Ivo Nominees Pty Ltd v Shire of Murray
[2019] WASC 67
•11 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: IVO NOMINEES PTY LTD -v- SHIRE OF MURRAY [2019] WASC 67
CORAM: CURTHOYS J
HEARD: 19 NOVEMBER 2018
DELIVERED : 11 MARCH 2019
FILE NO/S: SJA 1079 of 2018
BETWEEN: IVO NOMINEES PTY LTD
Appellant
AND
SHIRE OF MURRAY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE A LONGDEN
File Number : MH 3925 of 2016
MH 3926 of 2016
Catchwords:
Non-conforming use - Development - Clearing of land - Excavation of drains
Legislation:
Criminal Appeals Act 2004, s 9
Criminal Procedure Act 2004, s 78
Planning & Development Act 2005, s 218
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | L E Rowley & P G McGowan |
| Respondent | : | D P Gillett |
Solicitors:
| Appellant | : | Rowley Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
City of Mitcham v Fusco [2002] SASC 423; (2002) 124 LGERA 196
Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1
La Rosa v City of Wanneroo [2006] WASC 304
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Samuels v The State of Western Australia (2005) 30 WAR 473
Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182
Shire of Collie v Smargiassi Nominees Pty Ltd [2017] WASC 238
Shire of Perth v O'Keefe (1964) 110 CLR 529
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
CURTHOYS J:
On April 20 2018, the appellant, Ivo Nominees Pty Ltd (Ivo), was convicted in the Mandurah Magistrates Court of two offences pursuant to s 218 of the Planning and Development Act 2005 (WA) (the PDA) in that:
(a)in April 2015, Ivo cleared 11 ha of land on Lot 9510 (the property) without the approval of the relevant council, the Shire of Murray; and
(b)in May and June of 2015, Ivo significantly deepened and widened an existing drain on the land and, in doing so, cleared vegetation without the approval of the Shire.
Section 218 of the PDA provides:
A person who - (a) contravenes the provisions of a planning scheme; ... commits an offence.
Ivo was fined a global penalty of $160,000.00 and ordered to pay costs of $16,984.60.
Grounds of appeal
Ivo's grounds of appeal are as follows:
1.The learned magistrate erred in fact and in law in finding that the activities of:
(a)clearing a portion of Ivo's land for rural pursuits; and
(b)excavating a drain for rural pursuits;
each required development approval from the Shire.
2.The learned magistrate erred in fact and in law in concluding that Ivo's non‑conforming use rights did not extend to being able to clear land for rural pursuits or excavate a drain for rural pursuits.
3.Alternatively, the sentence imposed was excessive in that:
(a)the works in each case involved continuation of the use of the land for rural pursuits;
(b)the works undertaken in both cases were capable of being approved under the Shire's Town Planning Scheme No 4.
Leave to appeal
As the Shire correctly submitted in relation to leave to appeal:
(a)Section 9 of the Criminal Appeals Act 2004 (WA) provides that leave of the Supreme Court is required for each ground of appeal and leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding.
(b)In Samuels v The State of Western Australia the Supreme Court said that the ground of appeal must have a real prospect of success, bearing in mind that the purpose of s 9 is to weed out unmeritorious appeals.[1]
[1] Samuels v The State of Western Australia (2005) 30 WAR 473[55] ‑ [61].
Title history
Lot 9510 was formerly part lot 9009 and part lot 331.[2]
[2] Exhibit 4.
The relevant provisions of the Shire's LPS4
The original Shire of Murray Town Planning Scheme No 4 (LPS 4) was gazetted on 23 June 1989.[3]
[3] Exhibit 1.
Clause 3.1.2 of LPS 4 provides:
Subject to the provisions of the Scheme, a person shall not commence or carry out the development of any land:
(i)Without the approval of the Council to carry out that development …
'Development' is defined as:
The development or use of any land, including any demolition, erection, construction, alteration or addition to any building or structure on the land and the carrying out on the land of any excavation or other works.
Clause 8.1 of LPS 4 provides:
Existing Use Rights: No provisions of the Scheme shall prevent -
(i)The continued use of any land or building for the purpose for which it was being lawfully used at the time of coming into force of the Scheme.
Clause 8.2 of LPS 4 provides as follows:
Continuance of Non‑conforming Uses: If at the gazettal date any land, building or structure is being lawfully used for a purpose or in a manner not permitted by the Scheme (... the Non‑Conforming Use) the Non‑Conforming Use may continue subject to the following restrictions -
(i)The Non‑Conforming Use shall not be extended beyond the boundaries of the lot upon which the Non‑Conforming Use is in fact being carried on at the gazetted date.
