SHIRE OF COLLIE -v- SMARGIASSI NOMINEES PTY LTD [2017] WASC 238 (22 August 2017)

4 On 2 November 2016 the Shire of Collie filed an appeal notice seeking leave to appeal against his Honour's decision on six grounds. The Shire of Collie requires leave of the Supreme Court for each ground of appeal - s 9(1) Criminal Appeals Act 2004 (WA), which must not be given unless the court is satisfied that the ground of appeal has a reasonable prospect of succeeding - s 9(2). Unless the Supreme Court gives leave to appeal on at least one ground of appeal the appeal is to be taken to have been dismissed - s 9(3).

5 On 5 December 2016 I ordered that the application for leave to appeal be heard with the appeal.

6 The details of the charge provided in the prosecution notice were that Smargiassi Nominees between 1 March 2014 and 12 January 2015 at Lot 1 Hn 650 Collie River Scenic Drive Collie (Lot 1) within the district of the Shire of Collie on land zoned Rural 1 under the Shire of Collie Local Planning Scheme No 5 (TPS 5) carried out development namely the use of the land for storage of scrap metal, skip bins, car bodies, old machinery, timber, builder's rubble and construction materials on the land without first having applied for and obtained the planning approval of the Shire of Collie under pt 9 of TPS 5 and thereby contravened cl 8.1 of TPS 5, contrary to s 218(a) of the Planning and Development Act.

1. The Honourable Magistrate erred in law in finding that whether or not the respondent's activities on the subject land were within the exception of non-conforming use rights in respect of the land was a matter which, once raised, was for the appellant to negative beyond reasonable doubt whereas the Honourable Magistrate should have found the onus was on the respondent to bring itself within the exception of non-conforming use rights in respect of the land on the balance of probabilities and that there was no onus on the appellant to negative that issue beyond reasonable doubt.
2. The Honourable Magistrate erred in fact and in law in failing to consider whether on the balance of probabilities the use of the subject land by the respondent during the prosecution period fell within any non-conforming use rights in respect of the land.

2.1. The Honourable Magistrate failed to consider whether on the balance of probabilities the use of the land during the prosecution period was the continuation of a use of the land for a purpose for which it was being lawfully used immediately prior to the commencement of TPS 5.

2.2. The Honourable Magistrate failed to consider whether on the balance of probabilities the use of the subject land during the prosecution period was a use for which, immediately prior to the commencement of TPS 5, approval had been obtained and was current.

1. The Honourable Magistrate erred in fact and in law in failing to identify the purpose for which the land was lawfully being used immediately prior to the commencement of TPS 5.

3.1. The Honourable Magistrate considered the use of the subject land fell within the use class 'light industry' as defined by TPS 5 but failed to consider or identify the actual use of the land immediately prior to the commencement of TPS 5.

1. The Honourable Magistrate erred in fact and in law in finding the non-conforming use of the subject land for a concrete batching plant operation had not changed or been discontinued at the commencement of TPS 5 or during the prosecution period.

4.1. The Honourable Magistrate failed to consider and identify the uses of the subject land which were part of the concrete batching plant operation.

4.2. The Honourable Magistrate failed to properly consider the effect of the cessation of the concrete batching plant operation in 2003.

1. The Honourable Magistrate erred in fact and in law in finding the storage of car bodies on the subject land fell within the use class 'light industry' under TPS 5 and was therefore lawful whereas the Honourable Magistrate should have found the storage of car bodies on the land was not incidental to any industrial operation on the land and, therefore, did not fall within the use class 'light industry'.
2. The Honourable Magistrate erred in fact and in law in failing to find:

(a) the primary purpose for which the subject land was being used during the prosecution period was the storage of materials;

(b) the use of the subject land for the storage of materials had never been approved by the appellant; and

(c) the use of the subject land for the storage of materials was not a purpose for which the land was lawfully being used immediately prior to the commencement of TPS 5.

6.1. in relation to Ground 6(a) the Honourable Magistrate found the purpose for which the land was being used during the prosecution period was 'light industry' whereas the Honourable Magistrate should have found the land was being used for the storage of materials and not 'light industry'

6.2. in relation to Ground 6(b) the Honourable Magistrate found the appellant had approved the storage of materials on the subject land on 8 August 2006 (the 2006 Approval) whereas the Honourable Magistrate should have found the 2006 Approval was to use the land for the purpose of 'Light Industry (Engineering, Fabrication and Earth moving services)' and that any approval to store materials on the land was limited to the storage of materials incidental to the use of the land for the approved purpose.

6.3. in relation to Ground 6(c) the Honourable Magistrate found the use of the subject land for the storage of materials was lawful immediately prior to the commencement of TPS 5 whereas the Honourable Magistrate should have found the only purpose for which the land could have lawfully been use[d] immediately prior to the commencement of TPS 5 was 'Light Industry (Engineering, Fabrication and Earth moving services)' and that the land was not being used for that purpose at that time.

