29/09/2017 - 15:30

Puma plan in limbo

29/09/2017 - 15:30

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The group planning a 24-hour Puma Energy project in Dunsborough will lodge an application next week to strike out an appeal by the State Solicitor’s Office against the recent approval of the development.

The local grassroots campaign Puma2go has been calling on landowners DCSC to reconsider its plans. Photo: Timothy M Campbell.

The group planning a 24-hour Puma Energy project in Dunsborough will lodge an application next week to strike out an appeal by the State Solicitor’s Office against the recent approval of the development.

The State Administrative Tribunal approved the Puma plan in August, following two years of deliberations between landowner DCSC and the Southern Joint Development Assessment Panel over the proposal for one of the last vacant development blocks on Dunn Bay Road in Dunsborough.

Last week the SJDAP confirmed it had lodged an appeal in the Supreme Court against the SAT’s decision to approve the Puma fuel store.

Hotchkin Hanly Lawyers partner Michael Hotchkin, who has been representing DCSC, told Business News that he had invited the SSO to withdraw the appeal last week, on the basis that it had no reasonable prospects of success and that it appeared no meeting of the JDAP was convened in order to authorise the presiding member of the JDAP to instruct the SSO to lodge the appeal.

Mr Hotchkin said the SSO had since refused to withdraw and that he would lodge an application next week to strike out the appeal.

When the application for the Puma development was first lodged by DCSC in 2015 under the City of Busselton’s planning scheme it defined a convenience store as a shop which sold supermarket goods, but also including petrol. 

Mr Hotchkin said the scheme had defined a service station as a place which not only sold petrol, but also repaired cars, and as the Puma proposal did not repair cars and had a shop which sold supermarket goods, it was classified a convenience store, not a service station, under the City’s scheme. 

“The difference was important because a convenience store was a “permitted” use under the scheme at that location, whereas a service station was not permitted,” he said.

“It was a “discretionary” use that required a decision to allow it to be permitted, rather than allowed the use as of right."

The City of Busselton argued in December 2015 that the development was a service station not a convenience store.

The SJDAP agreed and said that it would not allow the development at that location. 

However, the SAT disagreed with the City and the SJDAP, ruling in August 2016 that the development was correctly classified as a convenience store under the scheme, not a service station.

Mr Hotchkin said when the SJDAP was invited to reconsider its decision by the SAT on that basis, the SJDAP refused to grant approval, for the same reasons it had refused on the first occasion, deciding that, even if the use was permitted, it could still refuse to accept the built shop and the fuel bowsers. 

“The problem with the decision by the SJDAP was that it ignored the significance of a permitted use in assessing the planning merit of the development,” Mr Hotchkin said.

“If a convenience store sells petrol, you don’t expect it to sell it in bottles.  In WA at least, fuel is sold from bowsers.

“It would be like refusing to approve a building to be used as a restaurant because it has a kitchen, in a location where restaurants are permitted.”

After the SJDAP refused the development again last year after being invited to reconsider its first decision, the second SAT hearing took place over two days in February 2017, after which the SAT reserved its decision. 

Mr Hotchkin said at the hearing, the SAT was not asked to rule again on whether the use was permitted and that the hearing took place on the basis that it was permitted. 

Under its practice directions, Mr Hotchkin said the SAT was required to deliver its decision within three months.

The SAT took more than six months to deliver its decision and ruled again in favour of Puma in August.

In early August, before the decision was delivered Mr Hotchkin said the definition of service station under the City of Busselton’s scheme was changed to define a service station as a place which sold petrol or repaired cars.  The definition of a convenience store was not changed.

Mr Hotchkin said there were two grounds of the SSO’s appeal; one that the use classification was wrong, and secondly that there had been no opportunity to point out the change of definition.

“The SSO says that the reason it did not tell the SAT about it was because it did not know the scheme had been changed,” he said.

“It is not possible to say that a Tribunal made an error of law about a finding it wasn’t asked to make, or had failed to do something it wasn’t asked to do, yet that is the appeal case.

“The SSO did not appeal the 2016 decision (that ruled the proposal as a convenience store) and accepted it as binding at the hearing in February.  So we say it cannot succeed in its appeal because the SAT did nothing wrong.”

Mr Hotchkin said that, as the SSO had declined his invitation to withdraw the appeal, he would seek an order from the court that the SJDAP pay all of his client’s costs on an indemnity basis. 

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