The Zoning Table of LPS 4 provides that uses marked 'P' are:
Uses which are permitted provided that the relevant standards and requirements laid down in the Scheme and all conditions (if any) imposed by Council in granting planning approval are complied with.
Relevant 'P' uses under LPS 4 are 'Intensive Agriculture' and 'Rural Pursuit'.
'Intensive Agriculture' is defined as:
Agricultural practices which are carried out with the aid of techniques including water reticulation to render the land capable of sustaining considerably greater numbers of stock, higher crop yields or different types of crops than could be produced without the aid of those techniques.
'Rural Pursuit' is defined as:
Means and includes agriculture, horticulture, forestry, pasture and poultry farming.
Amendment 37 to LPS 4 was gazetted on 11 November 1995.[4]
[4] Exhibit 1, page 2.
By Amendment 37, the definition of 'Intensive Agriculture' was amended to:
…
(c)the development of land for irrigated fodder production and irrigated pasture (including turf farms);
(d)the keeping, rearing or fattening of ... other livestock in feed lots, including cattle feed lots, or the development of land for this purpose;
(e)dairy milking sheds
…
By Amendment 37 the definition of 'Rural Pursuit' was amended to:
Rural Pursuit - means agriculture, animal husbandry, arboriculture and silviculture without irrigation and hydroponics but not including any use defined as Intensive Agriculture.
The Zoning Table of TPS 4 relevantly changed the permissibility of 'Intensive Agriculture' in the Zoning Table from 'P' to 'AA'.
Amendment 72 to LPS4 was gazetted on 3 September 1996 (GG 4393‑4396 exhibit 3). Lot 331 was then rezoned from 'Rural' to 'Special Development Zone'.
At the time of the alleged offences the property was zoned 'Special Development Zone'.[5]
[5] Exhibit 2, page 11; ts 9, 20 November 2017.
Burden of proof in relation to non‑conforming use
The Shire submitted that:
(a)In La Rosa v City of Wanneroo Justice Johnson held that a non‑conforming use provision in a planning scheme creates an exception or proviso to the requirement to obtain planning approval under a planning scheme for an existing land use.[6]
(b)Accordingly, s 78 of the Criminal Procedure Act 2004 applies and an accused must prove on the balance of probabilities that an existing use falls within a non‑conforming use provision in a planning scheme if an accused wishes to rely on that proviso or exception in relation to an offence of having used land without approval under a planning scheme (see also Shire of Collie v Smargiassi Nominees Pty Ltd [2017] WASC 238).
[6] La Rosa v City of Wanneroo [2006] WASC 304 [29] ‑ [31].
It is important to note that the burden on Ivo is on the balance of probabilities.
The Shire submitted that there was no evidence as to the contents of the 1989 scheme and that it was not tendered in evidence - hence, Ivo did not discharge the evidentiary burden on it. However, the previous zoning was never put in issue at the trial by the Shire. Counsel for the Shire stated in opening:
[W]hat perhaps is relevant is that the property was previously zoned rural. And in 1996 it was rezoned from rural to special development. And I will hand up the government gazette because this may be relevant to any non‑conforming use argument … it's not contentious that that was the rezoning of this subject land from what was rural to special development.[7]
[7] ts 9 ‑ 10, 20 November 17; see also the Shire's counsel's answers to her Honour's questions at ts 103 ‑ 104, 23 November 2017, ts 90 ‑ 91, 30 November 2017.
The question of onus does not arise because the prior zoning was never put in issue by the Shire at the trial.
The fact that the zoning was not in issue nor was it in issue that the property had been used for rural purposes is confirmed by her Honour's finding at [90]:
There is no question in this case 'rural pursuits' were a permitted use of the subject land when the land was zoned rural (exhibit 1, page 30) nor that 'rural pursuits' remained lawful as a non‑conforming use after the land was rezoned in 1989. 'Rural pursuit' is defined in Appendix One as meaning 'agriculture, animal husbandry, arboriculture and silviculture without irrigation and hydroponics, but not any use defined as Intensive Agriculture'. The prosecution accepted that the land had been used for rural purposes over time and that it had continued to be used in that way by the accused company.