The evidence at trial Evidence called by the Shire of Collie

8 The Shire of Collie called evidence from the following witnesses.

9 Mr Williams is the Executive Manager of Development Services at the Shire of Collie. He commenced working for the Shire in October 2012. Mr Williams gave evidence of the history of the ownership of Lot 1 and of the control of the use of land within the Shire. Documents and photographs relating to the land, the control of use of land and the use of the land were tendered into evidence.

10 Smargiassi Nominees became the registered proprietor of Lot 1 on 27 June 2008. ArcRight Engineering Pty Ltd had become the registered proprietor on 19 August 1999. Glen Robert Ellery had been the owner of Lot 1 before ArcRight Engineering.

11 Mr Williams produced copies of TPS 5, which came into effect on 2 October 2009, the Shire of Collie Town Planning Scheme Number 1 (TPS 1) , which came into effect on 17 September 1972 and Interim Development Order Number 6 which came into effect on 21 February 2003.

12 There was one planning approval for Lot 1, which was issued on 8 August 2006, which Mr Williams produced along with the application for that approval. The planning approval approved Light Industry (Engineering, Fabrication & Earth moving services) development in accordance with the plans attached to the application, subject to conditions which included conditions that signs were to be approved prior to erection or being painted on the building, car parking being provided and the car parking areas not being used for general storage. The approval contained a note that if the development was not substantially commenced within two years from the date of approval it would lapse and be of no further effect.

13 The application for approval was made by O C Renfrew, M Renfrew and D Renfrew. They were not the owners of the land, which was ArcRight Engineering. The application was made on a form of application with a letter dated 6 July 2006 to the Shire from the Renfrews with other materials which included two rudimentary plans which identified areas which were referred to in the letter. The first paragraph of the letter was in the following terms:

14 'The current owner of said property is ArcRight Engineering Pty Ltd, PO Box 810 Collie Mr Karl Potter. The property is currently being used for a Engineering Manufacturing business, Engineering Fabrication and Maintenance as well as a Engineering Consultancy firm. A Earthmoving, and a concrete batching plant. We Mr O.C. Renfrew, Mr M. Renfrew and Mrs D Renfrew are currently in the process of purchasing this property, providing we the above mentioned can continue to use this property in the same manner as the current owner.'

15 The letter referred to five sections on the site. Section A was the existing dwelling and pasture area, no fencing was to be erected in that area, only repairs to the existing wire. Section B was being used for storage, it would continue to be used as a storage area. The area would be levelled out and fenced. Section C was being used for general fabrication and engineering. The area would continue to be used in the same manner with the area being painted and safety signs being displayed. Section D was the workshop area, office meal room and staff amenities. The area would be painted, repaired where needed and used in the same manner. Section E was where gravel and rocks had been pushed into mounds. It would be used for car parking for visitors and staff.

16 Mr Williams gave evidence that he carried out numerous inspections of Lot 1 and saw a large quantity of materials stored on the site, namely wrecked vehicles which were stacked three vehicles high, building rubble including bricks, tiles and sand, sawn timber and skip bins with quantities of scrap metal inside. These materials were delivered to the site but there was no work done on them. They were stored on the site, with the exception of some wrecked vehicles which were removed after the prosecution was commenced.

17 Mr Williams took photographs of the site on 9 October 2014 and 19 December 2014 which he produced. These photographs showed old sheds, an old house and an old fuel tank on the property as well as the items which were stored on it. The items shown in the photographs were old car bodies, scrap metal, building rubble, sea containers and transportable buildings, skip bins filled with scrap metal and timber which was stored inside old workshops and on a concrete pad.

18 Mr Williams marked on an aerial photograph of Lot 1 where the items shown in the photographs were located.

19 In 2013 Mr Williams and Mr Jason Whittaker, who was the Chief Executive Officer of the Shire of Collie, and Mr Andrew Watts, who was the shire planner, met with Mr Smargiassi. They had informed Mr Smargiassi that there was no record of any approval being issued to Mr Smargiassi and that the material had to be removed from it. Mr Smargiassi had said that he would resolve the problem by obtaining approval for storage of items on another property. The items were not removed from Lot 1.

20 Mr Williams produced a copy of a letter from the Shire of Collie to Smargiassi Nominees dated 21 October 2014 with a direction of the same date requiring the removal of the items stored on Lot 1.

21 The evidence of Jason Whittaker was read into evidence by consent. Mr Whittaker was the Chief Executive Officer of the Shire of Collie from July 2006 until September 2013. From 2009 Mr Whittaker had meetings with representatives of Smargiassi Nominees, including Mr Nicholas Smargiassi. In those meetings the representatives of Smargiassi Nominees were informed that as no planning approval had been given for the use of the land to accommodate materials involved in Smargiassi Nominees' business activities, the use of the land was unlawful and the materials would need to be removed from the land and that the Shire would allow a reasonable amount of time for that to occur.

22 Mr Watts was employed by the Shire of Collie as the Shire planner between June 2005 and June 2013. He had inspected Lot 1 before and after the planning approval that was granted on 8 August 2006. He was responsible for processing the application for that planning approval and he signed the planning approval.

