Bright Image Dental Pty Ltd v City of Gosnells
[2017] WASC 229
•16 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BRIGHT IMAGE DENTAL PTY LTD -v- CITY OF GOSNELLS [2017] WASC 229
CORAM: PRITCHARD J
HEARD: 27 JULY 2017
DELIVERED : 16 AUGUST 2017
FILE NO/S: SJA 1093 of 2016
BETWEEN: BRIGHT IMAGE DENTAL PTY LTD
Appellant
AND
CITY OF GOSNELLS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE S WILSON
File No :AR 3918 of 2015
Catchwords:
Leave to appeal - Applicable principles - Turns on own facts
Planning and Development Act 2005 (WA) - Interpretation - Section 4(1) - Meaning of 'development' - Section 164 - Whether subsequent approval operates retrospectively to render development lawful from commencement
Town Planning Scheme - Interpretation - Meaning of 'storage' - Whether 'storage' use ancillary to 'transport depot' use
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Criminal Procedure Act 2004 (WA), s 78
Planning and Development Act 2005 (WA), s 4, s 164, s 214, s 215, s 218, s 253
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P McQueen
Respondent: Ms A M Wood
Solicitors:
Appellant: Lavan Legal
Respondent: Kott Gunning
Cases referred to in judgment:
Caruso v Shire of Augusta-Margaret River [2016] WASC 379
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
City of Armadale v Hendry [2013] WASC 422; (2013) 198 LGERA 173
Clay v The City of Nedlands [2012] WASC 402
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Fisher v Hebburn Ltd (1960) 105 CLR 188
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Lizzio v The Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211
Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
PRITCHARD J: On 14 October 2016, Bright Image Dental Pty Ltd (Bright Image) was convicted in the Magistrates Court at Armadale of an offence against s 218(a) of the Planning and Development Act 2005 (WA) (PD Act). That section provides that a person who contravenes the provisions of a planning scheme commits an offence.
The prosecution notice which set out the charge against Bright Image (the charge) alleged that between 28 March 2014 and 25 August 2014 (the offence period), at a property in Maddington (the Property), Bright Image
did commence or carry out development on the Property (namely storage) without obtaining the prior approval of the City of Gosnells as is required by cl 9.1 of the City of Gosnells Town Planning Scheme No 6.
Bright Image now seeks to appeal against its conviction. It requires the grant of leave to do so.[1] To obtain leave, Bright Image must demonstrate that one or both of its grounds of appeal has a reasonable prospect of succeeding.[2] To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of success ‑ that is, it would not be irrational, fanciful or absurd to envisage the ground succeeding.[3]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
[2] Criminal Appeals Act 2004 (WA) s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
For the reasons set out below, leave to appeal should be refused in respect of ground 1 and ground 2, and the appeal will therefore be taken to be dismissed.[4]
[4] Criminal Appeals Act 2004 (WA) s 9(3).
In these reasons, I deal with the following matters:
1.A brief overview of the City's case, of the evidence adduced at the trial, and of Bright Image's contentions at trial;
2.The grounds of appeal;
3.Ground 2 of the grounds of appeal:
(a)The requirement for approval for development on the Property;
(b)The learned Magistrate's decision;
(c)Bright Image's contentions as to the error(s) of fact and law made by the learned Magistrate;
(d)Why there was no error of fact or law by the learned Magistrate in concluding that the Property was used, without approval, for development, namely storage;
(e)Why leave to appeal in respect of ground 2 should be refused.
4.Ground 1 of the grounds of appeal:
(a)The learned Magistrate's decision;
(b)Bright Image's contentions as to the proper construction of s 164 of the PD Act;
(c)Why the construction of s164 of the PD Act advanced by Bright Image must be rejected;
(d)Why leave to appeal in respect of ground 1 should be refused.
A brief overview of the City's case, of the evidence adduced at the trial and of Bright Image's contentions at the trial
The City's case at trial was that during the offence period, Bright Image had stored trucks, trailers, equipment and sea containers on the Property, that that constituted development of the Property, for which approval was required under the City of Gosnells Town Planning Scheme No 6 (TPS), and that Bright Image did not have any such approval. The City's case appears to have been that Bright Image was aware both that it was not entitled to use the Property for the storage of such items without planning approval, and that it did not have planning approval.
The only witness called at the trial was Mr McDermott, a compliance officer with the City. Bright Image did not adduce any evidence.
The City's case was that after 7 February 2014, and during the offence period, the Property was zoned 'Business Development' under the TPS, and any development of the Property required approval under the TPS.
There was evidence that prior to 7 February 2014, the Property had been zoned 'General Rural' under the TPS. Although any development of such land required approval under the TPS, the use of land zoned General Rural for a 'transport depot' and for 'storage' was not permitted under the TPS. There was also evidence that in March 2011 Bright Image had sought approval to use the Property as a 'truck service centre', that the City declined approval at that stage, and that Bright Image was advised of that refusal.
Mr McDermott gave evidence that in July 2013, he went to the Property and discovered that a large number of trucks, trailers, scaffolding, crane equipment, vehicle parts, forklifts and machinery, and what he described as a 'nissen hut'[5] were situated on the Property. Mr McDermott subsequently met with a director of Bright Image, and advised that all of the items had to be removed.[6] Bright Image was given until 24 September 2013 to do so.[7]
[5] ts 45. Mr McDermott described the 'nissen hut' as comprising 'sea containers spread apart and a canvas cover, it's usually in a semi‑circular [shape], which goes across the top which makes it [ie the shelter created underneath] relatively waterproof'. He described the 'nissen hut' as being two sea containers high, with a concrete floor: ts 48.
[6] Exhibit 12.
[7] Exhibit 14.
In his evidence Mr McDermott explained that on 4 October 2013 and on various dates thereafter, including dates during the offence period, he visited the Property and also inspected the Property from a vantage point on an adjacent property. On those occasions he saw trucks, trailers, scaffolding, crane equipment, sea containers and the nissen hut situated on the Property. He took photographs of the Property on those occasions. Those photographs, together with photographs depicting views of the Property from the air, at various dates including dates during the offence period, were tendered in evidence.[8]
[8] Exhibit 15 - 20.
