Bolton v Perry
[2001] WASCA 144
•4 MAY 2001
BOLTON -v- PERRY [2001] WASCA 144
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 144 | |
| Case No: | SJA:1244/2000 | 9 MARCH 2001 | |
| Coram: | WHEELER J | 4/05/01 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | ALLAN WILLIAM BOLTON WILLIAM THOMAS PERRY |
Catchwords: | Justices Act Appeal Error of law Irrelevant evidence presented to Magistrate Local government Application for planning consent and building licence Development Use Interpretation of instruments Particular words, phrases and matters of instruments Shire of Greenough Town Planning Scheme No 4 "Development" "Use" No new point of principle |
Legislation: | Local Government (Miscellaneous Provisions) Act 1960 (WA) Town Planning and Development Act 1928 (WA) s 10(4) |
Case References: | Daniele v Shire of Swan (1998) 20 WAR 164 Esther Investments v Dawson (1986) 62 LGRA 53 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
WILLIAM THOMAS PERRY
Respondent
Catchwords:
Justices Act - Appeal - Error of law - Irrelevant evidence presented to Magistrate
Local government - Application for planning consent and building licence - Development - Use
Interpretation of instruments - Particular words, phrases and matters of instruments - Shire of Greenough Town Planning Scheme No 4 - "Development" - "Use"
No new point of principle
Legislation:
Local Government (Miscellaneous Provisions) Act 1960 (WA)
(Page 2)
Town Planning and Development Act 1928 (WA) s 10(4)
Result:
Appeal allowed
Representation:
Counsel:
Appellant : Mr I A Morison
Respondent : Mr D L Armstrong
Solicitors:
Appellant : Glynn & Gray
Respondent : Altorfer & Stow
Case(s) referred to in judgment(s):
Daniele v Shire of Swan (1998) 20 WAR 164
Case(s) also cited:
Esther Investments v Dawson (1986) 62 LGRA 53
(Page 3)
- WHEELER J:
The complaint
1 The appellant was charged that on 23 November 1999 and thereafter he "did use a building on land … as a caretaker's residence without the prior approval in writing of the Council of the Shire of Greenough and thereby contravened or failed to comply with the provisions of the Shire of Greenough Town Planning Scheme No 4 contrary to s 10(4) of the Town Planning and Development Act 1928". An application to amend was made at the commencement of the trial, and over the opposition of counsel for the appellant, his Worship inserted after the word "residence" the words "without prior application in writing and".
2 By way of background, it appears that the appellant was the registered proprietor of the land in question. In 1993 he made application to the Shire of Greenough for planning consent and for the issue to him of a building licence to construct and use on the land a concrete manufacturing shed, which shed was duly constructed after the issue of relevant approvals. At some time prior to 1995 what has been described as a "residence" or "living quarters" was apparently constructed on the land and the appellant and his family moved into it. The evidence suggests that no building licence issued, and it may well be that no building licence was applied for, in respect of that building. If that was so, it would appear that the construction of the building would have been in breach of s 374(1) of the Local Government (Miscellaneous Provisions) Act 1960, and the occupation of it by the appellant, a contravention of s 374(3). However, pursuant to the Local Government Act 1995, s 9.25(2), the time limit for prosecutions in respect of such offences is two years, so that a prosecution in relation to the building pursuant to s 374 would not now be possible.
3 This prosecution, however, is not in relation to the construction of the residence, but its use. The respondent's case against the appellant relied upon cl 6.1.1 of Town Planning Scheme No 4, which is the scheme referred to in the complaint. The first three of the grounds of appeal in effect assert that this clause is concerned only with "development" in the sense of construction, and not with an extended meaning of development which encompasses "use", so that the act alleged could not have breached the Scheme.
4 In order to understand the respective arguments of the appellant and respondent, it is necessary to refer in some detail to the Town Planning
(Page 4)
- Scheme. Some provisions I propose to quote verbatim, while others can conveniently be summarised.
