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Supreme Court of Western Australia |
Last Updated: 23 August 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION : CITY OF SWAN -v- ALL EARTH GROUP PTY LTD [2021] WASC 279
CORAM : ARCHER J
HEARD : 13 MAY 2021
DELIVERED : 19 AUGUST 2021
FILE NO/S : SJA 1094 of 2020
BETWEEN : CITY OF SWAN
Appellant
AND
ALL EARTH GROUP PTY LTD
Respondent
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K TAVENER
File Number : MI 12019-12021 of 2018
Appeal against acquittal - Carrying out works without development approval - Deemed provisions - Proper construction - Meaning of 'person', 'works' and 'development' - Person carrying out works that is part of a larger scope of works
Legislation:
Planning
and Development Act 2005 (WA) s 3(1), s
4(1), s 218(a), s 256,
s 257B
Planning
and Development (Local Planning Schemes) Regulations 2015
(WA)
Result:
Leave
to appeal granted
Appeal
allowed
Category:
B
Representation:
Counsel:
|
Appellant
|
:
|
T L Beckett
|
|
Respondent
|
:
|
P Lochore
|
Solicitors:
|
Appellant
|
:
|
McLeods
|
|
Respondent
|
:
|
Castledine
Gregory
|
Case(s)
referred to in decision(s):
1 On 9 November 2020, the respondent (Accused) was found not guilty of three charges under s 218(a) of the Planning and Development Act 2005 (WA) (Planning Act). The charges essentially alleged that the Accused had carried out works on land without having obtained necessary development approval.
2 The appellant (City) seeks leave to appeal against the acquittals. The City contends that the magistrate misconstrued the elements of the alleged offence. The City contends that, had the magistrate properly construed the element, the magistrate would have convicted the Accused on the basis of the factual findings he had made.
3 The Accused opposed the appeal, contending that the magistrate had not made some of the necessary factual findings and that, in any event, the magistrate's construction was correct. The Accused also filed a notice of contention containing three grounds. The Accused withdrew one of the grounds the day before the hearing.[1] The Accused withdrew another during the hearing.[2] In the remaining ground of the notice of contention, the Accused asserts that the evidence and findings were insufficient to prove the third charge.
4 The application for leave to appeal was ordered to be heard at the same time as the appeal.
5 What follows are my reasons for concluding that I should grant leave to appeal and allow the appeal.
Appeals from magistrates' decisions[3]6 Part 2 of the Criminal Appeals Act 2004 (WA) sets out the framework for appeals from courts of summary jurisdiction.
7 The grounds on which appeals may be brought against a decision of a magistrate are that the magistrate made an error of law or fact (or both), or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice, or, in an appeal against a sentence, imposed a sentence that was inadequate or excessive.[4]
8 Leave to appeal is required.[5]
9 The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[6] That means that the ground must have a real, rational and logical prospect of succeeding.[7]
10 Unless leave to appeal is granted on one or more grounds, the appeal is taken to have been dismissed.[8]
11 Further, when considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[9] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly,[10]
it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
12 These observations may have less weight when, as here, a magistrate has reserved their decision after a hearing and delivered it at a later date. Nevertheless, a magistrate in such a case must still manage a large volume of cases daily and is still faced with the requirement to conduct cases efficiently and with a degree of informality. It remains inappropriate to scrutinise their reasons with a fine‑tooth comb and it is still to be expected that some infelicity of language is likely to occur from time to time, even with reserved decisions.
13 By s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[11]
14 Generally, an immaterial or inconsequential error will not give rise to a substantial miscarriage of justice. Where an error could not have affected the outcome, an appeal court will generally be able to conclude that there has been no substantial miscarriage of justice.[12]
15 By s 14(3), if the Magistrates Court failed to make any necessary finding of fact, the Supreme Court need not set aside or vary the decision if the facts or evidence in substance support the decision or justify the finding.
16 Given those words, and the context of the Criminal Appeals Act as a whole, this does not mean that the Supreme Court need not set aside or vary the decision simply because it was open to the magistrate to make the decision. Rather, s 14(3) applies where 'the facts found by the magistrate or the evidence were such as to lead inevitably to the conviction'.[13]
17 Interpreting s 14(3) in this way is consistent with the way in which s 14(2) has been interpreted.
The Magistrates Court proceedings18 The City laid three charges against the Accused, each of which alleged that the Accused:
[c]arried out works on land in the City of Swan Local Planning Scheme No.17 Scheme area without having obtained the development approval of the local government under Part 8 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 thereby contravening the Scheme, contrary to Section 218(a) of the Planning Act.
19 I will later set out the statutory framework in some detail. For the moment, it is sufficient to note the following.
20 The City of Swan Local Planning Scheme No. 17 (Scheme) incorporates the deemed provisions (Deemed Provisions) set out in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations).[14]
21 Clause 60 of the Deemed Provisions provides that a person must not, among other things, carry out any works on land unless the person has obtained development approval or the development is of a type referred to in cl 61.
22 The trial took place on 15 October 2020 before his Honour Magistrate Tavener. No witnesses were called. An agreed statement of facts (Agreed Facts) and aerial photographs were tendered in evidence and made exhibits.
23 The Agreed Facts set out the circumstances leading up to the charges. The relevant facts can be summarised as follows.
24 The Accused operated a business specialising in civil contracting, logistics, earthworks and related activities. As a result of earthmoving works it had done, the Accused had a large amount of excavated sand, clay and gravel for disposal. It offered this free to landowners in the area for use as fill. The Agreed Facts referred to the material offered to the landowners as 'fill' and I will do the same.
25 Three landowners took up the offer.
26 In each case, the Accused deposited fill in the locations identified by the landowner, over a period of time, on multiple days. The quantities of fill delivered ranged from 2,417 tonnes to 11,418. In each case, the landowner then did additional work with the fill.
27 In relation to the first and second charges, the Accused deposited the fill in the identified locations and roughly spread it. The owners then completed the fill works, including final spreading of the fill, creation of finished levels and any compaction required.
28 In relation to the third charge, the Accused deposited the fill in piles at the location of the owner's proposed bunds (walls of earth). The bunds were intended to reduce the noise from the cars that travelled along Toodyay Road near the front boundary of the road and to increase privacy. The Accused did not spread this fill. Plainly, spreading the fill would have been inconsistent with the owner's planned use of the fill. The owners then completed the bund works, including the creation of finished bund levels and compaction.
29 I will refer to the activities of the Accused as the 'Accused's Works'.
30 Counsel for the Accused at trial was not counsel in the appeal.
31 At trial, the Accused submitted that it should be found not guilty because (emphasis in original):[15]
1. the accused did not carry out the whole of the works on each property; its role was limited to delivering and depositing fill material, to enable the landowner in each case to carry out the landowner's works;
2. as a supply contractor, it was not relevantly responsible for the carrying out of the works the subject of any of the three charges. Instead, in carrying out its delivery activities on the relevant land, the accused at all times acted under the authority and direction of the owner of each property where the offences are said to have been committed; and
3. the landowner in each case bore the primary responsibility to obtain development approval for the works, and the landowner did not delegate that responsibility to the accused.
32 Although not entirely clear, the Accused's propositions at trial seem to have been as follows:[16]
1. The Accused was, properly understood, not the 'person' who relevantly commenced or carried out the works in each case.
2. Where a landowner is undertaking development works on his or her land, and a contractor is (or contractors are) doing some of those works, the landowner is 'primarily' responsible for the obtaining of approval for the works.
3. Unless the landowner delegated that responsibility to a contractor, or gave a contractor the right to control access to the land, a contractor doing part of those works would not be a 'person' carrying out 'works'.
4. The Accused's conduct in each case was, at most, only part of a larger scope of 'works' being undertaken by the relevant landowners.
5. The landowners had not delegated their responsibility to obtain approval to the Accused, and had not given the Accused the right to control access to the land.
6. Therefore, the Accused was not the 'person' who carried out the 'works'.
33 In closing submissions, the Accused raised a new basis upon which it should be acquitted of the second charge. It submitted to the magistrate that the City had failed to prove that there had not been development approval in relation to the second charge, because a statement to that effect was not included in the Agreed Facts.[17]
34 The City expressed surprise that the submission had been made, saying that it had not understood this to be a matter in issue. The City said that, if the court considered it was an issue that required proof, it would seek leave to reopen its case and adduce the evidence.[18] The magistrate advised the City that he did not require further evidence 'at this stage', but would give the parties an opportunity to be heard if he changed his mind.[19] As will be seen, the magistrate acquitted the Accused on other grounds. No doubt it was for that reason that his Honour did not give the parties the opportunity to be heard as to whether the prosecution should be permitted to adduce further evidence.