In addition, Mr McDermott's evidence was that on 26 August 2014, the Council of the City granted approval for the use of the Property for an 'existing transport depot and storage',[9] and for a 'shelter station' (which pertained to the nissen hut)[10] (Approval). However, no approval for any development on the Property had been given by the Council prior to, or during, the dates of the alleged offence period.[11] (It was conceded by Bright Image that prior to the offence period, no approval had in fact been given for the use of the Property for storage.[12])
[9] Exhibit 8.
[10] ts 124; Exhibit 25.
[11] ts 111.
[12] ts 100.
Mr McDermott also confirmed that the City commenced the present prosecution of Bright Image notwithstanding that by the time it did so, the City had granted the Approval which permitted the use (that is, development) of the Property for storage.[13]
[13] ts 121.
Bright Image advanced a number of arguments in support of its case that the City had not established that the Property was used for storage (as opposed to it being used for other forms of development on which the City could have relied, but did not rely). It contended that evidence of the presence of buses, trailers and trucks on the Property did not constitute evidence of the use of the Property for storage, but instead constituted evidence that the Property was used for a transport depot. That argument drew on the content of the various land uses set out in the TPS. Bright Image also contended that the sea containers were not themselves being used for storage.
In the alternative, Bright Image contended that in the event that the learned Magistrate found that the Property had been used for storage, the effect of s 164 of the PD Act was that the Approval given on 26 August 2014 had effect from the commencement of the development, and thus throughout the offence period, so that Bright Image was taken to have had approval for that development of the Property during the entirety of the offence period.
The learned Magistrate rejected each of these arguments and concluded that the charge had been proved. He published a detailed judgment (the Reasons) in which he made findings of fact, and explained his reasoning for concluding that the charge had been proved. It is not necessary, for present purposes, to set out all of his Honour's findings and reasons. In the discussion of each of the grounds of appeal set out below, I have identified any relevant findings of fact made by the learned Magistrate in relation to that ground, and summarised his Honour's reasons relating to that ground.
Grounds of appeal
Bright Image seeks leave to appeal on the following grounds:
1.The learned Magistrate made an error of law in concluding that the grant of a retrospective planning approval by the [City] to [Bright Image] on 26 August 2014 did not, pursuant to s 164 of the [PD Act], retrospectively render the subject development lawful from its commencement.
2.The learned Magistrate made an error of fact and law in finding that the presence of sea containers on the subject land represented a 'storage' use under the [TPS].
It is convenient to commence by considering ground 2 of the grounds of appeal.
Ground 2 ‑ whether the learned Magistrate erred in fact and law in concluding that the presence of the sea containers on the land constituted 'storage'
(a) The requirement for approval of development of the Property
Before turning to the learned Magistrate's reasons and ground 2 of the grounds of appeal, it is convenient to briefly refer to some relevant provisions of the PD Act and the TPS. The charge against Bright Image was that it breached s 218(a) of the PD Act, which provides that a person who contravenes the provisions of a planning scheme commits an offence.
The alleged contravention of the TPS was a contravention of cl 9.1 of the TPS which provides that '[s]ubject to cl 9.2, all development on land zoned and reserved under the [TPS] requires the prior approval of the local government'. Clause 9.2 provides that certain developments do not require planning approval. One of those developments is set out in cl 9.2(e) which refers to 'any works which are temporary and in existence for less than 48 hours or such longer time as the local government agrees'. One of the issues in contention was whether the evidence established that the sea containers were merely temporarily on the Property. Other than in relation to that issue, it was not contended that approval was not required for the use of the Property for storage.
The meaning of the word 'development' under the TPS derives from the PD Act, namely that 'development means the development or use of any land'.[14]
[14] Planning and Development Act 2005 (WA) s 4(1).
Land within the area covered by the TPS is classified into zones.[15] The TPS contains a zoning table, which indicates, by the use of symbols, whether various uses are permitted, able to be permitted in the exercise of the City's discretion, not permitted at all, or not permitted save pursuant to a specific exercise of discretion by the City.
[15] City of Gosnells Town Planning Scheme No 6 cl 4.1.1.
For completeness, I note that during the offence period the Property was zoned 'Business Development'. No symbols appear in the zoning table to indicate what land uses are permitted (or not) within the Business Development zone. Instead, a note to the zoning table indicates that development and use of land zoned Business Development is to be in accordance with an Outline Development Plan.[16] There was no evidence as to what land uses were capable of being approved for land zoned Business Development. Instead, the basis for the prosecution was that Bright Image did not have approval for any particular use of the Property under the TPS, and in particular, did not have approval to use the land for 'storage'.
[16] City of Gosnells Town Planning Scheme No 6 cl 4.2, cl 7.4.
The land uses contemplated under the TPS are defined in cl 2 of sch 1 to the TPS. The City's case was that the Property was being used for 'storage'. The definition of 'storage' in the TPS is as follows:
'storage' means premises used for the storage of goods, equipment, plant or materials.
(The word 'premises' is defined in the TPS to mean 'land or buildings'.)[17]
[17] City of Gosnells Town Planning Scheme No 6 sch 1 cl 1.
Bright Image contended that the evidence established only that the Property was being used for a 'transport depot'. That use is defined in the TPS as follows:
'transport depot' means premises used for the parking of a commercial vehicle, where that vehicle is not driven by an occupant of a dwelling on that site as part of their occupation.
In so far as the presence of the sea containers on the Property was concerned, Bright Image contended that even if the Property was being used for the storage of the sea containers, that use was ancillary to the use of the Property for a transport depot. That argument relied upon cl 4.4.1 of the TPS which provides:
[w]here a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.
Finally, I note for completeness that the TPS permits the local government to grant planning approval to a use or development already commenced or carried out regardless of when that occurred, if the development conforms to the provisions of the TPS. Clause 9.4.2 of the TPS provides:
Development which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except the granting of planning approval, and the continuation of the development unlawfully commenced is taken to be lawful upon the grant of planning approval.
Clause 9.4.2 is accompanied by a note in relation to its operation, but such notes do not form part of the TPS.[18]
[18] City of Gosnells Town Planning Scheme No 6 cl 1.7.3.
Clause 9.4.2 of the TPS reflects the terms of s 164(4) and (5) of the PD Act.
