City of Albany v Cuscuna Nominees Pty Ltd

[2015] WASC 91

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   CITY OF ALBANY -v- CUSCUNA NOMINEES PTY LTD [2015] WASC 91

CORAM:   CHANEY J

HEARD:   11 DECEMBER 2014

DELIVERED          :   20 MARCH 2015

PUBLISHED           :  20 MARCH 2015

FILE NO/S:   SJA 1039 of 2014

BETWEEN:   CITY OF ALBANY

Appellant

AND

CUSCUNA NOMINEES PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE T R WATT

File No  :AL 1397 of 2013

Catchwords:

Planning and development - Whether planning approval obtained - Planning approval for shopping centre - Building as constructed departing from approved plans - Prosecution for failure to obtain planning approval - Use of land as a shopping centre - Whether approved use tied into use within premises strictly according with approved plans

Words and phrases - Development

Legislation:

City of Albany Town Planning Scheme No. 3 1980 (WA)
Planning and Development Act 2005 (WA)

Result:

Leave to appeal granted on grounds 1 and 2
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr D P Gillett

Respondent:     Ms A M Wood

Solicitors:

Appellant:     McLeods Barristers & Solicitors

Respondent:     Kott Gunning

Cases referred to in judgment:

Daniele v Shire of Swan (1998) 20 WAR 164; (1998) 100 LGERA 325

Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405

Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71

R v Pollock [2010] WASC 164

The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155

University of Western Australia v City of Subiaco (1980) 52 LGRA 360

1. CHANEY J: By prosecution notice signed on 30 July 2013, the respondent, Cuscuna Nominees Pty Ltd (Cuscuna), was charged with an offence under s 218(1)(a) of the Planning and Development Act 2005 (WA) (PD Act), namely that, between 30 January 2013 and 30 July 2013, it carried out development without first having applied for and obtained the planning consent of the Council pursuant to the City of Albany Town Planning Scheme No. 3 (TPS 3), thereby contravening cl 5.1.1 of the scheme. The matter was heard before a magistrate in Albany on 5 March 2014. At the conclusion of the prosecution evidence, Cuscuna's counsel submitted that there was no case to answer. The learned Magistrate then adjourned the hearing in order to consider the submission of no case, and on 16 April 2014, she upheld that submission.

2. The appellant, the City of Albany, now seeks leave to appeal against that decision.  On 18 July 2014, orders were made for the application for leave to appeal to be heard at the same time as the appeal.

The complaint

1. Clause 5.1.1 of TPS 3 specifies that all development on land zoned under TPS 3 requires the prior approval of the City.  Clause 1.6 of TPS 3 states that 'development' means:

   [t]he use or development of any land and includes the erection, construction[,] alteration or carrying out as the case may be of any building excavation, filling or other works on any land.  Development includes the felling of timber on properties.

2. The requirement for approval is subject to cl 5.1.2.  Clause 5.1.2 identifies certain development which does not require planning consent.  One type of development which does not require approval is the carrying out of any building or work which affects only the interior of a building and does not materially affect the external appearance of the building (cl 5.1.2(a)).

3. The offence with which Cuscuna was charged was an offence under s 218(a) of the PD Act.  Section 218 of the PD Act provides:

   218.     Planning scheme or condition on development, contravening etc.

   A person who ‑

   (a)contravenes the provisions of a planning scheme; or

   (b)commences, continues or carries out any development in any part of a region the subject of a region planning scheme or any part of an area the subject of a local planning scheme or improvement scheme otherwise than in accordance with the provisions of the planning scheme; or

   (c)commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply with any such condition,

   commits an offence.

4. The complaint alleges that Cuscuna contravened the provisions of the planning scheme by carrying out development without having first applied for and obtained the planning consent, thereby breaching s 218(a) of the PD Act.

The complainant's case

1. The complainant called Mr Thomas Roger Wenbourne, a senior planning officer at the City of Albany.  Mr Wenbourne was familiar with the property owned by Cuscuna at 206 Lower King Road, Bayonet Head (the property).  The property is zoned as 'Local Shopping' under TPS 3.  Mr Wenbourne said that, on 27 October 2010, the City granted approval under TPS 3 for the development of a shopping centre consisting of a supermarket with attached liquor store and 10 speciality stores on the property.  He produced the approval and the plans which were the subject of that approval.  He also produced the application for planning approval lodged by Cuscuna on 22 February 2010.  The type of development/use proposed was specified as 'shopping centre'.

