ROCHESTER and SHIRE OF NORTHAM

The case of Rochester and Shire of Northam involved a dispute between the applicant, Rochester, and the Shire of Northam regarding the use of certain shade house structures on Lot 121. The primary issue was whether the existing use rights of the structures became non-conforming use rights following changes in the planning framework. The case was heard in the Western Australian Civil and Administrative Tribunal (WCAT).

The legal issues at hand focused on the interpretation and application of existing and non-conforming use rights within the context of town planning laws. Specifically, the court needed to determine whether the activities associated with the shade house structures constituted an existing use that became a non-conforming use upon the gazettal of TPS 6 on 21 August 2013. This required an analysis of the purpose for which the land was used at the time the changes in the planning laws took effect, and whether the activities were compatible with the zoning and residential design codes applicable at that time.

The WCAT considered the relevant statutory provisions and legal precedents, including the case of O'Keefe, which established that non-conforming use rights protect against the inequity of requiring existing uses to comply with new planning laws. The Tribunal found that the use of the shade house structures for the purposes of a rural pursuit was an existing use that became a non-conforming use when the planning laws changed. The Tribunal concluded that the structures were used for a purpose compatible with the residential design codes and the zoning at the time they became non-conforming.

As a result of the findings, the WCAT determined that the existing use rights of the shade house structures were indeed non-conforming use rights. The Tribunal ordered that the Shire of Northam should not require a new development approval for the continued use of the shade house structures for the purposes of the rural pursuit.