(b) The Decision and the Reasons
Relevantly for present purposes, the learned Magistrate made the following factual findings:
•In July 2013, Mr McDermott received a complaint which alleged the Property was being used for storage and truck repair without planning approval. Between 6 July 2013 and 4 February 2014, Mr McDermott went onto the Property and onto a neighbouring property, where he took photos. Those photos showed trucks, trailers, concrete pumping trucks, cranes, crane parts, scaffolding, buildings, the nissen hut, forklifts, buses, sea containers and various other items (items).[19]
•Mr McDermott sent a letter to a director of Bright Image in July 2013 and discussed the unapproved use of the Property with the director, including at a meeting at the Property on 8 August 2013. The City required that Bright Image remove all of the items from the Property by 24 September 2013.[20]
•Between 29 October 2013 and 4 February 2014, Mr McDermott visited the Property and a neighbouring property, and took photos which showed trucks, trailers, materials, a concrete pumping truck, sea containers and various other items present on the Property. On 6 May 2014, Mr McDermott entered the Property and saw trailers, dolly trailers, caravans, sea containers, buses, the nissen hut, a scissor lift, a bobcat, a loading ramp and a concrete pumping truck. He observed that a crane, crane equipment and rigging items had been removed but had been replaced by buses and a concrete pumping truck.[21]
•Mr McDermott produced a series of 8 aerial photos taken between 28 October 2013 and 1 August 2014. Three photos, of 28 March 2014, 15 June 2014 and 1 August 2014 were taken within the offence period.[22] The aerial photos taking during the offence period show trucks, trailers, crane parts, scaffolding, buildings including the nissen hut or a shelter shed, buses, sea containers, and large framed storage containers. Mr McDermott identified in those aerial photos 4 or 5 sea containers and the large framed storage containers that he said were present on the Property in much the same location during the entire offence period, which he observed during his visits and which were visible in the photos he took on 6 May 2014.[23]
•The City had not granted Bright Image development approval prior to 25 August 2014 to use the Property for a 'transport depot' or for 'storage'.
•On 26 August 2014, the City granted development approval to Bright Image to use the Property for a 'transport depot' and for 'storage'.[24]
[19] Reasons [31(g)].
[20] Reasons [31(h)].
[21] Reasons [31(i) - (k)].
[22] Reasons [31(l)].
[23] Reasons [31(l) - (o)].
[24] Reasons [31(p) - (q)].
The learned Magistrate accepted a submission by Bright Image's counsel that the presence of the buses, trucks, trailers and motor vehicles on the Property during the offence period did not fall within the definition of the land use of 'storage' under the TPS. He reached that conclusion on two bases. The first was that trucks, trailers and motor vehicles were not items of the kind which were capable of 'storage' (as defined) in that they were not 'goods, equipment, plant or materials'.[25] Secondly, he accepted that the correct construction of cl 4.4.1 of the TPS was that:
if a specific use such as transport depot or commercial vehicle parking applies to the activity on the site, then those other land uses … are relevant, not a generic land use such as storage which a transport depot use and commercial vehicle parking use may exhibit elements of.[26]
[25] Reasons [60] - [66].
[26] Reasons [58].
Accordingly, his Honour found that cl 4.4.1 of the TPS meant that the land use described as 'storage' under the TPS did not encompass the parking of commercial vehicles on the Property.[27]
[27] Reasons [69].
His Honour was also not satisfied that some large storage containers identified by Mr McDermott in the photos supported a finding that the Property was being used for their 'storage'. His Honour concluded that the evidence was too brief for him to be satisfied that storage of those containers was not merely ancillary to the use of the Property for another purpose, namely as a residence. That conclusion is not challenged by a cross appeal by the City, and it is therefore not necessary to deal with it in any further detail.
However, a similar argument was relied upon by Bright Image in support of its contention that the evidence of the sea containers present on the Property did not establish that the Property was being used for 'storage'.
The City's case was that evidence of the lack of movement of the sea containers within the offence period supported the conclusion that the sea containers were being stored on the Property.
The learned Magistrate held that the evidence of the presence of the sea containers on the Property established that the Property was being used for the storage of the sea containers. His Honour's reasons for that conclusion were, in summary, as follows:
•The word 'storage' meant 'the action or method of storing something for future use'.[28]
[28] Reasons [54] - [55].
•The sea containers were capable of being stored for future use, and the presence of sea containers on the Property could amount to an act of storing.[29]
•A sea container is an item capable of being used for many functions, including storage, transport, as a place to live or to conduct business. However, he also accepted that sea containers were 'goods' within the ordinary meaning of that term as used in the definition of 'storage' under the TPS.[30]
•The fact that sea containers were carried by road or rail did not make them 'commercial vehicles' (of the kind referred to in the definition of 'truck depot') because those vehicles were capable of being driven;[31]
•The placement of the sea containers on the Property therefore constituted a 'development' of the Property;[32]
•In so far as Bright Image had contended that it was exempt from the requirement to apply for development approval because use of the sea containers fell within a policy of the City called 'Policy Statement Outbuildings and Sea Containers LPP 2.2', the learned Magistrate concluded that while the City bore the onus of proving each element of the offence beyond reasonable doubt, Bright Image bore an onus of proving on the balance of probabilities that any exemption or exception applied to it. Bright Image had not adduced any evidence for that purpose. (In that respect his Honour relied on s 78 of the Criminal Procedure Act 2004 (WA).)[33]
•The learned Magistrate accepted Mr McDermott's evidence, and accepted that the sea containers he identified in the photos were those he observed to have been located in the same position throughout the offence period. With one exception, the learned Magistrate accepted that the sea containers circled by Mr McDermott on the photos were located on the Property for the entire offence period.[34]
•The learned Magistrate also found that as the sea containers had been located on the Property for that period (of at least 127 days) they could not be regarded as having been there merely temporarily so as not to require approval under the TPS.[35]
(c) Bright Image's contentions as to the error(s) of fact and law made by the learned Magistrate
[29] Reasons [54] - [55].
[30] Reasons [67] - [68].
[31] Reasons [67].
[32] Reasons [70].
[33] Reasons [71] - [73].
[34] Reasons [76] - [77].
[35] Reasons [77].
Bright Image contends that the evidence of the presence of the sea containers at the Property was not sufficient to prove beyond a reasonable doubt that the Property was being used for storage.[36] Counsel for Bright Image submitted that:
[36] Appellant's submissions [83], [90], [92].
