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

1. 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.
2. The sale of the land to the Renfrews did not proceed. Mr Potter continued using the land in the same manner and in 2008 leased part of the land, being the portion comprising a concrete hardstand and workshops, to Mr Roger Menezes. Mr Menezes used, and continued throughout the offence period to use, that portion of the land for the purposes of his business - 'Ever Green House Transformers' - which included the repair of vehicles, the storage of salvaged materials and the processing of timber for re-use. Neither Mr Potter nor the appellant were aware of the 2006 development approval or its terms until after the Shire commenced proceedings against the appellant in 2015.

1. The appellant acquired the land in August 2008. Since acquiring the land, and during the offence period, the appellant 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 appellant;
   • 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.
2. 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 appellant and which the magistrate adopted as an 'accurate representation of the evidence'.[6] 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:[7]

[D]uring the material dates, materials including scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble, were stored on Lot 1.

1. 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.
2. The Shire received complaints with respect to the uses to which the land was being put by the appellant in early 2009. Communications took place between the Shire and the appellant over a number of years in relation to the appellant's use of the land until the Shire commenced the prosecution of the appellant in March 2015.

1. The Scheme came into effect on 2 October 2009.
2. Clause 8.1 of the Scheme provides:

Subject to clause 8.2, all development on land zoned and reserved under the Scheme requires the prior approval of the local government. A person must not commence or carry out any development without first having applied for and obtained the planning approval of the local government under Part 9.

1. Clause 8.2 specifies particular types of development which do not require prior planning approval. None of its provisions have any application to the circumstances of the present case.
2. Clause 4.8 of the Scheme provides, relevantly:

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;

(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;

...

(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 non-conforming use,

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

A person who -

(a) contravenes the provisions of a planning scheme;

...

commits an offence.

1. We have set out above the findings of fact made by the magistrate which are relevant to the appeal, and, in very general terms, the reasons why the magistrate acquitted the appellant. It is unnecessary to consider those reasons in any further detail, as the appellant does not contend that the acquittal should be upheld for the reasons given by the magistrate.
2. It is sufficient to observe that, for the reasons given by the judge, the magistrate was wrong to approach the case on the basis that the Shire carried the burden of proving beyond reasonable doubt that the appellant's use of the land did not fall within the scope of a right of non-conforming use under the Scheme. The rights of non-conforming use conferred by the Scheme are exceptions to the general obligation to not carry out any development without the prior approval of the Shire.[8] Accordingly, pursuant to s 78(3) of the Criminal Procedure Act 2004 (WA), the appellant carried the burden of proving, on the balance of probabilities, that its use of the land fell within the scope of a right of non-conforming use.
3. Further, the magistrate was wrong to assess the ambit of any right of non-conforming use enjoyed by the appellant by reference to the use classes defined in the Scheme for at least two reasons. First, that approach is directly contrary to the decision of the High Court in Shire of Perth v O'Keefe. Second, the ambit of any right of non-conforming use depends upon the ambit of the appellant's lawful right to use the land prior to the promulgation of the Scheme. As a matter of logic, those rights cannot be defined or construed by reference to land use terminology contained in the Scheme.
4. The judge was correct to conclude that as a result of these errors, the magistrate did not address the critical issue in the case, which was whether the appellant had established, on the balance of probabilities, that the uses to which it put the land during the offence period were all uses to which it could have lawfully put the land immediately prior to the promulgation of the Scheme. Accordingly, that task fell to the judge.

1. As we have noted, pursuant to cl 8.1 of the Scheme, all development on the land requires the prior approval of the Shire. For the purposes of the Scheme 'development' includes both the physical alteration and use of land.[9] The appellant's use of the land for the purpose of storing the various items which we have described on the land clearly constitutes 'development'. As the Shire has not given approval for that development pursuant to the provisions of the Scheme, the appellant will have contravened the Scheme and therefore committed an offence contrary to s 218(a) of the Act, unless the appellant has established, on the balance of probabilities, that during the offence period it was only using the land for purposes for which the land was being lawfully used immediately prior to the promulgation of the Scheme.
2. The appellant's grounds and submissions refer to the fact that Shire of Collie Town Planning Scheme No 1 also contained non-conforming use provisions, and to the proposition that the use of the land for the purposes of the concrete batching plant and associated business was lawfully carried out pursuant to those provisions.
3. Those observations are, with respect, irrelevant. As we have noted, the batching plant and associated business ceased in 2003, well before the Scheme came into force in October 2009. Assuming that the land could lawfully have been used for that purpose pursuant to the rights of non-conforming use conferred by the previous scheme, it was not in fact being used for that purpose immediately prior to the promulgation of the Scheme, with the result that no right of non-conforming use could arise in relation to it.
4. In relation to the other uses to which the land was being put from time to time, the evidence does not establish that the land was being used for those purposes prior to the promulgation of Shire of Collie Town Planning Scheme No 1 in 1972. Accordingly, the appellant has not established that it was lawfully using the land for those purposes prior to the promulgation of that scheme, with the consequence that it enjoyed rights of non-conforming use under that scheme.
5. For these reasons, we accept the appellant's concession that its success in the appeal depends on the non-conforming use argument associated with the 2006 approval.[10]
6. Pursuant to cl 4.8 of the Scheme, the use to which the land was in fact being put immediately prior to the promulgation of the Scheme is critical to the ambit of any right of non-conforming use conferred by the Scheme. The burden of proving that critical fact on the balance of probabilities was on the appellant. The appellant does not appear to have discharged that burden by directing evidence to the precise uses to which the land was being put in early October 2009. The summary of the evidence presented to the magistrate by counsel for the appellant refers only to the use of the land during the offence period and does not address specifically the question of the uses to which the land was being put in early October 2009.
7. Further, in order to discharge the burden of proving that its use of land during the offence period came within the scope of a right of non-conforming use, the appellant had to prove on the balance of probabilities not only the uses to which the land was being put immediately prior to the promulgation of the Scheme, but also that those uses were lawful. Those uses can only have been lawful if they came within the scope of the approval given in 2006 which, according to Mr Potter and the application for approval, corresponded to the uses to which the land was being put. Any change in those uses after 2006 would have required the prior approval of the Shire, pursuant to IDO 6, if those uses were to be lawful at the time of promulgation of the Scheme in 2009.
8. Accordingly, the judge was correct to approach the case on the basis that unless the uses to which the land was being put during the offence period came within the scope of the approval granted in 2006, they cannot have been uses to which the land was lawfully being put at the time of promulgation of the Scheme and cannot therefore have fallen within the ambit of a right of non-conforming use conferred by the Scheme. It follows, as the appellant accepted in oral submissions, that unless the evidence establishes on the balance of probabilities that the uses to which the land was being put during the offence period came within the scope of the approval granted in 2006, the appeal must be dismissed.