Town Planning Scheme No 4 and "development"
5 Clause 1.8, which is headed "Interpretation" provides that, unless the context otherwise requires, the words in the Scheme have the meanings given to them in Appendix VII. In that appendix, the word "development" is defined as:
"Has the meaning assigned to it by the [Town Planning and Development] Act which is as follows:
'Development' means the use or development of any land and includes the erection, construction, alteration or carrying out, as the case may be, of any building, excavation or other works on any land."
7 Part II of the Scheme is headed "Control of development and use of land" (which appears to suggest that, in that context at least, development and use are separate concepts). This part is concerned with zoning. It sets up a variety of different zonings and sets out the uses permitted in each zone, as is usual in such schemes. Evidence as to the zoning of this property was given at trial and was conceded by counsel for the respondent to be given merely by way of "background" although, as will be seen, it appears that his Worship regarded that evidence as having somewhat more significance.
8 Part VI is headed "Administration" although it is apparent that, as the appellant suggests, it draws together a number of different concepts. It contains the following provisions:
"6.1 APPLICATION FOR PLANNING CONSENT TO COMMENCE DEVELOPMENT
6.1.1 A person who desires to commence development for land for any purpose shall make application to the Council for planning consent to commence development before applying for a building
(Page 5)
- licence. The application shall be in the form and contain the particulars referred to in the form in Appendix VI.
- 6.1.2 Unless Council agrees otherwise the site plan accompanying an application to the Council for planning consent to commence development shall:
(a) indicate the position and describe the type of all existing buildings and improvements on the site and indicate those which are to be removed;
(b) indicate the position and describe the buildings and improvements proposed to be constructed on the land;
(c) indicate the position and describe the type and height of all existing trees on the site;
(d) indicate which of such trees are to be retained and those to be removed;
(e) indicate the areas to be landscaped;
(f) indicate the layout and location of areas of pedestrian use and the area to be developed by natural planting;
(g) indicate the type of shrubs, trees and other plants to be planted;
(h) indicate details of any proposed alterations to the natural contour of the area;
(i) indicate details of the types of screening to be used to screen from public view areas not surrounded by buildings; and
(j) indicate what car parking areas are to be landscaped and held in reserve until required.
- 6.2 APPLICATIONS FOR SPECIAL APPROVAL
(Page 6)
- 6.2.1 Unless it decides to reject the application, the Council shall in the case of an application for permission to carry on a use marked AP in the Zoning and Development Table and may in the case of an application for permission to carry on a use marked PS in that Table or in any other case in which application is made for its approval give notice of the application in accordance with the provisions of this
6.2.2 Where the Council is required or decides to give notice of an application the Council shall cause:
(a) notice of the proposed use and development to be sent by post or delivered to the owners and occupiers of land within an area determined by the Council as likely to be affected by the granting of the application;
[(b) and (c) also refer to notices]
…
- 6.3 MATTERS TO BE CONSIDERED BY THE COUNCIL
6.3.1 In making its decision on an application for its approval the Council shall take into consideration the following matters:
(a) the provisions of this Scheme and of any other town planning scheme affecting the land the subject of the application or affecting land in the vicinity;
(b) the nature of the proposed development in relation to the development of any land within the vicinity thereof;
(c) the size, shape and character of the parcel of land to which the application relates and the nature and siting of the proposed building, the view from the building and
(Page 7)
- the interruption of view likely to be caused by the proposed building;
- [together with a variety of other matters set out in sub-paragraphs (d) - (j)]
- …
6.4 COUNCIL DECISIONS
6.4.1 The Council may grant planning consent to commence development or its special approval with or without conditions or may refuse to grant its consent or approval to the application.
…
6.5 ADVISORY PANEL
6.5.1 The Council may from time to time appoint Advisory Panels to advise the Council on matters as they arise relating to buildings, the general appearance of buildings, the design and appearance of buildings in relation to the amenity of the area, and other matters referred to an Advisory Panel by the Council.