•The learned Magistrate asked himself the wrong question in determining that the 'sea containers [were] capable of being stored for future use', and whether 'the presence of the sea containers on the Property can amount to an act of storing', and that the question for determination was whether, in fact, the sea containers were being stored for future use.[37]
•There was no evidence that Bright Image was storing sea containers on the Property for future use, or as an act of storage.[38]
•The learned Magistrate failed to properly consider what the Property was being used for, and whether it was being used for some use other than 'storage' under the TPS.[39]
•Instead, on the evidence, it was open to the learned Magistrate to have found that the sea containers were on the Property for some purpose other than 'storage', such as for use as outbuildings.[40]
•Further, on the evidence, it was open to the learned Magistrate to have concluded that the Property was in fact being used for a 'transport depot' and that the presence of sea containers on the Property was 'no more than an incidental aspect and effectively formed part of a broader transport depot operation on the [Property]'.[41]
•The effect of cl 4.4.1 of the TPS was that use in the nature of 'storage' was a general use, whereas use in the nature of a 'transport depot' was a specific use. If the sea containers were present on the Property in connection with the use of the Property for a 'transport depot', the effect of cl 4.4.1 of the TPS was that the use of the Property was for the purpose of a 'transport depot'. Consequently, the learned Magistrate should have concluded that the evidence of the presence of the sea containers did not establish beyond reasonable doubt that the Property was being used for 'storage' (as opposed to being used for a 'transport depot').[42]
(d) Why there was no error of fact or law by the learned Magistrate in concluding that the Property was used, without approval, for development, namely storage
[37] Appellant's submissions [93] - [94], [96] - [97].
[38] Appellant's submissions [95], [98].
[39] Appellant's submissions [101].
[40] Appellant's submissions [99].
[41] Appellant's submissions [103] - [104].
[42] Appellant's submissions [105] - [107].
I am unable to accept Bright Image's submissions, for the following reasons.
In order to prove the charge, the City had to prove beyond a reasonable doubt that Bright Image had carried out 'development' on the Property, and that that development was of a kind that required the prior approval of the City pursuant to the TPS. The definition of the word 'development' in the PD Act is set out above at [21]. It includes the 'use' of land. The word 'use' has a variety of meanings depending on the context in which it is used, and whether it is used as a noun or a verb. When used as a noun, its meaning includes 'the act of employing or using, or putting into service', 'a way of being employed or used, a purpose for which something is used' and 'the enjoyment of property, as by employment, occupation, or exercise of it'.[43] In the context of a statutory planning scheme similar to the TPS, the word 'use' has been given its ordinary meaning as comprising 'activities which are done in … or on the land but do not interfere with the actual physical characteristics of the land'.[44]
[43] Macquarie Online Dictionary.
[44] See The University of Western Australia v City of Subiaco (1980) 52 LGRA 360, 363 - 364 (Burt CJ); see also Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [36] (Sleight C).
Having regard to cl 9.1 of the TPS (see [20] above) the City had to prove beyond a reasonable doubt that Bright Image had carried out development of the Property by using it ‑ that is, by employing the Property for a purpose, or engaging in activities on the Property ‑ without approval. Although the TPS contemplates various kinds of uses of land for which approval is required, the City chose to base its case on an allegation that the use of the Property in this case was for storage.
As I have noted above, the way that that particular land use is defined in the TPS refers to the 'storage of goods, equipment, plant or materials'. In other words, the definition does not itself define what 'storage' means. The ordinary meaning of the word 'storage' is 'a place where something is stored',[45] and the word 'store' means 'to … stock (a person, place, etc) with something; to keep in store for future use; to collect and keep in reserve'[46] and 'to… stock with something, as for future use; to deposit in a … place, for keeping'.[47] Accordingly, the City had to establish that the Property was being used for the storage of goods, which included the sea containers, and that required it to show that the sea containers were being kept on the Property for future use.
[45] Oxford English Dictionary Online; Macquarie Dictionary Online.
[46] Oxford English Dictionary Online.
[47] Macquarie Dictionary Online.
It is convenient at this point to mention that contrary to Bright Image's submission, when the learned Magistrate considered whether the sea containers were capable of being stored for future use, he was considering whether the sea containers were 'goods' which were able to be 'stored'. His Honour made no error in engaging in that analysis. As the learned Magistrate clearly appreciated, sea containers can be used for a variety of functions, including for the transportation of goods, and the storage of goods. They can, themselves, be placed on land for a time, pending some future use. In the latter case, and in a case where they are being used for the storage of goods, the presence of sea containers on land may constitute evidence that the land is being used for 'storage' as defined in the TPS.
The fact that to 'store' a good involves keeping it for future use, contemplates the retention of that thing for some duration, although no particular period of retention of the good is required. The question in each case will be whether the evidence supports the conclusion that the good is being kept for some future use, rather than that the presence of the good on the land is associated with some other use.
Turning to the evidence adduced in this case, I am not persuaded that the learned Magistrate made an error of fact when he concluded that the Property had been developed, in that it had been used, without approval, for 'storage'. As I have noted, in the course of his evidence, Mr McDermott identified the sea containers in the various photographs of the Property which had been tendered.[48] Among those photographs to which Mr McDermott referred were aerial photographs of the Property. Mr McDermott pointed out, in a photograph dated 1 August 2014, what he identified as sea containers located approximately in the centre of the Property, others located closer to the south eastern boundary of the Property, and others located at the rear of the nissen hut.[49] Mr McDermott's evidence was that he also observed sea containers in the same locations on the Property as were depicted in a photograph dated 15 June 2014.[50] He also observed sea containers in the same locations on the Property as were depicted in a photograph dated 28 March 2014.[51] He confirmed that those sea containers depicted in the photos were in the same positions as he had observed them on his visits to the Property, or to the adjacent property, during the offence period. The photographs which depicted the sea containers (other than those which were being used to support the canopy of the nissen hut, to which Mr McDermott separately referred) showed that they had simply been placed on the Property. That evidence was sufficient to support the finding by the learned Magistrate that the Property was being used for storage, namely the storage of the sea containers.
[48] ts 140 (Exhibit 15) re photographs taken 4 October 2013; ts 141 (Exhibit 16) re photographs taken 29 October 2013; ts 141 (Exhibit 17, photographs B, C, E, I, J) re photographs taken 6 May 2014;
[49] Exhibit 20; ts 146, 148.