The Shire's submissions
In relation to this issue, the Shire made extensive submissions on the clearing of the land and the excavation of the drains. The Shire submitted that:
(a)Her Honour correctly applied the decision in University of Western Australia v City of Subiaco (1980) 52 LGRA 360 when finding that cl 8.1 of the Scheme only applies to activities which constitute the use of land and not to activities which result in some physical alteration to the land which has some degree of permanence to the land itself.
(b)While the University of Western Australia decision related to development comprising a building, Chief Justice Burt drew a distinction between the use of land which 'comprises activities which are done in or on the land but do not interfere with the actual physical characteristics of the land' and 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself'. The Chief Justice concluded that the exemption from the requirement for development approval in that case applied to the former but not the latter.
(c)Accordingly, for the exemption contained in cl 8.1 of the Scheme to apply to either of the 'developments' in this case, those developments must have comprised activities which were done in or on the land but which did not interfere with the actual physical characteristics of the land.
(d)Her Honour correctly found the 'development' in relation to the clearing of vegetation comprised the large scale clearing of significant bushland vegetation with around 11 ha of land being stripped almost completely bare. Her Honour considered the clearing of the vegetation significantly altered the land with the requisite degree of permanence (at 108).
(e)In view of her Honour's findings as to the nature and extent of the clearing of the land, was correct to find the clearing of the land was not a 'use' of the land as it was not an activity which did not interfere with the actual physical characteristics of the land. That being so, cl 8.1 of the Scheme did not apply.
(f)In relation to the 'drain', her Honour was correct to conclude that the works to the drain were significant and included the removal or displacement of large amounts of soil and the excavation of substantial vegetation (at 110).
(g)Accordingly, her Honour was correct to find the works to the drain were an activity which resulted in some physical alteration to the land which had some degree of permanence to the land itself as opposed to finding the works constituted an activity which did not interfere with the actual physical characteristics of the land. Furthermore and in any event, the definition of 'development' contained in the Scheme expressly incorporates excavation.
(h)To suggest, as is suggested by Ivo, that the clearing of the land and the excavation and clearing of the drain did not constitute development because the land was simply reinstated to its former condition ready for sowing of seeds for pasture and rendering the water in the drain fit for animal watering misrepresents the evidence.
(i)There was no evidence that the 11 ha of land cleared by Ivo had ever previously been cleared or used for pasture. To the contrary, the evidence showed the area cleared had always contained trees and shrubs as opposed to pasture.
(j)In view of the above, her Honour was correct to find that the developments carried out by Ivo constituted activities which resulted in some physical alteration to the land which had some degree of permanence to the land itself and that, therefore, cl 8.1 of the Scheme did not apply to those activities.
(k)In any event, even if her Honour was wrong to find that cl 8.1 of the Scheme did not apply to the developments in this instance, the evidence before her Honour did not establish on the balance of probabilities that the activities constituted the continued use of the land for a purpose for which it was being lawfully used at the time of coming into force of the amendment to the Scheme and rezoning of the land in 1996.
(l)In light of the relevant case law referenced above, it is relevant and unnecessary to consider which use class the use of the land may have fallen within when the Scheme came into effect in 1989 or prior to the rezoning of the land in 1996.
(m)Furthermore, there was no evidence on which her Honour could have made a finding on the balance of probabilities that the works to the drain, including the removal or displacement of large amounts of soil and the excavation of substantial vegetation, constituted the continuance of any lawful agricultural or farming activities being carried out upon the land prior to the rezoning of the land.
(n)To the contrary, the evidence before her Honour was that the drain had been excavated and widened in order to remove stagnant water. There was no evidence on which her Honour could have reached a conclusion that activity was an activity which formed part of any farming or agricultural activity being lawfully carried out on the land prior to the rezoning of the property in 1996. Indeed, the evidence does not establish that there were any drains on the property prior to the rezoning of the land in 1996.
(o)Accordingly, there was no evidence that the lawful use of the land prior to the rezoning of the land in 1996 included large scale clearing of significant vegetation or the excavation and widening of drains on the land.
The magistrate's findings
Her Honour found that the following matters were not in dispute at the trial:
(a)the property was previously zoned 'rural' but was rezoned to 'special development' in 1996 ([5(c)] decision);
(b)the property had been used for some form of agricultural or farming purposes since the Local Planning Scheme No 4 of the Shire of Murray‑District Zoning Scheme (LPS 4) was first gazetted on 23 June 1989 and that use was maintained after the zoning change ([5(d)] decision);
(c)a portion of the property had vegetation removed in April 2015 and some work was done to the drains in May and June 2015 ([5(e)] decision); and
(d)no approval for the clearing had been sought from or given by the Shire ([5(c)] decision).