23 Prior to issuing the approval Mr Watts inspected Lot 1 to see the current state of the land. At the time of that inspection there were no significant materials being stored on the land. He did not recall anything of significance being stored in section B as marked on the plan with the application for development approval. In sections D and C there was a bit of sand being stored, along with some coaldust and sawdust combined and perhaps a small amount of blue metal and some piles of timber. There was no evidence that any fabrication or engineering operations were taking place.

24 In his subsequent inspections of the land Mr Watts did not ever see any engineering or fabrication on the land. The car parking area which had been required as a condition of the approval was not established and the painting and improvement of buildings that the letter with the application for approval had said would take place had not occurred. There had been no development of the land in accordance with the planning approval of 8 August 2006 within two years of that approval being granted.

25 Mr Ferguson was employed full time by Mr Bob Ellery from 1976 to 1982. Mr Bob Ellery has passed away. After 1982 Mr Ferguson worked for Mr Bob Ellery from time to time when there was work for him to do. As a result of that employment Mr Ferguson is familiar with Lot 1 and with the adjacent Lot 2 Collie River Scenic Drive. Mr Ferguson was employed by Mr Bob Ellery when one lot was subdivided into those two lots.

26 When Mr Ferguson was employed by Mr Bob Ellery he was employed as a truck driver for the concrete batching plant that was operating on Lot 1. In 1997 Mr Bob Ellery sold the concrete batching plant business to Mr Karl Potter. At that time there was a pile of sawdust on the western boundary and a bit later some fine coal used as farmer's carbon near the sawdust.

27 The concrete batching plant continued to operate until February 2003. Mr Ferguson was visiting Mr Bob Ellery at Lot 2 Collie River Scenic Drive when he saw the concrete batching plant being dismantled and taken away. Mr Ferguson did not see the land being used for a concrete batching plant after that date.

28 In 2006 Mr Ferguson did not see much happening on Lot 1. He did not ever see the land being used for metal fabrication or manufacturing apart from one occasion when Mr Potter first took over the concrete batching plant when Mr Bob Ellery and Mr Ferguson welded a catwalk onto a screening plant.

29 From approximately late 2008 or early 2009 Mr Ferguson saw that bits of steel were being delivered to the land. In the last couple of years most of the land had been covered by dongas, containers, a forklift, steel and bins containing steel. Those items had not been on the land prior to 2008.

30 Mr Terry Ellery's father had owned the land that has been subdivided into Lot 1 and the adjacent Lot 2 Collie River Scenic Drive. Mr Terry Ellery had lived in the old existing dwelling which is on Lot 1. He was living on the land when the concrete batching plant commenced in approximately 1969 or 1970.

31 In 2003 Mr Terry Ellery's father was living on Lot 2 Collie River Scenic Drive. Mr Terry Ellery visited his father at his home. From approximately 2005 he visited his father around three to four times a week. Mr Terry Ellery's father died in 2014.

32 In the two years prior to Mr Smargiassi purchasing Lot 1 in 2008 there was not much happening on the land. After the concrete batching plant ceased Mr Terry Ellery did not see engineering or metal fabrication taking place on the land.

33 The use of the land changed fairly quickly after Mr Smargiassi purchased Lot 1. Salvaged timber, scrap metal, car bodies and land fill were brought onto the land.

34 Smargiassi Nominees elected to give evidence and called evidence from the following witnesses.

35 Mr Potter's company ArcRight Engineering purchased Lot 1 on 19 August 1999. Prior to purchasing the land his company had purchased the concrete batching plant business from Mr Bob Ellery and it had leased the land for approximately 18 months or perhaps longer.

36 In addition to running the concrete batching plant business from the land Mr Potter diversified into firewood in the winter and also did soil blending and sold sand, soil and coal.

37 In 2003 Mr Potter ceased the concrete batching plant and sold that business. He then removed the batching plant from the land. He continued to operate his other activities.

38 Mr Potter did not apply for planning approval for his use of Lot 1.

39 Mr Potter's company ArcRight Engineering was the owner of Lot 1 at the time the application for planning approval was made in 2006. Mr Potter was aware that Mr Renfrew, who was interested in purchasing the property, had made the application for planning approval. Mr Potter signed the application. Mr Potter did not know that any planning approval had been granted. Mr Renfrew did not purchase the property from him.

40 In approximately early 2008 Mr Potter entered into an arrangement with Roger Menezes for Mr Menezes also to use Lot 1. Mr Menezes' business, Evergreen Timber Company, included the moving of houses and he used Lot 1 to store his wood and other products and to park his truck.

41 Mr Potter's evidence in relation to the sections identified in the application for planning approval was that section B had always been used for the storage of sand or building materials. Section C was being used for general fabrication and engineering, mainly the repairing of trucks or some specialist welding jobs. Section D was the main workshop, with an office upstairs and a smoko room downstairs. Section E was where Mr Potter had his old fuel bowser and where the trucks were parked and refuelled.

42 Mr Potter sold Lot 1 to Smargiassi Nominees, the Certificate of Title showing that the transfer took place on 27 June 2008.

