Re Shire of Carnarvon; Ex Parte Humphrey & Anor

[2005] WASCA 182

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Certiorari
4. › Validity of local government planning approval
5. › Whether development inconsistent with zoning
6. › Whether non-conforming use
7. › Whether change of use
8. › Town Planning Scheme No 10 (Shire of Carnarvon)
1. Administrative Law
2. › Judicial review
3. › Wednesbury unreasonableness
4. › Planning approval
5. › Whether grant of approval unreasonable in light of expert noise evidence
6. › Environmental Protection (Noise) Regulations 1997 (WA)
1. Administrative Law
2. › Judicial review
3. › Failure to take into account relevant considerations
4. › Planning approval
5. › Whether Shire failed to consider noise report and road safety issues
1. Planning and Environment Law
2. › Non-conforming use
3. › Existing use rights
4. › Scope of protection
5. › Whether change in type of vehicle constituted change of use
6. › Whether alteration or extension of non-conforming use requires approval
7. › Construction of saving provisions

Quick Take

A change in the type of vehicle using land for an established purpose (here, prime movers replacing smaller trucks for roadhouse access) does not constitute a change in the nature of a non-conforming use so as to lose existing use protection. Clause 7.2.1 of TPS 10 (requiring approval for alterations or extensions of non-conforming use) must be read down so as not to derogate from the rights protected by cl 7.1.1. A planning authority's imposition of noise mitigation conditions is a reasonable response to expert evidence of potential noise regulation breaches, and does not constitute Wednesbury unreasonableness.