Mr Marlborough, the manager of governance at the Shire, gave evidence that over time cattle had been grazed on the property.[8] Mr Lerner, the Shire's co‑ordinator of Environmental Services, had seen cattle on the property over time.[9] Mr Turner, a town planner, gave evidence that the property had been used for grazing with cattle and crops on it over the years.[10]
[8] Reasons for decision [19].
[9] Reasons for decision [42].
[10] Reasons for decision [65].
The area that was cleared by Ivo formed part of Lot 9510 Pinjarra Road (ie, the property).
The area cleared by Ivo appears from exhibit 6.1, an aerial photograph of the property before clearing, as at 4 March 2015, and exhibit 6.2, an aerial photograph of the property after clearing, as at 22 September 2015. The area of clearing that was the subject of the prosecution was 11 ha. An amount of vegetation remained after the clearing of 11 ha. The total area of the lot was 154 acres. From the aerial photographs,[11] it is apparent that the area cleared by Ivo in April 2015 represented less than 10% of the property. The great majority of the property had already been cleared over the previous years.
[11] Exhibit 6.1 and 6.2.
The 11 ha of the property that was cleared was sowed and seeded by Graham Morrell on behalf of Ivo. He planted oats, ryegrass and clover. The resulting pasture was turned into hay and then fed to cattle.[12] Mr Morrell's evidence was not contested on this point.
[12] ts 29 ‑ 30, 30 November 2017.
Her Honour accepted Mr Biagioni‑Froudist's evidence.[13] Her Honour found that the excavation work was done to an existing drain on the property.[14] Her Honour's summary of Mr Biagioni‑Froudist's evidence was:
[He] is a civil engineer who has been familiar with the property since it was first developed in 1996. Developers had purchased the site from a farmer and developed the eastern sector. There was a break in his involvement between 2006 to 2013 and then he became involved again once the accused company purchased the property.
Several drains were dug on the property over time. They were cut from the front to rear of the property to connect it to natural channels. This was important for running cattle and feed production. The water quality there had been quite rank so took a number of years to aerate and make sure the water was kept pristine and maintained.
The property was used predominantly as a farm and maintaining drainage was important for agistment and agriculture.
[13] Reasons for decision [91].
[14] Reasons for decision [91].
Mr Biagioni‑Froudist's evidence was not challenged as to the purpose of the drainage and the benefit of the drainage to rural activities on the lot.
Mr Biagoni-Froudist also gave evidence that his first involvement with the property was in 1996. His further evidence was:
Now, what can you say regarding the drainage of the property? Like, what would happen - like, for instance, there is an area that we clean the drain. What is the reason for us to achieve that for a farmer? What can you see different than what you done in that farm?‑‑‑So if you're referring to the dams - so maybe I should explain. There are a number of drains on the property that existed when the farm first started and there were several drains that, in my period as engineer, we had actually dug. The purpose of those was to keep the property from having perch water. So when you travelled along Pinjarra Road, especially when the first stages of development occurred, there was a lot of water lying on the property, particularly adjacent to Pinjarra Road. So there were a number of drains that we cut from the front of the property to the rear of the property in order to take that water away and connect that to the natural channels that ran through the property.
What would happen, Enzo, if perhaps somebody take that property and does nothing with it? You know, like what it cause to the drain, the weed, the cattle, the animal, what is the - - -?‑‑‑Well, with the use of the property predominantly as a farm for that period that I was there for, obviously maintaining the drainage was fairly important for agistment, for running of cattle, for the small amount of agriculture that was being undertaken on it, for feed - basically feed production. So if the drains weren't maintained and they get overgrown, obviously that creates the problem again. So from my understanding of it over the years, whenever we needed to maintain the drainage of the property, there was always an annual or bi-annual maintenance that was done on those drains, including that area that was excavated between the power lines. We excavated that as a sand mine order to - when we did the development adjacent to the power lines, those so‑called wetlands are actually man-made lakes. They were created when we excavated sand out of those to fill the land adjacent to them. So - - - .[15]
[15] ts 106, 23 November 2017.
Mr Biagioni‑Froudist also stated:
So some of these drains need to be maintained to keep the property dry and to ensure that the land remains arable through the wet season.[16]
[16] ts 109, 12 November 2017.