2. The planning consent was granted subject to conditions.  It read:

   Planning consent is hereby GRANTED for:

   (Lot) 508 (Loc) 11196 (Property) Bayonet Head Road, Bayonet Head.

   For the purpose of:  Shop (Neighbourhood Shopping Centre)

   and carry out development in accordance with the approved plans dated 27 October 2010 subject to the Schedule of Conditions specified on page(s) two (2) and three (3) of this Consent.

3. There then followed a schedule of conditions comprising three sections which were as follows:

   SCHEDULE OF CONDITIONS:

   A.Conditions to be complied with prior to issue of a Building Licence:

   A1Prior to the issue of a building licence a qualified structural engineer is to certify that the existing retaining walls on the site are structurally sound and that they are able to support the loadings imposed by the shopping centre and delivery vehicles to the satisfaction of Council.

   A2Prior to the issue of a building licence a qualified civil engineer is required to provide a detailed stormwater management plan to the satisfaction of Council, with such plan including a detailed analysis of how the existing flood route will be catered for and realigned around the shopping centre building, and what mitigation measures will be put in place to ensure the shopping centre and Lot 501 Warrangoo Road (the private lot) will be protected from inundation in a significant storm event.

   A3Prior to the issue of a building licence a geotechnical report is required to be submitted certifying that the land is physically capable of development to the satisfaction of Council, including an assessment of any acid sulphate soils that may be disturbed under the proposal and any remedial measures needed to achieve an appropriate soil classification for the development.

   A4Prior to the issue of a building licence a schedule indicating design, colour and materials of the proposed development and any screen walls are to be submitted to and approved by Council.

   A5Prior to the issue of a building licence a plan indicating the location of refuse storage areas is to be submitted to and approved by Council.

   A6Prior to the issue of a building licence landscape plans, showing size, species, location and reticulation of trees and shrubs to be planted or retained, being submitted to and approved by Council.

   A7Prior to the issue of a building licence a detailed intersection design is to be provided to the satisfaction of Council for the left in left out access/egress point on Bayonet Head Road.

   B.Conditions to be complied with prior to occupancy of use:

   B1Any upgrade works associated with the existing retaining walls where recommended as per Condition A1 are to be implemented and inspected and certified by a structural engineer to the satisfaction of Council.

   B2The approved stormwater management plans as per Condition A2 being implemented to the satisfaction of Council.

   B3Any site remediation works identified in the geotechnical report as per Condition A3 being implemented to the satisfaction of Council.

   B4The approved intersection treatment associated with Condition A7 being constructed to the satisfaction of Council.

   B5A path is to be provided along Bayonet Head Road to link the existing path network on the opposite side of the road as designated in red on the attached plan.

   B6Vehicular parking, manoeuvring and circulation areas indicated on the approved plan being designed in accordance with AS2890 (parts 1, 2, 3 and 6) and constructed, properly drained and sealed to the satisfaction of Council. All parking spaces being marked out and maintained in good repair.

   B7The new crossovers being constructed to Council's specifications, levels and satisfaction in accordance with drawing nos. 97024 to 97028. A permit from Council is required prior to any work being carried out within the road reserve.

   B8Western Power compounds, where required, are to be masonry constructed, suitably screened and sited in accordance with the approved plans prior to occupancy.

   B9All paths are to be constructed and drained at the subdividers cost in the locations shown on the attached plan in red to the satisfaction of Council.

   B10A factory applied coloured finished fence, is to be constructed, no more than 1.8 metres high, in those positions shown on the approved plans as "fencing" prior to occupancy.

   B11All land indicated as landscaped area on the approved plan being developed prior to, or concurrently with the practical completion of the building(s) to the satisfaction of Council.

   B12Parking areas being illuminated to tile reasonable satisfaction of Council during the hours of darkness when they are in use or might be sought to be used by patrons.

   B13Arrangements being made for the preparation and implementation of a dust management plan controlling subdivisional site works prior to construction commencing.

   Before occupying the development you must contact Tom Wenbourne Senior Planning Officer on 9841 9268 and demonstrate that conditions B1 ‑ B13 have been complied with.

   C.Conditions of an ongoing nature:

   C1No goods or materials being stored, either temporarily or permanently, in the parking or landscape areas or within access driveways. All goods and materials are to be stored within the buildings or service courts, where provided.

