Mekler v Great Lakes Council [2002] NSWLEC 107

Land and Environment Court of New South Wales

CITATION : Mekler v Great Lakes Council [2002] NSWLEC 107 APPLICANT Chris Mekler PARTIES : RESPONDENT Great Lakes Council FILE NUMBER(S) : 10105 of 2002 CORAM: Cowdroy J KEY ISSUES: Development Application :- preliminary question of law LEGISLATION CITED: Great Lakes Local Environmental Plan 1996 Jim Rannard & Associates Pty Ltd v North Sydney Municipal Council (1992) 75 LGRA 274; CASES CITED: Newcastle City Council v Kermir Pty Ltd and Anor (1990) 69 LGRA 289; York Developments Pty Ltd and Anor v Liverpool City Council [2000] NSWLEC 174 DATES OF HEARING: 25/06/2002 DATE OF JUDGMENT: 07/03/2002

APPLICANT Mr M Campbell, Barrister

SOLICITORS Represented by R J Sinclair Pty Ltd,Town Planner LEGAL REPRESENTATIVES: RESPONDENT Mr D Wilson, Barrister

SOLICITORS Peter Rees

JUDGMENT: IN THE LAND AND MATTER No. 10105 of 2002 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 3 July 2002

Chris Mekler Applicant v Great Lakes Council Respondent JUDGMENT The Facts 1. By notice of motion dated 12 June 2002 Great Lakes Council ("the council") raises the following question of law in these proceedings:- Whether the proposed development, being for the construction of a carwash and its use for automatic and self serve carwashing, is permissible in zone "2(b) Medium Density Residential" under the provisions of the Great Lakes Local Environmental Plan, 1986 [sic]. 2. The appeal to this Court results from the council's rejection of a development application to construct a car wash on land known as 84 Macintosh Street, Forster, being Lot 32 in Deposited Plan No. 260962 ("the site"). Pursuant to the Great Lakes Local Environmental Plan 1996 ("the LEP") the site is located in Zone No. 2(b) Medium Density Residential as set out in the development control table of Pt 2 – Zone Controls of the LEP ("the zone"). The objectives of the zone are described as follows:- The objectives of the zone are – (a) Objective (a) to enable residential development so that buildings within the zone will consist primarily of a range of residential buildings that generally do not exceed a height of 3 storeys. (b) Objective (b) to permit other development only if it: (i) is compatible with a medium density residential environment; and (ii) affords services to residents at a local level; and (iii) is unlikely to adversely affect residential amenity; and (iv) does not place demands on services beyond the level reasonably required for medium density residential uses. 3. A range of development is permitted only with development consent and these include service stations. Other development is prohibited. A service station is defined in the dictionary to the LEP as follows:- means a building or place used for the fuelling of motor vehicles involving the sale by retail of petrol, oil or other petroleum products, whether or not the building or place is also used for one or more of the following: (a) the sale by retail of spare parts and accessories and installation of motor vehicle accessories for motor vehicles; "Service station" (b) the washing and greasing of motor vehicles; (c) the repairing or servicing of motor vehicles (other than body building, panel beating or spray painting). There is no definition in the dictionary of the term "car wash" or "car wash facility".