35 Initially, part of the Accused's opposition to the appeal and the first ground of its notice of contention involved an assertion that this had not been proved and that the court should not exercise its discretion to permit the prosecutor to re-open the case.[20] During the appeal, the Accused withdrew these assertions.[21] This was, with respect, appropriate.
36 It was plain from the Accused's written submissions at trial that the Accused accepted that there was no development approval in relation to any of the three charges.[22] This was confirmed in the Accused's oral closing submissions.[23] Clearly, the prosecution's failure to include in the Agreed Facts that there was no development approval in relation to the second charge was merely an oversight.
37 If the magistrate had not dismissed the charges on other grounds, it would have been necessary to give the parties the opportunity to be heard as to whether the prosecution should be permitted to adduce further evidence.
38 As the Accused no longer seeks to raise this issue, it is unnecessary to detail the circumstances that would be relevant to whether leave could or should have been granted. However, in all of the circumstances, I am satisfied that it would have been open to the magistrate to give the City leave to adduce evidence to prove there had not been development approval in relation to the second charge.[24] Indeed, in my view, justice positively required leave to be given.[25]
39 At the end of the trial, the learned magistrate reserved his decision.
40 On 9 November 2020, the learned magistrate found the Accused not guilty of the three charges. His Honour delivered a four-page decision.
41 In view of some of the Accused's contentions in this appeal, it is necessary to reproduce a substantial amount of his Honour's reasons.
2. Each of the charges are expressed in similar terms with the differences arising from the address of the particular property and the dates of the work. In essence, the charges alleged the defendant company carried out works on land, being the depositing and 'roughly spreading' of fill, within a planning scheme without having obtained the development approval by the City of Swan.
3. It is not disputed the works which were carried out on each property were works which required prior development approval. Nor was it disputed that the fill material delivered by the defendant was physically deposited on the land. Filling can constitute development.
...
14. The legislation allows more than one person to be prosecuted for the offence; usually that person would be the property owner although other persons can also be prosecuted. It is accepted the landowner has the primary duty of ensuring that work is not carried out without the requisite development approval; the owner may delegate that duty to a contractor, such as a demolition contractor [footnoting M v Shire of Kalamunda [2019] WASC 340]. The authorities, which are limited in this area, address the situation where there is a commercial relationship between the owner and the sub-contractor. Here, there is no such relationship and they are not related parties; on each count, each party gained a benefit, but of a different nature to the benefit enjoyed by the other party.
15. In the case of Shire of Serpentine-Jarrahdale v Christopher Francis Farr the contractor was not the owner, but was the husband of the landowner which suggests any (similar) benefit accruing to the contractor would also benefit the owner. The decision of Mosman Municipal Council v Menai Excavations Pty Ltd confirmed that when reliance is placed on others to obtain the necessary consent that does, does not, [sic] in the case of a strict [liability] offence, operate to exculpate the defendant. However, that case dealt with a plea of guilty where there had been a commercial demolition of a heritage item in a heritage conservation area.
16. Similarly, in Willoughby City Council v Masonry the builder was contracted to complete certain works mistakenly believing approval had been granted. In Blue Mountains City Council v Carlon the contractor was employed to clear land and believed, mistakenly, that approval had been granted. Importantly, in Pittwater Council v Scahill, where strict liability was imposed on the defendant the court said that persons and corporations involved in businesses and industries had to be aware of their obligations to ascertain the laws and controls, and obtain any necessary consents. There the defendant was an arborist who was engaged for a fee to do certain work.
17. It is noted that the offence is one of strict liability, that is, liability without fault. The prosecution does [not] have to prove intention, knowledge, recklessness or even negligence. Here, the actions of the defendant involved a significant amount of effort which satisfies the definition of 'works'. It could be said, the defendant was put on notice that there was an obligation to make enquiries as to whether development approval existed for the three sites; I do not consider that position was established, in all the circumstances.
18. Although the section states that any person must not commence or carry out any works without development approval, the prime obligation resides with the owner of the property. The owner cannot easily displace that obligation although other persons, such as the position enunciated in the 'demolition' cases, can acquire the obligation.
19. In this matter, each of the owners were not prosecuted and two owners obtained retrospective approval, the third owner was required to [demolish] a bund, leaving the defendant as the only entity being prosecuted.
20. It is noted the defendant gained a benefit in dumping the landfill and further one could assume, taking into accounts it [sic] business activity, it possessed knowledge about the legal requirements. In this instance, the arrangement was without payment, at arm's length and without the ability to enter the land except by prior arrangement. Had there been a commercial arrangement, similar to a 'demolition' situation then liability could, and most likely would, attached [sic] to the defendant.
21. The charges would be better understood if the owners were each charged and liability sought to be assigned to the current defendant due to the particular arrangements. Here the liability remains with the owners to obtain the requisite approval; the defendant was not in a position to seek retrospective approval or remedy the situation. Although the terminology may not have direct application, the defendant in these particular circumstances is, effectively, an 'innocent agent.' Such innocence can be lost where, for example, there been a contractual arrangement or a beneficial connection with the owner.
Findings
22. The delivery of the fill material was only a contribution to a larger scope of works undertaken by the relevant landowners, however sufficient work was done by the defendant to require development approval. The defendant was not aware of the full range of works to be undertaken on the respective properties.
23. The defendant was not an independent contractor because, amongst other matters, it did not decide what work was to be done, the manner in which the work was to be done (other than delivery and spreading) as well as the time and place the work was to be performed. The defendant did not have the requisite degree of control, including access, over the respective properties. Further, there was no delegated responsibility to the defendant to obtain development approval.
24. Each of the landowners was the responsible party to seek development approval. There was no requirement placed upon the defendant to obtain planning approval; that responsibility, in these circumstances, did not shift from the owners.
42 Later, I will discuss the case cited by the magistrate in [14] of his reasons, M v Shire of Kalamunda.[26] His Honour no doubt cited that case because the Accused's counsel (not counsel in the appeal) had submitted that it was authority for the proposition set out in [14].[27] It was not.
Ground of appeal43 The City's appeal notice contains a single ground of appeal. It alleges that the magistrate:
erred in law in finding that the respondent was not guilty of the charges on the basis that the respondent was not responsible for obtaining development approvals for the works the subject of the charges (Works), whereas the honourable Magistrate, having found:
(a) that the respondent carried out the Works;
(b) that the Works required development approval; and
(c) that there were no development approvals issued for the Works,
should have found the respondent carried out the Works without development approval in contravention of the City of Swan Local Planning Scheme No. 17.
44 In relation to the finding in (a), the Accused asserts that the City ran its case on the basis that the works the subject of the charges was the entirety of the works, not just what the Accused itself did.[28] It accepts that, if it is wrong about that, 'it is reasonable to infer' that the magistrate did make the finding that it carried out the Accused's Works or 'would have' made such a finding 'if it were necessary'.[29] Given that the Accused admitted carrying out the Accused's Works in the Agreed Facts, such a finding was inevitable. The Accused submits, however, that the City should not be permitted to change its case on appeal.[30]
45 The Accused disputes that the magistrate made the finding in (b) in relation to any of the charges.[31]
46 The Accused initially disputed that the magistrate made the finding in (c) in relation to the second charge,[32] but withdrew this contention during the appeal hearing.[33]
47 The Accused also disputed the City's construction of the statutory scheme. In short, the Accused submitted as follows:[34]
1. The Accused was not a 'person' within the meaning of cl 60 as it was doing works that were part of a larger scope of works. It is the owner of land who has the 'primary responsibility' for obtaining development approval.
2. Where works are done that are part of a larger scope of works, the 'works' captured by cl 60 are the larger scope of works. Only the person who is organising the overall works can be guilty of breaching cl 60.
Notice of contention - no proof of 'works' in third charge48 In the surviving ground of the notice of contention, the Accused asserts that the evidence and findings were insufficient to prove the third charge. In short, the Accused asserts that there was no finding that the Accused had done anything more than deliver piles of sand, nor was there evidence to support such a finding.
