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.

SMARGIASSI NOMINEES PTY LTD -v- SHIRE OF COLLIE [2024] WASC 16 | Case summary | Zoe

WAWASC

SMARGIASSI NOMINEES PTY LTD -v- SHIRE OF COLLIE [2024] WASC 16 (25 January 2024)

[2024] WASC 16

Supreme Court of WA|2024-01-25|Before: Quinlan CJ

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General information, not legal advice.

At a glance

Source facts

Court

Supreme Court of WA

Decision date

2024-01-25

Before

Quinlan CJ

Source

Original judgment source is linked above.

Judgment (345 paragraphs)

[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]
The defendant, the Shire of Collie (Shire), is the local government for the district that includes Scenic Drive.
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]
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.
On 2 October 2009, TPS 1 was repealed by the Shire of Collie Local Planning Scheme No 5 (TPS 5).[3] Under TPS 5, various uses that fell within the 2006 Approval were prohibited on Scenic Drive,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.
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.

[45]

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]
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]
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.
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.
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.
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.

[47]

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]
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.
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]
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]

[83]

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)'.
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]
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.
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]
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]
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'.
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.
I will return to the non‑conforming use claim later.
First, however, it is convenient to deal with the full force and effect claim.

[91]

[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.

[93]

For the reasons that follow, the full force and effect claim must be rejected.
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.
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]
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.
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.
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.
This textual conclusion is confirmed by the structure and context of TPS 5 as a whole.
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.
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]

[95]

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]
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).
Turning then to the 2006 Approval itself.
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.
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.
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.
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 200[96]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.
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.
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.
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.
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.
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'.
In that case Stephen J said:[99]

[97]

While Stephen J dissented in the result in Eaton & Sons Pty Ltd v Warringah Shire Council, on this point his Honour's reasons had majority support.[100] That reasoning has since been approved in the High Court[101] and applied in the context of the equivalent provision in the Acts Interpretation Act 1931 (Tas).[102] The reasoning is, in my view, correct and I should follow it.
Thirdly, even if the 2006 Approval did confer a 'right' or 'privilege' within the meaning of s 37(1)(c) of the Interpretation Act, for the reasons I have given, the 'contrary intention appears' within the meaning of the opening words of s 37(1). That is, the provisions of TPS 5 manifest a clear intention 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.
As I have said, s 37 of the Interpretation Act was the only transitional provision relied upon by the plaintiff. In this context, I should also refer, for completeness, to s 36 of the Interpretation Act, which provides that 'all other acts, matters, and things' in existence at the commencement of a repealing law, 'shall, in so far as is consistent with the repealing law, subsist and enure for the purposes of such law'. This provision, however, could have no application in the present case because the 2006 Approval was not 'consistent with the repealing law [i.e, TPS 5]', because the effect of TPS 5 was not a conditional, but an absolute, prohibition on the use of Scenic Drive for the use previously authorised by the 2006 Approval. In this respect the present case is in the category referred to in Auburn Council v Nehme at [27], namely where 'the new planning instrument absolutely prohibits the use previously authorised by a consent'. In such a case, 'the prohibition being absolute, the existence of a past consent is an irrelevance'.
So much was recognised in the decision identified by the plaintiff as distinguishing Auburn Council v Nehme, namely Lederer v Sydney City Council. In that case, the relevant use (advertisement) was not prohibited by the new planning instrument. The new planning instrument simply changed the considerations relevant to the grant of future consents. In those circumstances the relevant transitional provisions meant that the relevant consent continued 'in force' to authorise the use. Lloyd J accepted, however, that the position would be different as to the lawfulness of the use '[i]f the latter instrument absolutely prohibited the use'.[103]
The position might therefore be different in a case where, following a change of planning scheme, a relevant use remains one that may still be approved by the local government (such as a 'D', 'A' or 'AA' use class). In such a case it may be that an approval granted under a previous scheme for that use might continue as being 'consistent' with the new scheme. It is not, however, necessary for me to decide that question. That is not this case. In this case, the relevant use, subject to any valid non‑conforming use, was absolutely prohibited by TPS 5.
The full force and effect claim therefore fails. For completeness I would also observe that the distinction sought to be drawn by the plaintiff in this case between 'existing use rights' and 'non‑conforming use rights' was misconceived. As Dr Willey noted, '[t]he concept of "existing use rights", in the context of planning law, can be somewhat confusing'.[104] Indeed it can. As the passage from Royal Agricultural Society of New South Wales v Sydney City Council set out at [125] above demonstrates, in some contexts, 'existing use' is simply a synonym for 'non‑conforming use'. In another, different, sense 'existing use rights' refers to rights based on an existing development approval, notwithstanding that there has been a 'change in land use' that is 'within the scope of what is currently permitted' by tha[105]pproval.105 In that context, the notion that a development approval cannot be abandoned makes obvious sense.
Nevertheless, and at the risk of labouring the point, that is not this case. In this case, for the reasons I have explained, the 2006 Approval was not an 'existing development approval' after the commencement of TPS 5. From that point in time, there was, relevantly, no development approval that could be 'abandoned'. As stated in Auburn Council v Nehme at [29], '[t]here is ... 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.' Non‑conforming use rights, of course, can be abandoned,[106] as they depend for their continued vitality on the actual use of the land in question.
Finally, the plaintiff's reliance on cl 4.8(b) of TPS 5 was also misconceived. Clause 4.8(b) of TPS 5 is not concerned with the continued 'use' of land prior to the commencement of the scheme. Clause 4.8(b), which allows 'development' where an approval was obtained and is current, is concerned with development in the narrower sense of 'activities which result in some physical alteration to the land' (i.e., the construction of works). It is not concerned with 'development' in the sense of 'use'. The continuation of lawful 'uses' prior to the commencement of a scheme is dealt with, and only dealt with, by cl 4.8(a). That is, the two limbs of cl 4.8 reflect the well‑recognised distinction between 'use' (cl 4.8(a)) and 'development' in the narrower sense (cl 4.8(b)).
This was the conclusion of the Court of Appeal in Shire of Murray v IVO Nominees in relation to provisions relevantly identical to cl 4.8 of TPS 5.[107]
The only relevance of cl 4.8 in the present case is to the non‑conforming use claim, and the only relevant limb of that clause is cl 4.8(a), concerned, as it is, with 'the continued use of any land for the purpose for which it was being lawfully used immediately prior to' the commencement of TPS 5.
It is to that claim that I now turn.

