City of Swan v Gurney - [2011] WASC 316

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: CITY OF SWAN -v- GURNEY [2011] WASC 316

CORAM: EDELMAN J

HEARD: 15 NOVEMBER 2011

DELIVERED : 22 NOVEMBER 2011

FILE NO/S: SJA 1044 of 2011

BETWEEN: CITY OF SWAN
Appellant
AND
BASIL ROBERT RUSSELL GURNEY
STUART KENNETH GURNEY
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M M FLYNN
File No  :MI 10415 of 2010, MI 10417 of 2010

Catchwords:

Planning and development - Local government development approval - Meaning of 'commences, continues or carries out any development' in s 218 Planning and Development Act 2005 (WA) - Whether a development approval in 1982 was an approval for construction on the land or for both construction and future use of the land

Planning and development - Construction of conditions in development approval - Condition that 'storage of materials to be within the building only' - Whether 'materials' means 'building materials' associated with the construction or all materials associated with the industrial use of the land

Legislation:

Planning and Development Act 2005 (WA), s 218

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D W McLeod
Respondents : Mr M S Barrett-Lennard

Solicitors:

Appellant: McLeods
Respondents : M S BarrettLennard & Co

Case(s) referred to in judgment(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
City of Perth v Food Plus (Unreported, WASC, Library No 4862, 19 April 1983)
City of Perth v Food Plus Pty Ltd [1983] WAR 382
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Crandon v United States [1990] USSC 24; 494 US 152 (1990)
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Food Plus Pty Ltd v City of Perth (1982) 5 APAD 288
Muscarello v United States [1998] USSC 62; 524 US 125 (1998)
Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277
United States v Thompson/Center Arms Co [1992] USSC 75; 504 US 505 (1992)
University of Western Australia v City of Subiaco and Metropolitan Regional Planning Authority (Unreported, WASC, Library No 2838, 11 March 1980)
Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977

EDELMAN J:

Introduction

This is an appeal by the City of Swan from the acquittal of the respondents, Mr Basil Gurney and Mr Stuart Gurney.
The respondents were charged by the City of Swan for an offence arising from a development approval granted for extension of a factory on land at 9 Edward Street, Bellevue (the Land). The development approval was granted to the owner of the land in 1982. Ownership of the land changed several times in the following 30 years.
In 2001, Mr Basil Gurney leased the Land. He ran a tractor business on it with his son. On 28 May 2010, almost 30 years after the development approval, tyres, machinery and parts from the operation of the respondents' business were seen on the Land outside the buildings.
The respondents were charged with a breach of s 218 of the Planning and Development Act 2005 (WA). The alleged breach was of Condition 5 imposed in the 1982 development approval. That condition required '[s]torage of materials to be within the building only'.
The learned magistrate acquitted the respondents, for two reasons. The first reason was that the respondents had not commenced, continued or carried out the 1982 development. This is a pre‑condition to liability under s 218.
The second reason given by the learned magistrate was that the requirement of storage of materials was concerned with storage of building materials associated with the construction. It was not concerned with materials related to the running of the Gurney's business 30 years later.
The City of Swan appealed to this court. I accept the submission by the City that the pre‑condition for liability was satisfied (for reasons which were not the subject of submissions before the learned magistrate).
However, the acquittal should be upheld, and the appeal dismissed, for the second reason given by the learned magistrate. Condition 5 was concerned with storage of building materials associated with the construction in 1982. That condition was not violated by the respondent occupiers stacking other materials on the Land in 2010.

