City of Nedlands Aged Persons Home Trust Inc and City of Nedlands

The case involved the City of Nedlands Aged Persons Home Trust Inc, the respondent, and the City of Nedlands, the applicant. The dispute centred on a development application concerning the substitution of non-conforming uses on a property previously used for residential and nursing purposes within an aged care facility. The application sought to replace a hospice with active living units. The matter was determined by the Western Australian Planning and Environment Commission (the Commission), with its decision ultimately being reviewed by the Land Appeal Tribunal.

The legal issues that required resolution included the interpretation of the existing use rights, the scope of permissible changes to non-conforming uses, and whether the proposed development would exceed the rights preserved under the existing planning scheme. Specifically, the Tribunal had to consider whether the substitution of a hospice with active living units constituted a permissible change under the scheme's provisions, and whether the proposed development would bring to an end the existing use rights.

The Tribunal found that the land was a single planning unit, and that the existing use rights encompassed both residential and nursing components. The Tribunal also held that the proposed development, if proceeded with, would bring to an end the existing use rights. The Tribunal determined that the proposed development would exceed the preserved development rights. While acknowledging that scheme provisions may permit the substitution of one non-conforming use for another, the Tribunal concluded that such provisions were not applicable in this case. The Tribunal held that the proposed development would not be a permissible change under the existing use rights.

The final orders of the Tribunal were that the questions put to the Tribunal were answered adverse to the applicant. The Tribunal's decision was that the proposed development would bring to an end the existing use rights and would exceed the preserved development rights. Consequently, the development application was not in accordance with the relevant planning scheme.