[117]

At the same time, changes in the scale of an existing use, or in the method of carrying out that use, will not necessarily deprive a use of its character as an 'existing use' or 'continuing use'. In Norman v Gosford Shire Council,[127] for example, the existing use was 'the removal of topsoil and filling for the purposes of sale', which, at the time at which the relevant Ordinance came into effect was on a very small scale, whereby the material was won by hand and shovelled on to trucks. After that date the production expanded to the use of bulldozers and the land took on the appearance of a quarry. The High Court concluded that the nature of the existing use had not altered.[128]
Similarly, in North Sydney Municipal Council v Boyts, a case in which the land in question had been used as a warehouse, the continuing use was not confined to the specification of the particular goods stored. In so concluding, Kirby P confirmed that defining the 'existing use' depends upon a detailed examination of the facts of each case, so as to identify the appropriate genus in light of the relevant town planning purposes.[129] His Honour also said that in approaching this question it was appropriate to construe the relevant use liberally.
As these principles reveal, the resolution of the issues in this case is very much fact specific and will depend upon the conclusions that may be reached from the evidence. It will also be apparent that, in its final form, the alternative declaration sought by the plaintiff is very broad in its 'genus' (or more correctly 'genera', as there is more than one genus or 'purpose' pleaded). That is, the declaration sought would declare the lawfulness of the three purposes defined as 'the Purposes' in paragraph 16 of the Statement of Claim. For example, it includes, without restriction or qualification, any 'processing, cutting, fabrication and repurposing of metal and timber materials'. It is a use of that genus (together with the other two 'Purposes' in paragraph 16 of the Statement of Claim) that the plaintiff has undertaken to prove, on the evidence, as the non-conforming use.
Before turning to that evidence, it is, finally, necessary to address the effect that the plaintiff's conviction has on these proceedings.

[119]

As I have set out above, the Shire pleads 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 or controvert the conviction upheld by the Court of Appeal in Smargiassi [2018].
In that regard, in 2020 the Shire brought an application for summary judgment in these proceedings on the basis that the plaintiff's plea, in paragraph 16 of the Statement of Claim, must fail as a consequence of the conviction upheld in Smargiassi [2018]. The Shire submitted that the plaintiff's action was barred by either issue estoppel, Anshun estoppel[130] or on the basis that it would constitute an abuse of process. The acting master granted the application for summary judgment on the basis that the Court of Appeal had determined 'the totality of the uses of [Scenic Drive] by [the plaintiff]'.[131]
The Court of Appeal allowed an appeal from the decision of the acting master. The Court concluded that, contrary to the decision of the acting master, the Court of Appeal in Smargiassi [2018] had not 'conclusively [determined] all of the uses to which [Scenic Drive] was being put during the offence period'.[132]
On the contrary, as noted at [73] above, the Court in Smargiassi [2021] concluded that the 'critical finding' of the Court of Appeal in Smargiassi [2018] was that the use of Scenic Drive for storage of scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble was not ancillary to anything that might have been within the scope of the 200[133]pproval.133 While recognising that Martino J went further, the Court concluded that a positive finding that Scenic Drive was not being used for general fabrication or engineering purposes formed no part of, and was not necessarily involved in, the Court of Appeal's determination in Smargiassi&#[134][2018].134 As the Court in Smargiassi [2018] did not determine the 'totality of use' of Scenic Drive, the Court in Smargiassi [2021] concluded that the plaintiff's claim, in paragraph 16 of the Statement of Claim, was not relevantly inconsistent with the conviction upheld in Smargiassi&#[135][2018].135
Nevertheless, having regard to the conclusions that it had reached, the Court in Smargiassi [2021] did recognise that the conviction imposed limitations on the plaintiff's case at trial. The Court said:[136]

[123]

