PERTH VET EMERGENCY PTY LTD and CITY OF STIRLING

Perth Vet Emergency Pty Ltd and the City of Stirling appeared before the court in a dispute concerning a development application involving a veterinary practice located in an industrial zone. The City of Stirling opposed the application, arguing that the property did not have the necessary rights to operate a veterinary practice under the existing town planning scheme. The case hinged on whether the property had non-conforming use rights that would permit the continued operation of the veterinary practice. The property in question had previously been approved as a warehouse in 1971, with a subsequent showroom addition in 1983. Perth Vet Emergency Pty Ltd argued that the continued operation of the veterinary practice was a lawful non-conforming use, while the City of Stirling contended that the non-conforming use rights had been lost due to discontinuance of the lawful use.

The court was tasked with determining whether the property had the requisite non-conforming use rights to operate a veterinary practice. The legal issues centred around the interpretation of the town planning scheme, the presumption of regularity in past approvals, and the effect of discontinuance of a lawful use on non-conforming use rights. The court needed to establish whether the property had a lawful non-conforming use as of 1983, when the showroom addition was approved, and whether any subsequent non-approved uses had extinguished these rights. The court also had to consider the impact of the town planning scheme provisions that permitted the change of one non-conforming use to another non-conforming use.

The court found in favour of Perth Vet Emergency Pty Ltd, holding that the property had the non-conforming use rights to operate a veterinary practice. The court applied the presumption of regularity to the 1983 approval, characterising the approval as a lawful integrated industrial use that combined sales and production components. The plans presented in 1983 showed the existing factory area, and the court concluded that this constituted a single planning unit. The actual use of the property was consistent with this characterisation. The tribunal had correctly found that no further planning approvals had been given since 1983, and that any subsequent non-approved uses from 1993 were inconsistent with the 1983 approval. The court held that any non-conforming use rights had been lost by discontinuance of the lawful use. Consequently, the court determined that Perth Vet Emergency Pty Ltd had the necessary non-conforming use rights to operate the veterinary practice on the property. The court dismissed the City of Stirling's opposition to the development application.