Background-

aerilaclean

The Site of the Proposed Puma Petrol Station- Lot 108 Dunn Bay Rd

The Story So Far

2002-A group of local investors get together to form DCSC to buy land along Dunn Bay Road. The objective was to develop a shopping centre and petrol station.

The Dunsborough Centre Point Shopping Centre is built. The development includes the creation of Cyrillean Way and a new property lot-108 comes into being on the other side of the street. Coles by this time had established a marketing arrangement with  Shell petrol stations, including one on the edge of town and so did not want to proceed with one adjacent to their store.

2002-2014 Lot 108 stays vacant.  DCSC holds discussions with the owner of adjacent land to do a development but could not reach agreement on land values.  COB brings in new planning guidelines and a long term strategy for Dunsborough which ruled out a petrol station on Dunn Bay Road.

2014-DCSC reaches agreement with Puma to put a petrol station/convenience store on the site. COB states that prior to a plan being submitted DCSC was told it would not get the support of the city.

2015-DCSC bypasses the COB and goes to the state’s Joint Development Assessment Panel (JDAP) for approval. (This is allowed for developments over a certain size.)  After a hearing in Dunsborough the panel unanimously turns down the development. (See below for reasons.

2016-DCSC appeals this decision to the State Appeals Tribunal (SAT) and argues that under the CIty planning scheme the petrol station is actually a convenience store and should therefore be allowed.  The judge agrees and sends the parties to mediation and allows the result to go back to the JDAP.  Out of mediation came some changes to the design-moving the store and creating a coffee hole in the wall on Dunn Bay Road.  The development went back to the JDAP and was again unanimously turned down again.

2017- DCSC appeals the decision again to the SAT in February, this time as a convenience store-thereby making it harder to reject. DCSC/Puma states that because convenience stores are “permitted” there should not be any reason to turn it down.  The JDAP argues that even though it is permitted it still must meet certain standards and requirements and this development does not.  That was to be the basis of the argument.  In August 2017 the SAT decided to approve the development as a convenince store.  A month later the JDAP appealed that decision to the Supreme Court of Western Australia.

2018-The Supreme Court appeal was heard February 12, 2018.  The judgement was reserved with the judge saying she will consider the matter carefully and deliver her judgement “in due course”  The appeal is based on the fact that the City of Busselton changed in law its definition of a service station prior to the second SAT decision but this was not taken into account in that decision.  It also argues that the first SAT decision that defined the 6 bowser petrol station as a “convenience store” was interlocutory or an interim  or preliminary decision and the change in definition puts that into question. Under the W.A. Planning Development Act, a local planning scheme or amendment to a local planning scheme, when approved by the Minister and published in the Gazette, has full force and effect as if it were enacted by this Act.  The new service station definition was published August 4, 2017 and the second SAT decision was issued 23 August 2017.

2018-February-The City’s new definition of a conveneince store becomes law. This brings the city’s definition in line with the state’s.  Under this definition a convenience store does not sell petrol.

2018-March-State politicians from across the political spectrum joined together to ask Puma Energy to rethink its plans for putting a petrol station in the middle of Dunsborough. In a letter to Puma Energy’s Swiss based CEO local MLCs  asked the company to listen to the wishes of the community. They called on the company to put its new petrol station in the light industrial area rather than within 300m of two other petrol stations in the centre of the busy tourist town.
The Green’s Diane Evers, The National’s Colin Holt and One Nation’s Colin Tincknell, all
Members of the Legislative Council representing the town, individually wrote to Pierre
Eladari, Puma’s CEO, pointing out that in a recent survey over 99% of the community
wanted the petrol station to be located in the light industrial area, rather than in the main
street, saying the LIA site would be able to provide a higher level of service to the
community. (The LIA site is adjacent to a new housing development where there are
currently no petrol stations or convenience stores and would have space for caravans and
boats on trailers.) They also said the proposed site in the middle of town is on the corner of
what the RAC lists as one of the riskiest intersections in rural WA.
The MPs concluded by pointing out that Puma Energy prides itself with listening to the
community and they called upon Mr Eladari to do that in Dunsborough

In May 2018 the Supreme Court rejected one of the grounds for appeal and did not accept the other. This decision allowed the development to proceed.  In June the JDAP decided to appeal this decision.  Subsequently the developers, DCSC, sought a Directions Hearing with the objective, it is believed, to disallow the appeal.  That hearing is scheduled for August 24.

More Detail:

In December 2015 the West Australian Joint Development Appeals Panel (JDAP) voted unanimously to reject an application by DCSC Pty Ltd to develop a Puma Energy petrol station on Dunn Bay Road at the intersection with Cyrillean Way.  (More information on DCSC is available here.)

The development was rejected because:

1. The proposed development is inconsistent with Objective No. 2 and Policies
a) and e) of the ‘Business’ zone as the proposal will fragment the town centre
by excluding land to the west and north of the property along Dunn Bay Road
from being able to connect in a meaningful way to the established main
street.
2. The proposed development is inconsistent with the strategic direction of the
town centre established in the Local Commercial Planning Strategy and
Dunsborough Town Centre Conceptual Plan.
3. The proposed development will have a detrimental impact on the visual and
pedestrian amenity of Dunn Bay Road and Cyrillean Way. It does not contain
a façade that addresses the streetscape or promotes pedestrian amenity and
is inconsistent with the established character and likely future amenity of the
area.
4. The proposed development is likely to result in an increase of pedestrian and
vehicular conflict on Dunn Bay Road and the access to and from the site is
inadequate for vehicles and tankers.
5. The proposed development will detrimentally impact on the development and
use of adjoining lots and potentially conflicts with future sensitive land uses
permitted on these lots including residential development, tourist
accommodation, offices, restaurants and shops.
6. The removal of on-street parking is inappropriate and inconsistent with the
function of Dunn Bay Road as a ‘main street’ for the town centre.

The developers then appealed to the State Appeals Tribunal (SAT) saying that under the COB planning regulations the development was actually a convenience store rather than a petrol station.  The SAT in August agreed with this classification.  Under the planning scheme a petrol station has a D (Discretionary) classification which is easier to reject. A convenience store has a P (Permitted) classification.  It is harder to disallow it.  Exactly how hard will be determined by the SAT.

The application went back to the JDAP and Monday, November 14  it was rejected unanimously again, but this time as a convenience store.

The development was rejected because:
1. The proposed development is inconsistent with Local Planning Scheme
clause 4.2.2 Objectives and Policies of the Business zone, and specifically
objective b) and Policies a) and e) of the ‘Business’ zone as the proposal will
fragment the town centre by excluding land to the west and north of the
property along Dunn Bay Road from being able to connect in a meaningful
way to the established main street.
2.The proposed development is inconsistent with the strategic direction of the
town centre established in the Local Commercial Planning Strategy and
Dunsborough Town Centre Conceptual Plan.
3.The proposed development will have a detrimental impact on the visual and
pedestrian amenity of Dunn Bay Road and Cyrillean Way. It does not
contain a façade that addresses the streetscape or promotes pedestrian
amenity and is inconsistent with the established
character and likely future
amenity of the area.
4.The proposed development will detrimentally impact on the development

and use of adjoining lots and potentially conflicts with future sensitive land uses permitted on these lots including residential development, tourist accommodation, offices, restaurants and shops