Smargiassi Nominees Pty Ltd v Shire of Collie

[2024] WASC 16

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SMARGIASSI NOMINEES PTY LTD -v- SHIRE OF COLLIE [2024] WASC 16

CORAM:   QUINLAN CJ

HEARD:   27, 28, 29 NOVEMBER 2023

6 DECEMBER 2023

FINAL SUBMISSIONS FILED 20 DECEMBER 2023

DELIVERED          :   25 JANUARY 2024

FILE NO/S:   CIV 1588 of 2019

BETWEEN:   SMARGIASSI NOMINEES PTY LTD

Plaintiff

AND

SHIRE OF COLLIE

Defendant

 

Catchwords:

Planning ‑ Town planning scheme ‑ Repeal of town planning scheme ‑ Approval under previous scheme for uses prohibited by new scheme ‑ Whether approval remained in force after repeal of town planning scheme

Planning - Town planning scheme - Repeal of town planning scheme - Non‑conforming use clause ‑ Whether evidence establishes lawful use prior to repeal ‑ Whether evidence establishes continuing use prior to repeal ‑ Whether evidence establishes continuing non-conforming use

Planning - Town planning scheme ‑ Declaration sought as to non‑conforming use ‑ Effect of prior conviction on claim for declaration as to lawful use ‑ Principle of incontrovertabilty

Declarations ‑ Discretionary considerations ‑ Utility

Legislation:

Interpretation Act 1984 (WA), s 3, s 36, s 37
Planning and Development Act 2005 (WA), s 208
Shire of Collie Local Planning Scheme No 5, cl 4.3, cl 4.8, cl 4.10, cl 11.4
Shire of Collie Local Planning Scheme No 6, cl 22

Result:

Action dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	P G McGowan & L E Rowley
Defendant	:	M D Cuerden SC & P Gillett

Solicitors:

Plaintiff	:	Rowley Legal
Defendant	:	McLeods

Cases referred to in decision:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Arthur JS Hall & Co v Simons [2002] 1 AC 615

Auburn Council v Nehme [1999] NSWCA 383; (1999) 106 LGERA 19

Australian Unity Property Ltd v City of Busselton [2018] WASCA 38

Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334

Calvary Health Care Tasmania Inc v Hobart City Council (2006) 15 Tas R 271

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577

Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270

Empire Securities Pty Ltd v Western Australian Planning Commission [2005] WASAT 98

Gnech Building Co v Town of Claremont [2018] WASAT 77

Johnson v Gore Wood & Co [2002] 2 AC 1

Lederer v Sydney City Council (2001) 119 LGERA 350

Norman v Gosford Shire Council (1975) 132 CLR 83

North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50

Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Re Tooth & Co Ltd (1978) 31 FLR 314

Rogers v The Queen (1994) 181 CLR 251

Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305

Shire of Collie v Smargiassi Nominees Pty Ltd [2017] WASC 238

Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; (2020) 243 LGERA 89

Shire of Perth v O'Keefe (1964) 110 CLR 529

Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118

Smargiassi Nominees Pty Ltd v Shire of Collie [2020] WASC 94

Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107

The State of Western Australia v Williams [2022] WASCA 105

Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

UBS AG v Tyne (2018) 265 CLR 77

University of Western Australia v City of Subiaco (1980) 52 LGRA 360

Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138

Table of Contents

Introduction and summary

Statutory and planning framework

Shire of Collie Town Planning Scheme No 1 (TPS 1)

Shire of Collie Interim Development Order No 6 (IDO 6)

Planning and Development Act 2005 (WA)

Shire of Collie Local Planning Scheme No 5 (TPS 5)

Shire of Collie Local Planning Scheme No 6 (TPS 6)

Factual background

2006 Application and 2006 Approval

The plaintiff's business and the acquisition of Scenic Drive

The plaintiff's conviction for unauthorised development

The plaintiff's pleaded case and the Shire's defence

Pleadings as to the full force and effect claim

Pleadings as to the non‑conforming use claim

The shifting sands of the non‑conforming use claim

Full force and effect claim

Plaintiff's submissions on the full force and effect claim

Shire's submissions on the full force and effect claim

Full force and effect claim ‑ disposition

Non‑conforming use claim ‑ summary of issues

Declaratory relief – preliminary observations

Non‑conforming use rights ‑ general principles

Effect of the plaintiff's conviction on these proceedings

Overview of the witnesses at trial

Roger Menezes

Matthew Smargiassi

Peter Smargiassi

Kerry Roberts

Keith Williams

Andrew Watts

Terry Ellery

Findings as to the use of Scenic Drive

Uses of Scenic Drive up to 2 October 2009

Mr Menezes' activities up to 2 October 2009

The plaintiff's activities up to 2 October 2009

Uses of Scenic Drive from 2 October 2009 to the present

Mr Menezes' activities from 2 October 2009 to the present

The plaintiff's activities from 2 October 2009 to the present

Summary as to the pleaded activities

Non‑conforming use claim ‑ disposition

No lawful use under the 2006 Approval at the commencement of TPS 5

No continued lawful use under the 2006 Approval after the commencement of TPS 5

Declaratory relief and utility

Conclusion

QUINLAN CJ:

Introduction and summary

1. The plaintiff, Smargiassi Nominees Pty Ltd, is the owner of 650 Collie River Scenic Drive in Collie (Scenic Drive).  The plaintiff has owned Scenic Drive since 27 June 2008.[1]

   [1] Amended Substituted Statement of Claim No 2 dated 20 December 2023 (Statement of Claim) [2]; Further Re‑Amended Defence dated 21 December 2023 (Defence) [2].

2. The defendant, the Shire of Collie (Shire), is the local government for the district that includes Scenic Drive.

3. Scenic Drive is southwest of the town of Collie and due north of the Collie River.  It is zoned Rural under the current local planning scheme made under the Planning and Development Act 2005 (WA) (Planning and Development Act), namely the Shire of Collie Local Planning Scheme No 6 (TPS 6).[2] 

   [2] Exhibit 42.

4. Scenic Drive was the subject of a development approval dated 8 August 2006 that was granted pursuant to a previous town planning scheme (the Shire of Collie Town Planning Scheme No 1 (TPS 1)) and an interim development order made under the Town Planning and Development Act 1928 (WA) (2006 Approval).  The 2006 Approval permitted Scenic Drive to be used for 'Light Industry (Engineering, Fabrication & Earth moving services)', subject to various conditions. 

5. On 2 October 2009, TPS 1 was repealed by the Shire of Collie Local Planning Scheme No 5 (TPS 5).[3]  Under TPS 5, various uses that fell within the 2006 Approval were prohibited on Scenic Drive, including Industry General, Industry Light and Storage.  Similarly, TPS 6, which came into effect on 20 December 2021, prohibited Scenic Drive being used for Industry, Industry Extractive and Industry Light.

   [3] Exhibit 41.

6. Both TPS 5 and TPS 6, however, made provision for the continuation of non‑conforming uses.  That is, TPS 5 and TPS 6 each provided that nothing in the provisions of those Schemes is taken to prevent the continued use of any land for a purpose for which it was being lawfully used immediately before the commencement of the Scheme.

7. As a consequence, in general terms, any use of Scenic Drive that was being lawfully conducted pursuant to the 2006 Approval, and which has continued to the present day, would be a lawful non‑conforming use of Scenic Drive.

8. Since it acquired Scenic Drive, the plaintiff has used Scenic Drive for certain purposes for which it did not have development approval and which were not lawful non‑conforming uses.  In particular, in 2017, the plaintiff was convicted by Martino J of contravening TPS 5, by using Scenic Drive between 1 March 2014 and 12 January 2015 for storage of scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble (unlawful uses).[4]  That conviction was upheld by the Court of Appeal.[5]

   [4] Shire of Collie v Smargiassi Nominees Pty Ltd [2017] WASC 238 (Smargiassi [2017]).The decision in Smargiassi [2017] was Exhibit 65.

   [5] Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118 (Smargiassi [2018]).  The decision in Smargiassi [2018] was Exhibit 44.

9. In 2019, following its conviction with respect to those unlawful uses, the plaintiff and the Shire corresponded in relation to the ongoing use of Scenic Drive by the plaintiff.  The plaintiff maintains that it is at risk of further prosecution by the Shire in relation to its use of Scenic Drive.

10. The plaintiff commenced these proceedings seeking a declaration to the effect that certain uses of Scenic Drive by it were valid non‑conforming uses within the meaning of TPS 5 and TPS 6.  The plaintiff pleaded a variety of uses that it contended were lawful non‑conforming uses of Scenic Drive.  In particular, it pleaded that '[p]rior to and since at least October 2009, [Scenic Drive] has been used for …  purposes authorised by the 2006 Approval without any break in excess of six months (the Non‑Conforming Uses)'.[6] 

    [6] Amended Substituted Statement of Claim dated 27 September 2023 (the Trial Statement of Claim) [16] (emphasis in original).

11. Until the final day of trial, the plaintiff's claim was entirely based on non‑conforming use rights that it claimed arose from cl 4.8 of TPS 5 and cl 22 of TPS 6.  The fact that the plaintiff's claim was confined to non‑conforming use rights is apparent from an interlocutory appeal in this matter determined by the Court of Appeal in 2021 (interlocutory appeal).[7]  The plaintiff's case at trial was opened, and conducted, on the basis that the declaration sought was to the effect that the plaintiff was entitled to use Scenic Drive for 'the Non‑Conforming Uses'.

    [7] Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107 (Smargiassi [2021]) [103] (Beech & Vaughan JJA, Morrison AJA).

12. The plaintiff called evidence as to the uses of Scenic Drive in order to establish the existence of those non‑conforming use rights.

13. After the close of the evidence, and in its closing submissions, the plaintiff, for the first time, submitted that its 'primary contention is that the 2006 approval in its full force and effect continues to' apply to Scenic Drive.[8]  That is, the plaintiff submitted that the 2006 Approval continued to authorise any use of Scenic Drive within its terms, regardless of whether the plaintiff had actually ever engaged in such uses (the full force and effect claim).[9]  All of the evidence called by the plaintiff as to the use of Scenic Drive was irrelevant to the full force and effect claim.  The plaintiff submitted that its claim of non‑conforming use rights, which was in fact its only pleaded claim, was now its alternative claim.

    [8] Plaintiff's Outline of Closing Submissions dated 5 December 2023 (Plaintiff's Outline of Closing Submissions), [38].

    [9] ts 316.

14. At the conclusion of the parties' closing submissions, the plaintiff was granted leave to file an amended statement of claim to plead the full force and effect claim.  Pursuant to those amendments the plaintiff amended its primary claim to a declaration to the effect that the 2006 Approval 'continues to apply according to its tenor and authorises the carrying out of the uses provided therein notwithstanding TPS 5 and TPS 6'. The plaintiff now pleads, in the alternative, that it has lawfully carried out a variety of uses as non‑conforming use rights (the non‑conforming use claim).  The uses ultimately pleaded in the non‑conforming use claim were in similar terms to the Non‑Conforming Uses pleaded in the Trial Statement of Claim, although the declaration sought as a consequence of those uses was significantly recast.

15. The Shire denied the new full force and effect claim.  It also denied, as it had in relation to the plaintiff's original (and now alternative) claim that the plaintiff has used, or is using, Scenic Drive for purposes authorised by the 2006 Approval.  The Shire denies that the plaintiff is entitled to the declaratory relief sought.  The Shire also contends that, to the extent that the plaintiff claims to have used Scenic Drive for storage of scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble, the plaintiff may not contradict its conviction to the effect that those uses were unlawful uses.

16. In this last respect, the Shire's position is undoubtedly correct.  The Court of Appeal, in the interlocutory appeal, has confirmed that the plaintiff's conviction with respect to the unlawful uses is and must remain incontrovertible in these proceedings.[10] 

    [10] Smargiassi [2021] [103] (Beech & Vaughan JJA, Morrison AJA).

17. For the reasons I will give, the full force and effect claim is without merit.  On its proper construction, unless 'saved' by the non‑conforming use provisions, TPS 5 prohibited any use of Scenic Drive for 'Industry ‑ light', including the uses referred to in the 2006 Approval.  The full force and effect claim would, in my view, invert the basic planning law principles that are reflected in the non‑conforming use provisions in TPS 5 and TPS 6.  That claim must be rejected.