…
6.6 POWERS OF COUNCIL
6.6.1 In the conduct and management of the Scheme the Council has, in addition to all other powers vested in it, the following powers:
(a) by its officers, employees, agents or contractors to enter and inspect any land or building within the Scheme Area at a reasonable time;
(b) to enter into agreements and arrangements with any of the owners of land within the Scheme Area;
(Page 8)
- (c) to acquire land or buildings with the Scheme Area subject to the provisions of clause 6.6.2 of this text; and
(d) to sell or dispose of any land it has acquired.
- …
- 6.7 ENFORCEMENT
6.7.1 No person shall use any land or any building or structure thereon contrary to or otherwise than in accordance with the provisions of the Scheme.
6.7.2 If pursuant to the provisions of the Scheme planning consent to commence development or an approval has been granted by the Council upon conditions no person shall commit a breach of any of those conditions.
…
6.8 RELAXATION OF STANDARDS
If a development the subject of an application for planning consent does not comply with a standard or requirement prescribed by the Scheme applicable thereto or if the development is not listed among the permitted uses for that zone in the Zoning and Development Table, the Council may if it is satisfied that:
(a) if approval were granted, the development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality; and
(b) the non-compliance will not have an adverse effect upon the occupiers or users of the development of the property in, or the inhabitants of, the locality or the likely future development of the locality;
…
(Page 9)
- 6.9 CLAIMS FOR COMPENSATION AND BETTERMENT
…
6.11 TOWN PLANNER'S AUTHORITY
6.11.1 In this clause the 'Town Planner' means the person appointed to the office of Town Planner of Planning Officer of the Shire of Greenough.
6.11.2 The authority to grant planning consent to commence development and to impose conditions on that consent is hereby conferred on the Town Planner in the case of an application made pursuant to and in accordance with clause 6.1.1 which:
(a) is in respect of a use or proposed use that:
(i) is permitted under the Scheme if it complies with the relevant development standards contained in this Scheme Text and in the Zoning and Development Table; and
(ii) does so comply with those standards; and
…"
10 I have already referred to the heading of Part II of the Scheme. So far as Part VI is concerned, there are competing indications. The appellant points to the words of cl 6.1.1, which requires an application to commence development to be made "before applying for a building
(Page 10)
- licence". It is pointed out, not unreasonably, that the assumption appears to be that a building licence will be required in each case and it follows from this that what is contemplated by that clause is development in the narrow sense of building. Clause 6.1.2 and the prescribed form are said to reinforce this indication, since they refer to requirements to, inter alia, "describe the buildings and improvements proposed" for the land. Clause 6.2.2 uses the terms "use" and "development", which again suggests that the concepts are distinct.
11 However, there are a number of indications that development is intended to encompass use in Part VI. First, cl 6.2 and its sub-clauses are concerned with applications which are plainly applications for permission to carry on various uses referred to in the zoning and development table. Neither in Part II nor in cl 6.2, is any form of application or application procedure prescribed. Indeed, the only application procedure which could conceivably be relevant is that set out in cl 6.1.1. The competing views are either that the Scheme has provided for a system of Council approvals in respect of uses referred to in the zoning table without any procedure being prescribed for the making of applications for that approval or, alternatively, that the procedure prescribed in cl 6.1.1 is intended to encompass applications in respect of those uses, with the consequence that the consent to commence "development" there referred to must encompass a consent to commence a particular use. The latter view seems more plausible. In addition, cl 6.8 refers to the situation which arises where there is an application for planning consent for development and "the development is not listed among the permitted uses" for the relevant zone. This appears to assume an identity between the concept of development and the concept of use. Clause 6.11, which grants the Town Planner the authority to grant consent to commence development in respect of certain uses, also tends to indicate that the concept of development encompasses the concept of use, although it is perhaps capable of being explained in a variety of ways.