Cognisant as I am that in determining this action the plaintiff ought not be permitted to controvert the conviction, it is necessary for me to say something further as to the juridical basis for that restriction as it applies in the present case.
As noted above, the Shire relied on issue estoppel, Anshun estoppel and/or abuse of process as the basis for its summary judgment application. The Court in Smargiassi [2021], however, observed that the parties did not develop the doctrines of issue estoppel, Anshun estoppel or abuse of process in their initial submissions and that the supplementary submissions filed by the parties did not fully grapple with the issues.[137] In the end, and consistent with the parties' approach to the appeal, the Court in Smargiassi [2021] assumed, without deciding, that a criminal conviction may give rise to an issue estoppel in a subsequent civil proceeding.[138] The Court, nevertheless, earlier confirmed that the principle of incontrovertibility applies in the case of a prior conviction and precludes a person, in subsequent civil or criminal proceedings, from impugning his or her earlier conviction.[139]
In light of the parties' approach in that appeal, the Court in Smargiassi [2021] did not finally determine the juridical basis upon which the plaintiff's conviction operated to confine the issues and relief available in these proceedings. It is appropriate that I do so.
In that regard, as the parties accepted in their closing submissions, the relevance of the plaintiff's conviction for the present proceedings is, in my view, properly to be understood in terms of the principle of incontrovertibility (rather than issue or Anshun estoppel). The principle of incontrovertibility is a particular application of the courts' power to prevent an abuse of process and, in that regard, is broader and more flexible than issue or Anshun estoppel.[140] Whether the use of the court's procedures is an abuse of process involves 'a broad, merits‑based judgment' as to whether that use serves to bring the administration of justice into disrepute.[141]
In that context, save for exceptional circumstances, it is an abuse of process 'to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial'.[142] That is because 'where the later civil action must, in order to succeed, establish that a subsisting criminal conviction is wrong, in the overwhelming majority of cases to permit the action to continue would bring the administration of justice into disrepute'.[143]
There are no exceptional circumstances in the present case. Accordingly, the plaintiff cannot contend that 'the storage the subject of the prosecution notice' was lawful, and, in particular, that that storage was ancillary or incidental to any metal fabrication, engineering or earth moving service or business being conducted on the land. To do so would involve contending that the 'subsisting criminal conviction is wrong'. Clearly, however, in accordance with Smargiassi [2021], the conviction does not prevent the plaintiff from establishing that there was some other lawful use of Scenic Drive during the period of the prosecution. Indeed, given the need for continuation of use (without a break of six months) to succeed, the plaintiff must establish some other lawful use of Scenic Drive during the period of the prosecution.
It follows from this that, insofar as 'storage' is concerned, the conviction does not prevent the plaintiff from establishing that there was some other lawful storage at Scenic Drive during the period of the prosecution, as indeed it contends in relation to the various pleas of 'incidental storage' in paragraph 16 of the Statement of Claim. In other words, the plaintiff contends that only some of the storage at Scenic Drive was unlawful (and is covered by the conviction), while other storage was lawful. The non‑conforming use claim, insofar as it contends that storage was lawful over that period, necessarily proceeds upon the basis that there were at least two types of storage on Scenic Drive, which can be differentiated and delineated. So for example, the plaintiff posited in its submissions that some skip bins containing material in 'fixed locations for long periods of time' was storage 'as a primary use' and not permitted, but that other skip bins containing material brought on and off again for repurposing was incidental storage, and therefore permitted.[144]
Whether the distinction contended for by the plaintiff between the unlawful storage (covered by the conviction) and other storage, which the plaintiff contends was of a different character, can properly be drawn involves a question of fact. That is, it requires that attention be given to the activities that have, incontrovertibly, been found to be unlawful and whether they can, in fact, be distinguished from other activities.
The conviction is also, of course, confined to the period of the prosecution (1 March 2014 to 12 January 2015). In that regard, a contention by the plaintiff that any storage on Scenic Drive at any other time was not unlawful would not, strictly, be inconsistent with the plaintiff's conviction. Nevertheless, if, as a matter of fact, the storage at another time was in all respects indistinguishable from the storage found to be unlawful during the period of the conviction, for the plaintiff to contend that the storage outside that period was lawful could well bring the administration of justice into disrepute because, as a matter of logic, it would amount to a contention that the 'critical finding' of the Court of Appeal in Smargiassi [2018] was wrong. Other than the distinction between lawful and unlawful storage I have earlier identified, however, the plaintiff did not contend that storage of the kind that was unlawful during the prosecution period could have been lawful at some other time.
I now turn to the evidence at trial.

[132]

Similarly, in cross‑examination, Mr Menezes accepted that a very significant part of his business has involved the salvaging of timber and that, at various points in time, he had very significant amounts of timber stored in his part of the property, including, for a short period of time, in part of area B.[157]
Mr Menezes also described various machinery for both woodwork and metal work that were at Scenic Drive as well as other work vehicles.[158] The service pit in area D was used for changing oil out of vehicles. He said that the plaintiff had also used the service pit in area D (which he was generally asked about) but that the plaintiff did not use the shed on area D.[159]
Mr Menezes was taken to a number of photographs of work he had undertaken as part of Evergreen's business. By reference to those photographs, Mr Menezes was asked to identify any work that was carried out at Scenic Drive. There were photographs in relation to nine 'jobs' in total, which were identified in accompanying emails as dating from July 2014,[160] December 2014,[161] September 2015,[162] sometime in 2016,[163] December 2017,[164] February 2018,[165] September 2019,[166] October 2020[167] and January 2021.[168]
Mr Menezes' evidence in relation to these photographs was not always clear as to exactly what was done at Scenic Drive in relation to these 'jobs', and what was done elsewhere. Nor was that evidence always consistent. The first job, for example, related to a patio truss made of timber with steel brackets. When asked what part of the work was done at Scenic Drive, Mr Menezes quickly and forthrightly said, 'All of it, sir'. Shortly after, when asked where the work on the steel brackets was done, Mr Menezes said the steel brackets were 'cut at Scenic Drive' and then immediately corrected himself and said that they were cut at Rowlands Road. Ultimately Mr Menezes said that the trusses were simply 'drilled' and 'assembled' at Scenic Drive.[169]
Similarly, the second set of photographs were of a transported house, which the accompanying email from Mr Menezes to Mr Churches described as 'Installation of a complete steel floor, steel verandahs and patio fabricated at Scenic Drive ... 12/2014'.[170] When he initially described having 'manufactured a steel floor in Collie', he agreed that the reference to Collie was to Scenic Drive.[171] Again, a short time later in his evidence, Mr Menezes clarified that the fabrication of the steel floor and of the steel stumps was, in fact, done at Rowlands Road. Those items were taken to Scenic Drive and assembled and then dismantled, before being taken to a yard in Bunbury where the house was stored.[172]
Other jobs were described as having included steel stumps 'manufactured' at Scenic Drive in around 2017, although what exactly that 'manufacturing' involved was not clear.[173] In relation to other jobs involving steel stumps, Mr Menezes said that the attachment of a 'foot on the stump' was done at Scenic Drive but would be brought in and welded on site (i.e., elsewhere).[174] There was also evidence of the construction of a wooden truss to repair the roof of the shed (in area D).[175]
Mr Menezes described the work done on these jobs from the period 2014 to 2021, as being 'par for the course' for the work done by Evergreen since 2008. When he expanded on that answer, it was apparent that he was not specifically referring to work done at Scenic Drive. Indeed his evidence seemingly referred to work done elsewhere, which was different from client to client and from location to location.[176]
Mr Menezes also produced extracts from various diaries that he had maintained over the years since 2008.[177] He said that he was asked by Collie Steel (i.e., the plaintiff) 'to go back over my diaries to identify any works that pertain to engineering, fabrication, or earth moving'.[178] In undertaking that exercise Mr Menezes adopted a definition of fabrication as 'assembly, making things' and 'engineering' as 'the design'.[179] In cross‑examination, Mr Menezes described his process for making diary entries. I accept that he adopted a practice whereby he made entries of all significant work done as part of this business.[180]
Other than a very small number of entries, Mr Menezes did not give evidence in relation to the particular entries in the diaries. I have however read the relevant entries in detail. There are 61 entries that Mr Menezes identified as relating to engineering, fabrication, or earth moving.
The entries in Mr Menezes' diary do not support the conclusion that he has used Scenic Drive for the purposes of engineering, fabrication, or earth moving from 2008 until today. Very few of the entries refer to activities that could remotely be described as 'engineering, fabrication, or earth moving'. The majority of the entries (at least 37 of them) simply refer to work being done on vehicles: such as, 'serviced bobcat + Mitsi', 'do a service on the cruiser', 'spent the day in the yard working on the trailer', 'did an oil change on the [indistinct] with an A service'.
Significantly there is no mention whatsoever of any activity that could be described as engineering, fabrication, or earth moving being carried out on Scenic Drive prior to 2 October 2009. The entries prior to that date, in their entirety, were to the following effect: 'moved into Collie yard' (7 January 2008), 'serviced bobcat + Mitsi' (20 May 2008), 'Came to Collie and help right bobcat after it tipped off the truck' (5 November 2008) and 'Got the p/m [prime mover] unloaded then reloaded ... Did some drainage around the yard because the drains were blocked' (16 July 2009).[181]
After 2 October 2009, there is one reference in the diary entries to 'loads of mulch' and one reference to 'waste soil'.[182] There are a very few occasional references to work being done in the yard that could be broadly described as manufacture or fabrication. Consistent with the 'jobs' referred to in [207] above, those entries appear in 201[183]nd 2016.183 There was no activity meeting that description having been undertaken prior to 2 October 2009, nor that it was undertaken regularly or continuously.
In cross‑examination, Mr Menezes agreed that prior to the plaintiff purchasing Scenic Drive, he preferred to work with 'wooden houses' and that work with steel increased later. He agreed that the metal work done by his business at Scenic Drive was limited to cutting steel to length and welding feet to stumps.[184]
Mr Menezes confirmed that he had given evidence at the trial in relation to the prosecution of the plaintiff. A transcript of Mr Menezes' evidence, which reveals that it was given on 11 March 2016, was tendered in evidence before me. Mr Menezes was taken to his evidence at that time in relation to his use of Scenic Drive for the purpose of his business, in which he said:[185]