18. That leaves the plaintiff's claim as it was originally pleaded and conducted, namely the non‑conforming use claim.  For the reasons that follow, the non‑conforming use claim must also fail.  I am not satisfied, as a matter of fact, that the uses pleaded by the plaintiff were lawfully conducted on Scenic Drive when TPS 5 came into operation or that they have continued until the present time.  In any event, such activity as has been carried out on Scenic Drive, even if it had been carried out lawfully, could not support the alternative declaration in the terms sought.

Statutory and planning framework

1. The legislative and planning framework applicable to the zoning, use and development of Scenic Drive has gone through a number of changes over the period relevant to these proceedings.

2. It is convenient to set out that legislative and planning history chronologically. 

Shire of Collie Town Planning Scheme No 1 (TPS 1)

1. Prior to the enactment of the Planning and Development Act, the planning, development and use of land in this State was regulated, inter alia, by town planning schemes made under the Town Planning and Development Act 1928 (WA). As has long been, and continues to be,[11] the case in this State, 'development' under the Town Planning and Development Act 1928 encompassed both the 'use' of land for particular purposes and development in the sense of the physical alteration of land, such as the construction of works.[12] 

   [11] See Planning and Development Act, s 4.

   [12] University of Western Australia v City of Subiaco (1980) 52 LGRA 360, 363 - 364 (Burt CJ).

2. In accordance with the Town Planning and Development Act 1928, Scenic Drive was land the subject of the Shire of Collie Town Planning Scheme No. 1 (TPS 1), which came into effect on 17 September 1972.[13]

   [13] Exhibit 67; Statement of Claim [4]; Defence [3].

3. Pursuant to TPS 1, Scenic Drive was zoned 'Rural'.[14]  The zoning table in TPS 1 provided that the permitted ('P' class) uses for the Rural zone were 'Caretakers house/Flat' and 'Rural use'.  The zoning table also included a number of 'AA' uses in the Rural zone.  An 'AA' use under TPS 1 was not permitted unless the Council of the Shire granted its approval after the Council had advertised its intention to grant approval and considered all objections to the granting of such approval.

   [14] The Lands zoning under TPS 1 as Rural was admitted on the pleadings (Statement of Claim [5]; Defence [3]).  At trial, Senior Counsel for the Shire stated that there may be some doubt as to whether all of Scenic Drive was zoned Rural under TPS 1.  Nevertheless, any issue in that regard may be put to one side, as the Shire accepted that the 2006 Approval, when granted, was valid and operative according to its terms and, as noted below, it is the 2006 Approval upon which Smargiassi contends that its non-conforming uses were lawfully carried out (see ts 51 - 52).

4. The 'AA' uses for land in the Rural zone included 'Industry - general' and 'Industry ‑ light'.  Those uses, and 'industry', were relevantly defined as follows:[15]

   [15] TPS 1 relevantly applied the definitions in Appendix D of the Town Planning Regulations 1967 (WA) (TPS 1, cl 1.5). The definitions of the comparable terms in TPS 5 and TPS 6 are to similar effect.

   "industry" means the carrying out of any process for and incidental to -

   (a) the making, altering, repairing or ornamentation, painting, finishing, cleaning, packing or canning or adapting for sale, or breaking up or demolition of any article or part of any article;

   (b)       the winning, processing or treatment of minerals; …

   "general industry" means any industry other than a hazardous, light, noxious, rural, extractive or service industry; …

   "light industry" means an industry-

   (a) in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises will not cause any injury to or prejudicially affect the amenity of the locality by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or otherwise ; and

   (b) the establishment of which will not or the conduct of which does not impose an undue load on any existing or projected service for the supply or provision of water, gas, electricity, sewerage facilities, or any other like service;

Shire of Collie Interim Development Order No 6 (IDO 6)

1. Pursuant to s 7B of the Town Planning and Development Act 1928, pending the consideration by the Minister of a proposed town planning scheme for a district, the Minister could make any interim development order or orders as are necessary for regulating, restricting or prohibiting the development of any land within the district.

2. On 5 February 2003, the Shire of Collie Interim Development Order No 6 (IDO 6) came into effect, in accordance with s 7B of the Town Planning and Development Act 1928.[16]  IDO 6 applied to all land in the Shire of Collie, including Scenic Drive.

   [16] Exhibit 45.

3. By cl 3, IDO 6 prohibited development on land within the scope of the order without the approval of the Council of the Shire.  Clause 4 of IDO 6 provided that a person could apply for approval to carry out development, including for existing development.

Planning and Development Act 2005 (WA)

1. Save for certain immaterial exceptions, the Planning and Development Act came into effect on 9 April 2006.

2. Pursuant to s 68 of the Planning and Development Act, TPS 1 continued in force as a local planning scheme under that Act.  The transitional provisions also had the effect that IDO 6 continued as an interim development order under the Planning and Development Act.[17]

Shire of Collie Local Planning Scheme No 5 (TPS 5)

[17] See Interpretation Act 1984 (WA) (Interpretation Act), s 36, confirmed by the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 17.

1. On 2 October 2009, the Shire of Collie Local Planning Scheme No 5 (TPS 5) came into operation.[18]  Given the particular relevance of TPS 5 to the full force and effect claim, it is necessary to set out its provisions in some detail.

   [18] Exhibit 41. In accordance with s 74 of the Planning and Development Act, cl 1.1.2 revoked TPS 1. In accordance with s 107(2) of the Planning and Development Act, IDO 6 also ceased to have effect when TPS 5 came into operation.

2. TPS 5 follows the conventional structure for town planning schemes in this State in relation to the use of land.[19]  Part 4 of TPS classifies land in the Scheme area into zones according to the Scheme map and a Zoning Table makes provision for permitted uses in the various zones.  Clause 4.3, in particular provides:

   [19] See generally Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; (2020) 243 LGERA 89 (Shire of Murray v IVO Nominees) [8] - [24] (Buss P, Mazza & Beech JJA).

   4.3Zoning Table

   4.3.1 The Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in the various zones. The permissibility of any uses is determined by cross reference between the list of use classes on the left hand side of the Zoning Table and the list of zones at the top of the Zoning Table (Table 1).

   4.3.2 The symbols used in the cross reference in the Zoning Table have the following meanings:

   "P" means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme;

   "D" means that the use is not permitted unless the local government has exercised its discretion by granting planning approval;

   "A" means that the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4;

   "X"       means a use that is not permitted by the Scheme.

   ...

   Note:   1. The planning approval of the local government is required for the development of land in addition to any approval granted for the use of land. In normal circumstances one application is made for both the use and development of land.

   2. The local government will not refuse a "P" use because of the unsuitability of the use for the zone but may impose conditions on the use of the land to comply with any relevant development standards or requirements of the Scheme, and may refuse or impose conditions on any development of the land.

   3. In considering a "D" or "A" use, the local government will have regard to the matters set out in clause 10.2.

   4. The local government must refuse to approve any "X" use of land. Approval to an "X" use of land may only proceed by way of an amendment to the Scheme.

1. The binding nature of the use classifications in the Zoning Table is reinforced by clause 11.4 of TPS 5, which relevantly provides:

   11.4     Person must comply with provisions of Scheme

   A person must not:

   (a) contravene or fail to comply with the provisions of the Scheme;

   (b) use any land or commence or continue to carry out any development within the Scheme area"

   (i) otherwise than in accordance with the Scheme;

   (ii) unless all approvals required by the Scheme have been granted and issued;

   (iii) otherwise than in accordance with any conditions imposed upon the grant and the issue of any approval required by the Scheme; and

   (iv) otherwise than in accordance with any standards laid down and any requirements prescribed by the Scheme or determined by the local government under the Scheme with respect to that building or that use.

2. Pursuant to the Scheme map for TPS 5, Scenic Drive was zoned Rural 1.  The uses permitted (i.e., designated 'P') in the Rural 1 zone were 'Agriculture ‑ extensive', 'Agriculture ‑ intensive', 'Agro forestry', 'Community purpose', 'Dwelling single', 'Home office', 'Industry ‑ rural' and 'Rural pursuit'. 

3. The not permitted (i.e., designated 'X') uses in TPS 5 for the Rural 1 zone included 'Industry ‑ general' and 'Industry ‑ light'. 

4. Accordingly, certain uses for which the Shire could grant approval under TPS 1 and IDO 6, including Industry ‑ light, were now not permitted (i.e., prohibited) uses under TPS 5.

5. TPS 5, however, contained the following provisions in relation to non‑conforming uses. By cl 7 of Schedule 1, TPS 5 incorporated the definition of 'non‑conforming use' in s 172 of the Planning and Development Act, namely:[20]

   non‑conforming use means a use of land which, though lawful immediately before the coming into operation of a planning scheme or amendment to a planning scheme, is not in conformity with a provision of that scheme which deals with a matter specified in Schedule 7 clause 6 or 7 …

   [20] The 'matters specified' in Schedule 7 clause 6 of the Planning and Development Act include the '[d]esignation of uses in zones as permitted, prohibited or requiring approval'.

6. Clause 4.8 of TPS 5, relevantly, provided:

   NON‑CONFORMING USES

   Except as otherwise provided in the Scheme, no provision of the Scheme is to be taken to prevent:

   (a) the continued use of any land for the purpose for which it was being lawfully used immediately prior to the Gazettal date; [or]

   (b) the carrying out of any development on that land for which, immediately prior to the Gazettal date, an approval or approvals, lawfully required to authorise the development to be carried out, were duly obtained and are current; …

7. Clause 4.9 of TPS 5, relevantly, provided:

   EXTENSIONS AND CHANGES TO A NON‑CONFORMING USE

   4.9.1 A person must not:

   a) alter or extend a non‑conforming use;

   b) erect, alter or extend a building used in conjunction with or in furtherance of a nonconforming use; or

   c) change the use of land from a non‑conforming use to another nonconforming use,

   without first having applied for and obtained planning approval under the Scheme.

8. Clause 4.10 of TPS 5 provided:

   DISCONTINUANCE OF NON‑CONFORMING USE

   Where a non‑conforming use of any land has been discontinued for a period of 6 months the land must not be used after that period otherwise than in conformity with the provisions of the Scheme.

Shire of Collie Local Planning Scheme No 6 (TPS 6)

1. The zoning, use and development of land in the Shire of Collie is now regulated by a combination of the 'deemed provisions' created by Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA)[21] (the deemed provisions) and TPS 6.[22]

   [21] As to the application, and effect of the deemed provisions, see Planning and Development Act, s 256 and s 257B; Planning and Development (Local Planning Schemes) Regulations2015 (WA), reg 10(4).

   [22] Exhibit 42. 

2. TPS 6 came into effect on 20 December 2021.

3. Pursuant to the Scheme Maps forming part of TPS 6, Scenic Drive is in the Rural zone.  Relevantly, the following uses are permitted (i.e., designated 'P') in the Rural zone under TPS 6: 'Agriculture ‑ extensive', 'Agriculture ‑intensive', 'Ancillary dwelling', 'Home office', 'Rural pursuit/hobby farm', 'Single house' and 'Tree farm'. 

4. There are a variety of 'D' and 'A' uses in the Rural zone. Where a use is designated 'D', the use is not permitted unless the local government has exercised its discretion by granting development approval. Where a use is designated 'A' the use is not permitted unless the local government has exercised its discretion by granting development approval after advertising the application in accordance with cl 64 of the deemed provisions.

5. TPS 6 also identifies a number of prohibited or 'X' uses in the Rural zone.  The prohibited uses include: 'Industry' and 'Industry ‑ light'.

6. TPS 6 contains the following provisions in relation to non‑conforming uses. These provisions are based on the 'model provisions' in Schedule 1 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), within the meaning of s 257A of the Planning and Development Act.

7. Clause 22 of TPS 6, relevantly, provides:

   Non‑conforming uses

   (1)Unless specifically provided, this Scheme does not prevent  ‑

   (a)the continued use of any land, or any structure or building on land, for the purpose for which it was being lawfully used immediately before the commencement of this Scheme; or

   (b)the carrying out of development on land if - 

   (i)before the commencement of this Scheme, the development was lawfully approved; and

   (ii)the approval has not expired or been cancelled.