[50] Exhibit 20; ts 147, 148.
[51] Exhibit 20; ts 148.
I turn, next, to Bright Image's submission that it was open to the learned Magistrate to have concluded that the presence of the sea containers on the Property was incidental to its use as a transport depot, rather than amounting to a separate use of the Property. A number of authorities have explored the characterisation of the use of land as 'incidental' to another use. In Lizzio v The Council of the Municipality of Ryde,[52] the High Court had to consider whether or not the use of residential land for the sale of flowers was incidental to its use for the purpose of a dwelling house, and so contrary to the provisions of the County of Cumberland Planning Scheme Ordinance. Gibbs CJ observed:[53]
Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling-house.
[52] Lizzio v The Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211.
[53] Lizzio v The Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, 216 - 217.
His Honour also referred to the following remarks made by Glass JA in Foodbarn Pty Ltd v Solicitor-General:[54]
Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others … .
[54] Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, 161.
In City of Armadale v Hendry, Hall J had to consider whether land was used for vehicle wrecking without approval, contrary to the relevant planning scheme and to s 218 of the PD Act, and whether that activity was incidental to the permitted use of the land. His Honour observed:[55]
Land may be used for more than one purpose. In that case each use must be permitted or approved. However, not all activities on land constitute the use of that land. Some activities may be merely incidental to a permitted use. Whether a use is a distinct and separate use or is merely an incidental part of a permitted use will depend upon the regularity and extent of the activity.
[55] City of Armadale v Hendry [2013] WASC 422; (2013) 198 LGERA 173 [37].
Finally, in Clay v City of Nedlands, an appeal from a decision of the State Administrative Tribunal on the question whether the use of a residence as short‑term accommodation was incidental to its use as a dwelling, Hall J observed that '[w]hether use of a property constitutes a distinct and separate use is a question of fact and degree'.[56]
[56] Clay v The City of Nedlands [2012] WASC 402 [34].
Turning to the present case, having regard to the learned Magistrate's Reasons in relation to the presence of the trucks, trailers and motor vehicles on the Property, it appears that he accepted that the Property was being used as a transport depot. However, that conclusion does not, of itself, support the conclusion that the location of the sea containers on the Property was merely ancillary or incidental to that use of the Property. While it is not difficult to envisage how a case might be made that the presence of sea containers located on land which is also being used as a transport depot might be regarded as being incidental to that use of the land, there would need to be some evidence to support that conclusion. In this case, there was no such evidence. Bright Image did not adduce any evidence itself. Not one of the photographs tendered in evidence showed a sea container on the back of a truck (notwithstanding that numerous photographs depicted trucks on the Property). Nor was Mr McDermott asked whether he saw trucks carrying sea containers during any of his visits to observe the Property. The only evidence was that sea containers were located on the Property, and that they had been situated in the same locations on the Property, including on three dates spanning just over four months within the offence period.
Consequently, I am not persuaded that the learned Magistrate failed to properly consider whether the presence of the sea containers was merely ancillary to the use of the Property for a transport depot, rather than for a separate, use, namely storage.
For completeness, I should add that cl 4.4.1 of the TPS does not assist Bright Image in this respect. Absent evidence that the sea containers were present on the Property in connection with its use as a transport depot, no question arose as to whether the presence of the sea containers on the Property was capable of proving the more general use of the Property for 'storage' as opposed to the more specific use of the Property for a 'transport depot'.
As the cases to which I referred at [46] ‑ [49] have confirmed, determining the use to which land is being put may involve questions of fact and degree. In this case, the evidence given by Mr McDermott ‑ which confirmed that sea containers could be seen in the same locations on the Property in the photographs dated 28 March, 15 June and 1 August 2014 ‑ supported the inference that the sea containers remained in those locations throughout that period. That in turn supported the finding that the placement of the sea containers on the Property was more than merely temporary, so that it was open to the learned Magistrate to find that the Property was being used to store the sea containers for future use.
Further, the learned Magistrate's finding that the sea containers had been on the Property for 127 days excluded any basis for concluding that the sea containers were merely temporarily on the Property, in which case no approval for their presence on the land would have been required, by virtue of cl 9.2(e) of the TPS (see [20] above).
In those circumstances, there was no error of fact or law by the learned Magistrate in his finding that the Property was being used for storage, in that the Property was being used for the storage of the sea containers.
For completeness, one further observation should be made. In this case, the charge was that Bright Image had carried out a development of the Property, in that it was used for storage, without approval. The use of the Property for a transport depot was also clearly a 'development' which was not approved. At times in her submissions,[57] counsel for the City appeared to contend that the evidence establishing that the Property had been used for a transport depot was also capable of supporting the Charge. The City did not, however, seek to raise that issue by a notice of contention or cross appeal. Furthermore, the City's case at trial was run entirely on the basis that the unapproved development was the use of the Property for 'storage'. Having run its case on that basis, it is difficult to see how it would have been open to the City to contend that the charge was proved on a different basis, namely that the evidence established that Bright Image had carried out an unapproved development of a different kind. It is, however, unnecessary to explore this issue any further, given that Bright Image has not succeeded in making out ground 2 of its grounds of appeal.
(e) Why leave to appeal in respect of ground 2 should be refused
[57] ts 53 ‑ 54 (26 July 2017).
In my view, having regard to the evidence adduced at the trial, and to the learned Magistrate's reasoning, it cannot be said that ground 2 has a rational and logical prospect of success, so as to amount to a reasonable prospect of succeeding. Accordingly, in my view, leave to appeal on ground 2 should be refused.
Ground 1 ‑ the proper construction of s164 of the PD Act
Ground 1 concerns the proper construction of s 164 of the PD Act. It is convenient to set that section out in full. It provides:
(1)A responsible authority may grant its approval under a planning scheme or interim development order for development already commenced or carried out.
(2)The Commission may grant its approval under section 116 for development already commenced or carried out in a planning control area.
(3)Subsections (1) and (2) do not affect the operation of the provisions of Part 13 in respect of development commenced or carried out before approval has been granted.
(4)Development which was unlawfully commenced or carried out is not rendered lawful by the occurrence of any subsequent event except the approval by the relevant responsible authority of that development.