43 Mr Menezes carries on the business Evergreen Timber Company which includes salvaging and restoring old houses and recycling timber from old houses. He gave evidence that his business has been operating from Lot 1 since 2008 and that he used the area to garage vehicles, including a prime mover, a semitrailer, a bobcat and a tip truck, and to store salvage material which he proposed to reuse.

44 Mr Sopolinski was employed by Mr Bob Ellery as a driver, mechanic and welder between 1985 and 1989 and between 1995 and 1998. In the period 1985 to 1989 Lot 1 was used for the production of concrete and slabs and the provision of sand products for building in the town of Collie. In the period 1995 to 1998 he worked in the same job, mainly in the repair and maintenance of equipment and running of the sand screening.

45 In the 1990s Lot 1 was used to store some sawdust, coal and briquettes for a neighbouring briquette plant. The briquette trial ceased in around 1997.

46 Mr Sopolinski worked for Mr Potter for approximately 12 months after Mr Potter purchased the business from Mr Ellery. In that time the business was the same, with some minor activities that Mr Potter had added.

47 Mr Churches is a business partner of Mr Smargiassi. He gave evidence that materials such as flanges, pipes and bolts acquired from Worsley Alumina are cleaned sorted and stacked at Lot 1. They are then taken to the machine shop on Rowlands Road.

48 He gave evidence that sea containers, a transportable building, a silencer, a grinder and vehicle bodies were stored on Lot 1 in 2014. The shed had mainly been used to store timber. It was part of Collie Steel's operation to store material on Lot 1 for periods of time. The length of the period that items were stored on the land depended on demand.

49 Mr Smargiassi is a director of Smargiassi Nominees and Collie Steel. Collie Steel does machining and engineering work refurbishing and processing pieces of steel such as flanges, bolts and other items from Worsley Alumina and the Muja power station.

50 His evidence was that in 2014 there was a lot of steel on Lot 1. His employees did some repairs on the land and also stored items on the land. Mr Smargiassi agreed that in 2014 there was not much demand for those materials and they were sitting on the property until they could be moved.

51 Mr Doyle is an experienced town planner in private practice. He gave evidence as to Smargiassi Nominees' use of Lot 1 and as to the operation of the law concerning non-conforming uses under the Shire's planning schemes.

52 The learned Magistrate commenced his reasons by stating the offence with which Smargiassi Nominees was charged and the legal principles that apply to the criminal trial. His Honour then said:

1. The following issues are not in dispute between the parties and I would otherwise find them proven to the requisite standard.
   1. The accused is the owner of Lot 1 HN 650 Collie River Scenic Drive, Collie ('Lot 1') Certificate of Title, Exhibit 1;
   2. Lot 1 is located within the district of Shire of Collie (the Shire);
   3. The land is zoned Rural 1 under the Shire's Local Planning Scheme No. 5 - Exhibit 3 ('TPS 5');
   4. That during the material dates, materials including scrap metal, skip bins, car bodies, old machinery, timber and builders rubble, were stored on Lot 1;
   5. That a concrete batching plant operated lawfully on Lot 1 from early 1970's to 2003 and that use of Lot 1 for a concrete batching plant constituted a 'non-conforming use' under the Shire's Town Planning Scheme, in that Lot 1 was lawfully being used for that purpose at the time of the Town Planning Scheme coming into force, (Clause 4.1 Of the Town Planning Scheme No. 1, Exhibit 4 - ('TPS 1').
2. In order to be successfully in this prosecution, the Shire of Collie needs to establish two elements beyond reasonable doubt, namely;
   1. That development for the purpose of the Planning and Development Act had occurred and;
   2. That the development was without the requisite approval under TPS 5.
3. Whilst it is not disputed by the accused that development, in the form of light industrial land use, was being carried out on the land, the accused contends that;
   1. Such development had the benefit of approval and/or was a continuation of a non-conforming use right; and/or
   2. It had an honestly-held belief that such approval existed.

53 His Honour then referred to cl 4.8 of TPS 5 which provides that except as otherwise provided in the scheme no provision of the scheme is to be taken to prevent:

(a) the continued use of land for the purpose for which it was being lawfully used immediately prior to the date on which the scheme came into force; or

(b) the carrying out of any development on that land for which, immediately prior to the scheme coming into force, an approval or approvals, lawfully required to authorise the development to be carried out, were duly obtained and current.

54 His Honour then referred to the evidence of Mr Doyle. He summarised Mr Doyle's evidence as follows:

1. The essence of Mr Doyle's evidence was that where nonconfirming use rights exist, to use land for a purpose that falls within a particular use class under a town planning scheme, the land can lawfully be used for a different purpose provided that sufficient purpose falls within the same use class and is of a similar nature to the previous use.
2. In Mr Doyle's opinion the original existing or non-confirming use of Lot 1 for a concrete batching plant fell within the user class 'industrylight' under the provisions of the Town Planning Scheme 1 and the definitions contained in Appendix A of the Town Planning Scheme Regulations 1967 published in the Government Gazette dated 28 November 1967 (Exhibit 12).
3. In support of the accused's position Mr Doyle testified that, in his opinion, use of Lot 1 for the storage of the materials referred to in the Prosecution Notice associated with the accused's scrap metal business, and the processing of those materials, also fell within the use class 'industry-light'. Further, that the use by the accused was sufficiently similar to previous use on the land, namely, a concrete batching plant. So as to constitute a continuance of a nonconforming use right.