[134]

Mr Menezes was also taken to various parts of his evidence in which he referred to the 'processing' of timber, which involved cutting down the old timber into different sizes for re‑use. He also referred to cutting down and 'de‑nailing' timber for export to China, a practice that had since ceased following the COVID‑19 pandemic.[186]
It was put to Mr Menezes that nowhere in his evidence did he make mention of any sort of metal work, nor did he refer to a welder or an angle grinder when identifying the machinery he had stored at Scenic Drive. He accepted that 'without reading it, that could be possible'.[187] Having read it myself, it is indeed the case that Mr Menezes did not refer to working with metal at Scenic Drive in his evidence in 2016, although there were references in his evidence to the plaintiff having steel on the property, which Mr Menezes did not have anything to do with 'unless I need a piece of steel'. In that context Mr Menezes had said that he had an agreement with Nick Smargiassi that he could 'go out and find a piece of steel' if he needed it, for example, 'to repair my own gear'.[188]
Mr Menezes was a plain‑spoken witness and, in my view, was trying to be truthful in his evidence. Nevertheless, in my assessment, Mr Menezes, either consciously or unconsciously, tended to 'talk up' the extent to which Scenic Drive had been used by him for activities other than 'garaging' vehicles and equipment and 'storing' salvage timber. In that regard, it was clear, in my view, that Mr Menezes was keen to give evidence which was helpful to the plaintiff's case that Scenic Drive has been used for the purposes of 'engineering, fabrication, or earth moving'. I find that Mr Menezes was tasked by the plaintiff, and in particular Mr Churches, with identifying any activity that might conceivably fall within that description both in relation to the photographs supplied by him and the diary entries compiled by him.[189]
This focus tended to colour the evidence given by Mr Menezes, so as to overstate activities on Scenic Drive other than storage and vehicle garaging and maintenance. I have identified examples of this tendency at [208] to [210] above, in which Mr Menezes' initial assertion of 'manufacturing' at Scenic Drive, on closer examination, was revealed to be very minor activity in the context of the use of Scenic Drive as a whole. It is also evident in the paucity of activities referred to in his diaries that could conceivably be characterised as falling within the purposes that he was specifically tasked to identify.
For these reasons, while I accept that a number of the specific activities described by Mr Menezes in his evidence irregularly occurred over the 15‑year period that he described, I found Mr Menezes' general evidence as to the activities on Scenic Drive, other than storage and garaging, unreliable.

