Australia: The limits on non-conforming use exemptions in planning approvals in WA

Last Updated: 3 November 2017
Article by Carol Hamilton

In Shire of Collie v Smargiassi Nominees Pty Ltd [2017] WASC 238 the accused was successful in defending the charge at first instance by asserting that the use of the land for storage was either a continuation of a non-conforming use right or the development had the benefit of approval or it had an honestly-held belief that such approval existed. The decision was overturned on appeal.

Smargiassi Nominees Pty Ltd was charged with breaching s.218(a) of the Planning and Development Act 2015, in that they carried out development, namely the use of the land for storage of scrap mental, skip bins, car bodies, old machinery, timber, builder's rubble and construction materials, without having first applied for and obtained the planning approval of the Shire of Collie. The offence period was from 1 March 2014 to 12 January 2015.

The Non-Conforming Use Right

A concrete batching plant had operated lawfully on the property from the early 1970's to 2003. It was accepted between the parties that the use of the land for the concrete batching plant was lawful before the relevant town planning scheme came into effect, and remained lawful after the Shire's first town planning scheme came into effect in 1972 as a non-conforming use.

The 2006 Approval

Smargiassi Nominees Pty Ltd became the registered proprietor of the Property on 27 June 2008. A planning approval had issued on 8 August 2006 approving the use of the property for Light Industry (Engineering, Fabrication & Earth moving services) but subject to conditions. The approval contained a note that if the development was not substantially commenced within 2 years from the date of approval, the approval would lapse and be of no effect. The 2006 application for planning approval included plans which identified various sections on the site as follows:

  • Section A – existing dwelling and pasture area – requiring repairs to existing wire fence
  • Section B – Storage area – requiring area to be leveled out and fence
  • Section C – General fabrication and engineering – required area to be painted and safety signs displayed
  • Section D – Workshop area, office meal room and staff amenities – area to be painted and repaired
  • Section E – Car parking for visitors and staff

The Trial in the Magistrates Court

The Shire presented evidence that prior to the 2006 Approval, City officers has inspected the property and observed no significant materials being stored and no evidence that any fabrication or engineering operations were occurring. Also, inspections of the property subsequent to the 2006 Approval, showed that the various conditions associated with the 2006 Approval had not been implemented, and so the 2006 Approval was no longer of any force or effect.

Additional evidence was presented indicating that:

  • the concrete batching plant commenced operations in approximately 1969 or 1970 but had ceased operations by February 2003;
  • that the property had not been used as a concrete batching plant after that date; and
  • that no engineering, metal fabrication or manufacturing had been observed occurring on the property during the offence period, except for one occasion.

The Shire further contended that as early as 2009, Smargiassi Nominees Pty Ltd had been informed that no planning approval had been given for the use of the land to accommodate the storage of materials as observed on the property, that the observed use of the land was unlawful, and the materials would have to be removed.

In its defence, Smargiassi Nominees Pty Ltd presented evidence that the storage of materials referred to in the prosecution notice fell within the use class 'industry light' and that the use of the land was sufficiently similar to the previous use on the land, so as to constitute a continuance of a non-conforming use right. In addition, that where non-conforming use rights exist, land can lawfully be used for a different purpose, provided that sufficient purpose falls within the same use class and is of a similar nature to the previous use.

Defence evidence was that the operation of the concrete batching plant and use of the site had diversified over time into other activities, including the sale of firewood, sand, soil and coal, the blending of sand, the garaging of vehicles, including a prime mover, a semi-trailer, a bobcat, a trip truck, and storage of various materials, including salvage materials, sawdust, coal, briquettes, flanges, pipes, bolts, sea containers, a transportable building, a silencer, a grinder and vehicle bodies.

In this respect, His Honour at first instance found that to limit the continued use of the land to a concrete batching plant – allowing only for the storage of blue metal, the screening of sand, the manufacture of concrete slabs and septic tanks, and the repair and maintenance of vehicles associated with the plant – would be to apply a test far too narrow and render the non-conforming use right valueless.

The Appeal

The Shire identified 6 grounds of appeal being:

  1. That the onus of establishing the exception of a non-conforming use right lay with the Accused, and there was no onus on the Shire to negative the defence beyond reasonable doubt.
  2. Whether the use of the land during the prosecution period fell within any non-conforming use right.
  3. There was a failure to identify the purpose for which the land was being used immediately prior to the commencement of the Shires town planning scheme.
  4. That the non-conforming use right had either changed or been discontinued as at the commencement of the Shire's town planning scheme or during the prosecution period.
  5. That the storage of car bodies was not incidental to any industrial operation and did not fall within the use class 'light industry'.
  6. That the primary use of the land during the prosecution period was for the storage of materials, which had never been approved, and was not a purpose for which the land was lawfully being used prior to the commencement of the Shire's town planning scheme.

Findings on Appeal

It was found that it was necessary for a finding of fact to be made as to whether the use of the land associate with its use as a concrete batching plant had operated continuously, and this had not occurred.

In relation to submissions presented by Smargiassi Nominees Pty Ltd that use of the land was sufficiently similar to the previous use on the land, so as to constitute a continuance of a non-conforming use right, it was found that non-conforming use exceptions do not extend to all uses within a use class. That the other activities which were occurring on the site, were not within the non-conforming use exemption that existed prior to the Shire's town planning scheme coming into effect and were therefore not permitted.

In relation to the 2006 Approval, the appeal court found that although the 2006 Approval included approval for a storage area, the storage was to be associated with the use of the property for general fabrication and engineering purposes. It was found that the items stored on the property were not associated with general fabrication and engineering purposes. It was found that the land was being used for the purpose of storage.


The Appeal Court determined that during the offence period, the use of the property for storage of scrap mental, skip bins, car bodies, old machinery, timber, builder's rubble and construction materials was not approved by the 2006 Approval, and not exempt as a non-conforming use, as it was not a purpose for which the land was lawfully being used prior to the commencement of the Shire's town planning scheme.

The case is beneficial in that it provides further confirmation that:

  • the onus of proof lies on an accused to prove on the balance of probabilities that some condition, excuse, exemption, proviso or qualification applies;
  • continuance of a non-conforming use right is imperative. However, once cessation of the non-conforming use occurs, the non-conforming use exemption also ceases; and
  • non-conforming use rights are limited and do not extend to all uses within a use class.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Carol Hamilton
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