   (2)Subclause (1) does not apply if ‑ 

   (a)the non‑conforming use of the land is discontinued; and

   (b)a period of 6 months, or a longer period approved by the local government, has elapsed since the discontinuance of the non‑conforming use.

8. To put the plaintiff's pleaded case in context, it is useful to first set out some of the uncontentious factual background.

Factual background

1. As noted above, Scenic Drive is southwest of the town of Collie and due north of the Collie River.  Scenic Drive is 3.5427 ha in area.[23]  

   [23] Exhibit 3, page 312.

2. The previous owner of Scenic Drive was Arc‑Right Engineering Pty Ltd (Arc‑Right).  Arc‑Right owned the land from August 1999 until its transfer to the plaintiff.[24] 

2006 Application and 2006 Approval

[24] Statement of Claim [2]; Defence [2].

1. By application dated 17 July 2006, three proposed purchasers of Scenic Drive (Mr O C Renfrew, Mr M Renfrew and Mrs D Renfrew (the Renfrews)) made an application for planning approval (2006 Application).[25]  The 2006 Application was signed on behalf of Arc‑Right by Mr Karl Potter.

   [25] Extract from Exhibit 66.  Exhibit 66 is a clear copy of the 2006 Application.  Another copy of the 2006 Application, including the Plan was marked as Exhibit 3.  When referring to the Plan in the course of their evidence, the witnesses at trial were taken to Exhibit 3.

2. The 2006 Application sought approval for the following uses: 'Earthmoving, trucking and concrete batching, engineering consultancy/engineering manufacturing business'.  It described the existing uses as 'Engineering fabrication and truck maintenance'.

3. Accompanying the 2006 Application was a letter, together with the following plan of Scenic Drive (Plan):

4. The various areas depicted in the Plan were, relevantly, described as follows:

   Section A. Is the existing dwelling and pasture area. No fencing will be erected in this area only repairs to the existing wire.

   Section B. Is currently being used for a storage area roughly 9372 sqmtrs. This area will continue to be used as a storage area. The area will be levelled out, fenced with 3mtr fencing with a gateway installed for access off Scenic Drive. …

   Section C. Is currently being used for general Fabrication and Engineering. This area is roughly 1862 sqmtrs and will continue to be used in the same manner. The area will be painted and safety signs and procedures will be displayed, new safety rails and stairs will be installed. The loading area will be in the Engineering department through a set of gates that open onto Scenic Drive.

   Section D. Is the workshop area, office meal room and staff amenities. The area is 425sqmtrs. This area will be painted, repaired where needed and utilized in the same manner.

   Section E. Is currently where all of the gravel and rocks have been pushed into mounds. This area is roughly 1035 sqmtrs and is in need of some beatification (sic) and landscaping. We would like to use this area as a car parking facility for both visitors and staff. … The car parking area will be levelled out, gravel will be put down and in time lines will be drawn to distinguish each individual space. A (sic) entry sign and an exit sign will be positioned at each end of the car park with the traffic leaving on Scenic Drive.

5. On 8 August 2006, the Shire granted an approval with respect to Scenic Drive (2006 Approval).  Consistent with the then-prevailing planning instruments, the 2006 Approval was made under TPS 1 and IDO 6.

6. The 2006 Approval relevantly provided:[26]

   [26] Exhibit 4.

   APPLICATION DATE:                  18th July 2006

   PROPOSED DEVELOPMENT:       Light Industry (Engineering, Fabrication & Earth moving services)

   The application for approval to undertake development in accordance with the plans attached thereto is:

   GRANTED SUBJECT TO THE FOLLOWING CONDITIONS:

   1.All signs associated with the development or signs painted on the building are to be to the satisfaction of the Shire of Collie and approved prior to erection or painting;

   2.Provision shall be made for all vehicles to turn within the site so that they can drive in forward gear when entering or leaving;

   3.Car parking area to be provided and clearly marked on site;

   4.Designated Parking areas not being used for general storage or any purpose other than the parking of motor vehicles;

   5.The development complying with the Shire of Collie Town Planning Scheme No. 1. & Interim Development Order No. 6;

   6.Any additional development which is not in accordance with the original application or conditions of approval, as outlined above, will require further approval by the Shire of Collie.

   Note 1:If the development the subject of this approval is not substantially commenced within a period of 2 years from the date of this approval, the approval shall lapse and be of no further effect.

   Note 2:Where an approval has so lapsed, no development shall be carried out without the further approval of council having been first sought and obtained.

7. The Renfrews did not ultimately purchase Scenic Drive.  Nevertheless, it is uncontentious that, at the time that the plaintiff purchased Scenic Drive, the 2006 Approval authorised the uses provided for in it.  Similarly, while the parties were in dispute as to whether Scenic Drive was 'being lawfully used' for 'purposes authorised by the 2006 Approval' immediately before the commencement of TPS 5 (i.e., 2 October 2009), the Shire did not take any point to the effect that the 2006 Approval had lapsed in accordance with Note 1 and Note 2 of the 2006 Approval.[27]  That is, the Shire accepted that, if Scenic Drive were being used for 'purposes authorised by the 2006 Approval' immediately before 2 October 2009, those uses were relevantly 'lawful' within the meaning of cl 4.8 of TPS 5.

The plaintiff's business and the acquisition of Scenic Drive

[27] ts 35, 46.  This was because, the Shire submitted, Note 1 and Note 2 were advice rather than binding conditions with statutory force.  See Defendant's Supplementary Submissions dated 13 December 2023 (Defendant's Supplementary Submissions) [24], citing Empire Securities Pty Ltd v Western Australian Planning Commission [2005] WASAT 98 and Gnech Building Co v Town of Claremont [2018] WASAT 77.

1. The plaintiff trades, through the Nick Smargiassi Family Trust, as Collie Steel.[28]  Financial reports of that business from the financial year ending 30 June 2009 to the financial year ending 30 June 2020 were adduced in evidence.[29]  Those financial records reveal that the business of Collie Steel conducted by the plaintiff is a substantial enterprise, with annual trading revenue (sale of goods) ranging from $1,517,027 (in 2017)[30] to $4,955,531 (in 2012).[31] 

   [28] ts 140.

   [29] Exhibits 28 to 36 and 38 to 40 (as a result of oversight, there being no Exhibit 37). 

   [30] Exhibit 36.

   [31] Exhibit 31.

2. While it was not clear from the evidence when the plaintiff commenced trading as Collie Steel, it is clear that it has traded for many decades, including having had a business relationship with the Worsley Alumina Refinery since the early 1990s.[32]  The company was registered in 1976, with its first directors being Nicola Pietro Smargiassi and Maria Smargiassi.[33]  Mr Smargiassi Snr remains a director.  Mrs Smargiassi, who has passed away, was a director and the company secretary until 12 December 2020.[34] 

   [32] ts 140.

   [33] Exhibit 52.

   [34] Exhibit 52; ts 162 - 163.

3. Nicola and Maria Smargiassi's children, Peter, Matthew and Melissa, are now all directors of the plaintiff, having been appointed on 1 June 2008, 20 August 2019 and 22 June 2022, respectively.[35]  Peter and Matthew Smargiassi both gave evidence before me.  One of the former directors of the plaintiff was David Edward Churches, who was a director for periods from 2018 to 2020 and from 2022 to 2023.  Mr Churches had some involvement in the preparation of the conduct of the litigation,[36] but was not called to give evidence.

   [35] Exhibit 52.

   [36] See e.g., ts 163 - 164.  Exhibit 52.

4. The plaintiff's business includes engineering, prefabrication, machining, sandblasting, spray‑painting and logistics (transport).  Its registered office and principal place of business is at Lot 26 ‑ 32 Rowlands Road in Collie (Rowlands Road).  Rowlands Road is a site approximately 2000 to 2200 square metres in area, at which is located the plaintiff's main workshop where it carries out engineering, prefabrication and machining.  Rowlands Road also contains a sandblasting booth, a paint booth, a mechanical workshop and a scrap metal yard.[37]  The plaintiff also has a workshop at the Worsley refinery site. 

   [37] ts 140.

5. The plaintiff became the registered proprietor of Scenic Drive on 27 June 2008.[38]  According to Mr Matthew Smargiassi, Scenic Drive was purchased as part of an expansion of the plaintiff's operations.[39]  The use of Scenic Drive was a matter of contention at trial, and I will address it later.

   [38] Statement of Claim [2]; Defence [2].

   [39] ts 141.

6. Nevertheless, one important matter of background directly impacting on these proceedings was a prosecution of the plaintiff in relation to its use of Scenic Drive that was brought by the Shire in 2015.

The plaintiff's conviction for unauthorised development

1. In early 2009 the Shire received a complaint in relation to the use of Scenic Drive.[40]  A further complaint was received in 2011.[41]

   [40] Exhibit 62, being a letter to Smargiassi from the Shire dated 3 February 2009.  Exhibit 62 was tendered for the limited purpose that it provided the approximate date of the relevant complaint. 

   [41] Exhibit 63, being a letter to Smargiassi from the Shire dated 20 April 2011.  Exhibit 63 was also tendered on the limited basis that it provided the approximate date of the relevant complaint. 

2. By a prosecution notice dated 6 March 2015, the Shire (as prosecutor) charged the plaintiff with contravening the provisions of a planning scheme contrary to s 218(a) of the Planning and Development Act.  The charge alleged that between 1 March 2014 to 12 January 2015 at Scenic Drive, the plaintiff 'carried out development namely the use of the land for storage of scrap metal, skip bins, car bodies, old machinery, timber, builders rubble and construction materials on the land without first having applied for and obtained the planning approval of the Shire' and thereby contravened TPS 5.

3. Following a trial of the charge in the Magistrates Court, the magistrate dismissed the charge.  The entirety of the record before the Magistrates Court was not adduced in evidence before me, although the Shire tendered the transcript of the evidence given by Roger Menezes to that court.[42]  Mr Menezes also gave evidence before me.  The Shire also called evidence in these proceedings from Keith Williams, a former employee of the Shire, who identified photographs taken by him of Scenic Drive in October and December 2014 (that is, during the period the subject of the charge).[43]  Mr Williams also gave evidence in the trial in the Magistrates Court and confirmed that the photographs tendered before me were those used in the course of the prosecution.[44]

   [42] Exhibit 27.

   [43] ts 273; the photographs taken by Mr Williams became Exhibits 59 and 60.

   [44] ts 284.

4. The Shire appealed to this Court and, on 22 August 2017, Martino J allowed the appeal and entered a conviction against the plaintiff.[45]  His Honour concluded, consistent with the learned magistrate's findings, that in the period covered by the prosecution, Scenic Drive was 'being used for storing scrap metal, skip bins, car bodies, old machinery, timber, and builders' rubble.[46]  Martino J also concluded that on a proper construction of the 2006 Approval, the approval of storage was of storage associated with the use of Scenic Drive for general fabrication and engineering purposes.  His Honour concluded:[47] 

   In the period covered by the charge Lot 1 was not being used for general fabrication or engineering purposes and the storage was not associated with the use of the land for that purpose.

   [45] Smargiassi [2017].

   [46] Smargiassi [2017] [124] (Martino J).

   [47] Smargiassi [2017] [126]. It should immediately be noted that, in accordance with the Court of Appeal's decision in Smargiassi [2021], to which I shall return, the basis upon which Smargiassi Nominees' conviction was upheld by the Court of Appeal in Smargiassi [2018] was narrower than that found by Martino J. 

5. The plaintiff appealed to the Court of Appeal, which dismissed the appeal and upheld the conviction.[48]  The Court of Appeal observed that the primary facts found by Martino J were not challenged and identified the primary facts for the purposes of the appeal.[49]  In that context, after setting out the facts relating to the grant of the 2006 Approval, the Court said:[50] 

   [48] Smargiassi [2018].

   [49] Smargiassi [2018] [10] (Martin CJ, Buss P & Mitchell JA).

   [50] Smargiassi [2018] [22] ‑ [24] (Martin CJ, Buss P & Mitchell JA).

   [22] [The plaintiff] acquired the land in August 2008. Since acquiring the land, and during the offence period, [the plaintiff] has used the land for:

   ·    the sorting and storage of metal components including an industrial silencer, miscellaneous pipes and flanges, stainless steel screens, copper, rubber conveyor belt, machinery and equipment;

   ·    the sorting and processing of metal flanges and bolts for further machining at a different site owned by [the plaintiff];

   ·    the storage of two sea containers (used as a sandblasting unit);

   ·    the storage of transportable building;

   ·    the maintenance of vehicles and equipment; and

   ·    the storage of motor vehicle bodies.