49 The City submits that this is an inaccurate characterisation of what the Accused did. The Agreed Facts were, in effect, that the Accused deposited the fill over a period of time, on multiple days. The Accused deposited the fill in piles in the locations identified by the landowner, at the location of the owner's proposed bunds.
50 The City submits that this conduct constituted 'works' which required development approval.
Issues51 In relation to the ground of appeal, the following preliminary issues arise.
1. Is the City seeking to run a new case on appeal? That is, was the City's case at trial that the offending works were the entirety of the works done by the Accused and the landowner, or was the City's case that the offending works were the works done by the Accused?
2. If the City is seeking to run a new case on appeal, should the City be permitted to do this?
3. In relation to each charge, did the magistrate find that the Accused's Works required development approval?
52 If the first question is answered 'no' (or the second question is answered 'yes') and the third question is answered 'yes', the outcome of the appeal will turn upon the proper construction of the statutory provisions. In particular:
1. What does 'person' mean in cl 60? Each person who does works, or only an owner, or only a person who has overall control of a larger scope of works?
2. What does 'works' mean in cl 60? If works are only part of a larger scope of works, are they captured by cl 60?
53 The notice of contention also turns upon the meaning of 'works', but in the context of what the Accused actually did in relation to the third charge. The issue in the notice of contention is whether simply depositing fill can constitute 'works'.
Preliminary issues54 The Accused submits, in effect, that the City conducted the trial on the basis that the 'works' said to have been carried out without development approval in breach of cl 60 (the Breaching Works) were the combined works of the Accused and the owners.[35]
55 I do not accept this.
56 First, by the terms of the charges themselves, the Breaching Works were the 'works' alleged to have been carried out by the Accused - that is, the Accused's Works. The Accused conceded this.[36]
57 Second, in my view, the City's written and oral submissions at trial made it plain that it contended that the Breaching Works were what the Accused had done.
58 The City's written submissions set out the Accused's liability, under a heading 'Liability of accused company'. I accept that there are some aspects of the City’s written submissions which, considered in isolation, could be interpreted as contending that the Breaching Works were the total works done by both the Accused and the owners.[37] However, read as a whole, the City was plainly asserting that the Accused's liability was based on what the Accused alone did (the Accused's Works), and that the Accused's Works of themselves required development approval.[38]
59 The Accused drew my attention to parts of the City's oral submissions in which it appeared to be contending that the Breaching Works were the totality of works done by both the Accused and the landowners. In particular, the Accused referred to a passage in which the City had said the landowners could have been charged with the same offence. In my view, this was a reference to what had been more clearly expressed in the written submissions. After setting out the activities of the Accused (and only the Accused's activities),[39] the written submissions continued (emphasis added):[40]
It is accepted by the prosecution that those works were carried out with the authority of the owners of the Properties and that the accused company did not charge for those works. The prosecution considers that the owners of the Properties could have been charged with the same offence for which the accused company has been charged for engaging the accused company to carry out those works. However, the City elected not to bring any such charges.
60 In other words, the City contended, in effect, that the owners had procured the Accused's Works and therefore both the owners and the Accused were criminally responsible for the Accused's Works being carried out without development approval.
61 This is supported by other parts of the City's oral submissions which, in my view, confirmed that the City's case was that the Accused's Works were the Breaching Works.[41]
62 Third, I accept that there are some references in the Agreed Facts which could be seen to suggest that the Breaching Works were the entirety of the works.[42] However, in the context of the Agreed Facts as a whole and all of the circumstances (in particular the charges themselves and the next consideration), I do not consider that the Agreed Facts suggested that the City's case was that the Breaching Works were the entirety of the works.
63 Fourth, I consider that the Accused understood, at trial, that the City's case was that the Breaching Works were the Accused's Works.
64 One of the Accused's two core contentions at trial was that, as a matter of statutory construction, the Accused could not be liable because it was not the 'person' who carried out the Accused's Works, because those works were part of a larger scope of works done by the landowners.[43] Indeed, the Accused appeared to acknowledge during the trial that the City's case was that the Accused's Works alone constituted the breach.[44]
65 During the hearing of the Appeal, counsel for the Accused did not seek to demonstrate that the Accused had understood the City's case differently.[45]
66 Fifth, in my view, the magistrate also understood the City's case to be that the Breaching Works were the Accused's Works.[46]
67 The Accused submits that the magistrate did not find that the Accused's Works required development approval in relation to any of the charges.
68 The Accused submits, in effect, that the magistrate was not satisfied beyond reasonable doubt that the Accused's Works required development approval because the Accused's Works were simply part of a larger scope of works done by the owners.[47]
69 During the appeal, counsel for the Accused frankly acknowledged that his submission could fairly be summarised as being that, because the magistrate was incorrect about the proper construction of the legislative provisions, the magistrate had failed to make the factual findings that he would have needed to make before he could have found the Accused guilty on the proper construction.[48] He conceded that, had the magistrate applied the correct construction, it would not have mattered whether the City's case was that the Breaching Works were only the Accused's Works or the entirety of the works. This was because, either way, if the magistrate was satisfied that the deposits of fill met the criteria of 'development', the Accused would be guilty.[49]
70 In my view, the magistrate did find that the Accused's Works required development approval. His Honour acquitted the Accused because his Honour considered that, on his Honour's construction of the legislative provisions, it was not the Accused's responsibility to get the approval.
71 In my view, this is demonstrated by, in particular, paragraphs 2, 3, 17, 20 and 22 of his Honour's reasons. These paragraphs, and others, were set out earlier. However, in short, and relevantly to this point, the magistrate found (emphasis added):
2. ... [T]he charges alleged the defendant company carried out works on land, being the depositing and 'roughly spreading' of fill, within a planning scheme without having obtained the development approval by the City of Swan.
3. It [was] not disputed the works which were carried out on each property were works which required prior development approval. Nor was it disputed that the fill material delivered by the defendant was physically deposited on the land. Filling can constitute development.
17. ... Here, the actions of the defendant involved a significant amount of effort which satisfies the definition of 'works'. It could be said, the defendant was put on notice that there was an obligation to make enquiries as to whether development approval existed for the three sites; I do not consider that position was established, in all the circumstances.
20. ... Had there been a commercial arrangement, similar to a 'demolition' situation then liability could, and most likely would, attached [sic] to the defendant.
22. [In the first section under the heading 'Findings'] The delivery of the fill material was only a contribution to a larger scope of works undertaken by the relevant landowners, however sufficient work was done by the defendant to require development approval. ...
72 In my view, there can be no doubt that the magistrate found that the Accused's Works, on their own, required development approval.
73 First, his Honour said so expressly.
74 Second, the balance of his reasons supports that this was his finding.
75 Third, it was unnecessary for his Honour to further explain this finding. It was not in issue in the trial. In closing submissions, counsel for the Accused referred to the City's submission that the Accused's Works, on their own, required development approval, and said 'I think I can accept that because of the amount of soil and the raising of the level'.[50] In reply, the City noted that defence counsel 'accepts perhaps that if no further work was done by the [landowners] that what [the Accused] did of itself would still perhaps have been development'.[51] Defence counsel made further submissions after the City's reply and did not dispute this.[52]
Analysis of appeal ground76 Statutory construction 'requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'.[53]
77 As noted earlier,[54] the City's Scheme incorporates the Deemed Provisions set out in the Regulations.
78 Part 7 of the Deemed Provisions sets out when development approval is required. Clause 60 provides:
60. Requirement for development approval[55]
A person must not commence or carry out any works on, or use, land in the Scheme area unless –
(a) the person has obtained the development approval of the local government under Part 8; or
(b) the development is of a type referred to in clause 61.
79 Clause 61, referred to in cl 60(b) sets out when development approval is not required.
80 Part 8 of the Deemed Provisions sets out the manner in which development approval is to be obtained. The application for development approval must be, among other things, signed by the owner of the land upon which the proposed development is to be located.[56]
81 Section 218(a) of the Planning Act provides:
218. Planning scheme or condition on development, contravening etc.
A person who -
(a) contravenes the provisions of a planning scheme;
...
commits an offence.
82 Section 3(1) of the Planning Act provides that the purposes of the Act are to:
(a) consolidate the provisions of [various Acts] in a rewritten form; and
(b) provide for an efficient and effective land use planning system in the State; and
(c) promote the sustainable use and development of land in the State.