[137]

Three things stand out from this answer.
First, it is uncanny that Mr Smargiassi immediately volunteered that the plaintiff's work at Scenic Drive was 'earth moving, fabrication and engineering', being precisely the three words appearing in the 2006 Approval. This was, in my view, not a coincidence. Mr Smargiassi was well aware of the significance of 'engineering, fabrication and earth moving services' to the plaintiff's case and the words were, in my view, deliberately (even, if reflexively) chosen by him to 'fit' the plaintiff's case.
Secondly, to include 'earth moving' in this description was particularly telling. As emerged later in Mr Smargiassi's evidence, Scenic Drive had in fact not been used for earth moving services. The reference to earth moving purposes in the Trial Statement of Claim, he later agreed, was a reference to maintenance and servicing of machines.[192] The only 'earth moving' that occurred on Scenic Drive was the removal of sawdust and coal fines that had been left on the property by the previous owner. Otherwise no earth moving had been done at Scenic Drive.[193]
Thirdly, given the paucity of any activity by Mr Menezes that could conceivably be described as 'engineering and fabrication', for an outside observer to describe Mr Menezes' use of Scenic Drive as involving 'engineering and fabrication' was quite inapposite. It was, in my view, highly unlikely that Mr Smargiassi ever observed Mr Menezes engage in any activity on Scenic Drive that could be described as 'engineering and fabrication'. For Mr Smargiassi to describe Mr Menezes' work in this way was simply reflective of a reconstructed view of history designed to support the plaintiff's case.
Matthew Smargiassi's approach to giving evidence, in this way, was a matter that adversely affected my assessment of the reliability of his evidence.
Mr Smargiassi has worked in the plaintiff's business for many years, including when it acquired Scenic Drive in 2008. For approximately 18 months from the time of its purchase, he lived in the house that is in area A of the property.[194] Mr Smargiassi described Scenic Drive when he first moved in, which included the large amounts of coal fines and sawdust on area B on the Plan, left by the previous owner.[195] That material was later removed by the plaintiff; Mr Smargiassi could not remember when that occurred, although he thought it happened after he had moved out of the house.[196]
Mr Smargiassi said that a major part of what happened at Scenic Drive was service and maintenance of vehicles.[197]
Mr Smargiassi said that, after the plaintiff acquired Scenic Drive:[198]

[151]

Mr Smargiassi said the skip bins full of flanges and other metal items were placed in and around areas 'E, B, A'.[228] He described the process of him cutting flanges off pipes (which he also referred to as 'pipe spools'), an activity that he said that he did on areas 'A, B, C, E, wherever I could do it'.[229] The expression he used was that he would 'butcher' them out there (i.e., at Scenic Drive) and take them into town (i.e., Rowlands Road) to clean them up with a 'plasma'.[230] A 'plasma' is a cutting device similar to an oxyacetylene torch, but which uses electrical charge. Peter Smargiassi said, and I accept,[231] that the plaintiff did not have a plasma at Scenic Drive but at Rowlands Road. Similarly, when asked about the rakes, Mr Smargiassi said we 'used to butcher them out there'.[232]
As noted above, Mr Smargiassi said in relation to the process with the flanges: 'We don't do it anymore because BHP decided they didn't want to do it'. While he later qualified that answer by saying 'if they need the odd one here and there' they might provide a flange as an emergency, it was, in my view, the clear effect of Peter Smargiassi's evidence that the cutting of flanges at Scenic Drive, as it had been earlier described by Matthew Smargiassi, was not a continuing activity at Scenic Drive. I accept Peter Smargiassi's evidence in that regard, which was spontaneous and unprompted by the question, which was simply whether the process had 'continued through time'.[233]
Similarly, in relation to the refurbishing of rakes, Peter Smargiassi said 'they've stopped doing that now'.[234]
Mr Smargiassi identified an area of the Worsley site that he had rehabilitated around 2012, in taking away gravel and concrete. He carried out that work with equipment such as excavators and loaders that he kept stored at Scenic Drive.[235] He also identified scrap metal from 'DSM screens' which he pulled apart and sold.[236]
At the conclusion of his evidence in chief, I asked Peter Smargiassi what was occurring on Scenic Drive at the present day. He said that there were truck body repairs and a lot of trucks and machines being repaired and serviced. He also said that he was working, doing 'some fabrication', out of a 40‑foot sea container. In cross‑examination he said that he had brought the sea container onto the land 'three, four years ago', and was doing some cutting and welding, including for a house he was building. The sea container was located on area B.[237]
Peter Smargiassi also referred to occasionally doing 'cutting' in the workshop shed on area D, although in context, he appeared to be referring to the concrete hardstand adjacent to the workshop in Area C (i.e., areas occupied by Mr Menezes).[238] He later said in cross‑examination that he used the areas occupied by Mr Menezes for 'welding, cutting'. I found this part of Mr Smargiassi's evidence vague, confused and inconsistent. What this actually involved, or when it occurred ('whenever required') was far from clear. At various points in his evidence, Mr Smargiassi said he did not speak to Mr Menezes about doing so, that he had told Mr Menezes after the fact that he had done it and, later, that Mr Menezes did know he was there.[239] This was contrary to Mr Menezes' evidence that the plaintiff did not use the shed on area D (see [206] above) and the evidence of Matthew Smargiassi, who said the plaintiff did not make any use of th[240]orkshop.240
For these reasons, I found Peter Smargiassi's evidence about doing work (other than using the vehicle pit) on area C or area D to be lacking in reliability and credibility.
Like Matthew Smargiassi, Peter Smargiassi was also cross‑examined in relation to paragraph 16 of the Trial Statement of Claim. That cross‑examination became a little bogged down by a debate as to what was properly to be included in the concept of 'fabrication work'. Nevertheless, while that debate may not have been resolved, Mr Smargiassi ultimately accepted that any fabrication work conducted at the property was concerned only with maintenance and alteration of the plaintiff's own plant and equipment.[241] In re‑examination, it was suggested, by the context of the questions, that the 'flanges' were fabrication work, to which Mr Smargiassi agreed. Given the leading nature of the question and lack of specificity of the work being referred to, I give little weight to that answer.