   C2Any lighting device is to be so positioned and shielded so as not to cause any direct, reflected or incidental light to encroach beyond the property boundaries.

   C3 The loading and unloading of goods to and from the premises shall be carried on entirely within the site at all times and shall be undertaken in a manner so as to cause minimum interference with other vehicular traffic.

   C4The development shall not cause injury to or prejudicially affect the amenity of the area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit.

4. Mr Keith Barnett, the Executive Manager of Building and Health Services for the City of Albany, gave evidence that a temporary occupancy permit was issued by the City for the development at 8.00 am on 30 January 2013, and that it began to operate as a shopping centre as of that day.

5. Mr Wenbourne said that he went to the property on three occasions in February and March 2013.  He observed the property operating as a shopping centre.  He also said that he observed that the building, as completed, was not in accordance with the approved plans.  He noted the following differences.  They were:

   1.The approved plans comprised a supermarket, liquor store and 10 specialty shops whereas the area comprising speciality shops as constructed was divided into 14 speciality shops rather than 10.

   2.There were changes to the external precast concrete panels for the development.  The elevations on the approved plans showed a textured finish imprinted with a tree pattern whereas that feature was not present in the constructed development.

   3.The western elevation of the approved plans showed metal louvres over the glazing above the main entrance whereas those louvres were not present in the constructed development.

   4.The southern elevation of the approved plans showed roof mounted plant located on the eastern side of the shopping centre building visible from the southern elevation whereas roof mounted plant had been installed above the main entrance and on the north‑western corner of the building and was visible from the western elevation of the building.

   5.The site plan of the approved plans showed a turning area and three parking bays adjacent to the western end of the southern boundary of the property, whereas the completed development had a drainage channel constructed where the turning area and three parking bays were located.

   6.The site plan of the approved plans showed an access way along the northern boundary of the property whereas the completed development had parking bays installed in that area.

   7.The northern elevation showed a canopy which was stepped up in two places whereas the completed development had a canopy in that location which contained only one step up.

   8.The eastern elevation showed a covered secure trolley bay, the cover of which was parallel to the ground below whereas the cover over the covered secured trolley bay of the development was at a different angle in that it sloped upwards towards its northern end.

   9.The southern elevation showed an emergency fire exit with stairs leading downwards to the west, whereas the stairs from the exit in that location on the completed development led downwards to the east.

   10.The southern elevation of the development contained additional exit doors not shown on the southern elevation plan.

6. Apart from some cross‑examination directed to the proposition that some of those differences may have been the subject of approval in the context of compliance with the conditions of approval, Mr Wenbourne's evidence of the discrepancies between the building as constructed and the approved plan was not challenged.

7. In opening, counsel for the City explained the prosecution case as follows:

   Where development approval is granted to build a structure on land, that approval includes the use of the approved structure in the form it was approved for the purpose to which it was intended to be put.[1]

   ...

   So the prosecution position, your Honour, is that the shopping centre development that was being carried out - and the evidence will be that the shopping centre continued to be used, or the land continued to be used for a shopping centre, and the shopping centre development continued to be carried out during the prosecution period, again, I don't think that's in dispute. The shopping centre has been trading throughout the prosecution period, but the prosecution position is that that shopping centre development that is being carried out is not the shopping centre development that was approved by the city, and that therefore, there is no planning consent for that shopping centre.[2]

   ...

   And we say that the scheme is contravened, because there is no planning consent for the shopping centre development being carried out at the property, and clause 5.1.1 of the scheme requires planning consent for all development.[3]

   [1] ts 3 (5 March 2014).

   [2] ts 4 (5 March 2014).

   [3] ts 5 (5 March 2014).

8. Counsel for the City made clear that the City was not alleging a breach of a condition of approval and that the charge was not brought pursuant to s 218(c) of the PD Act.[4]

   [4] ts 4 ‑ 6 (5 March 2014).