(5)The continuation of development unlawfully commenced is to be taken to be lawful upon the grant of approval for the development.
I turn, next, to consider the Reasons in so far as they concerned Bright Image's argument as to the construction of s 164.
(a) The learned Magistrate's Reasons
The learned Magistrate concluded that the grant of the Approval pursuant to s 164 of the PD Act did not constitute a retrospective approval of any development on the Property that had occurred prior to the date when the Approval was granted.[58] The learned Magistrate's reasoning in respect of s 164 of the PD Act was, in summary, as follows:
[58] Reasons [49].
•Considered in the context of s 164 as a whole, s 164(1) 'grants power to a local authority to grant approval of a development on land within its boundaries that has already commenced or [been] carried out without prior approval'.[59]
•Section 164(3) 'makes it clear … that despite … approval by a local authority for a development already commenced or carried out the provisions of pt 13 of the [PD] Act [which deal with enforcement of the PD Act, and offence provisions] are unaffected and the local authority [is] still empowered to prosecute for developments commenced or carried out before planning approval has been granted'.[60]
•Section 164(4) 'provides … that a development that is commenced or carried out without … approval … by the local authority, can only be made lawful upon the approval of the development by the local authority. This section exclusively preserves the power of the local authority to approve or not to approve a development that has been commenced or carried out without the approval of the local authority before the development commenced and such approval cannot occur by any other means'.[61]
•Section 164(5) 'provides … that the continuation of an unlawfully commenced development becomes [lawful] only upon the grant of the approval of the local authority'.[62]
•To adopt Bright Image's construction of s 164 'would render s 164(3) of the [PD] Act and for that matter pt 13 of the [PD] Act without purpose' as a subsequent approval 'would act as an immunity from prosecution. Such an interpretation …would also be contrary to the intention of the [PD] Act as it would tend to undermine the legislative scheme to provide a system for the orderly consideration of developments by [a] local authority before they are commenced or carried out'.[63]
•To describe an approval granted under s 164 as 'retrospective' was 'a misnomer. What is provided by s 164 of the [PD] Act is the retrospective consideration by a local authority of an application for approval for an unlawfully commenced or carried out development for which the local authority is empowered to grant approval only from the date of the grant'.[64]
(b) Bright Image's contentions as to the proper construction of s 164 of the PD Act
[59] Reasons [42].
[60] Reasons [43].
[61] Reasons [44].
[62] Reasons [45].
[63] Reasons [46].
[64] Reasons [48].
Bright Image's submissions in relation to the proper construction of s 164 were, in summary, as follows.
Bright Image says that the effect of s 164(4) of the PD Act is that the Approval rendered lawful the use of the Property for 'storage' from the date on which that use commenced and that after the Approval was granted, 'it was no longer open for [Bright Image] to be charged and convicted under s 218 of the PD Act'.[65]
[65] Appellant's submissions [7].
At the heart of Bright Image's argument, as I understood it, was the contention that the ordinary meaning of the words used in s 164(4) left open two meanings: that the grant of an approval 'renders previously unapproved development lawful from either the date that planning approval is granted; or the date from which the development commenced'.[66] He submitted that the legislative context supported the conclusion that the approval rendered the development lawful from the date on which the development was commenced. Bright Image's submissions in that respect were, in summary, as follows:
•Subsection 164(4) must have a different meaning from s 164(5) because otherwise it would have no work to do. As s 164(5) provides that the 'continuation of development' is lawful following approval, s 164(4) must have a different effect.[67]
•In order to avoid that outcome, s 164(4) should be construed so that it operates to render a development lawful from the date of its commencement.[68]
•That construction is supported by temporal considerations, in that s 164(4) 'looks to the past (by using the phrases "was unlawfully commenced", "rendered lawful" and "subsequent event")' while s 164(5) 'looks to the future (by using the phrases "continuation of development" and "is taken to be")'.[69]
•That construction was supported by s 164(3). That subsection only operates to limit the effect of s 164(1) and (2), and not s 164(4) and (5). If it was intended that s 164(4) would not render development lawful from the date of commencement of the development, then s 164(3) would also have made clear 'that s 164(4) does not affect the operation of the provisions of pt 13'.[70]
•While it was open to read s 164(3) as operating so that the grant of approval for a development already commenced does not affect the operation of the provisions of part 13 of the PD Act, 'such a reading would be incorrect'.[71] Instead, the proper construction of s 164(3) was that it provided that the 'power of a responsible authority to grant planning approval … does not affect the operation of the provisions of pt 13 in respect of development commenced or carried out before approval has been granted'.[72] (emphasis in original)
•Subsection 164(3) should therefore be read as if it said: 'Subsections (1) and (2) do not affect the operation of the provisions of pt 13 (in respect of development commenced or carried out) before approval has been granted'.[73] That would mean enforcement proceedings could be brought with respect to unlawful developments, despite the fact that the responsible authority had the power to grant an approval, but that once the approval was given, enforcement proceedings under pt 13 could not be commenced because the development would (by the grant of the approval) have been given retrospective approval.[74]
•If s 164(3) were construed so that enforcement action could still be taken after approval for an unlawfully commenced development has been given, 's 164(3) would no longer read harmoniously with s 164(4) and (5)' because to do so would require s 164(4) to be construed so that the grant of an approval operated prospectively, and that its effect would then be no different from s 164(5).[75] To read s 164(3) in that way would also make redundant the words 'in respect of development commenced or carried out before approval has been granted'.[76]
•Further, pt 13 of the PD Act 'contains a number of different enforcement measures, many of which can only apply with respect to existing unauthorised development, as opposed to development that had been unauthorised in the past'[77] such as s 211 and s 214. To construe s 164(4) in the way Bright Image contends would be consistent with the fact that many of the enforcement provisions in pt 13 'can only be utilised with respect to development that remains unauthorised'.[78]
[66] Appellant's submissions [45].
[67] Appellant's submissions [41] - [44], [46].
[68] Appellant's submissions [47].
[69] Appellant's submissions [48].
[70] Appellant's submissions [53].
[71] Appellant's submissions [55].
[72] Appellant's submissions [56].
[73] Appellant's submissions [60].
[74] Appellant's submissions [61].
[75] Appellant's submissions [62] - [64].