[152]

Kerry Roberts is a chemical engineer, who conducts a consulting and advising business. He has known Mr Nick Smargiassi for 15 years and over that period has acted in advisory roles with the plaintiff. Mr Roberts resides at Scenic Drive, where he has lived for approximately 4 years.[242]
Mr Roberts was asked to clean up the site at Scenic Drive 'seven to eight years ago'. I infer that this was around the time of the prosecution of the plaintiff by the Shire. After that time Mr Roberts said that he carried out some work at the site. He said that he 'put together a couple of training packages and also undertook some work in terms of cutting flanges off pipework'.[243]
Mr Roberts identified the current condition of Scenic Drive by reference to a number of the photographs tendered in evidence. In terms of the plaintiff's activity on site, Mr Roberts said that there was some material kept on site, being 'some steel plates, some pipework of different diameters generally for any fabrication that is necessary'. He did not say where any such 'fabrication' took place, but that the material was on Scenic Drive 'because of the area that is required to store the particular material'.[244]
Mr Roberts said that he had engaged in 'cutting' flanges in the past (over a four year period from 'approximately 2015, 2016') and had supervised others doing so since that time, including recently.[245] In evidence in chief he said that he had done so in area C and 'back into area D which is a covered area',[246] although in cross‑examination he denied that he had said that on some occasions used area D.[247] Area C and D, of course, are the areas used by Mr Menezes. Matthew Smargiassi had earlier said that the plaintiff does not use areas C or D.[248]
Mr Roberts was tasked by the plaintiff to look through the plaintiff's purchase orders and invoices to identify work undertaken at Scenic Drive. Objection was taken to that evidence on the basis that it was based on hearsay, or alternatively, based on documents that had not been produced to the Court. The objection was well‑taken and counsel for the plaintiff did not cavil with the proposition that the proposed evidence was based on material not in evidence, but sought to adduce evidence of the invoices relating to flanges on the basis that the role played by Scenic Drive in relation to flanges had already been the subject of evidence.[249]
Subject to the weight that could be given to them in light of the other evidence, the invoices in relation to work on flanges were admitted pursuant to s 79C of the Evidence Act 1903 (WA).[250] I have reviewed those invoices. In my view they cannot be regarded as reliable evidence of work done at Scenic Drive, nor do they support the plaintiff's case generally.
In that regard, while the invoices refer to 'flanges', they do not generally identify any work that was, or could have been, carried out at Scenic Drive. On the contrary, they describe work such as refurbishing,[251] welding,[252] drilling,[253] manufacturing,[254] machining,[255] sandblasting and painting.[256] Any work of this kind, the evidence established, was carried out at Rowlands Road (see [238] to [239] above). The only work in relation to flanges said to have been carried out at Scenic Drive was 'cutting' them off pipes. In the invoices produced by Mr Roberts, there are only two references to 'cutting'. The first, from 2013, does not on its face relate to reconditioning an old flange but cutting off old flanges from three spools and replacing them with new flanges [257] from boiler plate.257 The second, from 2016, also appears to relate to the manufactur[258]f three new spools.258 Indeed many of the invoices, on their face, appear to relate to the fabrication of new flanges, rather than any proc[259] of reconditioning.259
The invoices produced by Mr Roberts do not, in my view, support a finding of any fabrication or manufacturing activity being undertaken at Scenic Drive.
Regrettably, I found much of Mr Roberts' evidence to be unsatisfactory. He was clearly aligned to the plaintiff's interests and, in my view, it showed. He was prepared to adduce, as evidence of work done at Scenic Drive, the invoices, in circumstances in which he did not personally carry out the work referred to in them, and in which the documents themselves belied such a conclusion. His evidence of continuing to have observed work on flanges at Scenic Drive in recent times was inconsistent with Peter Smargiassi's evidence. Save where it is supported by other evidence, I do not accept Mr Roberts' evidence.

[162]

Mr Menezes' evidence before me,[268] and in 2016,[269] establishes that he used Scenic Drive for these purposes from the time that he moved onto the property. The use of Scenic Drive for the storage of salvage timber, in particular, has been Mr Menezes' principal use of Scenic Drive. That use was one of the uses that, I find, was later the subject of the plaintiff's conviction for the period from 1 March 2014 to 12 January 2015.
Insofar as Mr Menezes referred in his evidence to the timber on the site being 'processed', I find that expression meant nothing more than the activity of sorting the salvage timber into bundles and moving the bundles of timber around. I am not satisfied that Mr Menezes did any carpentry at Scenic Drive during this period. No such activity is described in Mr Menezes' diaries and there is otherwise no specific evidence of any such activity.[270] To the extent that Mr Menezes' evidence, in general terms, suggested that there was any such activity during that period, that evidence was, for the reasons I have given, unreliable.
I also find that, in the period up to 2 October 2009, Mr Menezes did not do anything on Scenic Drive that could be described as engineering, manufacturing or fabrication. Insofar as he gave evidence of 'manufacturing' or 'fabrication' activities (such as those described in the 'jobs' referred to at [207] above), Mr Menezes did not carry out those activities on Scenic Drive prior to 2 October 2009. Again, no such activities are described in his diaries, nor is there any other reliable evidence of such activity by him.
There can be no doubt that Mr Menezes garaged and serviced vehicles and equipment at Scenic Drive during that period, an activity that is recorded in his diaries. Those activities do not themselves fall within 'Engineering, Fabrication & Earth moving services'. Nor, in my assessment, were they incidental to any such uses of Scenic Drive. They were, rather, for the purposes of Mr Menezes' house transformation business, the conduct of which all occurred at sites other than Scenic Drive.
I therefore find that none of Mr Menezes' uses of Scenic Drive up to 2 October 2009, could be characterised as engineering, fabrication or earth moving services (i.e., the uses permitted by the 2006 Approval) or incidental to such uses. Insofar as Mr Menezes used Scenic Drive for the storage of timber during that period, that use was indistinguishable from the use found to be unlawful during the period from 1 March 2014 to 12 January 2015 (i.e., the period the subject of the plaintiff's conviction).