   [23]This description of the uses to which the land was being put during the offence period is taken from a document provided to the magistrate by counsel for [the plaintiff] and which the magistrate adopted as an 'accurate representation of the evidence'.  It seems reasonable to conclude that the magistrate intended, by that expression, to make findings of fact in those terms, consistently with his earlier express finding to the effect that:

   [D]uring the material dates, materials including scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble, were stored on [Scenic Drive].

   [24]This description of the uses to which the land was being put during the offence period was amplified by photographs tendered in evidence. Those photographs depict large piles of motor vehicle bodies deposited on top of each other, significant piles of scrap metal, disused motor vehicles, sea containers, skip bins containing various metal components and miscellaneous other items. It is clear from aerial photographs that were received in evidence that these items are being stored across much of the land, and the storage area is not restricted to, or confined by, the sections of land delineated on the plan attached to the application for approval lodged in 2006.

1. As noted above, in his evidence before me, Mr Williams identified photographs taken by him of Scenic Drive in October and December 2014.  I am satisfied those photographs are the photographs referred to by the Court of Appeal in the final paragraph set out above.

2. By way of example, the photographs taken during the period the subject of the charge included the following.

3. The 'skip bins containing various metal components' described by the Court of Appeal, can be seen in the following photograph, which Mr Williams identified as having been taken from the western boundary of Scenic Drive looking into areas A and B on the Plan at [52] above:[51]

   [51] Exhibit 60 (page 742).

4. The 'significant piles of scrap metal' described by the Court of Appeal, can be seen in the following photograph, which Mr Williams identified as having been taken from the western boundary of Scenic Drive looking over area A up towards area C on the Plan:[52]

   [52] Exhibit 60 (page 752).

5. In dismissing the appeal and upholding the plaintiff's conviction, the Court of Appeal in Smargiassi [2018] held:[53]

   No amount of generality of characterisation or liberality of reading can result in the use to which the land was being put during the offence period falling within the terms of the approval granted in 2006.  The use to which the appellant's land was put during the offence period was entirely different from the use for which approval was granted in 2006.  During the offence period, the land was predominantly used for the storage of various metal items. That storage was not ancillary to any metal fabrication, engineering or earthmoving business being conducted on the land. It was clearly not within the scope of the 2006 approval and, as a consequence, could not have been a use lawfully carried on immediately prior to the promulgation of the Scheme. The judge was correct to so conclude.

   [53] Smargiassi [2018] [52] (Martin CJ, Buss P & Mitchell JA).

6. Significantly, for the purposes of the present proceedings, the above finding was characterised by the Court of Appeal in Smargiassi [2021] as the 'central finding', 'ultimate finding' and 'critical finding' of the Court of Appeal in Smargiassi [2018].[54]

   [54] Smargiassi [2021] [92], [93] and [94] (Beech & Vaughan JJA, Morrison AJA).

The plaintiff's pleaded case and the Shire's defence

1. As I observed at the commencement of these reasons, the pleadings in this matter took an unconventional course.  Indeed, the pleadings did not close until 22 days after the close of the evidence.[55]  It is convenient to collect, separately, the pleadings as they relate to the full force and effect claim and the non‑conforming use claim, respectively.

Pleadings as to the full force and effect claim

[55] Including a failed attempt to bring the pleadings in line with the plaintiff's new case, which was addressed at a hearing on 15 December 2023 (see ts 396 - 412).

1. The plaintiff pleads, and the Shire admits, the fact of the 2006 Application, together with the Plan,[56] and the fact of the 2006 Approval.[57]

   [56] Statement of Claim [11]; Defence [5].

   [57] Statement of Claim [12]; Defence [6].

2. After pleading the effect of TPS 5, the plaintiff pleads that:

   15AB Nothing in clause 4.8 of TPS 5 or any other part of TPS 5 affected the continuing application of the 2006 Approval to the Land.

   15ACThe prohibition of Industry General, Industry Light and Storage on the Land meant that the Defendant was unable to approve any new application to develop for those uses.

3. In response to these pleas the Shire pleads:

   9AA.The defendant denies each and every allegation in paragraph 15AB of the statement of claim, and further says that:

   (a) on the proper construction of its provisions, TPS 5 prohibited any use of the Land from 2 October 2009 other than in accordance with the provisions of TPS 5 itself; and

   (b) following the revocation of TPS 1 on 2 October 2009, the 2006 Approval ceased to have any continuing application to the Land save and except insofar as it may have been relevant to the existence of any non‑conforming use rights in accordance with cl 4.8 of TPS 5 (the existence of which are denied).

   9AB. The defendant admits paragraph 15AC of the statement of claim and says that the prohibitions referred to therein also meant that from 2 October 2009 the plaintiff was unable to use the Land for any of those uses subject only to the existence of any non-conforming use rights in accordance with cl 4.8 of TPS 5 (the existence of which are denied).

4. The Statement of Claim and the Defence include relevantly identical pleadings in relation to the effect of TPS 6.[58] 

   [58] See Statement of Claim [15D] - [15E]; Defence [9C] - [9D].

5. In its prayer for relief, the plaintiff seeks a declaration that 'the 2006 approval continues to apply according to its tenor and authorises the carrying out of the uses provided therein notwithstanding TPS 5 and TPS 6'.[59]

   [59] Statement of Claim [24.1].

6. As will be apparent, save for the fact of the grant of the 2006 Approval (which is admitted), the full force and effect claim does not depend upon any findings of fact.  In particular, it does not depend upon any activity having actually ever been carried out in accordance with the 2006 Approval.[60]  The resolution of the full force and effect claim entirely turns on questions of law.

Pleadings as to the non‑conforming use claim

[60] See ts 316.

1. The non‑conforming use claim, which does involve significant factual issues, is expressly pleaded in the alternative.

2. At paragraph 16 of the Statement of Claim, the plaintiff pleads that:[61]

   [61] Statement of Claim [16].

   16. In support of the declaration sought at [24.2] hereof the Plaintiff says that since at least 2 October 2009, pursuant to clause 4.8 of TPS 5 and clause 22 (1) of TPS 6, the Land has been lawfully used from time to time pursuant to the 2006 approval for the following collective activities but without a break of six months or more when the Land was not being so used:

   16.1 engineering fabrication;

   16.2 earth moving purposes including temporary storage of material incidental to that use, including but not limited to gravel and concrete;

   16.3 transportable home re‑construction including but not limited to engineered steel house stumps, engineering of timber trusses and wall frames, incidental storage of materials including wood, steel, fabricated items and consumables for use in the fabrication and engineering of the above mentioned items;

   16.4 plant, equipment and commercial vehicle maintenance including incidental storage thereof;

   16.5 processing, including cutting, cleaning, and disassembling of steel and other metals for recycling into scrap metal and other purposes and incidental storage thereof;

   16.6 processing, including cutting, cleaning, and disassembling, and sorting of metal flanges and bolts for further machining off site and incidental storage thereof;

   16.7 processing, including cutting, cleaning, disassembling and sorting of various metal parts, including but not limited to valves, piping, traps, screens and cages for further machining off site and incidental storage thereof;

   16.8 processing, including cutting, cleaning and sorting of various steel, other metals, rubber, rubber pipe and hoses for on sale and incidental storage thereof;

   16.9 fabrication and repair of skip bins and incidental storage thereof; and

   16.10 repair and recycling of wooden pallets and incidental storage thereof.

   together constituting the purposes of:

   (1) processing, cutting, fabrication and repurposing of metal and timber materials;

   (2) equipment and vehicle maintenance; and

   (3)provision of earth moving services

   (the Purposes)

3. The Shire denies this plea, and pleads further a number of bases upon which it says that various uses by the plaintiff of Scenic Drive were not permitted by the 2006 Approval. In addition, the Shire pleads that the plaintiff is not permitted to contradict or controvert its conviction for contravening s 218(a) of the Planning and Development Act.[62]

   [62] Defence [10], [10A].

4. The plaintiff also pleads the fact of the prosecution and conviction.[63]  The plaintiff goes on to plead subsequent correspondence between it and the Shire in 2019, culminating in a plea that:[64]

   In order to continue to operate their business safely, effectively and conformably with the law, the Plaintiffs require to establish the use rights which they enjoy in connection with [Scenic Drive] in order to avoid further prosecutions.

   [63] Statement of Claim [17] ‑ [19].

   [64] Statement of Claim [22].

5. The Shire does not admit this plea. 

6. Finally, the plaintiff pleads that: [65]

   The [Shire's] Motion Report dated 18 October 2019 indicates that a potential prosecution of the [Shire] is still an "open" issue for the [Shire].

   [65] Statement of Claim [23].

7. While the Shire admits this plea,[66] the 'Motion Report' referred to in this plea is otherwise not referred to in the Statement of Claim.  Nor was the Motion Report, or any other correspondence between the Shire and the plaintiff after 2011, adduced in evidence.

   [66] Defence [16].

8. The plaintiff seeks the alternative declaration that:[67]

   pursuant to clause 4.8 of TPS 5 and clause 22 (1) of TPS 6, the Land has been lawfully used for the Purposes of:

   (1)processing, cutting, fabrication and repurposing of metal and timber materials;

   (2) equipment and vehicle maintenance; and

   (3) provision of earth moving services

   without a break of six months or more since at least 2 October 2009 as a consequence of which the Plaintiff has acquired non‑conforming use rights for the Purposes in the Land.

   [67] Statement of Claim [24.2].

9. The Shire denies that the plaintiff is entitled to the relief claimed.  In addition to its denial that the plaintiff has carried out any non‑conforming use, the Shire pleads that declaratory relief should be refused in the Court's discretion having regard to the lack of clarity as to the content of the pleaded 'purposes' and the nature and extent of the alleged non-conforming use rights and the inability to frame declaratory relief in a way that identifies with sufficient certainty and clarity any alleged lawful use of Scenic Drive, in a way that distinguishes such use from unlawful uses of Scenic Drive.[68]

The shifting sands of the non‑conforming use claim

[68] Defence [17].

1. To better understand the way in which the case was conducted (including the Shire's approach to the evidence) and the issues of utility in relation to the alternative declaratory relief sought, it is appropriate that I briefly address the evolving nature of the relief sought by the plaintiff in relation to the non‑conforming use claim.

2. The statement of claim, as it stood immediately prior to trial (i.e., the Trial Statement of Claim), sought the following relief:[69]

   A declaration that it is entitled to continue to use the land for the Non‑Conforming Uses pursuant to clause 4.8 of TPS No 5 and/or clause 22 of TPS 6 or such of the Non‑Conforming Uses as the Court considers to be lawful.

   [69] Trial Statement of Claim [24].

3. That prayer for relief was based on paragraph 16 of the Trial Statement of Claim, which commenced:

   Prior to and since at least October 2009, [Scenic Drive] has been used for the following purposes authorised by the 2006 Approval without any break in excess of six months (the Non‑Conforming Uses) …

   before then enumerating 12 separate, albeit overlapping, purposes, which were in similar, but not identical terms, to paragraphs 16.1 to 16.10 of the Statement of Claim.

4. On the final working day before trial, 24 November 2023, the plaintiff filed, by way of clarification of the prayer for relief, a document headed 'Declaration sought'.  That document stated that the plaintiff sought a declaration in the following terms:

   The Plaintiff has since October 2009 lawfully used lot 1 Collie River Scenic Drive for the following purposes:

   a.engineering fabrication;

   b.earth moving purposes including temporary storage of material incidental to that use;

   c.transportable home construction including but not limited to engineered steel house stumps and steel floor supports, engineering of timber trusses and wall frames, incidental storage of materials including wood, steel, fabricated items and consumables for use in the fabrication and engineering of the above mentioned items;

   d.plant, equipment and commercial vehicle maintenance including incidental storage thereof;

   e.processing, including cutting, cleaning, and disassembling of steel and other metals for recycling and incidental storage thereof;

   f.processing, including cutting, cleaning, and disassembling, and sorting of metal flanges and bolts for further machining off site and incidental storage thereof;

   g.processing, including cutting, cleaning, disassembling and sorting of various metal parts, including but not limited to valves, piping, traps and cages for further machining off site and incidental storage thereof;

   h.processing, including cutting, cleaning and sorting of various steel, other metals, rubber, rubber pipe and hoses for fabrication and engineering uses and incidental storage thereof;

   i.fabrication and repair of skip bins and incidental storage thereof;

   j.repair and recycling of wooden pallets and incidental storage thereof;

5. As the Shire noted in its opening, the form of declaration proposed in this document largely mirrored the 'purposes' pleaded in paragraph 16 of the Trial Statement of Claim, save that it removed any reference to 'sandblasting'.[70]  The plaintiff accepted that to be the case, and indicated that it would come back before it closed as to the precise form of declaration it sought.[71]

   [70] ts 49 - 50.