The defendant's no case submisssion

1. The defendant submitted that the discrepancies between the approved plans and the constructed building reflected either matters which did not require planning approval, or alternatively amounted to breaches of particular conditions of the approval.  The defendants submitted that, having regard to cl 5.3.2 and cl 5.3.4 of TPS 3, a breach of a condition of approval does not amount to a contravention of the provisions of a planning scheme for the purposes of s 218(a) of the PD Act.  Those clauses read as follows:

   5.3.2Revoking Planning Consent for Non‑Compliance

   If the Council grants its planning consent subject to conditions and any condition is not fulfilled or complied with to the satisfaction of the Council, the Council may revoke its consent.       AMD 241 GG 29/8/06; CORRECTION NOTICE 15/9/06

   5.3.4Compliance Required

   A person shall not, without the prior written approval of the Council, use or occupy any land or building in respect of which the Council has granted its planning consent subject to conditions until all the conditions which are not of a continuing nature have been carried out and complied with to the satisfaction of the Council.    AMD 241 GG 29/8/06; CORRECTION NOTICE 15/9/06

The City's response to the no case submission

1. In response, the City reiterated that it did not bring the case on the basis of a breach of conditions.[5]  Counsel specifically acknowledged that the fact that the City had allowed occupation of the shopping centre by the issue of a temporary occupancy permit meant that Cuscuna had not contravened cl 5.3.4.  Rather, he submitted that there is no planning approval for the development that is being carried out.  He continued:[6]

   We say one development was approved, and the development that has been carried out on this site and has been carried out since 3 [sic 30] January is not the development which was approved, and that therefore is no planning consent [sic] for the development, and, therefore, it is in contravention of cl 5.1 of this scheme.

   [5] ts 68 (5 March 2014).

   [6] ts 74 (5 March 2014).

The Magistrate's decision

1. The learned Magistrate delivered her reasons orally on 16 April 2014.

2. After reciting the relevant provisions of TPS 3, the learned Magistrate referred to the parties' arguments in relation to the no case submission and the principles applicable to the determination of a no case submission as reflected in the summary by Jenkins J in R v Pollock,[7] where her Honour referred to the Court of Appeal's approval in The State of Western Australia v Montani[8] of McKechnie J's summary of the legal principles in that case at first instance.[9]  There is no challenge in this appeal to the Magistrate's approach to the question before her.

   [7] R v Pollock [2010] WASC 164.

   [8] The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155.

   [9] The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155, 110.

3. After a carefully detailed recitation of the evidence, the learned Magistrate said:[10]

   the prosecution says it is the totality of the variations from the original plan that was attached and approved by the planning consent number P 2105068 that means that there was no consent sought or given for the resulting development.

   [10] ts 9 (16 April 2014).

4. Her Honour rejected that contention.  She found that the approval given on 27 October 2010 was for a 'shop, neighbourhood shopping centre, with a schedule of conditions'.[11]  She continued:[12]

   The development existing on the subject lands bears the same footprint on the prosecution evidence of Mr Barnett and differs in some aesthetic aspects, some of which, such as the textured panel, may be in breach of the conditions such as condition A4 and others as such maybe a number of internal shop weren't even ‑ looking at the number of internal shops were not, in my view, even a breach.

   [11] ts 9 ‑ 10 (16 April 2014).

   [12] ts 10 (16 April 2014).

1. The learned Magistrate then looked at each of the alleged discrepancies between approved plans and the building as constructed.  She found that the absence of textured panels might be a breach of condition A4 which required approval of a schedule of finishes, or may simply 'be seen as an omission and, therefore, not strictly development'.  She found that the discrepancy as to the number of specialty stores related to a matter internal to the building and did not raise a planning issue.  As to the metal louvres, she found the absence to be an omission, rather than a 'positive act'.  As to the car park, her Honour found that it complied with a condition dealing with car parking and was consistent with the approval.  Discrepancies relating to plant, including air conditioning and walkways were found by her Honour to be mere 'normal ancillary and safety requirements ... for any shopping centre development' and were 'an essential part of the development and ancillary to any such complex'.[13]

   [13] ts 10 (16 April 2014).

2. The learned Magistrate noted that no offence was created by TPS 3 for non‑compliance with conditions and that, in any event, the defendant was not charged pursuant to s 218(c) of the PD Act.  Her Honour concluded that the evidence, taken at its highest, was not sufficient to sustain a verdict of guilty beyond reasonable doubt and dismissed the charge on the basis that there was no case to answer.

The grounds of appeal

1. There are two grounds of appeal.

2. The first ground asserts that the Magistrate erred in finding that the respondent had applied for and obtained the planning consent of the Council 'for the shopping centre development being carried out by the respondent during the prosecution period'. 