[166]

The use of Scenic Drive as a residence was a permitted ('P') use under TPS 1, TPS 5 and TPS 6. It is not in issue in these proceedings that that use was, and is, lawful.
The plaintiff's storage of salvage material (including scrap metal) in skip bins and other containers on Scenic Drive, I find, began almost immediately, as there was no room at the Rowlands Road site.[271] It was that use, which continued for many years thereafter, that formed part of the plaintiff's conviction in 2017. In Smargiassi [2018] the Court of Appeal held that '[d]uring the offence period, [Scenic Drive] was predominantly used for the storage of various metal items'.[272] I make the same finding in relation to the plaintiff's use of Scenic Drive in the period up to, and including, 2 October 2009 on the evidence before me.
In that regard, I find that the plaintiff's use of Scenic Drive for the storage of metal items during that period was indistinguishable from the use that was found to be unlawful during the period from 1 March 2014 to 12 January 2015 (i.e., the period the subject of the plaintiff's conviction). In particular, in my view, no distinction can be drawn between the material unlawfully stored at Scenic Drive (in the way found by the Court of Appeal in Smargiassi [2018]) and the storage which the plaintiff alleges in its pleadings was being lawfully stored as an incidental use. In truth, there was a single, undifferentiated, form of storage of material by the plaintiff at the site, as Matthew Smargiassi acknowledged in his evidence.[273]
The storage of salvage material (including scrap metal) in skip bins and other containers was not, itself, engineering, fabrication or earth moving services (i.e., the uses permitted by the 2006 Approval). That conclusion is consistent with the finding of the Court of Appeal in Smargiassi [2018] and I would make it independently on the evidence before me in any event.
Much was made by the plaintiff in relation to the cutting of flanges and mud‑rakes (and other metal items) at the site. Such activity, the plaintiff contends, constituted the lawful use of Scenic Drive for engineering or fabrication in accordance with the 2006 Approval, including prior to 2 October 2009.
I make the following findings in relation to those activities.
First, I accept, and find, that the activity of cutting pipes to remove flanges was an activity that the plaintiff conducted at Scenic Drive. I am also prepared to accept that this was an activity that occurred prior to 2 October 2009. The refurbishing of flanges appears to have been an established part of the plaintiff's business by that time. I cannot, however, make the same finding in relation to the refurbishment of mud‑rakes. While I accept that the refurbishment of mud‑rakes was an activity carried out by the plaintiff at some point in time, there is insufficient evidence for me to be positively satisfied that it occurred prior to October 2009. I can put it no higher than that mud‑rakes may have been cut up (or butchered) at Scenic Drive prior to that time.
Secondly, while I accept that flanges were cut from pipes prior to 2 October 2009, I am unable to make a clear finding as to how often, or how regularly, these activities occurred. The invoices produced by Mr Roberts do not assist in that regard; indeed, the first such invoice is dated 23 April 2010. The nature of the work suggests that flanges were cut from pipes on an 'as needed' basis; that is, when there was some particular order for flanges needing to be filled. It is difficult, in those circumstances to describe the cutting of flanges as a 'continuing use' of Scenic Drive as opposed to a sporadic and irregular activity. As an 'activity', the cutting of flanges (or other items) pales in comparison to the predominant use of Scenic Drive, which was as a storage yard.
Indeed, in one sense, the plaintiff's characterisation of the use of Scenic Drive, for example, as including the 'cutting, cleaning, and disassembling of steel and other metals for recycling into scrap metal and other purposes and incidental storage thereof' is the inverse of the true position. The reality is, in my view, that any 'cutting' of the steel was incidental to the predominant use of Scenic Drive for storage; not the other way around.
Thirdly, and in any event, the activity conducted in relation to flanges at Scenic Drive (and indeed in relation to the other items such as the mud‑rakes, bolts[274] and screens[275]) cannot properly be described, in my view, as engineering, fabrication or earth moving services.
In this regard, the Shire submitted that the Court of Appeal so held in Smargiassi [2018]. As the Shire observed, the Court of Appeal accepted that the plaintiff had used Scenic Drive for 'the sorting and processing of metal flanges and bolts for further machining at a different site',[276] and, in its critical finding found that the storage on the site was 'not ancillary to any metal fabrication, engineering or earth moving business being conducted on the land'.[277] Thus, the Shire submitted, when these findings are taken together, the Court of Appeal in Smargiassi [2018] was 'necessarily saying that that processing, i.e., the cutting is not engineering or fabrication work'.[278]
I accept the Shire's interpretation of the Court's conclusion in Smargiassi [2018]. Nevertheless, while it is no doubt persuasive reasoning, consistent with the Court's later decision in in Smargiassi [2021], the conclusion that the cutting of flanges was not engineering or fabrication work is not, strictly, part of the Court's critical finding in Smargiassi [2018]. I must therefore consider the issue myself.
Having done so, I have reached the same conclusion, namely that the activity conducted in relation to flanges (and the other metal items) at Scenic Drive was not engineering or fabrication. It is clear, in my view, that the only 'work' done on any item at Scenic Drive for the purpose of refurbishment was 'taking things apart' or, as Peter Smargiassi put it, 'butchering' those items. Such an activity does not involve any engineering, fabrication or manufacture. It does not involve the creation, development or 'making of' anything; indeed quite the opposite. At best, it was work preparatory to fabrication or manufacture, all of which occurred elsewhere (i.e., at Rowlands Road).[279] It may, in that sense have been incidental to engineering, fabrication or manufacture that occurred elsewhere; but not to any that occurred at Scenic Drive.
Finally, on this point, I am not satisfied that, even if the cutting and disassembling of flanges and other items by the plaintiff did constitute engineering or fabrication work, that the plaintiff did those activities on an area of Scenic Drive permitted by the 2006 Approval.
In accordance with the conditions of the 2006 Approval, the areas in which such work could be conducted were areas C and D. Areas C and D have, at all material times, been occupied by Mr Menezes, including up to 2 October 2009. I find that, at least up to that date, the plaintiff did not use area C or D for cutting or disassembling steel. Matthew Smargiassi said that the cutting of flanges occurred on area B[280] and, while Peter Smargiassi said that he would do so on areas 'A, B, C, E, wherever I could do it',[281] I found his evidence that he used area C to be unreliable.[282] Indeed, the fact that Mr Menezes used that area to store timber makes the use of that part of Scenic Drive for those activities particularly unlikely. Far more likely, I find, is that the flanges were cut off the pipes in the areas in which they were stored, being the areas occupied by the plaintiff, and in particular area B. In accordance with the 2006 Approval, area B was to be used as a storage area, for storage ancillary to engineering or fabrication, and not for those purposes per se.
For these reasons, I find that any cutting and disassembling of flanges, mud‑rakes and other metal at Scenic Drive did not constitute the lawful use of Scenic Drive for engineering or fabrication in accordance with the 2006 Approval prior to 2 October 2009. Nor, on the evidence, am I satisfied that the plaintiff otherwise used Scenic Drive for engineering or fabrication in accordance with the 2006 Approval prior to 2 October 2009.
As in the case of Mr Menezes, I am satisfied that the plaintiff used Scenic Drive for the service and maintenance of vehicles in the period up to, and including, 2 October 2009. Matthew Smargiassi's evidence that the plaintiff used the service pit in area D was corroborated by Mr Menezes and I accept it. The vehicles serviced and maintained by the plaintiff at Scenic Drive were used in its business generally. It follows from my conclusion that the plaintiff did not use Scenic Drive for engineering or fabrication in accordance with the 2006 Approval prior to 2 October 2009, that the service and maintenance of vehicles by the plaintiff was not incidental to any such use on the site.
Another activity that was carried out by the plaintiff on Scenic Drive was the removal of the sawdust and coal fines that had been left on area B by the previous owner. Peter Smargiassi said that the sawdust and coal fines were removed 'pretty much straightaway' after the plaintiff purchased Scenic Drive.[283] I accept that evidence and find that the removal of the sawdust and coal fines occurred (or at least commenced) prior to 2 October 2009.
I would hesitate to characterise that activity, however, as 'earth moving services' within the meaning of the 2006 Approval. On balance, in my view, it cannot be so described. It was, rather, action taken by the plaintiff, as the landowner, to clean up area B and flatten it so that the area could be used by the plaintiff for its own purposes. That activity formed no part of any earth moving business (or service) conducted by the plaintiff on Scenic Drive.
Beyond the removal of the sawdust and coal fines, I am satisfied that the plaintiff has never carried out earth moving services at, or from, Scenic Drive. In particular, there is no evidence to support the pleaded allegation that Scenic Drive has been used 'for temporary storage of material incidental to [earth moving purposes], including but not limited to gravel and concrete'.[284] Matthew Smargiassi was specifically cross‑examined on that pleading and was at a loss to explain it.[285] He later said that the reference to earth moving purposes in the Trial Statement of Claim was a reference to the maintenance and servicing of machines.[286] Insofar as it is alleged that the service and maintenance of vehicles at Scenic Drive was incidental to earth moving services, it was not incidental to earth moving services conducted at, or from, Scenic Drive itself.
In light of the above findings, I therefore find that none of the plaintiff's uses of Scenic Drive up to 2 October 2009, could be characterised as engineering, fabrication or earth moving services (i.e., the uses permitted by the 2006 Approval) or incidental to such uses. Insofar as the plaintiff used Scenic Drive for the storage of metal items during that period, that use was indistinguishable from the use found to be unlawful during the period from 1 March 2014 to 12 January 2015 (i.e., the period the subject of its conviction).