[76] Appellant's submissions [65].
[77] Appellant's submissions [68].
[78] Appellant's submissions [69].
Counsel for Bright Image also submitted that this construction was consistent with the legislative policy underlying s 164, which was 'to encourage landowners to regularise the planning approvals status of their land in order to avoid potential enforcement action under pt 13'.[79] He submitted that:
If development is subsequently rendered lawful by the grant of retrospective planning approval, there is no legitimate public policy basis for a responsible authority to commence or continue prosecution proceedings or other enforcement proceedings under Part 13, as the development in question would be approved and would have been capable of being approved all along.
The incentive for a landowner to apply … for … planning approval, is however, removed if the landowner runs the risk of enforcement action under Part 13 by bringing unlawfully commenced development to the attention of the responsible authority.[80]
[79] Appellant's submissions [72].
[80] Appellant's submissions [73] - [74].
Counsel for Bright Image submitted that the construction of s 164(4) for which he contended was consistent with a liberal approach to construing beneficial provisions in legislation.[81]
[81] Appellant's submissions [76].
Bright Image's case was that the effect of this construction of s 164(4) was that:
•planning approval may be granted for a development already commenced;
•the grant of that approval will render the development lawful from the date it commenced;
•if enforcement proceedings are underway at the time the approval is granted, that will either resolve the enforcement proceedings or give rise to a defence; and
•enforcement proceedings cannot be commenced after approval is granted.[82]
[82] Appellant's submissions [39].
Counsel for Bright Image submitted that as the City had granted approval for the use of the Property for storage before the prosecution notice was filed in the Magistrates Court, that approval rendered the development of the Property lawful from its commencement, and the learned Magistrate therefore erred in concluding that the grant of the approval did not operate as a defence to the charge or a bar to the commencement of the enforcement proceedings.[83]
(c) Why the construction of s 164(4) of the PD Act advanced by Bright Image must be rejected
[83] Appellant's submissions [77] - [79].
I am unable to accept the submissions of counsel for Bright Image as to the construction and operation of s 164(4) of the PD Act. In my respectful view, there was no error by the learned Magistrate in his construction of that subsection. However, in deference to the detailed argument advanced on the appeal, it is appropriate for me to set out my view in relation to the proper construction of s 164.
While s 164 has been referred to, in passing, in several cases,[84] its proper construction has not been authoritatively determined. Accordingly, resolution of ground 1 calls for the application of ordinary principles of statutory construction. The task of statutory construction begins and ends with the words of a legislative provision, but those words must be considered in their context, which includes the legislative history, and the general purpose and policy of the provision.[85]
[84] See, for example, Caruso v Shire of Augusta-Margaret River [2016] WASC 379 [46] - [47] (Fiannaca J).
[85] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ); Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The starting point in any exercise of statutory construction is to give the words used in the provision in question their ordinary meaning.
The ordinary meaning of the words in s 164(4) of the PD Act
The first point which may be made is that s 164(4) directs attention to development which has been commenced (although it need not be completed) or carried out, and for which no approval was granted. As I have already noted, the word 'development' in the PD Act is defined to mean 'the development or use of any land', and that definition expressly includes 'any demolition, erection, construction, alteration of or addition to any building or structure on the land' or 'the carrying out on the land of any excavation or other works'.[86]
[86] Planning and Development Act 2005 (WA) s 4(1).
A development which was commenced or carried out without the approval which is required under a planning scheme such as a local planning scheme will be unlawful.[87] As I explained above in respect of ground 2, the placement of the sea containers on the Property constituted the use of the Property for storage. Under the TPS, the City's approval was required before the Property could lawfully be put to such a use.
[87] Planning and Development Act 2005 (WA) s 218.
The second point to notice about s 164(4) is that it refers to the unlawful development being 'rendered lawful'. It does so by a process of exclusion. Subsection 164(4) makes clear that the development will not be rendered lawful by the occurrence of any subsequent event, with one exception. The reference to a 'subsequent' event refers to any event which occurs after the development is unlawfully commenced or carried out.
As the final words of s 164(4) make clear, the only event (subsequent to the development being unlawfully commenced or carried out) which will render that development lawful is the approval of the responsible authority in respect of that development. That is clearly a reference to the approval which may be given pursuant to s 164(1).
The ordinary meaning of the word 'render', when use as a verb, is 'to make or cause (a person or thing) to be or become as specified'[88] and 'to cause to be or become; to make'.[89] The phrase 'rendered unlawful' in s 164(4) conveys that a development which was unlawfully commenced or carried out will only be made lawful by the grant of approval by the responsible authority. Contrary to the submission of counsel for Bright Image, in my view the word 'rendered' does not suggest that the approval is directed to events in the past. Instead, the word 'rendered' has been used because the subsection is written in the passive rather than active voice.
The immediate statutory context
[88] Macquarie Dictionary Online.
[89] Oxford Dictionary Online.
The ordinary meaning of the words used in s 164(4) is confirmed by the statutory context.
Subsection 164(1) permits a responsible authority to grant its approval for development which was commenced or carried out without that approval. Nothing in that subsection suggests that an approval will operate retrospectively.
Subsection 164(5) is also consistent with the construction of s 164(4) which I prefer. Subsection 164(5) confirms that 'the continuation' of development unlawfully commenced is taken to be lawful upon the grant of approval. That reflects the fact that under s 218 of the PD Act, not only is the commencement of development without approval an offence, but the continuation of development without approval constitutes a continuation of the offence. A daily penalty will be applicable to that continuing offence, over and above the penalty for the commencing or carrying out of the unlawful development.[90]
[90] Planning and Development Act 2005 (WA) s 223.
Section 218 makes it an offence to commence, continue or carry out any development otherwise than in accordance with a planning scheme. Subsection 164(4) of the PD Act confirms that the development which was 'commenced' or 'carried out' will be rendered lawful by the grant of approval, while s 164(5) makes clear that the 'continuation' of the development will be made lawful by the grant of the approval for the development. On the ordinary meaning of both subsections, no overlap in their operation arises. On the contrary, s 164(4) and s 164(5) complement each other, and cover all aspects of the conduct which constitutes development of land without approval.