83 Neither cl 60, nor the Deemed Provisions, expressly state the purpose of cl 60. Nevertheless, it is not disputed that cl 60 is plainly aimed at ensuring that no one does works unless the necessary approval has been obtained.[57] It puts the onus on the person carrying out the works not to do so unless approval has been obtained.
84 Clause 1 of the Deemed Provisions relevantly defines 'works' in relation to land, to mean:
(a) any demolition, erection, construction, alteration of or addition to any building or structure on the land; and
(b) the carrying out on the land of any excavation or other works; and
(c) in the case of a place to which a protection order made under the Heritage Act 2018 Part 4 Division 1 applies, any act or thing that -
(i) is likely to damage the character of that place or the external appearance of any building; or
(ii) would constitute an irreversible alteration to the fabric of any building;
85 To constitute 'works', the Accused's Works would have to fall within the meaning of 'other works' in par (b) of the definition. This limb of the definition is, on its face, unhelpful.
86 However, I consider that the meaning of 'other works' is illuminated by the earlier words in par (b) of 'any excavation or' and the conduct covered in par (a) as relating to buildings or structures. Given this context, in my view, 'other works' in par (b) refers to something done to the land itself (as distinct to a building), other than excavation. In other words, something that physically changes the land.
87 Further, although cl 60 is aimed at persons who commence or carry out 'works', it appears that it is intended to apply to 'works' that would constitute 'development'. This follows, in my view, from par (b) of cl 60. This construction is supported by the rest of part 7, part 8 (including the labelling of approvals for such works as 'development approvals') and the legislative regime as a whole (in particular the definition of 'development' in the Planning Act which uses, in (b) of the definition, the same expression as appears in (b) of the definition of 'works' in the Deemed Provisions).
88 Unless the contrary intention appears, 'development' in the Planning Act[58] and Deemed Provisions[59] means:
the development or use of any land, including:
(a) any demolition, erection, construction, alteration or addition to any building or structure on land;
(b) the carrying out on the land of any excavation or other works
89 In Bright Image Dental Pty Ltd v City of Gosnells,[60] the Court of Appeal said that it was a feature of the Planning Act that the term 'development' has not always been used consistently. Accordingly, the Court considered whether the particular provision it was considering in that case evinced a 'contrary intention' to use 'development' other than in its defined sense.[61]
90 There is nothing to suggest that ‘development’ in the context of this case is intended to mean something different to its defined sense.[62]
91 The court in Bright Image Dental said that 'development' in its defined sense denotes an activity rather than the product of an activity.[63]
92 In Teissier v City of Rockingham,[64] the appellant had placed approximately 5,000 cubic metres of fill (at least 250 truckloads) on the land. This raised the ground level by about a metre initially and, after compaction, by about 25cm. The appellant was charged that he[65]
[c]arried out development, namely depositing sand and soil on the land, without first having applied for and obtained the planning approval of the Council of the City of Rockingham thereby contravening Clause 6.1.1 of the City of Rockingham Town Planning Scheme No 2, contrary to [s]ection 218(a) of the Planning and Development Act 2005.
93 The magistrate found the appellant guilty, finding that the deposit of the fill constituted a 'development' for which the respondent's approval was required.
94 On appeal, the appellant contended the bed of sand was not a 'development' but an incidental use to the sheep holding facility and farming land management practice. His Honour Justice Le Miere said that, if the deposit of the fill was a 'development', the respondent's approval was required, and it was irrelevant whether the purpose for which the fill was deposited was incidental to the claimed use.[66]
95 Le Miere J quoted from Parramatta City Council v Shell Co of Australia Ltd,[67] in which Street J[68] had said (in relation to s 342T of the Local Government Act 1919 (NSW)):[69]
As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as a 'work', and thus a 'development', within the relevant legislation. The building-up of a large sports ground or oval could readily and properly be regarded as a 'work'. At the other end of the scale, the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a 'work'. In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance. The spreading of 1,200 cubic yards of filling or topsoil over a very large area might well not be of such significance as to amount to a 'work'. But the depositing of that quantity in a suburban allotment, having the effect of building up the height of that allotment at one corner to a point eight feet six inches above its natural level, and the creation of a relatively level surface extending over most of a block of land such as this is, in my view, a 'work' within the meaning of the Act. I am accordingly of the view that the depositing of this filling amounted to 'development'. As such, it could only lawfully have been placed there if the defendant had the requisite authority to carry out such development.
96 Le Miere J concluded that the magistrate had been correct to find that the deposit of the fill constituted a 'development' for which the respondent's approval was required.[70]
97 During the appeal hearing before me, the Accused contended that the accused in Teissier had also done more than simply deposit fill. The Accused contended that there was no finding, by either the magistrate or Le Miere J, that the deposit of the fill alone constituted a 'development'.[71]
98 It is correct that the accused in Teissier had done more than simply deposit fill. However, Le Miere J expressly endorsed the magistrate's finding that the deposit of the fill constituted a 'development'.[72] This is further reinforced by the wording of the charge in Teissier, which alleged that the accused '[c]arried out development, namely depositing sand and soil on the land', without approval.
99 I have already referred to the Court of Appeal's decision in Bright Image Dental,[73] and its statement that 'development' in its defined sense denotes an activity rather than the product of an activity.[74]
100 Shire of Murray v IVO Nominees Pty Ltd (IVO Nominees)[75] dealt with whether an activity amounted to a 'development'. The Court of Appeal explained that this is a question of fact to be determined having regard to the degree of physical alteration of the land, the degree of permanence of the alteration and all of the circumstances.[76]
101 Finally, the City cited Paolucci v Town of Cambridge.[77] This was an appeal against sentence and did not involve any consideration of the elements of the offence. In my view, it does not assist the analysis.
102 In support of its construction, the City cited a number of decisions of the New South Wales Land and Environment Court (NSW Decisions).
103 In this section, I will refer to the Planning Act as the 'WA Planning Act' to distinguish it from the New South Wales legislation.
104 Each of the decisions cited by the City were sentencing decisions following pleas of guilty to offences against s 125 of the Environmental Planning and Assessment Act 1979 (NSW) (NSW Planning Act).
105 In its written submissions, the Accused contended that the New South Wales cases did not assist in the analysis of the proper construction of the Western Australian regime because s 125 of the NSW Planning Act was not comparable to the provisions under consideration in this case.[78]
106 At the time the NSW Decisions were made,[79] s 125(1) of the NSW Planning Act provided:
125 Offences against this Act and the regulations
(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
107 In each case, the defendant had carried out development without development consent, in circumstances where consent was required.
108 At the time these decisions were made,[80] s 76A(1) of the NSW Planning Act provided:
76A Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
109 It can be seen, therefore, that, under the New South Wales regime, where s 76A was engaged, the elements of the offence of carrying out a development without the necessary development consent were:
1. the accused carried out a development on land;
2. an environmental planning instrument which applied to that land provided that that type of development may not be carried out except with development consent; and
3. there was no development consent at the time that the development was carried out.
110 During the hearing of the appeal before me, counsel for the Accused accepted that s 125 of the NSW Planning Act was simply the offence creating provision, similar to s 218 of the WA Planning Act.[81] He did not seek to argue that s 76A of the NSW Planning Act was materially different to cl 60 of the Western Australian Deemed Provisions.[82] He acknowledged that the elements were 'very, very similar', that both were strict liability offences, and that the purpose of both was to put the onus on anyone doing work to make sure there was approval.[83] He simply submitted that, in light of the Western Australian cases which dealt with the Building Act 2011 (WA) (Building Act) (discussed later), there was little need to have recourse to the NSW Decisions.[84]
111 Later in these reasons, I analyse the elements of cl 60 of the Deemed Provisions and its purpose. That analysis will confirm that it has similar elements and a similar purpose to the New South Wales regime. Although there are some differences between the two regimes, the similarities mean that the NSW Decisions do assist in the construction of the Western Australian regime. As will become apparent, however, the NSW Decisions merely reinforce the conclusions that I have reached in considering the Western Australian regime.
112 In Mosman Municipal Council v Menai Excavations Pty Ltd,[85] the defendant was not the developer, and had believed the developer had obtained all necessary consents. Lloyd J noted, however (underlining and footnote added):[86]
It must be borne in mind that an offence against s 125(1) of the EP&A Act is one of strict liability. There is thus an onus on those who carry out development, including demolition work, to ensure that any necessary development consent has been obtained. The particular circumstances in this case, in which reliance was placed on others to obtain the necessary consent, does not, in the case of a strict liability offence, operate to exculpate the defendant (McDonagh on behalf of Great Lakes Council v Birdon Dredging Pty Ltd [1998] NSWLEC 102; (1998) 99 LGERA 198 at 205).
