Spotlight on non-conforming use rights – what landowners and developers need to know

The recent decision of the State Administrative Tribunal (SAT) in OTR 208 Pty Ltd v City of Vincent [2025] WASAT 117 provides further clarity on non-conforming use rights – a notoriously complex area of planning law in Western Australia.

For landowners and developers, the judgment offers practical guidance on how these rights can be protected and when development approval is required.

The case, heard by Deputy President Judge Henry Jackson, centred on two preliminary questions:

1. Whether the land at 41–43 Angove Street, North Perth, retained non-conforming use rights for operation as a service station following amendments to the relevant local planning scheme.
2. Whether the proposed works required development approval under the relevant local planning scheme.

Findings on non-conforming use right

The decision provides a clear framework for understanding when non-conforming use rights persist and when they may be lost.

Discontinuance is not mere cessation

The SAT rejected the argument that non-conforming use rights are lost simply because physical activities on the land have ceased. Instead, His Honour affirmed that discontinuance is a question of fact and degree, requiring consideration of the practical realities and the landowner’s intention. The decision draws on established authority, including Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16 and Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138, confirming that interruptions or breaks in use do not necessarily amount to abandonment unless there is no intention to continue the use.

Subjective intention matters

The SAT found that the subjective intention of the landowner is relevant, though not determinative, in assessing whether discontinuance has occurred. Evidence showed that the applicant in this case maintained a consistent intention to recommence service station operations by actively pursuing development applications (including review proceedings in SAT of decisions made in respect of those applications) for the continued use of the land as a service station throughout the relevant period.

Timing of discontinuance

Importantly, the SAT held that any period of discontinuance relevant to the loss of non-conforming use rights could only begin after the use became non-conforming (that is, after the relevant local planning scheme was amended to prohibit the ‘service station’ land use). Prior to that, the existing development approval could not be abandoned.

Development approval required for proposed works

On the second issue, the SAT found that the proposed works, comprising alterations and replacements to buildings and infrastructure, went beyond mere maintenance or repair. As such, development approval was required under the relevant planning scheme, regardless of whether some of the works were exempt from the requirement for approval under clause 60 of Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (otherwise known as the ‘deemed provisions’).

Why this matters

The SAT’s decision is particularly instructive for practitioners navigating non-conforming use rights. The judgment clarifies that:

1. The loss of non-conforming use rights is not automatic upon cessation of use; intention and context are relevant considerations.
2. The distinction between “use” and “development” remains central, with protection for non-conforming uses not extending to new development without approval.
3. The legal test for discontinuance is nuanced, requiring a holistic assessment of facts, intention, and the planning context.

This decision is also relevant for those managing or acquiring properties with historic or non-conforming uses as it provides clarity in an area of law often fraught with uncertainty. The SAT’s approach underscores the importance of both factual circumstances and the landowner’s intentions in determining the persistence of non-conforming use rights, offering a practical guide for future cases.

Have you encountered challenges with non-conforming use rights in your projects? Reach out to Craig Wallace or Isabella Mosole in our Planning, Environment and Land Compensation team to discuss how this decision might impact your development strategy.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.