Shire of Murray v Ivo Nominees Pty Ltd

(2020) 243 LGERA 89; [2020] WASCA 45

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Local Government
2. › Planning
3. › Town planning scheme
4. › Non-conforming use clause
5. › Distinction between use and development
6. › Whether clause protecting continued use of land precluded need for approval before carrying out development in the form of substantial clearing activities
7. › Shire of Murray Town Planning Scheme No 4 1989, cl 8.1
1. Local Government
2. › Planning
3. › Town planning scheme
4. › Development
5. › Definition of development
6. › Distinction between use and physical alteration to land
7. › Whether clearing of vegetation and excavation of drains constituted development
1. Practice and Procedure
2. › Criminal appeal
3. › Costs
4. › Discretion under Criminal Appeals Act 2004 (WA), s 19(2)(b)
5. › No general rule that costs follow the event
6. › Relevant factors in exercise of discretion

Quick Take

A non-conforming use clause that protects the 'continued use' of land does not preclude the need for development approval before carrying out physical works on the land, where the planning scheme contains distinct express controls of both use and development. The High Court's decision in Dorrestijn v South Australian Planning Commission, which held that 'continued use' included developments necessarily or ordinarily involved in the use, is distinguishable where the planning scheme separately prohibits both use without approval and development without approval. Substantial clearing of vegetation and excavation of drains for farming purposes constitutes 'development' requiring approval, notwithstanding that the underlying farming use is protected as a non-conforming use.