Smargiassi Nominees Pty Ltd v Shire of Collie

Smargiassi Nominees Pty Ltd initiated legal action against the Shire of Collie, seeking a declaration regarding the non-conforming use of their property. The property had been approved under a previous town planning scheme, but the scheme was later repealed. The new scheme did not permit the use that had been approved under the previous scheme. The dispute centered on whether the approval remained valid post-repeal and whether the use of the property constituted a non-conforming use under the new scheme.

The primary legal issues before the court were whether the approval granted under the previous town planning scheme remained in force after the scheme was repealed, and if the property's use qualified as a non-conforming use under the new scheme. Additionally, the court had to determine whether the evidence presented established the lawful use of the property prior to the repeal and whether it demonstrated a continuing use that qualified as non-conforming. The court also considered the effect of a prior conviction on the claimant's ability to obtain a declaration of lawful use and the principle of incontrovertability.

The court found that the approval granted under the previous town planning scheme did not remain in force after the scheme was repealed. It concluded that the property's use did not qualify as a non-conforming use under the new scheme, as the evidence did not establish a lawful use prior to the repeal or a continuing use that qualified as non-conforming. The court also noted that the prior conviction affected the claimant's ability to obtain a declaration of lawful use and highlighted the principle of incontrovertability. Ultimately, the court exercised its discretion not to make the declaration sought by the claimant, considering the relevant discretionary factors and the utility of such a declaration.