   [71] ts 56 - 57.

6. In its closing submissions, the plaintiff indicated that it sought a quite different declaration which, as will be apparent, was in substantially more general terms.  The declaration sought was in the following terms:[72]

   Lot 1 Collie River Scenic Drive (lot 1) has been lawfully used since 2 October 2009 for the purposes of:

   (1) processing, fabrication and repurposing of metal and timber materials;

   (2) equipment and vehicle maintenance; and

   (3) provision of earth moving services

   in accordance with a development approval granted by the Shire of Collie on 8 August 2006.

   [72] Plaintiff's Outline of Closing Submissions, [6].

7. This is the form of declaration now sought as the alternative relief in the Statement of Claim.  On the face of it, that declaration would appear to include most, if not all, the lawful uses claimed by the plaintiff to anything that might have been contemplated by the 2006 Approval, being 'Light Industry (Engineering, Fabrication & Earth moving services)'. 

8. The shifting nature of the non‑conforming use declaration sought by the plaintiff points to a controversy between the parties as to the nature of the plaintiff's case at trial.  The Shire's position, which it expressed in its opening submissions, was that paragraph 16 of the Trial Statement of Claim should be understood as identifying 12 separate 'purposes' and that each such 'purpose' was alleged to have been conducted continuously on Scenic Drive since October 2009.[73]  It is clear the Shire conducted its case on that basis.[74]

   [73] Defendant's Outline for Trial dated 13 November 2023 (Defendant's Outline for Trial), [59].

   [74] See the cross-examination of Mr Matthew Smargiassi as to the individual sub-paragraphs of paragraph 16 of the Trial Statement of Claim (Exhibit 54) at 187 - 203.

9. There was certainly much to be said for the Shire's understanding of, and approach to, the plaintiff's case.  The Trial Statement of Claim pleaded separate 'purposes' (plural) for which Scenic Drive has been used 'without any break in excess of six months' and which it defined as 'Non‑Conforming Uses' (plural).  The list of purposes in the 'Declaration sought' filed immediately prior to trial suggested that each of those specific purposes was claimed to be a separate non‑conforming use.

10. In its closing submissions, however, the plaintiff submitted that paragraph 16 of the Trial Statement of Claim 'was not intended to read and does not read as though all the activities occurred all the time'.  Rather, the plaintiff submitted '[w]hat is being pleaded is that all of those activities …, taken together, constitute the purposes and that there was never a six month continuous period when one or more of the activities constituting the purposes were not occurring'.[75]

    [75] Plaintiff's Outline of Closing Submissions [41].

11. The Shire took issue with this, both as a pleading point and as a point of substance.  It submitted that the plaintiff's case had never been run on the basis of 'collective uses' for a broader 'purpose' and, as a matter of the generality of the broader 'purpose', the plaintiff could not establish such a non‑conforming use right as a matter of fact.[76]   

    [76] See e.g., ts 362 -363.

12. After the close of the evidence, the plaintiff applied to be able to amend its pleading to make clear its position that it sought to rely upon the 'collective accumulation of the activities' conducted on Scenic Drive.[77]  I allowed the plaintiff to so amend, as I was satisfied that the Shire had been able to address the substance of that case at trial.  Hence the change, in the chapeau of paragraph 16 of the Statement of Claim, to refer to 'collective activities', rather than 'purposes'.

    [77] ts 399.

13. It remains the case, however, that whether the plaintiff can obtain the alternative declaration that it now seeks depends upon the factual question as to whether any activities that have been conducted on the land, even collectively, can support a declaration of right with the generality that the plaintiff now claims.

14. I will return to the non‑conforming use claim later.

15. First, however, it is convenient to deal with the full force and effect claim.

Full force and effect claim

1. By the full force and effect claim, the plaintiff contends that the 2006 Approval continued to permit the uses referred to in it (namely, Light Industry (Engineering, Fabrication & Earth moving services) notwithstanding the fact that TPS 5 and TPS 6 both provided that 'Industry' and 'Industry - light' were prohibited uses on Scenic Drive. 

2. That is, the plaintiff contends that it is the fact of the 2006 Approval, rather than any non‑conforming use in accordance with that approval, that now permits Scenic Drive to be used for anything falling within 'Light Industry (Engineering, Fabrication & Earth moving services)'.  And, significantly, the plaintiff contends that those uses are permitted in their entirety, regardless of whether Scenic Drive has ever been used for any of those purposes.[78]

Plaintiff's submissions on the full force and effect claim

[78] ts 384.

1. In support of the full force and effect claim, the plaintiff submitted that the prohibition in TPS 5 on the use of Scenic Drive for 'Industry ‑ light' operated only to prevent the Shire from granting future approvals of such uses.  TPS 5, the plaintiff submitted, said absolutely nothing about existing approvals, and that in order to affect such approvals, TPS 5 would have required clear and unequivocal language.[79]  In that context, the plaintiff invoked the 'presumption' against the retrospective operation of legislation; submitting that TPS 5 was only to operate 'prospectively'.[80]

   [79] ts 383.

   [80] ts 379 - 380, 383.

2. The plaintiff relied upon a distinction, drawn from Dr Willey's treatise, Planning and Environmental Law in Western Australia,[81] between 'existing rights' and 'non‑conforming rights'.  The rights under the 2006 Approval were, the plaintiff submitted, 'existing rights' that had not been lost by the prohibition on 'Industry ‑ light' in TPS 5.[82]

   [81] Willey, S, Planning and Environmental Law in Western Australia (2021) (Planning and Environmental Law in Western Australia) [15.20].

   [82] Plaintiff's Outline of Closing Submissions [23], [32] - [33].

1. In that context, the plaintiff relied upon s 37(1)(b) and (c) of the Interpretation Act which provides:[83]

   (1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears ‑

   (b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;

   (c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal; …

   [83] Plaintiff's Outline of Closing Submissions [29]. A 'written law' relevantly includes a local planning scheme. See the definitions of 'written law' and 'subsidiary legislation' in the Interpretation Act, s 5.

2. These provisions, the plaintiff submitted, operated on its 'accrued rights' under the 2006 Approval.

3. The plaintiff also emphasised, again drawing upon Dr Willey's work that, generally, development approvals and planning permits cannot be abandoned, referring to the decision of the House of Lords in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment.[84]  Precisely what the plaintiff sought to draw from this proposition was not clear.  It appears that Pioneer Aggregates was relied upon to submit that the fact that an approval (such as the 2006 Approval) has not in fact been 'used' cannot affect its continued force and effect.

   [84] Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132 (Pioneer Aggregates); Willey, [15.80].

4. The plaintiff also submitted that cl 4.8(b) of the non‑conforming use provision of TPS 5 supported the full force and effect claim.  It submitted that cl 4.8(b) which permits the 'carrying out of development on … land for which … approval or approvals … were duly obtained and are current', 'says what is the position without it being there', namely that the force of the 2006 Approval continued.[85]

Shire's submissions on the full force and effect claim

[85] ts 381.

1. The Shire submitted that, unlike in Pioneer Aggregates, the issue in this case was not whether the rights under an approval could be abandoned but whether such rights could continue after the repeal or revocation of the planning scheme under which the development approval was granted.  It submitted that the rights under the 2006 Approval came to an end upon the commencement of TPS 5.[86]

   [86] Defendant's Supplementary Submissions [28].

2. In this regard, the Shire relied upon the following observations of Handley JA (Meagher and Beazley JJA agreeing) in Auburn Council v Nehme:[87]

   [25][A] consent is not a general licence to carry out development, and in particular is not a general licence to continue to use the land for the authorised purpose. It is a particular licence to carry out development which is conditionally prohibited by a planning instrument. Its function is merely to make lawful development which is prohibited by that instrument without consent.

   [26]The use of land which is authorised by a valid consent is lawful while the planning instrument under which it was granted remains in force. In the absence of appropriate transitional provisions, the effect of a consent will not extend beyond the life of the planning instrument under which it was granted. The repeal of that planning instrument, and its replacement by another, will, without more, deprive that consent of further effect.

   [27]Where the new planning instrument absolutely prohibits the use previously authorised by a consent, that consent can have no direct operation on that prohibition. The irrelevance of that consent as a protection against that prohibition will not be affected by a transitional provision which continues that consent in force, or deems it to have been granted under the new planning instrument. The prohibition being absolute, the existence of a past consent is an irrelevance.

   [28]A party with the benefit of an existing consent therefore requires further protection against the absolute prohibition in the new planning instrument. This has been given in the past by existing use provisions either in the new planning instrument or in the Act. Such provisions enable existing uses which were lawful, immediately before the new planning instrument came into effect, to be continued. A former consent remains important because it may establish a lawful origin for an existing use, but it will have no further effect under the new planning instrument. In particular it cannot as a mere consent prevent the enforcement of an absolute prohibition on that use in the new planning instrument.

   [29]All this is implicit, if not explicit, in the reasoning of Hope J in Auburn City Council v Szabo because his Honour was careful to limit the continued operation of a consent "so long as the … Ordinance remains in force in respect of the land", and "subject also to the continued operation of the Ordinance itself in respect of the land". His Honour referred to cl 41(5) of the Ordinance which dealt with the lapsing of a consent, but did not refer to cl 32 which dealt with existing uses, and he did not refer to the effect of a consent granted under a previous planning instrument. There is also nothing in the speech of Lord Scarman in Pioneer Aggregates which deals with the continuing effect of a consent under a planning instrument after its repeal.

   [87] Auburn Council v Nehme [1999] NSWCA 383; (1999) 106 LGERA 19 (Auburn Council v Nehme) [25] - [29] (Handley JA; Meagher & Beazley JJA agreeing).

3. The Shire submitted, apropos Handley JA's reference to 'appropriate transitional provisions' in [26] of Auburn Council v Nehme, that the plaintiff's reliance on s 37(1)(b) and (c) of the Interpretation Act was an untenable basis for distinguishing Auburn Council v Nehme as there were equivalent provisions to s 37(1)(b) and (c) in New South Wales at the time that that case was decided.[88]

   [88] Defendant's Supplementary Submissions [29] fn 13.

4. The Shire submitted that cl 11.4(b) of TPS 5 made clear that from the revocation of TPS 1 and the commencement of TPS 5 on 2 October 2009, neither the plaintiff nor Mr Menezes (nor any other person) was permitted to 'use' the land otherwise than in accordance with TPS 5 which, as was common ground, prohibited the land from being used for any of the purposes approved by the 2006 Approval.[89]

Full force and effect claim ‑ disposition

[89] Defendant's Supplementary Submissions [37].

1. For the reasons that follow, the full force and effect claim must be rejected.

2. The resolution of that claim ultimately turns on the proper construction of TPS 5, and whether the 2006 Approval continued to permit the activities referred to therein, notwithstanding the prohibition in TPS 5 on 'Industry - light' on Scenic Drive.  For the full force and effect claim to succeed, of course, the 2006 Approval would also have had to continue to apply according to its tenor after the commencement of TPS 6.  I can, however, confine my reasons to TPS 5.  That is because, first, the provisions of TPS 6 are relevantly to the same effect as those in TPS 5 and, more importantly, the 2006 Approval ceased to have any independent force (beyond its relevance to any non‑conforming use rights) upon the commencement of TPS 5.  It could not 'revive' thereafter.

3. The construction of TPS 5 requires attention to the legislative text as a whole, considered in its context, including its objectively discerned legislative purpose.[90]  It is relevant in that context that TPS 5 is a planning scheme.  As the authorities make clear, planning schemes should be construed broadly, rather than pedantically, and with a sensible practical approach.[91]

   [90] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] - [23] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).