3. The second ground is that the Magistrate erred in finding that the individual differences between the shopping centre development being carried out by the respondent and the shopping centre development for which planning consent under the scheme had been granted were either capable of being granted planning consent under TPS 3 or did not require planning consent.  The appellant contends that the Magistrate should have found that 'the differences ... were such that the planning consent ... had not been obtained for the shopping centre development being carried out by the respondent'.

4. Ground 2 contains particulars addressed to the Magistrate's findings in relation to each of the differences between the approved plan and the as built structure.  Those particulars are lengthy, and it is not necessary to set them out in full.  Essentially, all of the particular errors said to have been made by the Magistrate are based on the proposition that her Honour should have found that 'the shopping centre development being carried out by the respondent' was not the shopping centre development shown on the approved plans.

5. In order to understand the grounds of appeal, it is necessary to understand what the appellant is referring to in its frequent references to 'the shopping centre development being carried out by the respondent'.  That issue was clarified by counsel for the City at the hearing of the appeal.  Counsel made it clear that the 'development' concerned is not the construction of the building, but rather its use as a shopping centre.  Counsel described 'the essence of the appellant's position' as being that the approval incorporates the approval of use of land, but the use of the land 'is tied to the building'.  He submitted:[14]

   You can only use the approved building.  You can't use some other building for a shop because, otherwise, it would lead to a situation where the respondent could have built whatever they liked.

   [14] Appeal ts 11 (11 December 2014).

6. Counsel for the appellant acknowledged that, at the time that the construction of the shopping centre commenced, it could not be said that the respondent had commenced, or was carrying out, development without approval.[15]  As I understand the appellant's position, it is that whilst the construction of the building would be carried on with approval so long as it accorded precisely with the approved plans, it would cease to be a development carried on with approval as soon as the construction departed from any aspect of the approved plans.  Counsel acknowledged that because changes might be made through construction, ultimate compliance with the approved plans may not be evident until the building is completed.[16]  He said, however, that the appellant's position is that once the use is commenced 'then that is the development because you're now using it'.[17]  As I understand the submission, it is that the approval for use of the land as a shopping centre is only applicable if the physical development conforms strictly with the approved plans.

   [15] Appeal ts 12 (11 December 2014).

   [16] Appeal ts 13 (11 December 2014).

   [17] Appeal ts 13 (11 December 2014).

Proper construction of the approval

1. In my view, the premise upon which the appellant puts its case is flawed.  That is, I do not accept that an approval for the use of land is 'tied into' the particular structure from which the use might be carried on.

2. As I have stated, 'development' is defined in TPS 3 as meaning:

   The use or development of any land and includes the erection, construction, or alteration or carrying out as the case may be of any building excavation, filling or other works on any land.  Development includes the felling of timber on properties.

3. That definition reflects the definition of 'development' in s 4 of the PD Act, which is that it means 'the development or use of any land' including certain specified activities on land.

4. A similar definition of 'development' was found in the now repealed Town Planning and Development Act 1928 (WA). In relation to that definition, Burt CJ said in University of Western Australia v City of Subiaco[18] that the definition makes use of and encompasses two ideas.  The first being 'use' of the land which 'comprises activities which are done in ... or on the land but do not interfere with the actual physical characteristics of the land' and the second being 'activities which result in some physical alteration to the land which has some physical degree of permanence to the land itself'.

   [18] University of Western Australia v City of Subiaco (1980) 52 LGRA 360, 363 ‑ 364.

5. As has been held in cases concerning the definition of 'development' where it includes 'use or development of any land', the context in which 'development' is used may require a different meaning to be attributed to it depending upon that context.[19]

   [19] Daniele v Shire of Swan (1998) 20 WAR 164; (1998) 100 LGERA 325, 168 ‑ 169; Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [37].

6. In Mocilac v City of Fremantle,[20] Commissioner Sleight was concerned with a prosecution for carrying on a development contrary to a town planning scheme. The matter concerned certain structures, including a garage, which had been erected without planning consent. The offence was said to have occurred on 27 January 2011, and the prosecution was instituted on 12 January 2012. Evidence was lead before the Magistrate that the offending structures had been erected in June and September 2010. A question arose in the appeal as to whether the prosecution notice had been filed within the time required by s 21(2) of the Criminal Procedure Act 2004 (WA) which required prosecution notices to be filed within 12 months after the date on which the offence was allegedly committed. The prosecution had identified the date of the offence as 27 January 2011 because that was a date on which an officer of the City had inspected the land and observed the presence of the structures on the land.