In Caralis v Smyth (1988) 65 LGRA 303, a building was demolished contrary to s 135 of the Heritage Act 1977. The defendants had previously obtained a certificate from the Heritage Council stating that the building was not subject to an order under the Heritage Act 1977 (NSW). The defendants were unaware that a special issue of the New South Wales Government Gazette had subsequently contained an order proscribing the demolition of the building. They thus believed that their actions in demolishing the building were not unlawful. In the Court of Criminal Appeal, Street CJ (Finlay and Newman JJ agreeing) said (at 309):
The purport of these provisions [namely s 135 of the Heritage Act] is to prevent demolition as an objective consequence. There is much to be said for placing persons who undertake demolition in the position of doing so at their own risk so as to ensure that they take proper steps to ascertain the lawfulness of their proposed conduct.
It is not usual, in the case of strict liability offence[s], for a defendant to receive the benefit of s 10 of the Crimes (Sentencing Procedure) Act.[87] The reason for this, I think, [is] explained in McDonagh on behalf of Great Lakes Council v Birdon Dredging Pty Ltd and in Caralis v Smyth, to which I have referred. One of the matters to be taken into consideration under s 10 is “(b) the trivial nature of the offence”. I do not regard the subject offence as trivial. The system of planning control would become somewhat ineffective if persons were to carry out development, including demolition work, without ensuring that necessary development consent has been obtained. Whilst I accept the defendant's submission that it is unlikely to re‑offend, there is in my opinion a need to impose a penalty which reflects a general deterrence and to reinforce this obligation on the defendant.
113 In Willoughby City Council v P & V Masonry Pty Limited,[88] the defendant had constructed sandstone retaining walls and terracing under the directions of the owner of the property, without the necessary development consent having been obtained. It mistakenly believed that development approval had been obtained.
114 In the course of his Honour's reasons, Bignold J analysed a submission that the seriousness of the offence was reduced because development consent for a modified development probably would have been given if it had been sought. His Honour said that, even if it was open to find that development consent for a modified development probably would have been given (original emphasis removed, underlining added),[89]
the impact of that finding on the proper evaluation of the seriousness of the admitted offence would not escape or neutralise the impact on that question of the following two facts -
(i) the admitted offence comprises the carrying out of the original, (and not the modified) development; and
(ii) the essence of the admitted offence is the prohibition on the carrying out of development unless the requisite consent has been obtained and is in force.
The last-mentioned factor is simply the logical outworking of the EP&A Act, s 76A(1). The requirement to obtain development consent before carrying out development is the lynchpin of the system of planning control that is provided for by Part 4 of the EP&A Act and in this respect, I entirely agree with Lloyd J’s observation in Menai Excavations at 97:
The system of planning control would become somewhat ineffective if persons were to carry out development, including demolition work without ensuring that necessary development consent has been obtained.
115 Bignold J also noted that (original emphasis removed, underlining added),[90]
The fact that the [EP&A] Act contains provisions which may bring about in some measure on ex post facto regularisation of the unlawful carrying out of development (eg by the issue of a building certificate pursuant to ss 149 A to F - see Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285) does not derogate from the fundamental precept of the EP&A Act that development is not to be carried out unless the requisite development consent has been obtained.
Nor do those provisions modify the essential character of an offence against s 125 involving a contravention of the EP&A Act, s 76A(1). Indeed, even if a building certificate is issued in respect of an unlawful development, the statutory immunities conferred by s 149E expressly preserve the liability of a person to be prosecuted for an offence against s 125 by virtue of the failure to obtain the requisite development consent: see s 149E(3)(b).
116 Like the NSW Planning Act, the WA Planning Act provides for the granting of retrospective approval where a development has already been carried out. The WA Planning Act also expressly preserves the liability of a person who had carried out work before approval had been granted.[91]
117 Bignold J accepted that the defendant had honestly, but mistakenly, believed that development approval had been obtained but said this belief was not reasonable.[92] He noted that it had been open to the defendant to plead not guilty if it had wanted to assert it had honestly and reasonably, but mistakenly, believed that development approval had been obtained.[93]
118 In Blue Mountains City Council v Carlon,[94] the defendant was engaged by the owners to clean up about one acre of land. He believed that the owners had obtained the necessary approvals.
119 Biscoe J said (underlining and footnote added):[95]
This is a strict liability offence in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence: Caralis v Smyth (1988) 34 A Crim R 193; 65 LGRA 303 at 308 (CCA). It is unusual in the case of strict liability offences for a defendant to receive the benefit of s 10,[96] even if the defendant genuinely believed that it was lawfully entitled to undertake the prohibited activity. The reason for imposing a penalty even where such a belief is held, has been expressed in various ways to similar effect: to invoke the deterrent purpose of educating the offender and the community in the law's proscriptions so that the law will come to be known and obeyed; to ensure that persons take proper steps to ascertain the lawfulness of their proposed conduct; to give effect to the system of planning controls. See Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35] (Lloyd J); McDonagh (on behalf of Great Lakes Council) v Birdon Dredging Pty Ltd [1998] NSWLEC 102; (1998) 99 LGERA 198 at 205 (Bignold J) quoting Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 570; Caralis v Smyth (1988) 34 A Crim R 193; 65 LGRA 303 at 309 (CCA).
120 In Pittwater Council v Scahill,[97] the defendant was an arborist who had been engaged by a company on behalf of the owner of land to cut down two trees. Preston CJ said (underlining added, citations omitted):[98]
There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development ...
... Persons and corporations engaged in demolition, excavation, and building and development work need to be warned by the sentence imposed by courts in cases involving unlawful demolition, excavation, and building and development work that all necessary consents must be obtained and complied with ...
So too, persons and corporations involved in arboricultural and landscaping businesses and industries have to be aware of the obligation to ascertain the laws and the controls applicable ...; to obtain any necessary consent; and to undertake work ... in accordance with the applicable laws, controls and consents. ...
121 The NSW Decisions explained the desirability of placing the onus on those carrying out works to ensure their conduct is lawful. It was noted that the effectiveness of the system of planning control would be reduced if persons were to carry out developments without ensuring that necessary development consent had been obtained. It was noted that the regime was designed to ensure that persons take proper steps to ascertain the lawfulness of their proposed conduct; to give effect to the system of planning controls.
122 In [14] of his reasons, the learned magistrate cited M v Shire of Kalamunda[99] in support of his conclusion that '[i]t is accepted the landowner has the primary duty of ensuring that work is not carried out without the requisite development approval; the owner may delegate that duty to a contractor, such as a demolition contractor.' As noted earlier, the Accused's counsel (not counsel in the appeal) had incorrectly submitted that that case was authority for this proposition.
123 In M v Shire of Kalamunda, Hill J dismissed an appeal against a conviction of carrying out demolition work without a permit, contrary to s 10 of the Building Act.
124 Hill J did not find that the owner had the primary duty of obtaining a permit, nor that another person would only be liable if that duty had been delegated to them. To the contrary, her Honour found at [61]:
The statute does not impose liability on a party by reason of that party's status as an occupier of land or holder of a licence. Rather, the parties on whom the section imposes liability are not limited to a particular class of persons. In addition, the section does not generate a special responsibility or particular duty on the owner to ensure that a demolition permit is issued.
125 In the next paragraph, [62], her Honour said she considered that the doctrine of vicarious liability applied to prosecutions under s 10 of the Building Act. In explaining why she had reached that conclusion, her Honour observed that '[t]he primary duty of ensuring [a demolition permit is obtained] will usually be on the owner of the land'.[100] In the context of what her Honour had written in the previous paragraph, this observation was plainly a factual observation, not a statement as to who could be liable under s 10. Her Honour concluded that the owner in that case should have been convicted, on the basis of s 7(a) of the Criminal Code (WA), of a breach of s 10 of the Building Act due to his vicarious liability for the acts of the contractor.
126 This aspect of her Honour's decision was overturned on appeal. In MKP Management Pty Ltd v Shire of Kalamunda,[101] the Court of Appeal said that the criminal responsibility of a body corporate under s 7(a) is direct, not vicarious.