55 His Honour then referred to and quoted from Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 and Galati and The City of Rockingham [2007] WASAT 198 as authority for the propositions that when considering whether an existing use is a nonconforming use the use is not to be meticulously examined, but the use is to be broadly or liberally construed to ensure that existing nonconforming use rights were not rendered valueless by changes in the way in which property is used over time.

56 His Honour referred to and quoted from La Rosa v The City of Wanneroo [2006] WASC 304 as authority that the burden of proving a continuing preexisting and lawful use is on the accused and that for a use of land to be an excused nonconforming use the use must be both lawful and a continuing use.

57 His Honour quoted from Smargiassi Nominees' submissions as to the evidence and said that he adopted the summary as being an accurate representation of the evidence.

58 His Honour gave reasons for his rejection of Smargiassi Nominees' submissions that the prosecution was invalid or unfair by reason of delay. No issue is taken with those conclusions by Smargiassi Nominees.

59 His Honour considered the submissions by the parties as to the use of the land as a concrete batching plant and the cessation of the use of the land for that purpose. His Honour referred to the accused's submissions that the use of the land as a concrete batching plant included the storage of blue metal, the screening of sand, the manufacture of concrete slabs and septic tanks and the maintenance of vehicles associated with the concrete batching plant. His Honour said of those submissions:

1. With respect, I agree with the accused's submission to limit the continued use of Lot 1 to a concrete batching plant would be to apply a test far narrower than that contemplated by the case cited in Galati [supra]. The application of and a narrow test would render the non-conforming right 'valueless'.

60 His Honour referred to the submissions of the Shire of Collie that the land was impermissibly being used to store car bodies and to Smargiassi Nominees' submission that this use was permitted as a nonconforming use by reason of the definitions of the terms industry and light industry in TPS 5. His Honour said:

1. The accused therefore submits that the use of Lot 1 clearly falls within the same class as the non-conforming use right. I am not persuaded otherwise.

61 His Honour then referred to La Rosa v The City of Wanneroo [74] where Johnson J referred to Parramatta City Council v Brickworks Pty Ltd [1972] HCA 21; (1972) 128 CLR 1 and said that for the purpose of establishing a nonconforming use right, an area of unused land may be considered part of a larger parcel of land used for a particular purpose provided that the land was acquired and kept for the purpose of using it in conjunction with the other land. His Honour quoted from Parramatta City Council v Brickworks Pty Ltd and said:

1. Nothing which would negate such a contention has been put before me.

62 His Honour then referred to Smargiassi Nominees' submission that an additional nonconforming use right had arisen as a result of approval granted by the Shire of Collie on 6 August 2006 to use the land for earth moving, trucking, concrete batching, engineering consultancy, and an engineering manufacturing business.

63 At [37] [43] his Honour gave reasons for rejecting the Shire of Collie's submissions that the approval was not current in the period covered by the prosecution because Mr Potter had not been aware of the approval and conditions had not been complied with. No issue is taken with that conclusion by the Shire of Collie.

64 His Honour then considered whether the use of the land by Smargiassi Nominees was consistent with that approval. His Honour referred to the submissions of the Shire of Collie that the primary use of the land was for storage and then said:

1. With respect to the Prosecutor, any evidence as to the extent to which storage and/or industrial activity was conducted on the land is vague and once the issue has been raised by the accused, as it has in this particular case, it is for the Prosecutor to negative the defence beyond reasonable doubt. In my view, they have failed to do so.

65 His Honour then referred to Smargiassi Nominees' submission that it had an honest but mistaken belief that it could use the land as it did. His Honour said that in view of his conclusions it was not necessary to make a final conclusion on that issue, but he did not consider the defence available because whether or not there was a nonconforming use right is a question of law: Dodd & Dodd Pty Ltd v The Shire of Mundaring [2010] WASC 37. In any event, his Honour said, even if it were a question of fact, the defence would not have been available because the mistake was unreasonable. That was because Smargiassi Nominees, through its director Mr Smargiassi, relied solely on the advices given to him by Mr Potter that he could use Lot 1 as general industrial land, Smargiassi Nominees did not make enquiries with the Shire of Collie to ascertain whether this was so and the Shire of Collie had informed Smargiassi Nominees in writing and verbally that the use of the land for the storage of materials was unlawful. Smargiassi Nominees does not submit that his Honour was in error in coming to those conclusions.

66 His Honour concluded that he was not satisfied that the Shire of Collie had proved its case to the requisite standard and that accordingly there would be a judgment of acquittal.

67 The Shire of Collie charged Smargiassi Nominees with an offence under s 218(a) of the Planning and Development Act in carrying out development on Lot 1 without first having applied for and obtained the planning approval of the Shire of Collie under pt 9 of TPS 5 in contravention of cl 8.1 of TPS 5.

