Minutes 28-03-01 - Shire of Shark Bay

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ORDINARY COUNCIL MINUTES - 28 MARCH 2001 Page 6 may be detrimental to specify a distance on the signs as travellers may become less vigilant once past this range. * Asked when Monkey Mia facility would be opened. Advised that CALM have not said when this would occur. 11.0 TOWN PLANNING REPORT 11.1 APPLICATION FOR DEVELOPMENT APPROVAL - MR DONALD STONE, KEYTIME TO 105.01 PTY LTD - CARAVAN PARK, LOT 4 WANNOO Author Manager Regulatory Services. Disclosure of Any Interest Nil. Background The applicant, owner/operator of Billabong Hotel situated upon Lot 3 Wannoo, has submitted a proposal to develop Lot 4 Wannoo by establishing a 50 bay Transit Park which will be developed in two stages - Stage 1 - 30 bays in year 1 Stage 2 - 20 bays within following two years Mr Stone has also indicated that he wishes to develop a fuel outlet upon this site as part of his proposed development. Please consult attached legal opinion in regard to the fuel outlet proposal.
ORDINARY COUNCIL MINUTES - 28 MARCH 2001 Page 7 Development Application - Lot 4 Wannoo, Caravan Park - Fuel Outlet We refer to your facsimile dated 16 February 2001, which sought our advice as to whether a fuel outlet could be given planning approval as an incidental use to a proposed caravan park development at Lot 4 Wannoo. BACKGROUND Keytime Pty Ltd has submitted a development application to the Shire of Shark Bay for a proposed caravan park at Lot 4 Wannoo. The proposed Caravan Park incudes 50 caravan bays to be developed in two stages. Indicated on the site plan submitted with this application is a proposal to include a fuel outlet as part of the development. The proposed fuel outlet consists of two fuel bowsers, an autogas facility, and a fuel control office. In accordance with the Shire of Shark Bay Town Planning Scheme No 2, the subject site is zoned "Caravan Park". In accordance with Table No 1 of the Scheme, the development of a caravan park in this zone is permitted only with Council approval. Unless it can be considered incidental to the dominant use of the land, the use of the land in this zone for the purposes of a service/petrol filling station is prohibited. The Shire assumes hat the proposed fuel outlets are for the use of both the patrons of the proposed Caravan Park and the general public. This assumption is supported by the location of the proposed facility being adjacent to the North West Coastal Highway. Such a location an give rise to easy access for both vehicles from within the Caravan Park and from the Highway itself. INCIDENTAL USES For the reasons set out below, we consider that the proposed fuel outlet can not be considered an incidental use to the Caravan Park. The issue of whether or not a use is incidental has been discussed in a number of cases. In the case of Foodbarn Pty Ltd v Solicitor General (1975) 32LGRA 137, Glass J said, "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. The ordinance is nonetheless disobeyed." (at p.161) This principle has been applied by the High Court in Lizzio and Another v The Council of the Municipality of Ryde (1983) 155 CLR211. It is particularly relevant in situations where the premises are used for two or more purposes, and neither is clearly ancillary or subordinate to the other. In the case of Enoka v Shire of Northampton (1996) 15 AR483, the Supreme Court of WA expanded further on the meaning of an incidental use. Steytler J (at p.491) gave the word 'incidental' its ordinary and natural meaning, that being, 'something "occurring or liable to occur in fortuitous or subordinate conjunction with some thing else" '. In all the cases, the court has considered it a question of fact and degree as to whether one use is subservient/incidental to another. For example, on the facts of Enoka, Steytler J found that a panel beating business was capable of being a self-contained business, and therefore could not be considered an incidental use to a service station (at p.491). In this case, if the fuel outlet is to be used by the general public, it is possible that it will not need to rely on the Caravan park to sustain business. In our view, it may be inferred from the development application that the fuel outlet will be operating in a manner that is independent from, and not subservient to the operation of the Caravan Park. This inference can be drawn from both the scale of the proposed outlet, and its location. It is our opinion that the fuel outlet use cannot be considered as an incidental use to the Caravan Park. Accordingly, the proposed fuel outlet can not be granted planning consent, as it is a prohibited use in the caravan park zone. Recent advice from DOLA has indicated that Mr Stone is now the freehold owner of Lot 4 Wannoo. DOLA has sold Lot 4 Wannoo conditional on Mr Stone amalgamating Lot 3 Wannoo with Lot 4 Wannoo.
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Minutes 28-03-01 - Shire of Shark Bay

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