12 Although the Scheme is extremely difficult to read as a coherent whole, the indications to which I have referred suggest that the better view is that cl 6.1.1 is intended to refer to development in its extended sense, that is, as encompassing "use". The reference to the building licence is to be understood as providing that, where the development is one which would require the issue of a building licence, an application for planning consent to commence development is to be made before the application for such a licence is made.
(Page 11)
Did the appellant obtain approval?
13 The next three grounds of appeal deal with a letter of 21 December 1995 to the appellant and its consequences. There is among the exhibits only an office copy of the letter. The relevant officer for the purposes of inquiries or reference appears to be a Mr Nagel, but the letter purports to be signed by the Shire Clerk. It reads as follows:
"FINAL INSPECTION - LOT 100 FOSKEW WAY, NARNGULU
Please be advised that a final inspection of the living quarters constructed on the abovementioned property was carried out on Tuesday 19 December 1995.
Please be advised that the building (Class 1) has been approved for occupation as it has been constructed in accordance with the Building Code of Australia 1990.
The above reference should be quoted regarding any queries or correspondence relating to this matter."
14 In relation to this letter, it is submitted either that it demonstrates that approval was given for the use of the building as a residence, and that it follows that, in the absence of evidence to the contrary, it should be inferred that approval must have been applied for; or alternatively, it was submitted that his Worship failed to appreciate that the onus of proving lack of approval lay upon the complainant and that in this context the letter, tending as it did to rebut any inference which might be drawn from the respondent's failure to find an application for approval amongst its files, was not properly considered by his Worship.
15 I think the first limb of this submission pays insufficient attention to the fact that it is "Council" that approves the application. The Council of a local government authority is a deliberative body which arrives at its decisions by the passing of appropriate resolutions. Those resolutions are formally recorded in the minutes of Council proceedings. The "approval" to which the Scheme refers is the approval given by Council, not by any officer on Council's behalf. However, I accept that the existence of a letter under the hand of the Shire Clerk advising that approval had been given would generally be evidence which, standing alone, might reasonably lead to the inference that such approval had been given. I have noted that cl 6.11 of the Scheme permits the Town Planner to grant planning consent to commence development in certain circumstances; in
(Page 12)
- that case, the relevant approval would be one given by the Town Planner but, again, a letter under the hand of the Shire Clerk might well be evidence from which one could infer the existence of such an approval.
16 In this case, it appears that his Worship concluded that the letter had been "written in error". That appears to involve the conclusion that the letter did not record any approval regularly given either by Council or by the Town Planner. However, it is important to note that this finding is one which was made towards the end of his Worship's reasons, and was made almost incidentally, in relation to what his Worship referred to as a "defence" pursuant to s 24 of the Criminal Code.
Fundamental error in decision appealed from - Zoning
17 It is my view that this appeal must succeed for the reason that his Worship appears not to have directed his attention to the essential elements of the complaint against the appellant, but rather to have been distracted by a possible illegality with which the appellant was not charged. I should add that his Worship is not to be criticised for taking this course; both the counsel for the respondent and for the appellant, during the course of the trial, spent a great deal of time exploring in detail issues which are now conceded to be relevant, if at all, only by way of "background". It is understandable if his Worship thought, as he apparently did, that he had before him a prosecution relating to use contrary to the zoning table, rather than a use without having made proper application pursuant to cl 6.1.1.
18 If one turns to his Worship's reasons, he commences by setting out the complaint and then noting that the evidence established that the appellant did use the building as a residence. His Worship goes on to hold, "The evidence also established that a caretaker's residence was not a permitted use under the Scheme on 23 November 1999 or thereafter …." His Worship then proceeds to consider three "defences" raised by the appellant. That consideration would, of course, only have been relevant if the evidence to which his Worship referred would otherwise have established that the appellant was guilty of the offence with which he was charged. It did not, since it did not entail any finding about whether an application had been made or approval granted; indeed, if the use was not a permitted one, then it is difficult to see how approval could have been granted or what relevance approval might have had.