He also stated that:
a series of farm drains and existing pipes … have always run down through the property.[17]
[17] ts 107, 23 November 2017.
Characterising a non‑conforming use
In Shire of Carnarvon; Ex parte Humphrey[18] (McLure JA, Le Miere AJA agreeing), the court considered a 'non‑conforming use' in the context of the Shire of Carnarvon's town planning scheme (the Carnarvon Scheme).
[18] Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 [30] ‑ [38] (Humphrey).
Clause 7.1.1 of the Carnarvon Scheme, which related to non‑conforming use, was in identical terms of cl 8.1 of LPS 4, that is:
No provision of the Scheme shall prevent:
(a)the continued use of any land or building for the purpose for which it was being lawfully used at the time of coming into force of the Scheme;
…
Clause 7.2 of the Carnarvon Scheme provided:
7.2.1A person shall not alter or extend a non‑conforming use or erect, alter or extend a building used in conjunction with a non‑conforming use without first having applied for and obtained the Planning Approval of the Council under the Scheme and unless in conformity with any other provisions and requirements contained in the Scheme.
7.3.1Notwithstanding anything contained in the Zoning Table the Council may grant its Planning Approval to the change of use of any land from a non‑conforming use to another use ... if the proposed use is, in the opinion of the Council, less detrimental to the amenity of the locality than the non‑conforming use and is, in the opinion of the Council, closer to the intended use of the Zone or Reserve.
Clause 8.4 of LPS 4 was in substantially similar terms to the clause considered by the High Court in O'Keefe:
If at the date of the publication of these by‑laws in the Government Gazette, any land, building or structure is being lawfully used for a purpose or built on in a manner not permitted by these by‑laws, such land, building or structure may continue to be used for that purpose or in that manner but no such building or structure shall be added to or altered unless special permission to do so is granted by the Board.
In Humphrey, McLure JA stated:
The phrase 'continued use' in an existing use saving provision was considered by the High Court in Dorrestijn v South Australian Planning Commission[1984] HCA 76; (1984) 56 ALR 295. The question in issue in that case was whether the clearing of land on which the appellant farmed was a 'development' and whether it required the consent of the local planning authority under South Australian planning legislation. The term 'development' was statutorily defined to include a change in use of the land. However, there was an existing use provision which permitted the continued use of land for purposes for which it was lawfully being used at the relevant time. The majority (Mason ACJ, Deane and Dawson JJ at 300 [19]) held that the phrase 'continued use' included such developments as would necessarily, if not ordinarily, be involved in the use of land for the particular purpose for which it continues to be used. The clearing of land on which the appellant farmed was held to be within the existing use protection for which approval was not required notwithstanding that clearing fell within the definition of 'development' [30].
In Dorrestijn, the High Court went on to state that the interpretation set out above
conforms to the principle of construction that statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows (Parramatta City Council v Brickworks Ltd[1972] HCA 21; (1972) 128 CLR 1, at p 25; Woollahra Municipal Council v Banool Developments Pty Ltd[1973] HCA 65; (1973) 129 CLR 138, at p 144) [19].
In Humphrey, McLure JA referred to City of Mitcham v Fusco[19] and stated:
The question was whether there was a development which required planning approval because it involved a change in use of land. The answer depended on whether the activity (planting olive trees) was a continuation of an existing lawful non‑conforming use, in which event approval was not required. The land had been used for the production of primary products, including fruits and nuts but not olives. The Court concluded the planting of olive trees was within the same genus as existing activities and was a continuation of an existing non‑conforming use and not a change of use. The Court agreed with the approach taken by Wells J in Prestige Car Sales Pty Ltd v Walkerville Town Corporation (1979) 20 SASR 514 at 522:
'The principles for determining what is an existing use and whether there has been a change of existing use should be flexible. They are not convertible into hard and fast rules. Rather they should be treated as directing a comprehensive survey of the circumstances that are obtained before the planning regulations in question came into force, and of the circumstances that would obtain if the proposed extensions or reconstructions were to be made or carried out. The object of the survey should be to decide whether, having regard to the purpose of the former use of the subject building, and to the purpose of the use that will be made of it after execution of the proposals, there would, as a matter of fact and degree, be a change in the essential nature of the existing use ...'.
[19] City of Mitcham v Fusco [2002] SASC 423; (2002) 124 LGERA 196 [31].