127 However, like Hill J, the Court of Appeal did not say the owner had the primary duty of obtaining a permit, nor that another person would only be liable if that duty had been delegated to them. On the contrary, it said:[102]
Section 10(a) prohibits '[a] person' from doing demolition work unless a demolition permit is in effect for the demolition work. Other provisions of the Building Act, including s 16(b), s 25 and s 28, refer to the owner of the land on which demolition work is proposed to be done. The Act distinguishes between the owner of the land and the demolition contractor in the context of demolition work. The text of s 10(a) is unambiguous. The prohibition is imposed on '[a] person'. If a person does demolition work and a demolition permit is not in effect for the demolition work then the person commits an offence under s 10(a). The prohibition in s 10(a) is not directed to or imposed upon the owner (in the owner's capacity as owner) of the land on which demolition work is proposed to be done.
... Section 10(a) does not, on its proper construction having regard to the Building Act as a whole, impose a liability or duty, by reference to the owner of the land, to ensure that a demolition permit is obtained. Section 10(a), on its proper construction having regard to the Building Act as a whole, imposes that liability or duty on the person who is proposing to do the demolition work. Any accessorial liability for the owner in respect of demolition work done by a person contrary to s 10(a) is imposed by the Code and not by the Building Act.
128 Neither party drew the learned magistrate's attention to the Court of Appeal decision in MKP Management.[103] Neither party referred to it in their written submissions in this appeal. Prior to the hearing of the appeal, on 10 May 2021, I drew the parties' attention to it. During the hearing of the appeal, the Accused acknowledged that there was very little difference between cl 60 of the Deemed Provisions and s 10(a) of the Building Act.[104]
129 As noted earlier, I will later analyse the elements of cl 60 and its purpose. That analysis will confirm that it has similar elements to s 10(a) of the Building Act.
130 Further, like the Building Act, the Deemed Provisions also specifically refer to the 'owner' of land in some provisions.[105] The Deemed Provisions also refer to 'developers' in some provisions.[106]
131 Accordingly, while there are some differences between the two regimes, the similarities mean that MKP Management is of assistance in the construction of cl 60 of the Deemed Provisions.
132 The Accused did not dispute that a landowner is not the only person who can seek approval and is not the only person who can be prosecuted.[107] It contended, however, that the proper construction of cl 60 must be considered in light of cl 62. As noted earlier, cl 62 requires an application for development approval to have been signed by the landowner. The Accused submitted that this requirement 'evinces legislative intent for the owner of land to bear primary responsibility for obtaining development approval.'[108]
133 The Accused was correct to submit that the construction of cl 60 should be considered in the light of cl 62. It should be considered in the light of all of the relevant provisions in the Deemed Provisions and the Planning Act.
134 In my view, the fact that an application for development approval must be signed by the landowner does not cast light on the range of persons who are liable for doing works without necessary development approval, nor does it suggest that anyone has 'primary liability'. In my view, it is to be expected that the relevant local authority would not want to give development approval without confirmation that the owner wanted it. The fact that an application for development approval must be signed by the landowner does not suggest that the landowner is the only person who would be liable for works done if necessary development approval was not obtained. Indeed, the Accused conceded cl 60 was not so limited.[109]
135 This conclusion is supported by MKP Management.[110] Section 16 of the Building Act requires, among other things, an application for a permit to be signed by each owner of the land. This was expressly noted by the Court of Appeal.[111] Although this was noted in a different context, it did not cause the Court of Appeal to conclude that the owner had 'primary responsibility' for obtaining development approval (or that anyone did).
136 Having had his attention drawn by the court to MKP Management, counsel for the Accused conceded during the appeal hearing that the similarity between s 10 of the Building Act and cl 60 of the Deemed Provisions meant that there was a 'powerful argument to support the construction that person in cl 60 means any person proposing to commence, carry out works or use land'. However, he said that he did not have instructions to concede the point.[112]
137 The Accused maintained its argument in relation to 'works'.
138 In its written submissions, the Accused repeatedly referred to the obligation to 'seek' development approval.[113] The Accused pointed out, for example, that it would not make sense for the law to require every constituent step within a greater whole to require a separate development application,[114] or to require every such person who carried out a constituent step to seek approval.[115]
139 I do not accept that the City's construction would require this. I will explain this further below.
140 The Accused also contended that, on the City's construction, 'the onus is on every supply contractor to assess whether its delivery amounts to development'.[116]
141 Again, I do not accept this. The supply of most goods could not possibly come within the definition of 'works'. It would really only be the supply of goods which could result in some change to the nature of the land, such as a large quantity of soil. A person supplying fridges would not be uncertain as to whether the supply constituted 'works'.
142 During the hearing, counsel for the Accused clarified his argument as being as follows:[117]
1. if a person does works on the land which would, of itself, require development approval;
2. but those works are part of larger works being done on the land by someone else (the Overall Developer);
3. only the Overall Developer can be guilty of breaching cl 60 if development approval is not obtained.
143 The Accused's construction would mean that, where a large scope of works was being conducted by an Overall Developer involving multiple different entities, only the Overall Developer would be liable if development approval was not obtained. This would be so even if the conduct of an individual entity would, of itself, have involved 'works' within the meaning of cl 60. This would mean that an entity operating in the building and construction industry who was not the Overall Developer would have no need to check that approval for its works had been obtained, unless it was the only entity doing the entirety of the works (which is unlikely in practice).
144 This, in my view, would not promote the purpose of cl 60. Clause 60 is aimed at ensuring that no one does works unless the necessary approval has been obtained.
145 In my view, the only issue that arises on the plain meaning of cl 60 is whether it prohibits a person from carrying out works unless that same person has obtained development approval. This issue arises because the introductory words of cl 60 refer to 'a person' while par (a) refers to 'the person'.
146 In the context of the clause, the rest of part 7, part 8, the legislative regime as a whole, and the purpose of this aspect of the regime, I consider it does not mean that. It would be an absurd construction. Neither party contended this was the proper construction. The Accused accepted that, had the owners obtained development approval, the Accused would not have breached cl 60 by doing the works even though the Accused itself had not obtained that approval.[118]
147 With that qualification, the plain meaning of cl 60 (read with s 218(a) of the Planning Act) is that the elements of the relevant offence are:
1. a person has carried out works on land;
2. there was no development approval for those works;
3. the works were not of the type referred to in cl 61.
148 On this construction, cl 60 will capture all those who carry out works on land which would fall within the definition of 'works', regardless of whether the works done by that person are part of a larger scope of works which would also fall within that definition. On this construction, no one has the 'primary' responsibility for obtaining development approval. Rather, anyone who does such works when there is not the necessary approval will commit an offence.
149 Contrary to the Accused's submissions, this construction would not require a separate development application for every constituent step within a greater whole. Nor would it require every such person who carried out a constituent step to seek approval. Provided works were covered by development approval, obtained by any person, cl 60 would not be breached.
150 This construction would promote the purpose of cl 60, by putting the onus on the person doing works to ensure there is development approval before they do those works.
151 This construction is consistent with the Court of Appeal's approach in MKP Management to s 10(a) of the Building Act.
152 This construction is also consistent with the New South Wales courts' approach to the New South Wales planning regime.
153 Accordingly, in my view, the magistrate erred in his construction of cl 60.
154 Before leaving this point, it should be noted that magistrates face a very high volume of work, and should be able to rely on counsel to provide accurate and helpful submissions on the law. In this case, the magistrate was misled (no doubt through miscomprehension rather than dishonesty) by the submissions of the Accused. The problem was compounded by the City's failure to correct the incorrect submissions.
155 This is regrettable.
156 The City asserts that, if it is right about the proper construction of the legislative regime, the findings made by the magistrate mean that the Accused ought to have been convicted.
157 The Accused disputes this, submitting that the magistrate did not find that the Accused's Works (i.e., the works done by the Accused, as distinct from the entirety of the works) required development approval. I have already explained[119] why I am satisfied that his Honour did find that the Accused's Works required development approval.
158 On a proper construction of the legislative regime, the findings made by his Honour should have resulted in the Accused being convicted.
159 At the end of its written submissions in relation to the remaining ground in the Notice of Contention (which relates only to the third charge), the Accused submitted that, even if the ground of appeal is upheld, the appeal in relation to all three charges should be dismissed on the basis that there would be no miscarriage of justice. The Accused submitted that this is because there was no proof that it knew how the fill was to be used and no evidence to show 'sufficient' permanence.[120]
160 I do not accept this. The City did not need to prove that the Accused knew how the fill was to be used. Further, as I will later explain, I consider that the Accused's activities caused a permanent alteration in the land in each case. In any event, any degree of permanence is simply one factor in the assessment as to whether the works constituted a development.