   [91] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [81] - [84] (Buss P, Murphy & Mitchell JJA).

4. As to the text of TPS 5, in my view the provisions as to the use of land in the Scheme area are clear.  Clause 4.3.1 provides that the Zoning Table indicates 'the uses permitted in the Scheme area in the various zones' and an 'X' use means 'a use that is not permitted by the Scheme'.  Significantly, the effect of an 'X' use is not, as the plaintiff submitted, confined so as to prevent the local government from granting future approvals of such uses.[92]  It is expressly a limit (indeed a prohibition) on the use of the land; not on the power of the local government.  That is, as and from the commencement of TPS 5, land zoned Rural 1 could not be used ('is not permitted') for 'Industry - light'.  Other than the non‑conforming use provisions, there was, and is, no exception to that limitation on use.

   [92] In this respect, the plaintiff seeks, impermissibly, to have Note 4 to cl 4.3 confine the plain meaning of the text of the clause itself.

5. This construction is clear, in my view, from cl 4.3 alone.  The issue is, nevertheless, put beyond any doubt by cl 11.4(b) of TPS 5 which expressly provides that 'a person must not … use any land … otherwise than in accordance with the Scheme'.  Clause 11.4(b) makes unambiguously clear that, unless 'saved' by the non‑conforming use provisions, any use of Scenic Drive after the commencement of TPS 5 for 'Industry ‑ light' is a contravention of the Scheme and unlawful.

6. There is nothing retrospective about this effect.[93]  The change in 'use classes' in TPS 5 does not attach new legal consequences to facts or events which occurred before its commencement.  TPS 5 did not affect the lawfulness of any activity prior to its commencement.  The impermissibility of the use of Scenic Drive for 'Industry - light' operated entirely prospectively.

   [93] As to which see The State of Western Australia v Williams [2022] WASCA 105 [42] ‑ [43] (Quinlan CJ, Mazza & Vaughan JJA).

7. This textual conclusion is confirmed by the structure and context of TPS 5 as a whole.

8. As noted above, TPS 5 follows the conventional structure for town planning schemes in this State in relation to the use of land.  Significantly the provisions of Part 4 of TPS 5 in relation to the permissible uses of land in the various zones cannot be divorced from, and must be interpreted in the context of, the non‑conforming use provisions themselves (which are also contained in Part 4), and indeed in the context of the Scheme as a whole.  In that context it is clear that the purpose of provisions such as cl 4.8 of TPS 5 is to ameliorate, in a way consistent with planning principles, the reality that changes in planning controls may prohibit uses that, under previous planning controls, were permissible.

9. This 'purpose' or 'object' of such provisions was usefully described by McHugh JA in Royal Agricultural Society of New South Wales v Sydney City Council as follows:[94]

   The object of 'existing use' provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon conditions. The rationale of these saving provisions is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because 'existing use' provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an '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. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.

   [94] Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 (Royal Agricultural Society of New South Wales v Sydney City Council), 309 ‑ 310 (McHugh JA, Hope & Samuels JJA agreeing).

10. The Court of Appeal in Shire of Murray v IVO Nominees expressly adopted this statement of the 'evident purpose' of scheme provisions relevantly identical to cl 4.8 of TPS 5.[95]

    [95] See Shire of Murray v IVO Nominees [44] (Buss P, Mazza & Beech JJA), referring to Royal Agricultural Society of New South Wales v Sydney City Council, 309 ‑ 310.

11. As the purpose of cl 4.8 confirms, it proceeds upon the basis that a change in permissible uses will, in the absence of 'saving provisions' such as cl 4.8, have the effect that some uses of land that were previously lawful, will now, henceforth, be prohibited.  So, for example, if a particular use of land was a 'P' use prior to the commencement of a new scheme, and was later changed to an 'X' use, the land may not be so used after the commencement of the new scheme (unless it was a permissible non‑conforming use).

12. Turning then to the 2006 Approval itself. 

13. The 2006 Approval did not survive the prohibition on the use of Scenic Drive for 'Industry - light'.  There is nothing in the text of TPS 5 to support such a conclusion.  The non‑conforming use provisions are the only provisions of TPS 5 that enable a previously permitted use to continue.  There is no provision to the effect that a previous approval granted under TPS 1 (or IDO 6) operates according to its tenor.

14. In that regard, it is important to recognise that the 2006 Approval was not a free‑standing 'right' or 'approval' attaching to Scenic Drive.  It was, rather, a conditional approval granted under TPS 1 and IDO 6, and was necessary because of the requirements of those instruments, including the fact that 'Industry - light' was an 'AA' (i.e., discretionary use) under TPS 1. 

15. That is, an approval such as the 2006 Approval must be understood, and only operates, in the context of the discretionary use class (such as 'D', 'A' or 'AA') in relation to which it is granted.  Once 'Industry - light' ceased to be a discretionary use class, and was wholly prohibited on Scenic Drive, the 2006 Approval ceased to have any relevance to a use class under TPS 5 and ceased to have any force or effect.

16. In this regard, and subject to the qualification set out below, I agree with the analysis as to the nature of a development approval (or consent) in Auburn Council v Nehme reproduced at [114] above. The 2006 Approval operated to make lawful a use that would otherwise have been prohibited by TPS 1 and IDO 6 without the approval of the Shire. It was not a general licence to use Scenic Drive for the purposes of the 2006 Approval.[96]  Similarly the repeal of TPS 1 and IDO 6, and its replacement by TPS 5, without more, deprived the 2006 Approval of further effect.

    [96] Auburn Council v Nehmet [25] (Handley JA; Meagher & Beazley JJA agreeing).

17. The qualification I would make in relation to Auburn Council v Nehme is, as the plaintiff submitted, that it is necessary to apply the principles therein in each particular statutory context and, in particular, to identify whether there are any 'appropriate transitional provisions' that extend the life of a consent or development approval beyond the life of the planning instrument under which it was granted.  Indeed, the plaintiff referred to a subsequent decision in New South Wales, Lederer v Sydney City Council,[97] in which Auburn Council v Nehme was distinguished on the basis that the relevant statutory provisions in that case did extend the effect of a particular consent.

    [97] Lederer v Sydney City Council (2001) 119 LGERA 350 (Lederer v Sydney City Council) [121] - [124] (Lloyd J).

18. The 'transitional provisions' relied upon by the plaintiff for extending the 2006 Approval, of course, are s 37(1)(b) and (c) of the Interpretation Act. In my view, however, s 37(1)(b) and (c) provide no assistance to the plaintiff. Those provisions did not extend the operation of the 2006 Approval.

19. In that regard, I would prefer not to rely, as the Shire suggested (see [115] above), on the absence of any consideration of the equivalent provisions of the Interpretation Act 1987 (NSW) in Auburn Council v Nehme as a reason for concluding that the court in that case implicitly concluded that those provisions did not apply.  I would rather rely upon the following matters of substance.

20. First, s 37(1)(b) has no application because TPS 5 did not purport to affect the previous operation of TPS 1, or anything done under it. Section 37(1)(b) is, in effect, a statutory reflection of the 'presumption' against the retrospective operation of legislation. As I have already said, TPS 5 did not purport to affect the lawfulness of any activity prior to its commencement. The impermissibility of the use of Scenic Drive for 'Industry - light' operated entirely prospectively.

21. Secondly, in relation to s 37(1)(c), in my view, the 2006 Approval, was not, and did not confer, a 'right' or 'privilege' within the meaning of that provision. In that regard, I would adopt, with respect, the reasoning in the dicta of Stephen J in Eaton & Sons Pty Ltd v Warringah Shire Council[98] in relation to a comparable provision in a planning scheme, which provided that the revocation of a previous scheme did not affect 'any right, privilege, obligation or liability acquired, accrued or incurred under that Scheme or under the Act in relation to that Scheme'. 

    [98] Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 (Eaton & Sons Pty Ltd v Warringah Shire Council).

22. In that case Stephen J said:[99]

    [T]here are two features of consents granted under schemes such as those here in question which appear to me to make it inappropriate to speak of them as conferring either a "right" in the narrow or wide sense or a "privilege". First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor; I would think that a mere trespasser could justify his use of land in terms of town planning controls by reference to some prior consent successfully applied for by a prior lawful occupier. For this reason it appears to me to be inappropriate to regard such a consent as conferring rights or privileges in the sense in which I understand those words to be used in [the relevant provision]. …

    Secondly, I doubt whether it is proper to regard as a "right" or "privilege" acquired or accrued under the County Scheme what is no more than the relaxation of a prohibition imposed by that very Scheme. The Scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant's land enabled the renewed exercise of that liberty in a very qualified way if a consent from the responsible authority was first sought and obtained. To describe that situation as one in which a right or privilege had accrued to or been acquired by the appellant under the Scheme appears to me to be a misuse of language; the effect of the Scheme when a permit is issued under it is merely that users of relevant land are in part remitted to their former liberties at general law.

    [99] Eaton & Sons Pty Ltd v Warringah Shire Council 293 - 294 (Stephen J). 

Uses of Scenic Drive from 2 October 2009 to the present

1. Again, it is convenient to consider the uses of Scenic Drive by Mr Menezes and the plaintiff after 2 October 2009 separately.

Mr Menezes' activities from 2 October 2009 to the present

1. After 2 October 2009, Mr Menezes continued to use Scenic Drive for the purposes identified at [291] above, namely:

   (a)storage of salvage timber;

   (b)garaging vehicles for use in his house recycling business; and

   (c)maintenance and repair of vehicles.

2. As in the period prior to 2 October 2009, I find that these continued uses of Scenic Drive by Mr Menezes cannot be characterised as engineering, fabrication or earth moving services (i.e., the uses permitted by the 2006 Approval) or incidental to such uses. 

3. As to additional activities after 2 October 2009, I find that at some later time (as attested to in the evidence he gave in 2016), Mr Menezes was cutting and de‑nailing timber for export to China.  The time period over which that occurred was unclear but it is clear that that activity has since ceased.[286]

   [286] See [219] above.

4. I also find that there have been occasions upon which Mr Menezes has also carried out activities that may broadly be described as 'manufacturing' or 'fabrication', such as attaching a 'foot' to a steel stump.[287]  That activity, however, I find was very minor and it occurred very seldomly and irregularly.  Insofar as any such activity by Mr Menezes was a 'use' of Scenic Drive, it did not occur regularly or continuously.  Rather, I find that it was, like the plaintiff's activity of cutting flanges from pipes, incidental to Mr Menezes' use of Scenic Drive for storage.

   [287] See [207] ‑ [210] above.

5. For completeness, I find that the two isolated references in Mr Menezes diaries to 'mulch' and 'waste soil' did not amount to 'earth moving services'.  Those references appear to be a reference to the same piles of sawdust left by the previous owner, which was given away in the course of cleaning Scenic Drive.[288]

The plaintiff's activities from 2 October 2009 to the present

[288] ts 87.

1. It is clear that in the years immediately following 2 October 2009, the plaintiff continued to use Scenic Drive for the storage of salvage material, including scrap metal, skip bins, car bodies, old machinery, timber and rubble.  That was, of course, the basis for the plaintiff's conviction in relation to the period from 1 March 2014 to 12 January 2015.  The evidence before me, including the photographs produced by Mr Williams and Mr Watts, readily establish the storage of those items across the entirety of Scenic Drive.

2. The storage from 1 March 2014 to 12 January 2015 was, of course, unlawful; and incontrovertibly so.  I am also satisfied that the unlawful storage was not limited to that period of time.  The use of Scenic Drive in this way commenced from the time that the plaintiff acquired the property and continued after that time until the period of the prosecution, although it increased in intensity (the photographs taken by Mr Watts in 2009 and 2011, for example, depict less material than appears in the photographs taken by Mr Williams in 2014).

3. The unlawful storage of various metal items was therefore the plaintiff's predominant use of Scenic Drive from the time that it purchased the property until the time of the prosecution. It is not clear to me, on the evidence, when the plaintiff ceased storing metal items, such as pipes, on Scenic Drive, or indeed, whether it has entirely ceased doing so. It does appear to have continued for some time after the period of the prosecution, as reflected in the photograph at [240] above which Mr Roberts said was taken in 'approximately 2018, 2019'.[289]

   [289] See [271] above.