The facts and findings by the magistrate

This section sets out the factual background. It draws from the findings of fact which were clearly set out by the learned magistrate. References to paragraph numbers are to the paragraphs from his Honour's reasons.
The land with which the charge against the respondents is concerned is located at 9 Edward Street, Bellevue. The Land is rectangular in shape and is 1,000 sqm [7].
Prior to 2 February 1982, there was a 245.76 sqm building on the land which was capable of being used as a factory. Although the Land was owned at that time by P. Astone, there was no evidence adduced at trial as to whether the building was being used by him or her, or any other person, as a factory [8].
On 2 February 1982, P. Astone lodged an application to commence development on the Land. The application included a proposed extension to the building/factory [9].
Unfortunately, the application was not tendered in evidence at the trial [9].
The Shire of Swan approved the application on 28 February 1982, subject to conditions (the 1982 Approval). The Shire of Swan approved a proposed extension of 232.96 sqm, including space for three parking bays numbered 3, 4 and 5. The 1982 Approval was an exhibit at trial. I have set out below the full terms of the 1982 Approval.
SHIRE OF SWAN TOWN PLANNING SCHEME No. 1
APPROVAL                   TO COMMENCE DEVELOPMENT
Proposed Development:    EXTENSION TO FACTORY
Address:  LOT 6, EDWARD STREET, BELLEVUE
Applicant:  P. ASTONE
Address:   1 CANDY STREET, MORLEY. 6062
Owner:  P. ASTONE
Address:  1 CANDY STREET, MORLEY. 6062
Approval to commence development in accordance with the Application dated 2/2/1982 and the attached plans is granted subject to the following conditions:
1.The site plan being modified in accordance with amended plan dated 5.2.1982 showing the proposed building extended to the boundary and the side of the proposed building being converted into a parking area for three cars.
2.New building plans, reflecting the changes required in Condition 1 to be submitted prior to the issuance of a building licence.
3.Compliance with all relevant statutes and bylaws and the provisions of the Shire's District Town Planning Scheme.
4.The building not being occupied until such time as a classification certificate is issued by the Shire of Swan.
5.Storage of materials to be within the building only.
6.The site to be cleaned up of all rubbish and materials.
7.Drainage and/or fill of the site, including the parking area to be to the specification and satisfaction of the Shire of Swan and such plans to be submitted and approved prior to the issuance of a building licence. [This building licence was issued on 20 May 1982 and was an exhibit at trial].
8.Payment of a drainage contribution at the rate of $5,000 per ha and in the case of extensions, at a rate to be determined by the Shire of Swan.
9.The front of the lot to be filled with sand and grassed and planted with small shrubs. The side landscaping to be 1 metre wide and kerbed and to contain native trees and shrubs. The landscaping to be installed within 30 days of the practical completion of the development.
10.All signs associated with the development, including signs painted on the building, to be to the specification and satisfaction of the Shire of Swan and approved prior to erection or painting.
11.Vehicle parking, manoeuvring and circulation areas to be suitably sealed, drained and marked. Appropriate wording and directional signs for visitor parking, loading areas, etc. to be given in all instances.
12.Five car parking bays to be provided in the locations marked on the applicant's sketch.
13.All uncovered car parking bays to be a minimum of 5.5 x 2.5 metres.
14.All car parking bays to be clearly marked to the specification and satisfaction of the Shire of Swan together with suitable directional signs.
15.The crossover to be built to the specification and satisfaction of the Shire of Swan.
16.The fence along the northern side of the development to be repaired to the satisfaction of the Shire of Swan.
This approval is valid for a period of 12 months only. If development is not completed within this period a fresh approval must be obtained before commencing or continuing with development.
(R.S. Blight)
ACTING SHIRE CLERK.
February 26, 1982.
The 1982 Approval attached a site plan of the approved development. That site plan is attached hereto as Annexure A.
In 2001, Mr Basil Gurney entered into a lease of the Land for the purpose of continuing his tractor machinery business [15].
By the time the lease commenced in 2001, the extension for which approval had been given was complete, save that the car parking spaces anticipated in Condition 1 had not been completed. No new building work was done on the Land after Mr Basil Gurney entered into his lease [20].
On 24 November 2003, Mr Basil Gurney registered a business name 'Tractors and Industrial Machinery' [17].
By 1 July 2005, Mr Basil Gurney had been joined in the business by his son, Mr Stuart Gurney [18].
On 28 May 2010, materials from the operation of the tractor machinery business were seen on the Land outside the buildings. The materials included tyres, machinery and parts, some of which was stacked up to 2 m in height [21].
The City of Swan had previously complained to Mr Basil Gurney about similar matters. A Development Compliance Officer from the City of Swan had met with Mr Basil Gurney in October 2003 to discuss the removal of tractors for sale and hire from the verge. And, on 15 April 2010, a letter of complaint had been written by the City of Swan to the owner of the Land leased to Mr Gurney. The letter was copied to 'Tractors and Industrial Machinery' at 9 Edwards Street, Bellevue. The letter complained about various matters including alleged breaches of Condition 5 concerning the storage of materials [16], [19], [20].

The charges

On 31 March 2011, the City of Swan issued prosecution notices against the two respondents.
By the prosecution notices, Mr Basil Gurney and Mr Stuart Gurney were charged with two offences. One of the offences was discontinued against them both. The remaining charge was in identical terms against both respondents.
The charge in relation to each was as follows:
On 28 May 2010
At Lot 6 (9) Edward Street Bellevue
Continued to carry out a development on the Land otherwise [sic: than] in accordance with a condition imposed with respect to the development, namely condition 5 of an Approval to Commence Development dated 26 February 1982.
Section 218(c) Planning and Development Act 2005