Analysis of notice of contention: no proof of 'works' in third charge161 In the notice of contention, the Accused asserted that the evidence and findings were insufficient to prove the third charge. In short, the Accused asserted that there was no finding that the Accused had done anything more than deliver piles of sand, nor was there evidence to support such a finding.
162 During the hearing, counsel for the Accused acknowledged that it was not necessary for the magistrate to expressly make a finding as to what the Accused had done. This was because there was an agreed statement of facts which set out what the Accused had done, and the magistrate had effectively incorporated those facts into his reasons.[121]
163 The Accused's ultimate position was that what the Accused had done in relation to the third charge could not constitute 'works' within the meaning of the statutory regime.
164 In relation to the third charge, the Agreed Facts were relevantly:
1. In response to the [Accused's] advertising, the owner of [number redacted] Toodyay Road [Land] ordered some fill from the [Accused]. The owner ... decided how much fill he wanted to be delivered, and when, where and how it was to be deposited by the [Accused] on his land.
2. Over a number of weeks in February 2018, 2,417 tonnes of clay and sand fill from the Jane Brook subdivision works was delivered by the [Accused] to [the Land]. The fill was not delivered every day during that period.
3. The deposited material was used by the owner ... to establish earth bunds near the front boundaries of the property, to reduce the noise from the cars that travel on Toodyay Road at the front of the property. The owner also wanted to increase privacy on his property.
4. The owner ... was present when the fill was delivered by the [Accused], and the owner personally directed the [Accused] where to deposit the fill on the land.
5. After the [Accused] had deposited the fill in piles at the location of the owner's proposed bunds, the owner ... completed the bund works himself including creation of finished bund levels and compaction using water and vibration roller.
165 Exhibit 1 in the trial was a series of aerial photographs showing the three properties (Photos). It is not clear that it would be possible from those Photos to determine the areas over which the fill was piled for the proposed bunds. More importantly, the Photos were not put forward as representing an agreed position that all of the fill shown could be 'directly attributable' to the Accused.[122] Accordingly, the Photos cannot be treated as evidence which showed what the Accused did.
166 As noted earlier, the Court of Appeal in IVO Nominees explained that whether an activity amounted to a 'development' is a question of fact to be determined having regard to the degree of physical alteration of the land, the degree of permanence of the alteration and all of the circumstances.
167 Assessing the degree of physical alteration of the land requires an evaluation of all of the relevant circumstances, including the amount of fill.
168 The Accused submitted:[123]
Perhaps from the quantity of fill and area roughly spread over, that for charges 1 and 2 paras [2.3] and [3.3] the Court could have drawn inference that the land was sufficiently altered physically. That the [sic] inference is less clear for charge 3, given the smaller quantity of fill.
169 Charge 1 involved 11,418 tonnes covering approximately 1 hectare (10,000 square meters) of the land. Charge 2 involved 8,184 tonnes covering approximately 4,000 square meters of the land. Charge 3 involved 2,417 tonnes which the Accused deposited in piles at the locations of the proposed bunds.
170 I do not accept that the larger the area over which the fill was spread, the greater the degree of physical alteration will necessarily be. Depending on all of the circumstances, an activity in which fill was spread over a large area that barely altered the height of the land may not be 'works' while the same fill over a smaller area but at greater heights may be. It will always depend on all of the circumstances and the scope and nature of the activity being considered.
171 During the hearing, counsel for the Accused pointed out that there was no evidence as to the height at which the Accused had deposited the fill. He pointed out that the Accused may simply have deposited the fill in a circular area and that the owner raised the fill into the heights required for the bunds.[124]
172 I accept this. Nevertheless, the quantity in charge 3 was 2,417 tonnes. This equates to 2.417 million kilograms. To use the ends of the scale in the example given by Street J in Parramatta City Council, this was far short of the amount that would be needed to build up a large sports ground or oval, but greatly exceeded what would be required to construct a small earth pocket in a private garden in which to plant a shrub.
173 The Accused contends that its acts in relation to each charge did not have any degree of permanence as the owners later altered what was deposited.[125] The Accused also contends that the degree of permanence was less in relation to the third charge because, being a lesser quantity of fill, it would have been easier to move.[126]
174 In relation to the first contention, I do not accept that the assessment of the degree of permanence is limited to whether the fill deposited was moved by another person. The word 'development' in its defined sense denotes an activity rather than the product of an activity.[127]
175 Similarly, in relation to the second contention, the fact that the quantity would have been easier to move does not mean it had less permanence. There is nothing to suggest that any of the fill was removed from the land or that it would be subject to erosion. It was therefore permanently on the land.
176 Further, in Teissier, Le Miere J held that the magistrate had been correct to find that the deposit of the fill constituted a 'development' for which the respondent's approval was required. The Accused did not seek to persuade me that his Honour was plainly wrong.[128]
177 Determining whether activities constitute 'works' will always be a question of fact, but it is an evaluative one involving questions of degree. It is conceivable that reasonable minds may differ as to the degree to which each factor exists and the weight to be given to each factor.[129]
178 Having regard to the factors identified in IVO Nominees, I consider it was plainly open to the magistrate to find, as he did, that the Accused's Works in relation to the third charge were works requiring development approval. Indeed, during the hearing of the appeal, the Accused conceded it was open to the magistrate to so find.[130]
179 Accordingly, the notice of contention fails.
Conclusion180 I would grant leave to appeal and allow the appeal.
181 I will hear from the parties as to the appropriate orders.
I
certify that the preceding paragraph(s) comprise the reasons for decision of the
Supreme Court of Western Australia.
AG
Research Associate to the
Honourable Justice Archer
18 AUGUST 2021
[1]
See the transcript of the appeal hearing
(Appeal Transcript) pages 62 -
63.
[2]
Appeal Transcript pages 67 -
68.
[3]
This section reproduces or draws on statements I have made in other judgments.
[4]
Criminal Appeals Act 2004 (WA) s
8(1).
[5]
Criminal Appeals Act s
9(1).
[6]
Criminal Appeals Act s
9(2).
[7]
Samuels v The State of
Western Australia [2005] WASCA 193; (2005) 30 WAR 473
[56].
[8]
Criminal Appeals Act s
9(3).
[9]
Strahan v Brennan
[2014] WASC 190 [89] ‑
[90].
[10]
Strahan
[90].
[11]
Criminal Appeals Act
s 14(2).
[12]
Ninyette v Holmes
[2015] WASC 287
[65]; WS v Gardin
[2015] WASC 97; (2015) 48 WAR 494 [239] ‑ [241]. See
also Baini v R
[2012] HCA 59; (2012) 246 CLR 469 [28] ‑ [33];
Lee v R [2014] HCA
20; (2014) 253 CLR 455 [46] ‑ [48] and
Kalbasi v The State of
Western Australia 
[2018] HCA 7 
; (2018) 264 CLR 62 [12] ‑
[16].
[13]
Prior v Kemp [2001] WASCA
363 [150] (Templeman J) in relation to a relevantly identical provision
in the Justices Act 1902 (WA) s
199(3). This statement of the scope of s 199(3) was applied to s 14(3) in
Drage v Pitts [2007] WASC 203
[34] ‑ [35]. See also
Bennett v
Carruthers [2010] WASCA
131 [39] and ACN 158
148 951 Pty Ltd v Prout [2019] WASCA 59
[54].
[14]
See ss 256 and 257B of the Planning
Act and reg 10 of the
Regulations.
[15]
Accused's Written Submissions dated 9 October 2020
(Accused's Trial Submissions)
[3].
[16]
See, in particular, Accused's Trial Submissions [10(a)], [26], [28], [31], [32],
[36], [42]. See also the Accused's Trial Submissions
at [56] - [59] in relation
to M v Shire of
Kalamunda [2019] WASC 340. See also Appeal Transcript pages 12 - 14.
[17]
Transcript of the trial on 15 October 2020
(Trial Transcript) page
41.
[18]
Trial Transcript pages 41,
44.
[19]
Trial Transcript page
44.
[20]
See, in particular, the Accused's Appeal Submissions [28] and [95].
