Appeal Upheld for 24-Hour Service Station Operation in Lane Cove

The appeal was upheld, granting consent for an existing service station to operate 24 hours a day, seven days a week, subject to certain conditions. The court relied on existing use rights and the objectives of the zone to reach its decision.

Land and [ADDRESS] South Wales

Medium Neutral Citation: [COMPANY_1] v [NAME_2] [2022] NSWLEC 1456 Hearing dates: Conciliation Conference 12 August 2022 Date of orders: 01 September 2022 Decision date: 01 September 2022 Jurisdiction: Class 1 Before: [NAME_3] Decision: [ADDRESS] orders that: (1) The appeal is upheld (2) Development consent is granted to Development Application No 83/2021 for the extension of hours of operation of the existing service station on the land at [ADDRESS], Lane Cove to 24 hours per day, 7 days per week, subject to the conditions of consent set out in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – existing petrol station seeking 24 hour operation – existing use rights – amended plans and further information – conciliation conference - agreement reached between the parties – orders made Legislation Cited: Environmental Planning and Assessment Act 1979 s 8.7, 4.15, 4.16, 4.65, 4.66, 4.67, Div 4.11, Environmental Planning and Assessment Regulation 2000, cl 41, 42 Land and [ADDRESS] 1979 s 34 Lane Cove Local Environmental Plan 2009 Category: Principal judgment Parties: [COMPANY_1] (Applicant) Lane Cove Council (Respondent) Representation: Counsel: [redacted] [NAME_5], Solicitor (Respondent)

Solicitors: [redacted] [COMPANY_7] (Respondent) File Number(s): 2022/112527 Publication restriction: No

Judgment 1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Lane Cove Council of development application DA No 83/2021. The development application seeks consent to extend the hours of operation of the existing service station at [ADDRESS], Lane Cove to 24 hours a day, seven days per week. The development application also seeks consent for the construction of acoustic barriers as detailed in the acoustic assessment supporting the development application.

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference. Prior to the conciliation, amended plans and an acoustic assessment were prepared and at the conciliation conference agreement was reached between the parties. That decision is that the appeal is upheld, the development application is approved, subject to the conditions annexed to this judgment, pursuant to s 4.16(1) of the EPA Act. The agreed conditions of consent include a restriction that the consent (and the amended trading hours) operate for a trial period of twelve months.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Land and [ADDRESS] 1979 (LEC Act)). I have formed this state of satisfaction for the following reasons:

1. The development application was made with the consent of the owner of the subject site.

2. The development application in its original and amended forms has been notified by the Respondent. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act.

3. The development application and the statement of facts and contentions filed in the proceedings detail historical aerial photography and the development consent history of the site. The subject site is zoned R2 Low Density Residential pursuant to the Lane Cove Local Environmental Plan 2009 (LEP 2009). Service stations are an innominate prohibited use in the zone. The Applicant relies on existing use rights pursuant to Div 4.11 of the EPA Act and cl 41(1)(a) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) to enliven the power of the Court to grant consent.

4. The parties agree that the existing service station is likely an existing use of the kind referred to in s 4.65(a) of the EPA Act. The subject site also benefits from a development consent approved on 5 September 1991 which granted consent for the demolition of the then existing service station and construction of a new service station on the subject site (DA40/1991). At the time of the grant of the consent in 1991 the use of the site for the purposes of a service station was a prohibited use. I am satisfied that cll 4.65 and 4.66 of the EPA Act apply.

5. Further, the parties agree that the proposed extension of trading hours and the associated works are properly characterised as an 'enlargement' of the existing use: cl 4.67 of the EPA Act and cl 42 of the EPA Reg. I accept the agreed position of the parties. I am satisfied that there is power to grant development consent pursuant to Div 4.11 of the EPA Act and cl 41(1)(a) of the EPA Act.

6. In determining the development application, I have given consideration to the objectives of the zone.

1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.

2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. [ADDRESS] orders that:

1. The appeal is upheld 2. Development consent is granted to Development Application No 83/2021 for the extension of hours of operation of the existing service station on the land at [ADDRESS], Lane Cove to 24 hours per day, 7 days per week, subject to the conditions of consent set out in Annexure "A". …………………

[NAME_3]

Commissioner of the Court Annexure A (816963, pdf) 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. Decision last updated: 01 September 2022