McLure JA went on to state:
Prima facie, an existing use right applies to the entire land and not just to a specific portion on which activities may traditionally have been conducted: Norman (supra) at 87; City of Mitcham v Fusco (supra); Mobil Oil Australia Ltd v Ku‑Ring‑Gai Municipal Council (1990) 70 LGRA 419 [35].
Her Honour further stated, at [36], that 'there can be changes in the activities (uses) on the land that are protected by cl 7.1.1. The test is variously formulated as whether there has been a change in the essential nature of the use, whether the 'new' activity is within the same genus as the existing use and whether the use is in substance the same'.
Her Honour then considered the scope of cl 7.2.1; in particular, does it apply to all alterations or extensions of a non‑conforming use regardless of the nature or magnitude? Her Honour stated:
There appears to be no equivalent of cl 7.2.1 in the relevant by‑laws considered in O'Keefe and Franconi. However, the other authorities to which I have referred construe existing use saving provisions to override (in terms or effect) other requirements for planning approval. Such a construction is consistent with the opening words of cl 7.1.1 that no provision of the scheme shall prevent the continuation of a non‑conforming use. Further, cl 7.1.1 is not made subject to cls 7.2.1 or 2.1.1. Having regard to the peremptory nature of the opening words and the other matters to which I have referred, cl 7.2.1 and cl 2.1.1 must, in my view, be read down so as not to derogate from the rights protected in cl 7.1.1. That outcome would be achieved by confining cl 7.2.1 to alterations or extensions of uses that are not otherwise within the protection in cl 7.1.1. In my view, that is the correct construction of TPS 10. I have considered other possibilities, one being that cl 7.2.1 only requires Shire approval when an alteration or extension of a use involves a material change of use of the kind that triggers the obligation for Planning Approval under cl 2.1.1. However, that is likely to reduce the changes in activity otherwise permissible under cl 7.1.1. Another possibility is that cl 7.2.1 applies to all alterations or extensions of use regardless of their nature or magnitude, but does not entitle the Shire to refuse approval but only to regulate (condition) the grant of approval. However, the language of the clause does not support such a construction [37].
At [38] of Humphrey her Honour then posed the relevant questions as:
(a)whether the Access Portion was the subject of non‑conforming use rights when TPS 10 came into force in February 1988 and if so;
(b)whether there has been an alteration or extension that is outside the scope of the protection in cl 7.1.1.
In Shire of Perth v O'Keefe,[20] the High Court considered whether an existing or non‑conforming use right should be characterised by reference to the actual use to which the land was put or the defined use class within which a particular use might fall. Justice Kitto made the following observations:
[I]t is necessary to observe that the 'existing use' by‑laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by‑laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. … The application of the by‑law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by by‑law 372, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree: cf Marshall v Nottingham Corporation (1960) 1 WLR 707, at p 717; and for that reason borderline cases will inevitably arise in which opinions will differ. But to seek more precise guidance from the by‑laws is vain. The general considerations that have been mentioned will suffice for most cases. lf premises were being used as professional offices at the commencement of the by‑laws, no greater degree of particularity in defining the purpose is likely to appeal to practical minds as appropriate in the application of town‑planning legislation than is involved in saying that the purpose is that of professional offices: the particular profession of the occupant would not ordinarily be adverted to be a person speaking in a town‑planning context. The answer is perhaps not so easy in the case of a shop. As to a butcher's shop, for example, I should be inclined to think that while it would be immaterial to inquire into the details of the user the 'purpose' in the relevant sense would be the purpose of a butcher's shop, and not of a shop generally. In the case of a general store, wide variations in the use as regards the nature of the stock carried and the methods of merchandising might occur before one would say, in an ordinary use of language, that the premises were not being used for the same purpose as before. In the case of premises used for pottery making, however, it seems to me to be clear that while changes in methods and designs would be immaterial a use of the premises for making anything other than pottery would be, in a substantial and relevant sense, a use for a different purpose.
[20] Shire of Perth v O'Keefe (1964) 110 CLR 529.
In Royal Agricultural Society of New South Wales v Sydney City Council[21] the Supreme Court of New South Wales applied the test in Shire of Perth v O'Keefe. The court noted that courts have refused
to categorise a non‑conforming or existing use so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation (310).
[21] Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305.
As Ivo outlined in Parramatta City Council v Brickworks Ltd[22] Gibbs J concluded that for the purpose of establishing a non‑conforming use right, an area of unused land may be considered part of a larger parcel of land used for a particular purpose provided that the land was acquired and kept for the purpose of using it in conjunction with other land.
