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". 4. A car wash facility is an activity which is prohibited in the zone. A service station currently exists as a lawful use on land which adjoins the site namely upon Lot 33 and upon Lot 34 in DP No 260962. The development application has been made in respect of Lot 32. 5. The proposed use would involve development on Lot 32 of facilities for a self-service car and boat wash and an automatic car wash, together with associated infrastructure including underground tanks for recycling of water used in that process. One tank would be located partially within Lot 32 but extend into Lot 33 and another tank would be located solely within Lot 33. A vehicle seeking to use the car wash would first pay at the service station and then proceed to the facility. In addition there would be alterations to the service station buildings to enable vehicles to access the car wash by driving across Lot 33 and Lot 34. Such access would result from the demolition of a building which is currently erected behind the existing service station. The Submissions 6. The applicant contends that the use proposed of the land is merely an extension of the existing lawful use of the service station upon Lot 33 and Lot 34. The washing of motor vehicles is incorporated expressly in the definition of "service station" as contained in the dictionary to the LEP. The applicant also submits that the development is not confined to Lot 32 but extends into Lot 33 since the car wash facility would operate in conjunction with the service station. The applicant says that the development application was in error in only making reference to Lot 32 because it is apparent that the development also included works on the adjoining lots. 7. In support of its submissions the applicant has referred the Court to several authorities in which the Court has applied a purposive approach to the interpretation of local environmental plans, namely Jim Rannard & Associates Pty Ltd v North Sydney Municipal Council (1992) 75 LGRA 274; Newcastle City Council v Kermir Pty Ltd and Anor (1990) 69 LGRA 289. 8. The council submits that the use of the service station on Lot 33 and on Lot 34 does not extend to Lot 32 unless there exists a service station use on that land. Since no such use exists on Lot 32 the car wash facility is a separate commercial use. Findings 9. The critical question is whether the use which is proposed for the land constitutes a use for which consent may be granted. The definition of "service station" in the dictionary to the LEP permits a building or place to be used for fuelling motor vehicles and for other limited activities associated with motor vehicles. It permits washing and greasing of motor vehicles upon the land which is occupied by a service station. 10. In York Developments Pty Ltd & Anor v Liverpool City Council [2000] NSWLEC 174 the Court considered an application for the development of a food outlet with a proposed service station. One of the authorities referred to in such judgment is the decision of the New South Wales Court of Appeal in Randwick Municipal Council v John G. Simpson & Associates Pty Ltd (1981-82) 47 LGRA 118. Hope JA said at 121:- There was no definition of a service station in the County of Cumberland Planning Scheme, but there is no doubt that an approval for the use of the land as a service station authorised 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 . 11. Whilst the observations of Hope JA relate to the definition of a service station, they are useful because of the reference to "the use of the land as a service station". Pursuant to the LEP ancillary activities referred to in the definition of "service station" may be conducted on the land on which a service station exists. 12. A service station is lawfully conducted upon Lot 33 and Lot 34, but there is no use of the service station currently existing upon Lot 32. Car washing may be conducted as an incidental activity to the fuelling of motor vehicles on the same land. Since Lot 32 does not have an approved use of a service station the use of a car wash is not incidental to the lawful use of that land. A car wash without a service station is a separate commercial use and as such is prohibited in the zone. 13. The fact that a service station is conducted on Lot 33 and on Lot 34 does not give rise to any entitlement to conduct a car wash facility without a service station on Lot 32. Whilst incidentally there is in encroachment of the proposed use onto Lot 33, and the proposal involves work upon Lot 33 and Lot 34 these facts do not justify Lot 32 being classified as land upon which the service station use is being conducted. 14. If the applicant obtained consent for the extension of the service station use on Lot 32 the car wash facility would then be permissible as an ancillary activity. Unless such consent is granted the car wash facility on Lot 32 constitutes a prohibited use. Answer to the Question of Law 15. The question posed for determination by the Court is answered "No". 16. The appeal is stood over to the Registrar's call over list on 4 July 2002. 17. The Court orders that exhibits be returned. 18. Costs be reserved * * * DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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