[21]
Appeal Transcript pages 68 and 70 - 71.
[22]
See, in particular, Accused's Trial Submissions at [2], [3], [7], [9] -
[10].
[23]
Trial Transcript page
38.4.
[24]
See, in particular, the references in the previous two footnotes and the Trial
Transcript pages 41.10 - 42.2. See also pages 2.10
-
3.2.
[25]
See Blair v County Court
of Victoria [2005] VSC 213 [27]. See also
Burgoyne v Earl
[1999] WASCA 154
[11].
[26]
M v Shire of
Kalamunda [2019] WASC
340.
[27]
Accused's Trial Submissions [28]. See also [56] - [59] and Trial Transcript
page
37.
[28]
Respondent's Outline [of written submissions] dated 28 April 2021
(Accused's Appeal Submissions) [11],
[15].
[29]
Accused's Appeal Submissions
[18].
[30]
Accused's Appeal Submissions
[16].
[31]
Accused's Appeal Submissions [19] -
[22].
[32]
See, in particular, the Accused's Appeal Submissions [28].
[33]
Appeal Transcript pages 70 - 71. See also page 68 in relation to the withdrawal
of this point in the notice of
contention.
[34]
See the Accused's Appeal Submissions [49] - [80] and Appeal Transcript pages 15
- 17, 25, 48 - 50.
[35]
Accused's Appeal Submissions [12] - [17].
[36]
Appeal Transcript page
19.
[37]
See, for example, the word 'that' in the Prosecutor's Written Submissions dated
8 October 2020 (City's Trial
Submissions) [13] and the reference to the owners completing the works in
[16].
[38]
See the City's Trial Submissions [14] -
[19].
[39]
City's Trial Submissions
[14].
[40]
City's Trial Submissions
[15].
[41]
See the Trial Transcript pages 12 - 14 and 42 -
43.
[42]
See the Agreed Facts [2.6] and
[4.7]
[43]
See, for example, the Trial Transcript pages 35 -
38.
[44]
Trial Transcript page
37.5.
[45]
See the Appeal Transcript page 24. In relation to whether the Accused had
understood the case at trial as being that the works were
the entirety of the
works, counsel for the Accused in the appeal said he could not 'put positively
one way or the other that it was
understood in that precise fashion.'
[46]
See the magistrate's reasons at [2], [6], [10]. See also the Trial Transcript
page
37.3.
[47]
See the Accused's Appeal Submissions, in particular [21], [57] - [58], [64] -
[67] and Appeal Transcript pages 16 -
17.
[48]
Appeal Transcript page
29.
[49]
See Appeal Transcript page 30. See also pages 28 - 31 and
52.
[50]
Trial Transcript page 36. Counsel went on to explain why he contended that the
Accused was nevertheless not liable saying, in effect,
that as the landowners
did further works on the land, the 'works' for the purposes of cl 60 had to be
the entirety of the works done
on the land. See also Trial Transcript page
37.
[51]
Trial Transcript page
42.
[52]
See Trial Transcript page
45.
[53]
Mohammadi v Bethune
[2018] WASCA 98 [31]. See also [32] ‑
[36].
[54]
See under the heading 'The Magistrates Court proceedings' under the subheading
'The charge and statutory
framework'.
[55]
By s 32(2) of the Interpretation Act
1984 (WA), marginal notes and footnotes shall not be taken to be part of
the written law, so have been omitted from the above extract.
[56] See cl 62(1)(b) of the Deemed Provisions.
[57] See, particularly, Appeal Transcript pages 3, 43.
[58]
Defined in s 4(1) of the Planning
Act.
[59]
See s 44(1) of the Interpretation
Act.
[60]
Bright Image Dental Pty
Ltd v City of Gosnells [2018]
WASCA
134.
[61]
Bright Image Dental
[108],
[110].
[62]
While not in issue in the case, the Court of Appeal in
City of Swan v Bayblue
Holdings Pty Ltd [2015] WASCA
227 assumed the defined meaning applied in s 214 of the
Planning
Act.
[63]
Bright Image Dental
[107].
[64]
Teissier v City of
Rockingham [2014] WASC
158.
[65]
Teissier
[3].
[66]
Teissier
[16].
[67]
Parramatta City Council v
Shell Co of Australia Ltd [1972] 1 NSWLR
483.
[68]
As his Honour then
was.
[69]
Parramatta City
Council,
489.
[70]
Teissier
[20].
[71]
Appeal Transcript pages 41 -
42.
[72]
Teissier
[20].
[73]
Bright Image Dental Pty
Ltd v City of Gosnells [2018]
WASCA
134.
[74]
Bright Image Dental
[107].
[75]
Shire of Murray v IVO
Nominees Pty Ltd [2020] WASCA
45.
[76]
IVO Nominees
[41].
[77]
Paolucci v Town of
Cambridge [2013] WASC
50.
[78]
Accused's Appeal Submissions
[89].
[79]
In 2017, the NSW Planning Act was
amended, altering the numbering of the legislation, but the substance of what
had been the effect of s 125(1) was not
altered.
[80]
Ibid. The substance of what had been the effect of s 76A(1) was also not
altered by the amendments.
[81]
Appeal Transcript pages 68 -
69.
[82]
Appeal Transcript page
69.
[83]
Appeal Transcript pages 46 -
47.
[84]
Appeal Transcript page
69.
[85]
Mosman Municipal Council v
Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
(Menai
Excavations).
[86]
Menai Excavations
[32] -
[35].
[87]
Section 10 of the Crimes (Sentencing
Procedure) Act 1999 (NSW) permits a court which found a person guilty of
a charge to dismiss the charge and conditionally discharge the
person.
[88]
Willoughby City Council v
P & V Masonry Pty Limited [2003] NSWLEC 312
(P & V
Masonry).
[89]
P & V Masonry
[41] -
[42].
[90]
P & V Masonry
[43] -
[44].
[91]
Section 164 of the Planning Act. See
also the discussion of appeal ground 2 in
Bright Image
Dental.
[92]
P & V Masonry
[51].
[93]
P & V Masonry
[50].
[94]
Blue Mountains City
Council v Carlon [2008] NSWLEC 296
(Carlon).
[95]
Carlon
[70].
[96]
As noted in an earlier footnote, s 10 of the
Crimes (Sentencing Procedure) Act 1999
(NSW) permits a court which found a person guilty of a charge to dismiss the
charge and conditionally discharge the
person.
[97]
Pittwater Council v
Scahill [2009] NSWLEC 12
(Scahill).
[98]
Scahill [46] -
[48].
[99]
M v Shire of
Kalamunda [2019] WASC
340.
[100]
M v Shire of Kalamunda
[62].
[101]
MKP Management Pty Ltd v
Shire of Kalamunda [2020] WASCA 130; (2020) 56 WAR 56
[76].
[102]
MKP Management
[112] -
[113].
[103]
It was published two months before the
trial.
[104]
Appeal Transcript page
48.
[105]
Including in Parts 7 and 8. It is defined in cl
1.
[106]
See, for example, cl 74(1). 'Developer' is defined in cl
78D(1).
[107]
Accused's Appeal Submissions
[43].
[108]
Accused's Appeal Submissions
[51].
[109]
See, for example, the Accused's Appeal Submissions
[43].
[110]
The relevant passages were set out
earlier.
[111]
MKP Management [8],
[32].
[112]
Appeal Transcript page
15.
[113]
See, in particular, the Accused's Appeal Submissions [21(b)], [50(c)], [71(b)],
[73(b)],
[82].
[114]
Accused's Appeal Submissions
[59].
[115]
See, in particular, the Accused's Appeal Submissions
[71(b)].
[116]
Accused's Appeal Submissions
[76].
[117]
Appeal Transcript pages 48 - 50.
[118] See Appeal Transcript page 14.
[119]
See the discussion under the heading 'Preliminary
issues'.
[120]
Accused's Appeal Submissions
[100].
[121]
Appeal Transcript pages 64 -
65.
[122]
See Trial Transcript page
5.
[123]
Accused's Appeal Submissions footnote
15.
[124]
Appeal Transcript page
35.
[125]
Appeal Transcript page
74.
[126]
Appeal Transcript page
74.
[127]
Bright Image Dental
[107].
[128]
Appeal Transcript page
39.
[129]
This was accepted by the Accused - see Appeal Transcript page
13.
[130]
See Appeal Transcript page 73.
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