[22] Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 [23].
Ivo further outlined that this conclusion is also seen in Council of the City of Newcastle v Royal Newcastle Hospital, wherein the court held:[23]
The word 'used' is of course a word of wide import and its meaning in any particular case will depend to a great extent upon the context in which it is employed. The uses to which property of any description may be put are manifold and what will constitute 'use' will depend to a great extent upon the purpose for which it has been acquired or created. Land, it may be said, is no exception and itself shows plainly enough that the 'use' of land will vary with the purpose for which it has been acquired and to which it has been devoted ... But where an exemption is prescribed by reference to use for a purpose or purposes it is sufficient in my opinion if it be shown that the land in question has been wholly devoted to that purpose even though, the fulfilment of the purpose does not require the immediate physical use of every part of the land [3].
[23] Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1.
The Shire submitted that the decision in Royal Agricultural Society v Sydney City Council does not mean that land which enjoys a non‑conforming or existing use right for a particular use can be used for any purpose that falls within the same defined use class as the non‑conforming or existing use. Rather, it was concluded 'it means that the methods and processes of carrying out the non‑conforming or existing use are not restricted to those which applied when the non‑conforming or existing use first commenced or that were being utilised when the later legislation came into effect. In other words, it allows a business to evolve over time and, if necessary, to operate in a different manner with different processes or different equipment, without losing its non‑conforming or existing use rights'.
The Shire further submitted that what is clear from the decision in Shire of Perth v O'Keefe and decisions since is that the question is not whether, at the relevant time, the land is being used for a purpose which falls within the same use class as the purpose for which the land was lawfully being used immediately prior to the commencement of a planning scheme but whether the land is being used for the same purpose for which it was lawfully being used immediately prior to the commencement of that planning scheme. Accordingly, it is submitted it is necessary to determine the use to which the land is being put as opposed to determining the 'use class' within which that use might fall under a planning scheme.
There is nothing in O'Keefe or Royal Agricultural Society that is inconsistent with the authorities set out by McLure JA in Humphrey.
In this case the relevant questions are:
(a)whether the cleared portion of vegetation and the drain excavation was the subject of non‑conforming use rights when LPS 4 came into force in June 1989 and or September 1996, and if so;
(b)whether there has been an alteration or extension that is outside the scope of the protection in cl 8.1(i) of LPS 4?
The use of the property prior to September 1996
The Shire submitted that:
(a)In light of the relevant case law referenced above, it is irrelevant and unnecessary to consider which use class the use of the land may have fallen within when the Scheme came into effect in 1989 or prior to the rezoning of the land in 1996. Rather, what must be considered is the purpose for which the land was being used at the time of the land being rezoned to 'Special Development' in September 1996 and whether that use was lawful.
(b)While the magistrate accepted the land had been used for some form of agricultural or farming purposes since the Scheme commenced in 1989, there was no evidence as to the nature of the agricultural or farming purposes being carried out at that time or that the use was lawful. Indeed, the evidence in relation to the use of the land was limited to the land having been 'for grazing, with cattle and crops on it, over the years'.
(c)However, even if it is accepted that the land was being lawfully used for grazing, with cattle and crops on it, prior to the rezoning of the land in 1996, there was no evidence as to the extent to which the land had had crops on it over the years or, in particular, prior to the rezoning of the property in 1996. Furthermore, there was no evidence as to whether the lawful use of the land prior to the rezoning of the land in 1996 included the clearing of existing vegetation on the land or the creation or maintenance of drains on the land.
(d)Accordingly, there was no evidence on which the magistrate could have made a finding on the balance of probabilities that the clearing of 11 ha of significant and substantial vegetation constituted the continuance of any lawful agricultural or farming activities being carried out upon the land prior to the rezoning of the land in 1996.
Ivo submitted that the evidence of the historical existence of dams and drains on the land used for watering cattle together with the growth of vegetation/pasture on the land to feed the cattle and accepted by the learned magistrate brings the non‑conforming use rights within both the definitions of Intensive Agriculture and Rural Pursuit which existed in 1989 before amendment in 1995.
Analysis
Her Honour found that the property had been used for some form of agricultural or farming purposes since the Local Planning Scheme No 4 of the Shire of Murray‑District Zoning Scheme (LPS 4) was first gazetted on 23 June 1989 and that use was maintained after the zoning change ([5(d)] decision).
