by the respondent is answered "yes".

2. Question 2 as posed in the "Questions of Law" filed by the respondent is answered "yes, provided that, after the applicant has completed all necessary conveyancing steps it proposes, the whole of the development site is zoned 2(a) and has a frontage to Cowpasture Road".

3. Leave is granted to the applicant to amend the development application by substituting the seven (7) plans nominated in par 1 of its Notice of Motion filed 14 July 2000 (Exhibit A2).

4. The appeal is stood over to the Registrar's callover list on Wednesday 13 September 2000.

6. All exhibits may be returned except Exhibit A2.

CITATION : York Developments Pty Ltd & Anor v Liverpool City Council [2000] NSWLEC 174 APPLICANT PARTIES : York Developments Pty Ltd and Polo Properties Pty Ltd RESPONDENT Liverpool City Council FILE NUMBER(S) : 10401 of 2000 CORAM: Sheahan J KEY ISSUES: Question of Law :- characterisation - permissibility - construction of LEP Practice & Producedure - Notice of Motion - amended plans LEGISLATION CITED: Cambridge Credit Corp Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590; Drummoyne Municipal Council v Cavallaro (1982) 46 LGRA 416; Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157; Food Plus Pty Ltd v Warringah Shire Council (1983) 50 LGRA 76; CASES CITED: Randwick Municipal Council v John G Simpson & Associates Pty Ltd 47 LGRA 118; Ross Karp & Associates Pty Ltd v Randwick City Council (1999) 106 LGERA 397; Sydney Serviced Apartments v North Sydney Municipal Council (No.2) (1993) 78 LGERA 404; Vines v Djordjevitch (1955) 91 CLR 512; Willoughby Municipal Council v LGAT and Manchil Pty Ltd [1974] 2 NSWLR 415 DATES OF HEARING: 03/08/2000 DATE OF JUDGMENT: 08/11/2000

(1999) 106 LGERA 397

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