4. In addition, I find that for a very brief time (about six months) in around 2010 the plaintiff used Scenic Drive for the fabrication of skip bins.[290]  That activity has long since ceased.  Similarly, Scenic Drive has more recently been the site of the repair and recycling of wooden pallets.[291]  That activity is not a continuation of any earlier activity.

   [290] See [250(a)] above.

   [291] See [250(d)] above.

5. Beyond this, the evidence was, in my view, quite unclear as to exactly what use the plaintiff has been putting Scenic Drive since the period of the prosecution.  Matthew Smargiassi said that the plaintiff 'just continued to do the same type of work' at Scenic Drive after 2009, but I reject that evidence.  In particular, for the reasons I have given, I prefer the evidence of Peter Smargiassi to the effect that the plaintiff does not refurbish flanges and mud‑rakes any longer.  Accordingly, to the extent that the plaintiff used Scenic Drive to carry out activities such as cutting and disassembling those metal items at Scenic Drive, it does not do so now.  Peter Smargiassi could not remember when those activities ceased,[292] although I infer (including by reason of Peter Smargiassi's inability to recall) that it was a number of years ago.

   [292] ts 219 ‑ 220, 223.

6. For these reasons, even if the cutting and disassembling of flanges, mud‑rakes and other metal items at Scenic Drive did constitute the lawful use of Scenic Drive for engineering or fabrication in accordance with the 2006 Approval prior to 2 October 2009 (which for various reasons, I reject), I am satisfied that any such use was discontinued years ago.

7. The fact that Matthew Smargiassi did not reveal this fact in his evidence was significant.  The plaintiff opened on the 'repurposing' of flanges at Scenic Drive, and for a time the 'processing of metal flanges and bolts' was the only pleaded activity on Scenic Drive other than various forms of storage and the maintenance of vehicles.[293]  Not only did the fact that the plaintiff had ceased that activity undermine the credibility of Matthew Smargiassi's evidence generally, it highlighted the absence of any other activity on Scenic Drive that might properly be characterised as engineering or fabrication in accordance with the 2006 Approval.  After all, the 'processing' of flanges was, in essence, presented as the highwater mark of the plaintiff's case and it was ultimately exposed to be, at the very least, a significant overstatement.  In those circumstances, it is unlikely that there was some other engineering or fabrication work going on, that received less attention in the evidence.  For that reason, I do not accept that the cutting or disassembling of other items referred to in evidence as being 'repurposed' from Scenic Drive, such as bolts, valves and screens, was, or is, a continuing or current activity.

   [293] See [249] above.

8. Ultimately, it is difficult to reach a clear finding as to what use the plaintiff has put Scenic Drive since the cessation of those activities.  It would appear that the present use of Scenic Drive is confined to the repair and servicing of trucks and machines and some work carried out by Peter Smargiassi out of a 40‑foot sea container on area B.  When the work in the sea container commenced is not clear; Peter Smargiassi said that he brought the sea container onto Scenic Drive three or four years ago.[294]

   [294] See [266] above.

9. I am not satisfied that those activities described by Peter Smargiassi can be characterised as engineering or fabrication in accordance with the 2006 Approval.

10. In that regard, first, the repair and servicing of trucks and machines does not itself fall within 'Engineering, Fabrication & Earth moving services'.  Nor is there evidence to support the conclusion that such repair and servicing was incidental to any such use of Scenic Drive.  As in relation to the period prior to 2 October 2009, the vehicles and machines serviced by the plaintiff at Scenic Drive were for use in its business generally and not incidental to an approved used under the 2006 Approval.[295] 

    [295] See [314] above.

11. Secondly, any engineering or fabrication work carried out by Peter Smargiassi in the 40‑foot sea container (as to which the evidence was very vague) was carried out in area B, which was not in accordance with the 2006 Approval (area B being confined to a storage area for storage ancillary to engineering or fabrication).

12. As for 'earth moving services', I find that no earth moving was done at Scenic Drive after the removal of the material left by the previous owner.[296]

Summary as to the pleaded activities

[296] See [229] above.

1. It is appropriate, at this point, that I briefly summarise my conclusions as to the ten activities pleaded in paragraph 16 of the Statement of Claim as to the uses to which Scenic Drive has been put since 2 October 2009.

2. In accordance with the findings set out above, I conclude (by reference to the sub‑paragraphs in paragraph 16 of the Statement of Claim):

   (a)[16.1]: Scenic Drive has not been used for 'engineering fabrication'.  At most, Mr Menezes occasionally carried out minor 'fabrication' on Scenic Drive after 2 October 2009.  Any such activity did not occur regularly or continuously;

   (b)[16.2]: Scenic Drive has not been used for 'earth moving purposes'.  The only activity resembling (although not constituting) such activity was the removal of sawdust and coal fines from Scenic Drive left by the previous owner.  Otherwise no earth moving services have been conducted at, or from, Scenic Drive;

   (c)[16.3]: Scenic Drive has not been used for transportable home re‑construction.  At most, Mr Menezes carried out minor activities related to his home recycling business, seldomly and irregularly, after 2 October 2009;

   (d)[16.4]: Scenic Drive has been used for 'plant, equipment and commercial vehicle maintenance' since prior to 2 October 2009.  Those uses, however, cannot be characterised as engineering, fabrication or earth moving services (i.e., the uses permitted by the 2006 Approval) or incidental to such uses;

   (e)[16.5]: Scenic Drive has not been used for processing steel and other materials for scrap and other purposes, other than the occasional cutting and disassembling of flanges and other items.  That activity cannot be characterised as engineering or fabrication in accordance with the 2006 Approval and it is no longer carried out at Scenic Drive;

   (f)[16.6]: Scenic Drive has not been used for the processing of metal flanges and bolts, other than the occasional cutting and disassembling of flanges and bolts from pipes.  That activity cannot be characterised as engineering or fabrication in accordance with the 2006 Approval and it is no longer carried out at Scenic Drive;

   (g)[16.7]: Scenic Drive has not been used for the processing of metal parts, other than the occasional cutting and disassembling of flanges and other items.  That activity cannot be characterised as engineering or fabrication in accordance with the 2006 Approval and it is no longer carried out at Scenic Drive;

   (h)[16.8]: Scenic Drive has not been used for the processing of rubber pipes and hoses, other than taping or rolling up conveyer belt rubber for resale.  That activity cannot be characterised as engineering or fabrication in accordance with the 2006 Approval and it is no longer carried out at Scenic Drive;

   (i)[16.9]: Scenic Drive was used for the fabrication of skip bins for a very brief time (about six months) in around 2010.  That activity has long since ceased; and

   (j)[16.10]: Scenic Drive has been used recently for the repair and recycling of wooden pallets.  When that activity commenced, and what it involves, is unknown.  It is not an activity that is a continuation of any earlier activity.

3. I turn then to the consequences of these findings for the plaintiff's non‑conforming use claim.

Non‑conforming use claim ‑ disposition

1. For the various reasons that follow, the non‑conforming use claim fails. 

No lawful use under the 2006 Approval at the commencement of TPS 5

1. First, and fundamentally, the non‑conforming use claim fails because, in my view, Scenic Drive was not 'being lawfully used immediately prior to [2 October 2009]' for a 'purpose' authorised by the 2006 Approval, within the meaning of cl 4.8(a) of TPS 5.  The non‑conforming use claim therefore falls at the first hurdle.

2. In that regard, for the reasons I have given, none of Mr Menezes' uses and none of the plaintiff's uses of Scenic Drive up to 2 October 2009 (individually or collectively), could be characterised as engineering, fabrication or earth moving services (i.e., the uses permitted by the 2006 Approval) or incidental to such uses.[297]

   [297] See [291] ‑ [315] above.

3. In relation to the 'activities' pleaded in paragraph 16 of the Statement of Claim, for the reasons I have given, those activities were either not carried out at Scenic Drive prior to 2 October 2009 or were not activities that were 'uses' authorised by the 2006 Approval.[298]

   [298] See [338] above.

4. In relation to the pleaded 'Purposes' in paragraph 16 of the Statement of Claim (each being a 'genus' said to constitute a relevant 'purpose' within the meaning of cl 4.8(a) of TPS 5), I conclude as follows.

5. First, the purpose of 'processing, cutting, fabrication and repurposing of metal and timber materials' has not been established on the evidence.  Scenic Drive was not used for that purpose, so described, prior to 2 October 2009.  To meet that description, it would be necessary for the activities at Scenic Drive to be 'capable of being treated as all or the majority of the species of a genus'.[299] The genus 'processing, cutting, fabrication and repurposing of metal and timber materials' would include a great deal of activity that has never been conducted at Scenic Drive, including machining, sandblasting, construction and painting.

   [299]  Royal Agricultural Society of New South Wales v Sydney City Council, 311 (McHugh JA, Hope & Samuels JJA agreeing) (see [177] above).

6. The only activity within that genus that was conducted on Scenic Drive during that period was the 'cutting' of flanges, and potentially some other material, from scrap metal.  For the reasons I have given, that activity was not, on its own, engineering or fabrication or otherwise authorised by the 2006 Approval.  Nor, even if 'cutting' or butchering' of metal items on Scenic Drive were able to be characterised as 'fabrication', could it support a finding that Scenic Drive was used for the broader genus of 'processing, cutting, fabrication and repurposing of metal … materials'.  'Cutting' could, at best, only be one species of that genus.  An existing use of Scenic Drive for one small species of that genus could not be characterised as an existing use of Scenic Drive for the genus as a whole; just as the use of premises for 'pottery making' was not an existing use for 'light industry'[300] and the use of showgrounds for the Royal Easter Show was not an existing use of the showgrounds as a 'public entertainment area'.[301]

   [300] See Shire of Perth v O'Keefe (at [172] ‑ [175] above).

   [301] See Royal Agricultural Society of New South Wales v Sydney City Council (at [176] above).

7. Put another way, even if the cutting of metal items conducted by the plaintiff was a lawful purpose, it could only have supported a non‑conforming use of a more confined species of use, such as 'disassembling scrap material'.

8. The same conclusion applies to the suggestion that there was 'processing' or 'repurposing' of metal on Scenic Drive.  Beyond 'cutting' no such activity occurred on Scenic Drive.  Even if cutting could be regarded as, on one view, within the concept of 'processing', it could not support a finding that Scenic Drive had been used for the broader purpose of 'processing'.

9. To the extent that Mr Menezes referred to the 'processing' of timber on Scenic Drive, those expressions meant nothing more than sorting the salvage timber into bundles and moving them around (and perhaps cutting the timber).  That activity could not support a finding that Scenic Drive had been used for the purpose of processing, fabrication or repurposing of timber.

10. Nor can the storage of timber or metal be regarded as falling, in any way, within the genus of 'processing, cutting, fabrication and repurposing of metal and timber materials'.  As I have found, the use of Scenic Drive for the storage of timber and metal prior to 2 October 2009 was indistinguishable from the storage found to be unlawful during the period of the plaintiff's conviction.  It was as unlawful then as it was during the period of the conviction.  To attempt to characterise any part of that storage into the genus of 'processing, cutting, fabrication and repurposing of metal and timber materials' or incidental thereto would be to attempt to fit a square (and unlawful) peg into a round hole.

11. The second 'Purpose' in paragraph 16 of the Statement of Claim (and the declaration sought) is 'equipment and vehicle maintenance'.

12. The plaintiff's claim that it had a non‑conforming use right of Scenic Drive for 'equipment and vehicle maintenance' was peculiar from the outset.  While Scenic Drive has clearly been used, by both Mr Menezes and the plaintiff, for the maintenance and repair of vehicles, those purposes did not fall within the purposes permitted or authorised by the 2006 Approval (engineering, fabrication or earth moving services).  Nor were they incidental to those purposes being conducted on Scenic Drive.  At most, some of the vehicle and equipment maintenance may have been incidental to those purposes being conducted at locations other than Scenic Drive, such as the maintenance of a truck used for earth moving elsewhere.  Even if that could be regarded as a lawful incidental use of Scenic Drive (and in my view it cannot, there being no earth moving services conducted from Scenic Drive), the evidence did not distinguish between maintenance for those purposes and maintenance for any other purposes.