   [20] Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405.

7. Commissioner Sleight referred to the decision of Burt CJ in University of Western Australia v City of Subiaco and concluded that, although a distinction can be drawn between the 'use' of the land and 'construction of things' on the land, both concepts can be incorporated in the notion of a development.[21]  He then considered whether the wording 'carry out any development', as used in s 218 of the PD Act, was wide enough to cover a development beyond construction stage and includes carrying on a use of land by the presence of the constructed structure on the land.[22]  His Honour concluded that a prohibition from carrying out any development under the relevant town planning scheme was 'sufficiently wide to create an offence by the continuing use of the land by the presence of a structure on the land without approval'.[23]

   [21] Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [37].

   [22] Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [39] ‑ [40].

   [23] Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [41].

8. Counsel for the City did not cite any authority for his proposition that approval of use was 'tied into' the physical development of the land.  My research has not uncovered any support for that proposition.  The cases to which I have referred above do not have that effect.  While it may be that, as in Mocilac, use which is made of a structure on land may constitute a development of that land, I do not accept that approval to use land for a particular purpose limits that use to a particular physical structure.  It is important to note that, in Mocilac, no approval of any sort was obtained for the construction of the structure or the use of the land on which the structure was built for the purpose of a garage.

9. On its face, the approval granted to the respondent comprised two elements.  The first was planning consent for the purpose of 'Shop (Neighbourhood Shopping Centre)'.  The second element was approval to carry out the physical development in accordance with the approved plan.  Separate planning considerations arise in relation to a designated use of land from those which arise in relation to the form of physical development of the land.  Once a particular use of land is approved, that approval subsists notwithstanding that the physical structure might be altered (with the necessary development approvals) from time to time.  When alterations of the physical structure occur, it is not necessary for a land owner to seek a fresh approval to use the land for a purpose already approved, notwithstanding that that use was previously carried out utilising a different physical structure.

10. That distinction is recognised in TPS 3.  A note to cl 5.1.1 of TPS 3 states that '[t]he planning approval of the Council is required for both the development of land (subject of this Part) and the use of land (subject of Part III)'.  Part III contains the used tables for each zone.  Clause 5.1.1 is found in pt V, which is headed General Provisions.  The use of the word 'development' in the note to cl 5.1.1 is, in its context, clearly a reference to what Burt CJ referred to as activities resulting in some physical alteration to the land.

11. A 'shop' use is a permitted use within the local shopping zone under TPS 3.  It follows that Council approval is not required for that use on the respondent's land.

12. Once it is determined that development in the sense of use of the land is not 'tied to' a particular physical development of the land, it cannot be said that the respondent's use of the property for the purpose of shops is a development carried out without approval under TPS 3.  That is because it is a permitted use, and, in any event, was the subject of express approval in the planning consent granted to the respondent on 27 October 2010.

13. The difficulty in this appeal is, however, that the basis upon which the appellant explained its case in the appeal does not appear to be the basis upon which the no case submission was made or the way the Magistrate approached the no case submission.  The appellant's case, as explained on appeal is, however, broadly consistent with the way counsel for the City opened its case at first instance in the passages which I have set out above.

14. The basis upon which the no case submission was put, and upon which the Magistrate determined the question, involved an analysis of the particular discrepancies between the approved plans and the structure as built.  In broad terms, the learned Magistrate dealt with the discrepancies in two ways.  The first was to consider whether the particular discrepancy was a matter dealt with by the conditions of approval, so that any non‑compliance amounted to a breach of a condition rather than carrying out a development without approval.  The second involved considering whether the structures the subject of the discrepancies were developments requiring approval.  In essence, the learned Magistrate concluded that the particular discrepancies were either omissions rather than developments, were works which did not require approval, or were the subject of conditions so that non‑compliance might constitute an offence against s 218(c) ‑ with which Cuscuna was not charged ‑ but were not a contravention of the planning scheme for the purposes of s 218(a).  The respondent's submissions on appeal were directed to supporting the learned Magistrate's analysis of the case.  It would seem that there is something of a disconnect between the way the case was put by the appellant, and the way it was understood by both the respondent and the learned Magistrate.  However, for reasons that I will explain, that disconnect does not affect the outcome of this appeal.