If s 164(4) operated to make an unlawful development lawful from its commencement, any continuation of that development from that point would necessarily also be lawful. In that event, it would be unnecessary to provide (as s 164(5) does) that the continuation of the development was lawful upon the grant of approval. Consequently, to construe s 164(4) as Bright Image contends would be contrary to the well-recognised principle of statutory construction that a provision should not be construed so as to leave that provision with no work to do.[91]
[91] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [39] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [71] (McHugh, Gummow, Kirby & Hayne JJ) (and the authorities there cited).
Finally, s 164(3) is entirely consistent with the construction of s 164(4) which I prefer. Subsection 164(3) makes clear that the grant of approval which is authorised by s 164(1) (or s 164(2)) does not affect the operation of the provisions of pt 13 'in respect of development commenced or carried out before approval has been granted'. Part 13 of the PD Act contains the provisions dealing with enforcement of the PD Act, and includes s 218 which creates the offences of commencing, carrying out or continuing development other than in accordance with the provisions of a planning scheme, or in accordance with a condition imposed under the PD Act or the scheme in question. The effect of s 164(3) is that the application of the enforcement provisions in respect of an unlawful development is not affected by any subsequent grant of approval.
The submission by counsel for Bright Image - that s 164(3) means that enforcement proceedings may be taken in respect of unlawful development, provided that those proceedings are brought before the grant of an approval for that development ‑ cannot be accepted. That construction does not reflect the terms of the subsection. As counsel for Bright Image acknowledged, his submission requires s 164(3) to be read as follows:
Subsections (1) and (2) do not affect the operation of the provisions of Part 13 (in respect of development commenced or carried out) before approval has been given.
However, s 164(3) is not punctuated in that way. Instead, the absence of such punctuation makes clear that the words 'development commenced or carried out before approval has been granted' constitute one composite phrase which describes a particular kind of development. It is to that kind of development that the provisions of pt 13 apply.
The broader statutory context
The broader statutory context also supports the construction of s 164(4) set out in [71] ‑ [75] above. That broader context assists to understand why the Parliament would consider it necessary to make clear that nothing but a grant of approval could render lawful a development commenced or carried out without approval. Under s 214, a responsible authority (such as the City) has a variety of powers at its disposal to rectify the unlawful development. Those powers include the power to direct an owner or other person who undertook the development to remove, pull down, or alter the development.[92] If that person fails to comply with such a direction, the responsible authority may itself take action to rectify the unlawful development.[93] So, for example, the direction given by the responsible authority may require an owner to alter the development so that it complies with an applicable condition under a planning scheme. If that is done, the question might then arise whether, by virtue of compliance with that direction, or the alteration of the development in accordance with that direction, the development should no longer be considered unlawful. In order to dispel that argument, s 164(4) makes clear that such events do not make the unlawful development lawful. Rather, that it is only the grant of an approval which will have that effect. Construed that way, s 164(4) is also entirely consistent with the operation of s 224 of the PD Act, which makes clear that whether or not a direction has been given under s 214 of the PD Act, a person may be prosecuted for an offence under div 2 of pt 3 of the PD Act.
The legislative presumption against retrospective operation
[92] See, eg, Planning and Development Act 2005 (WA) s 214(3).
[93] Planning and Development Act 2005 (WA) s 215(1).
To construe s 164(4) as counsel for Bright Image contends would be to give that subsection a retrospective operation. It is well established that '[i]n the absence of a clear statement to the contrary, legislation will be assumed not to have retrospective operation'.[94] There is nothing at all in s 164(4) to suggest that the grant of approval will have anything other than a prospective effect, or to suggest that the grant of approval will affect rights or liabilities attaching to events in the past. For the same reason, even if the words used in s 164(4) were thought to be capable of either a retrospective or prospective interpretation, they should be construed as prospective only.[95]
The statutory context - the legislative history and purpose
[94] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ); see also Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, 194 (Fullagar J).
[95] Mathieson v Burton[1971] HCA 4; (1971) 124 CLR 1, 22 (Gibbs J).
Subsection 164(4) reflects the terms of cl 8.4.2 of the model scheme provisions set out in Appendix B to the Town Planning Regulations 1967 (WA) (which is also reflected in cl 9.4.2 of the TPS). There is nothing in the second reading speech or the explanatory memorandum for the Planning and Development Bill 2004 (WA) which sheds any light on the intended operation of s 164 generally or s 164(4) in particular.
That having been said, other provisions of the PD Act permit inferences to be drawn about the legislative policy underlying the PD Act, and s 164.
The provisions of pt 13, including s 218, clearly demonstrate a significant legislative policy which underlies the PD Act, namely the importance of complying with the requirements of planning schemes (including by obtaining planning approval) before commencing a development. Such compliance is essential for a variety of reasons, not the least of which are safety and the maintenance of orderly and proper planning in a scheme area. The significance attached to that compliance is demonstrated not only by the significant penalty which attaches to commencing a development without complying with the requirements of a scheme (such as by commencing development without approval) but also by the significant daily penalty which applies for each day on which a development continues without that compliance.[96]
[96] Planning and Development Act 2005 (WA) s 223.
To construe s 164(4) as Bright Image contends would undermine that legislative policy. There would be no incentive for an owner or developer of land to obtain approval before commencing development, provided that they were confident that if necessary they could subsequently obtain an approval under s 164 (which, on Bright Image's argument, would then operate retrospectively to render the development lawful from the outset).
The construction of s 164 which I prefer operates to complement that legislative purpose because it permits an approval for a development to be given even after the development has commenced or been carried out. That not only permits the development to be brought into compliance with the applicable planning scheme but it also provides a means by which an owner or developer can cease continuing to commit an offence, and exposure to a daily penalty as a result. Furthermore, the possibility of obtaining approval even after the development has been commenced or carried out provides an alternative to the removal or demolition of any structure[97] in cases where the structure otherwise complies, or can be made to comply, with requirements of the planning scheme.
(d) Why leave to appeal in respect of ground 1 should be refused
[97] Planning and Development Act 2005 (WA) s 214(3) and s 215(1).
Having regard to what I consider to be the clear terms of s 164, I do not think it can been said that ground 1 has a reasonable prospect of succeeding. Accordingly in my view, leave to appeal on ground 1 should be refused, and ground 1 will therefore be dismissed.
Conclusion
Leave to appeal on both grounds 1 and 2 having been refused, the appeal is therefore taken to be dismissed.
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