1. As we have noted, the approval granted in 2006 was for development in accordance with the application and plans attached to the application. The letter accompanying the application described the uses to which the land was being put at the time of the application, and for which approval was sought, as being for an engineering manufacturing business, engineering fabrication and maintenance, an engineering consultancy firm, earthmoving, and a concrete batching plant. The plans accompanying the application designated the portions of the land which would be used for the various purposes described in the application, all of which were consistent with the uses described in the letter. Consistently with the terms of the application, the approval described the proposed development as 'Light Industry (Engineering, Fabrication & Earthmoving services)'.
2. The letter supporting the application and the attached plan showed that a significant portion of the land was to be used as a storage area. There is no suggestion in either the application or the approval granted by the Shire that storage was to be undertaken other than storage for purposes ancillary to the uses for which approval was being sought and was granted. The judge was therefore correct to conclude that the only storage permitted by the 2006 approval was storage for purposes ancillary to the primary uses approved, namely, engineering, fabrication and earthmoving.
3. Both the magistrate and the judge found that the primary use to which the land was being put during the offence period was for the storage of the various items which we have described. The appellant carried the burden of establishing that use of the land for that purpose came within the ambit of the approval granted by the Shire in 2006. However, no evidence was adduced to the effect that the storage of the scrap metal, motor vehicle bodies, skip bins and miscellaneous items were ancillary to any use to which the land was being put during the offence period. To the contrary, such evidence as there was went no further than to suggest that some of the items might be stored on the land for use by the appellant in connection with a business conducted on other land.
4. The appellant failed to establish, on the balance of probabilities, that the use to which the land was being put during the offence period came within the uses approved by the Shire in 2006. As a result, even if the appellant had established that the land was being used for those purposes immediately prior to the promulgation of the Scheme, it could not have established that those uses were lawful and therefore came within the scope of any right of non-conforming use conferred by the Scheme.

1. The appellant seeks to overcome this conclusion in two ways. First it is asserted that the 2006 approval should be construed as granting approval to use the land for 'light industry', and that the use to which the land was being put during the offence period falls within that description.
2. Parallels may be drawn between this proposition and that erroneously accepted by the magistrate to the effect that the ambit of the approval granted by the Shire should be construed by reference to definitions contained within the table of use classes in a scheme. As we have noted, that proposition is contrary to binding authority.
3. Further, the appellant's submission ignores the facts. In 2006, the Shire granted approval for development in accordance with the application. The application did not seek approval for all uses which might be encompassed within the notion of 'light industry'. Nor was approval granted in those terms. The reference in the approval to 'light industry' is clearly and expressly qualified by the words in parentheses which follow. Further, the approval granted was an approval to use the land in the manner described in the application including the letter and attached plans.
4. The appellant also places significant reliance upon cases which establish that, in determining the ambit of a right of non-conforming use, the purpose for which land is being used should be characterised at a level of generality and not by reference to the individual activities, transactions or processes undertaken.[11] However, there is a distinction between characterising a purpose at a level of generality and construing an approval which has been granted liberally, on the one hand, and construing an approval as applying to development which is entirely different to that described in the approval, on the other.
5. 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.

1. For these reasons, the appeal must be dismissed and the conviction of the appellant by the judge upheld. As the arguments advanced in support of the appeal were lacking real substance, leave to appeal should be refused.

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

[1] See also La Rosa v City of Wanneroo [2006] WASC 304.

[2] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529.

[3] Shire of Collie v Smargiassi Nominees Pty Ltd [2017] WASC 238 [124].

[9] Clause 1.7.1 of the Scheme provides that unless the context requires otherwise, words and expressions used in the Scheme have the same meaning as they have in the Act. Section 4 of the Act defines 'development' to mean the development or use of any land.

[11] See, for example, Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305; House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498.