Petrol Station

ERD Court approves 24-hour trading for petrol station

On 10 August 2023, the Environment, Resources and Development Court  handed down its decision in PC Infrastructure Pty Ltd v City of Mitcham Council Assessment Panel [2023] SAERDC 14. The appellant, PC Infrastructure Pty Ltd, sought to develop a retail fuel outlet with associated facilities, including a car wash, at 250-252 Belair Road, Torrens Park.

The site was subject to an existing planning consent which was granted under the Development Act 1993 for an “Integrated Petrol Filling Station with associated Filling, Retaining and Landscape.” PC sought to vary this consent by, amongst other things, extending the operating hours from 7:00am to 9:00pm, seven days per week to 24 hours per day, seven days per week.

The City of Mitcham Council Assessment Panel refused planning consent to the variation. The Mitcham CAP had concerns about the impact on residential amenity and character of the local area resulting from an increased intensity of use. PC appealed this refusal to the Court.

The Court’s consideration at trial was confined to the only remaining issue in dispute, which was whether the condition limiting operating hours should be varied.

The Court allowed the appeal and varied the condition on the original planning consent to permit 24-hour trading, seven days per week.

In coming to this conclusion, the Court made the following findings and remarks:

1. On the point of planning assessment under the Planning and Design Code generally:

a. The term “neighbourhood” as it is used in DO 1, PO 1.4 and PO 1.5 of the Suburban Neighbourhood Zone is not an “intermediate area, greater than a locality but smaller than the zone itself.” Rather, it is a “reference to the area in which the development is to take place as that is the area which will be affected by the development.”

b. The approach to planning assessment is a practical, balanced consideration of all relevant planning policies applicable to a development application rather than a mechanical tick-box approach.[1]

2. The proposed change to operating hours did not increase the intensity of use of the Land so as to be material and constitute a change of use under the Planning, Development and Infrastructure Act 2016. The change in hours of operation did not change the fundamental nature of the development. It was therefore not “development” pursuant to the PDI Act.

3. It is the impact of the proposed variation to trading hours itself which must be performance assessed against the relevant provisions of the Code. It was not a question of the compliance of the development as a whole.

4. This impact can only be considered by the Court on the basis of the evidence before it. As the Mitcham CAP did not produce evidence to support its opposition to the variation, it was only the evidence of PC before the Court. That evidence indicated that:

a. The average noise levels that would result from the extended trading hours were well below maximum levels indicated in the Environmental Protection (Noise) Policy 2007;

b. There was no evidence of an odour impact;

c. The extended hours would ameliorate the risk to the safety of pedestrians accessing the adjacent train station late at night or early in the morning by increasing presence and passive surveillance;

d. The extended hours had the potential to reduce anti-social or criminal behaviour; and

e. The lighting associated with the proposed development would not have an adverse impact on residential amenity.

5. The Court placed significant weight on the locality of the development. The amenity of the site was affected by an SA Water pump station and a car park to the north, the Torrens Park Railway Station and the associated train line to the west, and Belair Road to the East.

The extended operation of the retail fuel outlet remained ‘compatible’ with a low density residential character and ‘complimentary’ to the character and amenity of the area.

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[1] Referring to City of Mitcham v Freckman & Ors [1999] SASAC 234 and Rymill Park Apartments Pty Ltd v Rymill House Foundation Pty Ltd & Anor [2023] SASC 107.