The evidence of Mr Biagioni‑Froudist and others as set out above is that in 1996, and subsequently, the property was being used for the running of cattle and feed production. There is no evidence that the property had been used for other purposes at the time LPS 4 was gazetted in 1989 or during any subsequent period.
The Shire submitted that 'there was no evidence that the drain in question was excavated to enable the watering of cattle'. Mr Biagioni‑Froudist's evidence was that the drains were excavated to water the cattle. The Shire further submitted that to 'the contrary, the evidence of Mr Letari, the director of the appellant company, was that the drain was excavated in order to remove water that was sitting stagnant.[24] The fact that the drain was excavated to remove stagnant water is not inconsistent with the existence of and the excavation of the drain for the purpose stated by Mr Biagioni‑Froudist. Mr Letari later described draining the pond because it is a normal farm operation.[25]
[24] ts 46, 23 November 2017.
[25] ts 83, 23 November 2017.
As Justice Kitto stated in O'Keefe:
First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by‑laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. … The application of the by‑law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.
The end for which the property was being used was for the grazing of cattle and the growing of feed for those cattle. There was evidence that the property had been used for cattle grazing, with crops grown, for the cattle, during that period. Nothing could be more essential to that purpose than providing feed and water for cattle being grazed on a property. There was no evidence that the property had been used for any other agricultural purpose or for any other purpose. The use prior to 1996 was for rural pursuits. That was a lawful use. That use continued after 1996. It was not necessary for Ivo to establish the areas of, or types of crops grown, at any particular period, any more than it was necessary to identify the areas grazed by the cattle. The fulfilment of the purpose did not require the immediate physical use of every part of the property.
Was there an alteration or extension that was outside the scope of the protection in cl 8.1(i) of LPS 4 by the clearing and drain excavation?
The Shire submitted that the further clearing of the property and the further excavation of the drains was not a non‑conforming use and that because it was a 'development' the work was development and required Shire approval.
Ivo correctly submitted that her Honour wrongly focused upon the proportionality or 'degree' of the activities carried out by Ivo (see [109] ‑ [110] of the decision).
Her Honour's focus on the degree of the activities carried out was largely a result of the way the case was presented by the Shire. Her Honour did not have the benefit of Humphrey and Dorrestijn being cited to her. Further, Ivo was not represented by counsel throughout the entire hearing.
Although the Shire made extensive submissions as to 'development', it is unnecessary to consider those submissions because once the clearing and excavation fell within an existing use, it was unnecessary to consider whether that use constituted a 'development' (see Humphrey at [30]).
Analysis
The property had been predominantly cleared for cattle grazing and feed for the cattle. The clearing of a further area of the property for cattle grazing and feed was a continued use of the property. This is consistent with the High Court's decision in Dorrestijn. Further, as McLure JA stated in Humphrey, an existing use right applies to the entire land and not just to a specific portion on which activities may traditionally have been conducted.
The drains had existed on the property since at least 1996. The purpose of clearing the drains and further excavating them was for the purpose of providing water to the cattle. This was consistent with the overall purpose of the property. In the same way as future clearing of the land is a non‑conforming use, further excavation of the drains is a non‑conforming use.
On this basis, the vegetation clearing and drain clearing carried out by Ivo in 2015 are permitted non‑conforming activities within the scope of the terms and definitions and within the purpose for which the land was being used before the zoning change in 1996.
Clearing of further vegetation and further excavation of the drains was permitted on the land pursuant to cl 8.1 of LPS 4.
Approval was not required from the Shire and her Honour erred in finding to the contrary.
Once Ivo's activities are deemed to be part of a continuing non‑conforming use, the question of development approval does not arise. As McLure JA stated in Humphrey, 'existing use saving provisions … override other requirements for planning approval'. As her Honour further added in Humphrey, 'the clearing of land on which the appellant farmed was held to be within the existing use protection for which approval was not required notwithstanding that clearing fell within the definition of development'.[26]
[26] Humphrey [30].
Ground 3 - was the penalty manifestly excessive?
Having regard to the court's findings as to breach it is unnecessary to consider ground 3.
Conclusion
The court has concluded that the appeal should be allowed.
The court will hear the parties as to costs.
Orders
1.Leave to appeal granted.
2.Appeal allowed.
3.Convictions set aside.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
THE HONOURABLE JUSTICE J Curthoys
11 MARCH 2019
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