68 Section 218(a) of the Planning and Development Act provides:

1. Planning scheme or condition on development, contravening etc.

(a) contravenes the provisions of a planning scheme;

69 For the period covered by the charge TPS 5 was the planning scheme in force within the Shire of Collie. Clause 8.1 of that 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.

70 Clause 8.2 of TPS 5 is not relevant to the prosecution.

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 lawfully being used immediately prior to the Gazettal date;

(b) the carrying out of any development of 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; or

(c) [not relevant].'

72 The evidence of Mr Terry Ellery established that the use of Lot 1 for a concrete batching plant commenced in approximately 1969 or 1970. It was common ground that the use of the land for a concrete batching plant was lawful before TPS 1 came into effect and it remained lawful after TPS 1 came into effect as a nonconforming use.

73 For the Shire of Collie to prove that Smargiassi Nominees was guilty of the offence with which it was charged the Shire had to prove beyond reasonable doubt that Smargiassi Nominees had contravened cl 8.1 of TPS 5 by carrying out development on Lot 1 by using the land for the storage of the items particularised in the charge.

74 If it did so Smargiassi Nominees would nevertheless not be guilty of the charge if the storage of those items on the land was permitted as a nonconforming use under cl 4.8 of TPS 5.

75 There were two nonconforming exceptions which Smargiassi Nominees raised on the hearing of the prosecution:

1. the continued use of the land for purposes associated with its use as a concrete batching plant; and
2. the use of the land in accordance with the approval granted on 8 August 2006.

76 Smargiassi Nominees accepted at the trial and on the hearing of this appeal that it bore the onus of proving on the balance of probabilities that a non-conforming use right existed in the period the subject of the prosecution. That concession is in accordance with the decision of Johnston J in La Rosa v The City of Wanneroo. That concession was correctly made. Section 78 (3) of the Criminal Procedure Act 2004 (WA) provides that if a written law creates a simple offence and provides an exception in respect of the offence, the exception is to be taken not to apply unless the accused proves, on the balance of probabilities, that it does. Exception is defined in s 78(1) as:

(1) In this section, unless the contrary intention appears -

exception includes a condition, excuse, exemption, proviso and qualification.

77 Clause 4.8 of TPS 5 provides an exemption or qualification to the prohibition in cl 8.1 on development without approval of the Shire. It is to be taken not to apply unless Smargiassi Nominees proves, on the balance of probabilities, that it does apply.

78 Lot 1 was zoned under TPS 5. As Smargiassi Nominees had used Lot 1 to store the materials on the land it had carried out development on the land. As there was no approval for that development under TPS 5 the Shire had proved that Smargiassi Nominees had carried out development on Lot 1 by using the land for the storage of the items particularised in the charge without development approval.

79 Smargiassi Nominees appears to have accepted this to be so. Its closing submissions of 24 August 2016, in paragraph 3.1, were that 'such development had the benefit of an approval and/or a continuation of a nonconforming use'. It was not suggested that the approval was under TPS 5. The submission was referring to the approval of 2006.

80 The issues for his Honour to determine were therefore whether Smargiassi Nominees had established on the balance of probabilities that it was not guilty of the charge because its use of the land was permitted by at least one of the non-conforming uses upon which it relied.

81 By ground of appeal 1 the Shire of Collie contends that the learned Magistrate found that the onus was on the Shire to negative a nonconforming use as providing an exception to the prohibition of the use of land without approval and that in doing so his Honour made an error of law because the onus was on Smargiassi Nominees to prove that it had the benefit of that exception.

82 The Shire of Collie submits that his Honour made that error of law at [48] of his reasons.

83 The Shire of Collie submits that 'the issue' which his Honour was referring to in that passage was the issue of whether the use of the land was excused as a nonconforming use.

84 As I have said Smargiassi Nominees accepts that it bore the onus of proving that a non-conforming use right existed. It submits that the issue to which the learned Magistrate was referring at trial was the issue of whether any extension or change of a non-conforming use to include the storage of car bodies required approval pursuant to cl 4.9.1 of TPS 5.

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 non-conforming use,

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

86 The learned Magistrate appears to have considered whether the use of Lot 1 for storage was permitted as a non-conforming use from the continued use of the land for a concrete batching plant at [21] to [32]. His Honour then referred, at [33] to Smargiassi Nominees' further submission that an additional nonconforming use right arose out of the approval granted on 6 August 2006.

87 His Honour dealt at [34] to [43] with the submissions made on behalf of the Shire that the approval was no longer effective because it was never acted upon and Mr Potter was not aware of it. As I have said his Honour rejected those submissions and no issue is taken with that aspect of his Honour's decision by the Shire of Collie.

88 Having decided that the 2006 approval was still in force his Honour then said, at [44], that he was turning to consider whether the use of the land by Smargiassi Nominees was consistent with the 2006 approval.

89 His Honour then, at [45] to [47], referred to the Shire's submissions that Lot 1 was being used for storage and that the storage was not incidental to any industrial or light industrial use.

90 His Honour rejected that submission at [48] in the passage about which the Shire makes complaint in this ground of appeal.