15. Consideration of the question of whether or not there was a case to answer needs to address the way the case is put by the prosecution.  It is apparent from the submissions of counsel for the City, both at trial and on appeal, that the development said to be carried out without approval was the use of the land as a shopping centre.  The case was based on the proposition that the land could only be used as a shopping centre if the building which the use carried out conformed strictly with the approved plans.  For reasons which I have explained, I am of the view that that case was not capable of success because the fundamental assumption which underlies the case is flawed.

16. What underlies the prosecution is the contention that the building as constructed does not accord with the approved plans.  Rather than focusing on use of the land, the real question which arises in the prosecution is whether the physical development has been carried on (constructed) without development approval.  In my view, it cannot be said that it has.  There is a development approval for the construction of a neighbourhood shopping centre 'in accordance with the approved plans'.  The appellant submitted that, no matter how minor a change from the approved plans might be, if the constructed building contains any departure from the approved plans, then the building has been constructed without development approval.[24]  That was said to be so even if changes result from modifications arising in fulfilment of conditions (such as in connection with the grant of a building licence or compliance with Australian standards requirements).

    [24] Appeal ts 6 (11 December 2014).

17. I do not accept that submission.  In my view, provided that the development is, in substance, the same proposal, in the sense referred to in Pacesetter Homes Pty Ltd v State Planning Commission,[25] then it cannot be said that the development has occurred without approval.

    [25] Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71, 85 (Murray J).

18. The appellant submits that, if that position is accepted, it is open to a developer to depart from approved plans, provided that the ultimate construction is, in substance, the same proposal as approved, without any consequences.  Whether or not that might be true will depend, in any case, on the terms of the relevant planning scheme and on the precise terms of an approval.  In my view, the proper construction of the requirement that the development accord with the approved plans dated 27 October 2010 is that it was a condition of the approval that the building be in accordance with those plans.  The development approval is for the construction of a shopping centre substantially in the form depicted on the approved plans.  The consequence of a failure to construct in accordance with the approved plans is that the proponent will have failed to have complied with what is, in substance, a condition of the approval.  It is not necessary (although it might not hurt) to insert in the listed conditions a condition to the effect that 'the development must comply with the approved plans'.  That is the substantial effect of the development approval properly construed.  That has the consequence under cl 5.3.4 of TPS 3 that the building cannot be used or occupied without a prior written approval of the City, and it also renders the developer liable to prosecution under s 218(c) of the PD Act.  As I have said, that is so notwithstanding that the requirement to development in accordance with the plans is not contained within the 'schedule of conditions'.

Ground 1

1. This ground asserts that the Magistrate erred in finding that the respondent had applied for planning consent for the shopping centre development being carried out during the prosecution period.  The effect of the learned Magistrate's decision was that the planning consent of 27 October 2010 approved the development of a Shop (Neighbourhood Shopping Centre) with the schedule of conditions and that, although some conditions may not have been complied with, the development, as constructed, was substantially the development which had been the subject of approval.  The learned Magistrate reached that decision having regard to her analysis of the discrepancies between the construction as built and the approved plans.  Her Honour's reasons did not expressly focus on the City's contention that the relevant development was the use of the land.  That approach was understandable given the focus of the evidence and submissions on the discrepancies.  In my view, none of the discrepancies was such as to lead to the conclusion that the shopping centre as developed was not, in substance, that which had been approved, notwithstanding its non‑compliance with aspects of the approved plans.  That is the effect of the learned Magistrate's decision, and she was correct to so conclude.  More importantly, the use of the land for a shopping centre, which was the development said by the City to lack consent, was clearly the subject of the consent of 27 October 2010.  Ground 1 should be dismissed.

2. Given the slight disconnect between the basis of the case as put by the City and the learned Magistrate's approach to the issue of existence of approval, I grant leave to appeal in relation to ground 1, but dismiss it.

Ground 2

1. Ground 2 concerns the Magistrate's analysis of the particular departures in construction from the approved plans.  It turns on the proposition that the Magistrate should have found that the differences were such that the planning consent had not been obtained 'for the shopping centre development being carried out' on the land.  When regard was had to the explanation by counsel for the City that 'the shopping centre development being carried out' is a reference to the use of the land as a shopping centre, the ground must necessarily fail for the reasons which I have set out earlier.

2. I would grant leave to appeal in relation to ground 2, but dismiss the ground.

Conclusion

1. There should be leave to appeal in relation to grounds 1 and 2 of the appeal, but the appeal should be dismissed.