[174]

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.
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).
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 2[290], 2019'.290
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.[291] That activity has long since ceased. Similarly, Scenic Drive has more recently been the site of the repair and recycling of wooden pallets.[292] That activity is not a continuation of any earlier activity.
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,[293] although I infer (including by reason of Peter Smargiassi's inability to recall) that it was a number of years ago.
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.
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.[294] 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.
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.[295]
I am not satisfied that those activities described by Peter Smargiassi can be characterised as engineering or fabrication in accordance with the 2006 Approval.
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.[296]
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).
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.[297]

[176]

(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.

[180]

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.
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.[298]
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.[299]
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.
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'.[300] 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.
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'[301] and the use of showgrounds for the Royal Easter Show was not an existing use of the showgrounds as a 'public entertainment area'.[302]
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'.
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'.
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.
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.
The second 'Purpose' in paragraph 16 of the Statement of Claim (and the declaration sought) is 'equipment and vehicle maintenance'.
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.
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.
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.[303] 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.
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.
Ultimately, as Matthew Smargiassi accepted, the only activity relating to earth moving conducted at Scenic Drive was the maintenance and servicing of vehicles.[304] 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'.
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.

[182]

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.
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.
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'.[305] 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.
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.[306] 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.[307]
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[308] and Mr Menezes' occasional, and very minor, 'fabrication' activities, which were neither regular nor continuous.[309] 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.
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.
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.
Finally, I will again briefly address the pleaded 'Purposes' in paragraph 16 of the Statement of Claim.
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,[310] 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.
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.
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.
Secondly, in relation to the second pleaded 'Purpose' of 'equipment and vehicle maintenance', I would simply repeat my conclusions at [352] to [354] above.
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 wa[311]arried out in 2012.311
For these additional reasons, the non‑conforming use claim must fail in any event.

[183]

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.
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.
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.
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.
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 d[312]ssembly.312
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.
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.
As it is, these issues do not arise, as the plaintiff's non-conforming use claim fails on the facts.

SMARGIASSI NOMINEES PTY LTD -v- SHIRE OF COLLIE [2024] WASC 16 (25 January 2024)

At a glance

Court

Decision date

Before

Source

Judgment (345 paragraphs)

The plaintiff's activities up to 2 October 2009

Mr Menezes' activities from 2 October 2009 to the present

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

Legislation Cited (7)

Cases Cited (17)