A Petrolplus Ltd (Petrolplus) company has owned a site at 25 Victoria Parade, Bayside VIC 3191 for the past 30 years. A service station with 10 fuel pumps is located on the site. The service station had been leased to a tenant/operator until 18 months ago. The service station had been operating continuously for 28 years until the tenant ceased occupancy 18 months ago. The client has been trying (unsuccessfully) to lease the service station since the last tenant/operator vacated the premises 18 months ago. Since that time, the service station has not been used and public access to the site has been prohibited. There have also been a number of management discussions at Petrolplus over the past year or so as to whether the company itself should operate the service station instead of looking for a tenant/operator, but nothing concrete has eventuated. 

About three months ago, Petrolplus Ltd applied to the local council: 

• for a planning permit to: o demolish the service station, and o erect a 24 hour "drive in" convenience store with three fuel pumps, and 

• for consent to be able to rent out the seven public car spaces on the site on a weekly and casual basis. 

 

There is a shortage of car parking in the area and Petrolplus believes the car spaces would be in demand if offered for lease. Under the Bayside Planning Scheme the current zoning for the property is Residential Growth Zone. The site does not adjoin a commercial or industrial zone, and does not adjoin or have access to a road in the Road Zone. The activity of a service station has been lawfully carried out pursuant to development consent obtained 30 years ago, before the zoning of the 25 Victoria Parade site changed to Residential Growth Zone about 10 years. 

 Last week the local council refused consent for the entire planning application - demolition of the service station, construction of the 24 hour "drive in" convenience store with three fuel pumps, and the renting out of the seven car spaces on the site. We have been instructed to appeal against the local council's refusal to the Victorian Civil and Administrative Tribunal (VCAT). It would be good to present submissions at the VCAT hearing and address the tribunal in relation to relevant plans and photographs to be produced in support.

These are the client's following issues: 

1. Is there any validity in the council's argument that the lawful existing use of the 25 Victoria Parade site has been abandoned because the service station has not been used or operated for the past 18 months? In any case, when can a lawful existing use be said to have been "abandoned"? 

 2. Can Petrolplus apply for a change of the existing use to a "convenience shop" (and related activities referred to in its application)? 

3. Is there any case law that would support a favourable determination by the tribunal of Petrolplus' application? 

4. What would be the approach of the tribunal to awarding costs to either party at the conclusion of this review? 

What would be the advice here?