91 In my view the issue with which his Honour was dealing at [48] was an issue on which Smargiassi Nominees had the onus.

92 There had not been an approval under TPS 5. If there had been an approval then the prosecution would have the burden of proving that the use of the land was not permitted under that development approval.

93 However that was not this case. The issue that arose in this part of his Honour's reasons was whether the use of the land was permitted under the 2006 approval. This was an approval that was given under TPS 1.

94 The learned Magistrate was in error to say at [48] that it was for the Shire to negative the defence beyond reasonable doubt. That is because the use of the land as a permitted non-conforming use is an exception on which Smargiassi Nominees had the onus of proof.

96 There were two bases upon which Smargiassi Nominees contended that it was not guilty of the offence with which it had been charged, they were the two nonconforming use exceptions which it raised on the hearing of the prosecution, namely:

1. the continued use of the land was for purposes associated with its use as a concrete batching plant; and
2. the use of the land was in accordance with the approval granted on 8 August 2006.

97 To determine whether the first exception applied the learned Magistrate needed to:

(i) make a finding as to the use of the land on 2 October 2009 when TPS 5 came into effect;

(ii) make a finding as to whether that use was lawful.

98 To determine whether the second exception applied the learned Magistrate needed to decide whether the use of the land in the period covered by the charge was use that was in accordance with the planning approval granted by the 2006 approval.

99 To the extent that it was contended that the use of the land was lawful by reason of a nonconforming use that began before the operation of TPS 1 it was necessary to find that the use of the land for the purpose was continuous from prior to TPS 1 coming into operation until 2 October 2009.

100 At [16] of his reasons his Honour said that continuance of the nonconforming use rights was imperative. His Honour quoted from Johnson J in La Rosa v The City of Wanneroo [98] where her Honour said that a complete cessation of a nonconforming use would take the use out of the protection provided by nonconforming use provisions. His Honour was correct in that conclusion.

101 His Honour also referred to the decisions in of Shire of Perth v O'Keefe and Galati v The City of Rockingham and the authorities referred to in Galati v The City of Rockingham. These authorities establish that whether the use of land as a non-conforming use is permitted is to be determined by reference to the actual use of the land to which it had been put, but that to ensure that the protection of a nonconforming use is not rendered valueless the use is to be broadly or liberally construed.

102 There was a dispute between the parties as to the nonconforming use. The Shire's position was that the land had been used as a concrete batching plant from approximately 1969 or 1970 until 2003. It contended that the land had ceased being used as a concrete batching plant in 2003 and that there was no non-conforming use after that date.

103 Smargiassi Nominees' position was that nonconforming use was not limited to a concrete batching plant but included the manufacture of cement products and ancillary and related uses including the storage of blue metal, screening of sand and a workshop for maintenance of vehicles.

104 His Honour found, in [4] of his reasons that a concrete batching plant operated lawfully on Lot 1 from the early 1970s to 2003. His Honour quoted, in [17] of his reasons, Smargiassi Nominees' submissions as to the evidence relevant to this issue. While his Honour said in [17] that he adopted the summary as being an accurate representation of the evidence his Honour did not say that he made findings of fact in accordance with the evidence that Smargiassi summarised and, it appears that he did not do so.

105 The summary included matters in controversy at the trial. For example in paragraph 4 of its summary of the evidence which his Honour quoted Smargiassi Nominees submitted that in addition to the concrete batching plant Mr Ellery carried out a number of other activities including the storage of blue metal, the screening of sand, the storage of saw dust for making briquettes, the manufacturing of concrete slabs and septic tanks and a workshop used for the maintenance of vehicles. It was at least arguable that the evidence was that at least some of these activities were part of the concrete batching plant use, not in addition to it.

106 The evidence of Mr Ferguson was that sand was always on the site when it was a concrete batching plant because you needed sand for concrete - ts 11/3/16 p 141.

107 The evidence of Mr Sopolinski was that the stockpiles of sand were for the concrete batching plant - ts 21/7/16 p 18 and that the repair and maintenance of vehicles was the repair and maintenance of vehicles associated with the concrete batching business and was part of that business - ts 21/7/16 p 22.

108 Further, as his Honour found at [4] of his reasons, it was the concrete batching plant which had operated from before TPS 1. The nonconforming use which was lawful when TPS 1 came into operation was the use as a concrete batching plant. The fact that there were other uses after TPS 1 came into operation did not mean that they were lawful.

109 His Honour referred, at [10] to [12] to the evidence of Mr Doyle on the issues that his Honour was required to determine.

110 The admissibility of this evidence was something upon which I received supplementary submissions following the hearing of the appeal. Smargiassi Nominees submitted that the evidence was admissible, referring to the practice in the State Administrative Tribunal of admitting such evidence: Goldrange Pty Ltd and Greenpark Asset Pty Ltd and Western Australian Planning Commission [2013] WASAT 66 [20]. However I do not consider that the practice in the State Administrative Tribunal is of application in the Magistrates Court. The Tribunal is not bound by the rules of evidence: s 32(2) State Administrative Tribunal Act 2004 (WA).