13. The evidence therefore could not support a finding, or a declaration that the plaintiff used Scenic Drive for the genus of 'equipment and vehicle maintenance' in accordance with the 2006 Approval.

14. This conclusion does not mean, I stress, that all vehicle or equipment repair and maintenance carried out on Scenic Drive has necessarily been unlawful.  There are many permissible uses of Scenic Drive in TPS 5 and TPS 6 that were not explored in evidence, or to any great extent, including its use for a single dwelling.[302]  A person occasionally maintaining or repairing their car in the garage of their home might readily be regarded as a use of their home that is incidental to the use of the property as a residential dwelling, just as a farmer maintaining machinery might readily be regarded as incidental to a permitted use of a farm for agricultural uses.  There could well have been lawful uses of Scenic Drive for vehicle and equipment maintenance over the years.  I do not know if that is the case.  For present purposes it is sufficient to conclude that, first, vehicle and equipment maintenance is not, on its own, a predominant use of Scenic Drive permitted by TPS 5 or TPS 6 and, secondly, that any use of Scenic Drive prior to 2 October 2009 for those purposes was not in accordance with the 2006 Approval.

    [302] See [33] above.

15. The third 'Purpose' in paragraph 16 of the Statement of Claim (and the declaration sought) is 'the provision of earth moving services'.  For the reasons I have given, as a matter of fact, no earth moving purposes or earth moving services have been conducted from Scenic Drive.  There was no evidence of the only specific activity in that context pleaded in paragraph 16.2 of the Statement of Claim, namely the storage of 'gravel and concrete' incidental to that purpose.

16. Ultimately, as Matthew Smargiassi accepted, the only activity relating to earth moving conducted at Scenic Drive was the maintenance and servicing of vehicles.[303]  As I have just said, the evidence does not enable any distinction to be drawn between maintenance for earth moving purposes (albeit earth moving otherwise than from Scenic Drive) and any other purposes.  That incidental activity, to the extent that it occurred prior to 2 October 2009 could not establish the genus that Scenic Drive had been used for the 'provision of earth moving services'.

    [303] See [317] above.

1. Accordingly, not only does the non‑conforming use claim fail for the reason that Scenic Drive was not being lawfully used immediately prior to TPS 5 for a purpose authorised by the 2006 Approval, in addition the activities the plaintiff relied upon could not, alone or collectively, establish that Scenic Drive was used for the genus (or genera) that the plaintiff alleged that it has been used.

No continued lawful use under the 2006 Approval after the commencement of TPS 5

1. In light of my conclusion that the provisions of cl 4.8(a) of TPS 5 were not engaged upon its commencement, it follows that no such use could 'continue' within the meaning of TPS 5 and TPS 6 from 2 October 2009 until the present.

2. Nevertheless, it is appropriate that I address that issue, in the event that I am wrong in concluding that Scenic Drive was not being lawfully used for a 'purpose' authorised by the 2006 Approval immediately prior to 2 October 2009.

3. In accordance with both cl 4.10 of TPS 5 and cl 22 of TPS 6, and as recognised in the chapeau of paragraph 16 of the Statement of Claim, a non‑conforming use will cease to be lawful if it has been discontinued for six months or more.  In that context a use will not be 'discontinued' simply because it is 'marked by some interruptions or breaks which are not of such a kind to bring about a termination or abandonment of the use'.[304]  Whether a use has 'continued', and conversely whether it has been 'discontinued', is therefore a question of fact and degree that must have regard to the practical realities of the use of land and to the context and purpose of planning controls.

   [304] Woollahra Municipal Council v Banool Developments, 144 (Mason J; Barwick CJ, McTiernan & Gibbs JJ agreeing).

4. A particular obstacle for the plaintiff in this case is that it is difficult to determine for exactly what purposes Scenic Drive has been put over the last 14 years, particularly since the period of the prosecution.[305]  As I have concluded, when the witnesses called by the plaintiff made statements in general terms as to the use of Scenic Drive, those statements were not, in my assessment, reliable.[306]

   [305] See [329] above.

   [306] See e.g., at [221] ‑ [223], [259] ‑ [260], [267] above.

5. There appear to have been sporadic occasions upon which activities that may broadly be described as 'fabrication' were carried out on Scenic Drive, including the fabrication of skip bins by the plaintiff for about six months in around 2010[307] and Mr Menezes' occasional, and very minor, 'fabrication' activities, which were neither regular nor continuous.[308]  In this regard, those activities were not a continuation of any fabrication occurring prior to 2 October 2009 and they were not in the nature of a continuous activity thereafter.  Adding up the piecemeal and isolated examples that can be gleaned from the evidence (e.g., from Mr Menezes' photographs or diaries) that such an activity has taken place, does not reveal (or enable a finding) that activities that might be described as 'fabrication' have been conducted on Scenic Drive without there having been significant gaps of time (including for periods in excess of six months) between those isolated examples.  Moreover, given what I have said as to the reliability of general assertions in the evidence as to the use of Scenic Drive, I am not prepared to infer that there were such activities during the periods in which the evidence was silent.

   [307] See [328] above.

   [308] See [323] above.

6. As I have already discussed, the highwater mark of the plaintiff's case in relation to 'fabrication' (i.e., the cutting of flanges) was revealed to have ceased, as I have found, a number of years ago. Even if, contrary to my earlier findings, that activity could be characterised as one permitted by the 2006 Approval, it was discontinued (i.e., abandoned) in the sense described above, long ago. That activity could not therefore even sustain a declaration for the more confined species of 'use' identified at [347] above.

7. Otherwise, consistent with my earlier findings, there was relevantly no other activity on Scenic Drive that could have been described as engineering, fabrication or earth moving services in accordance with the 2006 Approval in the period since the commencement of TPS 5. What there has been, primarily, was a continuation of the storage of timber and metal material that was indistinguishable from the storage found to be unlawful by the plaintiff's conviction, and the continued use of Scenic Drive for the garaging, service and maintenance of vehicles. As discussed at [354] above, if any of the latter activity was lawful (and I cannot know, on the evidence, whether it was), it was not because it was in accordance with the 2006 Approval.

8. Finally, I will again briefly address the pleaded 'Purposes' in paragraph 16 of the Statement of Claim.

9. First, the evidence as a whole falls well short of establishing that, after the commencement of TPS 5, Scenic Drive has been used for a purpose the genus of which is 'processing, cutting, fabrication and repurposing of metal and timber materials'.  While an 'existing' or 'non‑conforming' use should be approached liberally,[309] it is not possible, in my view, to cobble together, from the relatively minor and infrequent activities involving cutting, disassembling and occasionally welding or assembly, a finding that Scenic Drive was used for 'processing, cutting, fabrication and repurposing of metal and timber materials'.  That genus would include any and all kinds of construction or manufacture of timber or metal products, and would include a wide range of uses and activities that have never formed part of the use of Scenic Drive. 

   [309] See e.g., [179] above.

10. The issue may be tested in the following way.  If, as the plaintiff contends, the minor and irregular 'fabrication' activities at Scenic Drive established a non‑conforming use of the genus that it claims, the plaintiff would be able, on the basis of the non‑conforming use right it claims, to move all of its activities at Rowlands Road to Scenic Drive without the need for any development approval, the great bulk of which have never been conducted there.  No amount of liberality in identifying the appropriate 'genus' of a non‑conforming use could justify such a result, in light of the evident planning purpose of cl 4.8 of TPS 5 and cl 22 of TPS 6.

11. This is not to say that it would not be possible, in an appropriate case, to combine a number of disparate non‑conforming uses (including by different entities on a single site, such as Mr Menezes and the plaintiff) so as to identify a broader genus of non‑conforming use.  Given that the provisions are ultimately about the uses of land, rather than the activities of particular people, there is no reason, in principle, why activities or uses by different persons might not 'collectively' make up a single broader 'use' or 'purpose'.  In this case, however, as a matter of fact, even combining ('collectively' as the plaintiff pleads in paragraph 16 of the Statement of Claim) all of the disparate activities the subject of evidence, those activities do not, in my view, come close to establishing the pleaded purpose of 'processing, cutting, fabrication and repurposing of metal and timber materials' as a use of Scenic Drive.

12. Secondly, in relation to the second pleaded 'Purpose' of 'equipment and vehicle maintenance', I would simply repeat my conclusions at [352] to [354] above. 

13. Finally, in relation to the third pleaded 'Purpose' of 'the provision of earth moving services' I would also repeat my conclusions at [355] to [356] above.  If anything, even at places other than Scenic Drive, the evidence revealed very few activities on the part of the plaintiff that might be described as earth moving in the last decade.  The last specific reference to a job involving earth moving by the plaintiff appears to be Peter Smargiassi's evidence in relation to the rehabilitation of an area of the Worsley site during which he took away gravel and concrete.  That job was carried out in 2012.[310]

    [310] See [265] above.

14. For these additional reasons, the non‑conforming use claim must fail in any event.

Declaratory relief and utility

1. Given that the plaintiff's non‑conforming use claim fails on the evidence, it is not strictly necessary for me to deal with issues of utility.  Nevertheless, in case I am wrong in not finding that Scenic Drive was lawfully used immediately prior to 2 October 2009 for a purpose authorised by the 2006 Approval, and that the lawful use continued until the present, I would also observe that issues may have arisen as to whether any declaratory relief that could be fashioned by the Court in this case would quell a justiciable controversy between the parties.

2. As I have concluded above, I am not satisfied that there was any lawful use of Scenic Drive prior to 2 October 2009 for a purpose authorised by the 2006 Approval.  In any event, however, as I have also concluded, those activities that the plaintiff did rely upon as being authorised by the 2006 Approval were discrete activities that could not be characterised as 'manufacturing' or 'fabrication' generally (i.e., the discrete activities could not have sustained a finding as to a broader genus such as 'fabrication').  In those circumstances, even if I am wrong about the characterisation of the activities that were conducted on Scenic Drive as 'fabrication', any declaration of a lawful non‑conforming use could only have been appropriate for a more confined species of use.  It would then be necessary to formulate that more confined use in a way that would have utility.

3. It would be at this point that there would be real difficulty in framing a declaration that would finally settle any dispute between the plaintiff and the Shire.  As I have said, no clear answer to the question 'what is it that the plaintiff is doing now that the [Shire] says it can't do?' ever emerged in the trial.  There is, on the evidence, no threatened prosecution or other identification by the Shire of a current activity that it says is unlawful. 

4. To formulate a declaration of right (including so as to avoid controverting the plaintiff's conviction) with any degree of precision that properly identifies what the plaintiff can do, while making clear what it cannot do, on Scenic Drive would be no easy task.

5. Take for example the cutting of flanges and disassembly of other metal items, and assume, contrary to my conclusions, that those activities have been continuously and lawfully undertaken as non‑conforming uses. As I observed at [347] above, such a conclusion might justify a declaration that Scenic Drive could be used for 'disassembling scrap material'. But this immediately points up the very real problem of how any declaration would address the issue of 'storage' of scrap material. As the plaintiff accepted, in those circumstances some kinds of storage would be prohibited, as the Court in Smargiassi [2018] held, whereas other kinds of storage might be permissible, for example, if it was left overnight during disassembly.[311] 

   [311] See [193] above.

6. In the absence of concrete facts as to the actual activities taking place, how long they took and how long material was temporarily stored for that purpose, the only form of declaration that the Court could make in those circumstances may be one to the effect that 'incidental storage' was lawful and 'non‑incidental storage' was not.  Given the history between the parties, however, a declaration in those terms might not resolve any dispute.  Matthew Smargiassi, for example, may well remain of the view that all storage is 'incidental' and therefore 'lawful'; whereas the Shire, no doubt, would be of a different view.  The controversy between the parties would therefore remain; it may just be shifted to a different forum.

7. As I have said, these difficulties in terms of the utility of declaratory relief would only arise if a declaration as to a more confined species of use was open on the evidence.  And they would only arise because of the history of the controversy between the parties, which may require a far more specific identification of the activities that are permissible uses for a declaration to prevent further litigation between the parties. 

8. As it is, these issues do not arise, as the plaintiff's non-conforming use claim fails on the facts.

Conclusion

1. The plaintiff's action must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KT

Associate to the Hon Chief Justice Quinlan

25 JANUARY 2024