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How the OTR 208 Pty Ltd v City of Vincent Decision Shapes Petrol Station Redevelopments in WA
Our Commercial team discuss this important topic.
A live example in Bayswater
A proposal for a 24-hour petrol station, convenience store, drive-through fast food outlet and car wash at the corner of Guildford Road and Kenilworth Street in Bayswater has drawn strong community interest.
The site was previously used as a petrol station and is zoned ‘Service Station’ under the local planning scheme. The current proposal introduces extended trading hours and additional uses that increase activity on the site and its interaction with surrounding residential areas.
In March 2026, the Metro Inner Development Assessment Panel considered the application. A motion to refuse was not carried, and the application was deferred to allow further information and design changes. Issues raised include traffic and pedestrian safety, residential amenity, environmental impacts and site layout.
The proposal now sits in a position common to many redevelopment projects in that the question is not simply whether a petrol station can operate on the site, but whether the form and intensity of what is proposed is appropriate. That is, significant changes to the scale, intensity, or character or use of a site may fall outside the protection of nonconforming use rights and require full development approval.
The relevance of OTR 208 Pty Ltd v City of Vincent
The State Administrative Tribunal’s decision in OTR 208 Pty Ltd v City of Vincent [2025] WASAT 117 provides guidance on how non-conforming use rights operate in practice.
The decision confirms that a previous lawful use does not provide a blanket basis for redevelopment. It reinforces several key points as explained below:
- A party relying on non-conforming use rights must establish that the use was lawful and has been maintained. Where a use has ceased, those rights may not be available; and
- Even where rights exist, they do not extend to proposals that materially change the nature or intensity of the use. A development that introduces new elements, increases activity or alters how the site functions may fall outside the scope of those rights.
In those circumstances, the proposal will be assessed as a development requiring approval, rather than as a continuation of an existing use.
The decision also highlights that each matter turns on its facts. The outcome will depend on the planning history of the site, the characteristics of the existing use and the specifics of what is proposed.
Why the existing use is only part of the story
A site’s history as a petrol station does not resolve the planning assessment.
Decision-makers must consider a broader set of planning factors when determining an application. These include traffic impacts, vehicle access and internal circulation, pedestrian safety, and the interface between the site and surrounding land uses.
Environmental considerations also carry weight. Noise, light spill, and odour can affect nearby residents, particularly where operations extend into evening or overnight hours.
Built form and layout are equally relevant. The arrangement of buildings, parking areas, drive-through facilities and landscaping influences how the development functions and how it is experienced from adjoining properties and the street.
In the Bayswater proposal, the addition of 24-hour trading, a drive-through food outlet and a car wash changes the operational profile of the site. These elements increase activity and extend its impact beyond what may have historically occurred.
The assessment therefore involves more than confirming a historical use. It requires a detailed consideration of how the proposal will operate and its effect on the surrounding area.
What this means for developers and landowners
Redevelopment of existing commercial sites, including former service stations, is often approached on the basis that prior use will simplify the approval process.
In practice, that assumption does not always hold.
The first step is to confirm whether a lawful use existed and whether it has been maintained. This requires a review of historical approvals, records of operation and any periods of inactivity that may affect the availability of non-conforming use rights.
The next step is to assess whether the proposed development remains within the scope of that use. Changes to scale, hours of operation, built form or the introduction of additional uses can alter the planning character of the site.
Where a proposal moves beyond what can be characterised as the same use, it will be assessed on its merits as a development application. That brings a wider range of considerations into play, including amenity, traffic and environmental impacts.
Supporting material is often critical at this stage. Traffic engineering, acoustic assessments, lighting studies and environmental reports can influence how a proposal is understood and whether identified impacts can be managed.
Design also plays a role. The way a development addresses surrounding land uses, particularly residential areas, can affect whether it is considered appropriate in its context.
Addressing these issues early can reduce the risk of delay, redesign or refusal.
Why legal advice matters
Non-conforming use rights and redevelopment proposals involve a combination of legal and planning considerations. The outcome depends on both the history of the site and the details of what is proposed.
Clear advice at an early stage can identify whether non-conforming use rights are likely to apply and how far they extend. It can also assist in structuring a proposal so that it addresses the issues that will be relevant to assessment.
Where proposals are contested or require review, an understanding of the State Administrative Tribunal’s approach, including decisions such as OTR 208, becomes important.
HHG Legal Group advises developers, landowners and local governments on planning and development matters across Western Australia. This includes development applications, non-conforming use issues and proceedings in the State Administrative Tribunal.
Frequently asked questions
Does having an existing petrol station on a site mean redevelopment will be approved?
No. A previous use may continue in some circumstances, but it does not guarantee approval for redevelopment. Changes to how the site operates, i.e., the intensity of operations, or the area that it is built on are often assessed as a new development.
What is a non-conforming use in Western Australia?
Non-conforming use is defined as a lawful use of the land that existed before planning controls changed and is no longer permitted under the current scheme. In some cases, that use can continue, but the protection is limited and can be lost.
When do non-conforming use rights no longer apply?
They may no longer apply if the use has been discontinued for a period set by the planning scheme, or if the proposed changes go beyond what can reasonably be characterised as the same use.
Do upgrades or extensions to a petrol station require development approval?
Often, yes. Building works, intensification of use, extended hours or the introduction of additional uses such as drive-through food or car wash facilities can all trigger the need for approval.
What issues are considered in a redevelopment application?
Decision-makers look at a range of planning factors, including traffic, safety, environmental impacts, amenity for nearby residents, design, and how the development fits within the surrounding area.
What should developers do before lodging an application?
It is important to review the planning history of the site, confirm whether any non-conforming use rights exist, and obtain supporting expert reports where needed. Early advice can help identify risks and reduce delays in the approval process.
How can HHG Legal Group help?
*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.