111 Although the application of a rule that an expert cannot give evidence on an ultimate issue is uncertain, it is recognised that an expert may not give evidence on an ultimate issue where that involves the application of a legal standard: RW Miller & Co Pty Ltd Krupp (Aust) Pty Ltd (1999) 34 NSWLR 129, 130 131. It is my view that the evidence of Mr Doyle which his Honour summarised was on an ultimate issue that his Honour was to determine according to the planning schemes and the law as explained in the authorities. It was not something about which an experienced planner could give admissible evidence.

112 In any event, whether or not the evidence of Mr Doyle was admissible, these were matters on which his Honour was obliged to reach his own independent conclusion: Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 [37] [38].

113 While the nonconforming use as a concrete batching plant was to be liberally construed it was necessary for findings of fact to be made as to whether the use of the land associated with its use as a concrete batching plant had operated continuously until TPS 5 came into force. His Honour did not do that. Particular 1 of ground of appeal 2 and ground of appeal 3 have been made out.

114 The second exception upon which Smargiassi Nominees relied was that the use of the land was in accordance with development approval obtained in 2006. I have already concluded, when dealing with ground of appeal 1, that when considering this exception his Honour wrongly applied the onus of proof. It was necessary for his Honour to consider whether Smargiassi Nominees had established that the use of the land was in accordance with the 2006 approval. His Honour did not do that. His Honour said only that any evidence as to the extent to which storage and/or industrial activity was conducted on the land was vague and the Shire of Collie had not negatived the defence beyond reasonable doubt. Particular 2 of ground of appeal 2 has been made out.

115 His Honour found at [4] that the use of Lot 1 as a concrete batching plant was from 1970 to 2003. The finding that the concrete batching plant use ceased in 2003 was in accordance with the evidence of Mr Potter, who had acquired the business from Mr Bob Ellery.

116 At [30] his Honour referred to Smargiassi Nominees' submission that the use of Lot 1 for motor vehicle wrecking fell within use class light industry under TPS 5 which was the same use class that applied to the nonconforming use as a concrete batching plant and said that he was not persuaded otherwise.

117 The use of the land as a concrete batching plant may have been in the use class of light industry under TPS 5, as submitted by Smargiassi Nominees to his Honour. However that does not mean that the nonconforming use exemptions extended to all uses within that use class. The nonconforming use exemption was to be determined by reference to the actual use of the land to which it had been put: Shire of Perth v O'Keefe. That nonconforming use was to be broadly or liberally construed.

118 The nonconforming use that existed prior to TPS 1 was a concrete batching plant. On the evidence of Mr Potter that nonconforming use ceased in 2003 and from that time Mr Potter engaged in other activities. These other activities were not the nonconforming use that had been in existence prior to TPS 1 coming into operation.

119 Once the non-conforming use that had existed prior to TPS 1 ceased that non-conforming use exemption ceased.

121 The Shire of Collie does not challenge his Honour's finding that the 2006 approval remained current in the prosecution period.

122 The issue that arises in ground of appeal 6 is whether the learned Magistrate should have found that the use of Lot 1 was not authorised by that approval.

123 The approval in 2006 approved Light Industry (Engineering, Fabrication & Earth moving services) development. The grant of approval was: 'The application for approval to undertake development in accordance with the plans attached thereto' subject to conditions.

124 The evidence established and his Honour found that in the period covered by the prosecution the land was being used for storing scrap metal, skip bins, car bodies, old machinery, timber and builder's rubble.

125 Whether or not that use was authorised by the 2006 approval required consideration of that approval. The approval is to be construed as a whole, including any plans or other documents which it incorporates, and having regard to its enduring nature. It is to be construed not as a document drafted with legal expertise but to achieve practical results. Any lack of clarity or certainty is the responsibility of the local authority and it must take the consequences: Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [39] [48].

126 The approval granted was for the use of Lot 1 for general fabrication and engineering purposes with a storage area, a workshop, staff amenity areas and car parking. The evidence of the use of Lot 1 in the period covered by the charge was that it was being used for the purpose of storage. While the approval included approval of a storage area it is my view that on a proper construction of the approval, the approval of storage was of storage associated with the use of Lot 1 for general fabrication and engineering purposes. 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.

127 In my view the use of the land to store the materials that his Honour found were stored on it was not authorised by the 2006 approval. Ground of appeal 6 has been made out.

128 The Shire of Collie has made out all of its grounds of appeal. In the period covered by the prosecution Smargiassi Nominees used Lot 1 for the storage of scrap metal, skip bins, car bodies, old machinery, timber and builder's rubble. It did not have approval under TPS 5 to carry out that development. It was not excused from the need to have approval by the previous use of the land as a concrete batching plant. That use had ceased in 2003. It was not excused from the need to have approval by the approval granted in 2006 because that approval authorised the use of the land for general fabrication and engineering purposes. The land was not being used for those purposes but for the purpose of storage.

129 I will grant leave to appeal on all grounds and allow the appeal. I will hear from the parties as to what orders I should make as a result of my decision.