19 His Worship then considered the question of whether "development" as defined in the Act included use "in this case". In my view, the proper
(Page 13)
- question was, what was the meaning of development for the purposes of cl 6.1.1, and I have dealt with that question. The two further defences referred to were honest and reasonable but mistaken belief that the appellant was entitled to use the building as a residence (pursuant to s 24 of the Criminal Code) or, alternatively, an honest claim of right to use the building as a residence (pursuant to s 22). In considering those questions, his Worship canvassed a quantity of evidence which suggested that the original application for development did not include and did not then intend to include an application in respect of a residence. He also canvassed evidence which was directed to the question of whether, in instructing that a plan be prepared for an "amenities room and office", the appellant had intended, and whether he had told anyone, that he proposed that the plan be for a residence. It is not entirely clear what part this evidence plays in his Worship's decision, but it appears that it is directed to the question of whether the appellant had engaged in conscious deception, and thus goes to the question of the honesty of any belief which he may have held. His Worship then referred to some other correspondence between the appellant and the respondent, including the letter of 21 December 1995 which I have already mentioned. He then held briefly, and in my view correctly, that s 22 of the Criminal Code could have no application.
20 Even at the order nisi stage, a number of grounds of appeal dealt with his Worship's findings in relation to the zoning question. Grounds 7 and 8 are to the effect that his Worship should have held that the use of the land as a caretaker's residence was authorised as at December 1995 (that being the date of what is said to have been the "approval"), it being a use categorised as "IP" under the Scheme (that is, permitted as incidental to the main use of the land). That question, the appellant conceded before me, was really irrelevant. A new ground 10 was added to the grounds of appeal, without objection on the part of the respondent, which more accurately puts the complaint which the appellant now makes about that finding. It reads:
"The learned Magistrate erred in law in considering the question whether a caretaker's residence was a permitted use under the Town Planning Scheme."
21 I am of the view that this ground must be upheld. Neither the complaint nor the original particulars provided to the appellant referred to any question of zoning. As opened to his Worship by counsel for the respondent, the issue involved in the trial was whether there had been a breach of cl 6.1.1 of the Scheme. Nevertheless, a great deal of irrelevant
(Page 14)
- evidence was presented to his Worship and was the subject of extensive cross-examination, dealing with the question of what was the zoning of the land at different times, and whether use as a residence was permitted under the zoning in operation at the relevant time. His Worship appears to have formed the view that the issue for him to decide pursuant to the complaint was whether the relevant zoning permitted the use of the building as a caretaker's residence, rather than whether there had been application made for approval of that use and whether that application had been granted (questions which, as I have noted, assume that the use as a caretaker's residence will be permitted, at least if there is a relevant approval).
22 The real issue would have involved evidence so far as the respondent was concerned, in a relatively small compass. After tendering of the Scheme, it would have involved evidence as to the manner of keeping of the respondent's records with respect to applications and approvals, and the question of what searches and inquiries had been made to ascertain whether there was or was not an application or an approval. As it was, the course of the trial meant that, as I have noted, his Worship appears to have assumed the absence of an application, rather than to have determined it after a careful scrutiny of the evidence, and that course appears to have been taken because his Worship regarded the zoning question as the one which he was required to determine. In the result, the appellant has been convicted as a result of a determination adverse to him in respect of an issue which it was not necessary for the Court to decide, and the only determination in relation to the issue which the Court did have to decide appears to have been made almost incidentally and without any explanation of the reasons for arriving at that finding.
23 It may well be, having regard to the findings which his Worship made about the appellant's honesty, which were adverse to the appellant, that the appellant would have been convicted even if the right question had been asked and answered. However, it is not possible for me to determine that that would necessarily have been the case, and so I am unable to find that there has not been a substantial miscarriage of justice in this case.
24 For those reasons, I would allow this appeal. In the light of those views, it is not necessary for me to determine the question of whether his Worship should have permitted the amendment of the complaint.
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