The legal basis for the charges

Section 6(1) of the Town Planning and Development Act 1928 (WA) provided for a town planning scheme to be made in accordance with the provisions of that Act.
On 19 June 1974, the Shire of Swan created the Shire of Swan Town Planning Scheme No 1 (the 1974 Scheme). The 1974 Scheme was in force at the time of the 1982 Approval.
Clause 6.5 of the 1974 Scheme provided that the Shire's 'prior approval to commence development is required for all development except a private dwelling house'. An approval could be granted subject to conditions: cl 6.7.
Although the 1974 Scheme was issued under the Town Planning and Development Act 1928, it was continued in force and effect by s 68 of the Planning and Development Act 2005:
68.Town planning schemes under repealed Act, effect of
(1)Any town planning scheme in force under the Town Planning and Development Act 1928 on the day on which this section comes into operation -
(a)continues in force as a local planning scheme under this Act; and
(b)has effect as if it were enacted by this Act.
(2)Except as provided in section 257B(3), nothing in this Act affects the validity of a town planning scheme continued under subsection (1).
It was assumed at trial, and on this appeal, that the effect of s 68 of the Planning and Development Act 2005 was not merely to continue the operation of the 1974 Scheme as if it were enacted under that Act. It was assumed that s 68 also continued the operation of any approvals made under the 1974 Scheme and the Town Planning and Development Act 1928 as well as any conditions on those approvals (being conditions imposed under the 1974 Scheme for the purposes of s 218 below) [22].
The section which supports the charges is s 218 of the Planning and Development Act 2005. That section provides as follows:
218.Contravening planning scheme or conditions on development
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.
The 1982 Approval was not granted to the respondents. Nor were the conditions imposed upon the respondents. The 1982 Approval was granted to P. Astone and the conditions were imposed upon him or her. A development consent is not personal to the applicant; it enures for the benefit of subsequent owners and occupiers during the currency of the development consent: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, 598 [67] (Kirby & Crennan JJ); Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277, 279 (Else‑Mitchell J).
This appeal proceeded on the assumption that subsequent owners and occupiers take the benefit of a development approval subject to the conditions attaching to that approval.

The issues

The learned magistrate acquitted the respondents for two reasons. The first reason was that the City of Swan had failed to prove beyond reasonable doubt that the respondents had continued or carried out any development on the Land which was required to comply with a planning scheme [27].
The second reason given by his Honour was that the City of Swan had failed to prove beyond reasonable doubt that the respondents had acted otherwise than in accordance with Condition 5 [30].

Issue 1: Did the respondents 'commence, continue or carry out any development'?

The wording of the charge does not correspond with the offence created by s 218 of the Planning and Development Act 2005. The charge alleges that the respondents 'continued to carry out a development on the Land'. The offence involves a person who 'continues ... any development' or 'carries out any development' otherwise than in accordance with the conditions. However, no point was taken about this discrepancy at trial or on appeal and it was not suggested that anything turns upon it.
It was also assumed at trial, and accepted by the City of Swan on appeal, that the charge was concerned with the opening words of s 218(c), namely that the respondents:
[C]ommence[d], continue[d] or carrie[d] 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.
In other words it was not suggested that the respondents had committed an offence by 'otherwise fail[ing] to comply with any such condition'.
The learned magistrate held that the City of Swan had failed to prove beyond reasonable doubt that the respondents had continued or carried out any development which was required to comply with a planning scheme. Therefore, his Honour concluded that the respondents were not subject to Condition 5.
As his Honour, with respect, rightly identified, the conditions to a development approval do not exist in a vacuum [24]. Before it can be determined whether the respondents committed an offence under s 218 by breach of Condition 5, there are two preliminary requirements of s 218:
(1)There must be a development with respect to which conditions have been imposed. In this case, it was common ground that the nature of that development was determined by the 1982 Approval.
(2)The respondents must have commenced, continued, or carried out that development.
The relevant part of the definition of the term 'development' in s 4 of the Planning and Development Act 2005 is as follows:
development means the development or use of any land, including -
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
No challenge was made, nor could any be made, to the learned magistrate's finding that no building work had been done on the Land by Basil Gurney or Stuart Gurney.
Instead, the City of Swan seized upon the extended definition of development as including the 'use of any land'. The City of Swan argued that the 1982 Approval involved this extended definition of 'development'.
The City of Swan submitted that the 1982 Approval was an express approval for the construction of the extension to the factory as well as an implied approval of the continued use of the extension for permitted purposes. To borrow the helpful labels used by the learned magistrate at [25], these were 'construction development' and 'future use development'.
The learned magistrate held that it was ambiguous whether the 1982 Approval was concerned with, on the one hand, both construction development and future use development or, on the other hand, only construction development [26]. On this appeal, the respondents submitted that the 1982 Approval was concerned only with construction development [27]. Therefore, they argued that they had not commenced, continued or carried out any construction development. If this were correct, the preliminary requirement of s 218 had not been satisfied.
The submission by the City of Swan on appeal was essentially that the 1982 Approval for the extension of the factory included an implied approval for future use development, namely the use of that extension for the same permitted uses as the existing factory.
I have read the transcript of the oral submissions before the learned magistrate (ts 45 ‑ 77). This submission by counsel for the City of Swan (who was not counsel at trial) was put very differently from the way that submissions were made at trial. The point was also developed by counsel for the City of Swan in considerably more detail than it had been before the learned magistrate, including by reference to clauses such as cl 5.7, to which no reference had been made at trial.
The Planning and Development Act 2005, sch 7, cl 9 provides that a town planning scheme can deal with matters of '[a]pproval, refusal or approval subject to conditions of any use or class or kind of development'. As I have set out above at [39], development is defined as including 'use'.
Clause 6.7(i) of the 1974 Scheme provides that '[t]he Council may grant its approval with or without conditions or may refuse to grant its approval to the application to commence development'.

In some cases, there will be no necessity for an approval for 'construction development' to include, by implication, an approval for 'future use development'. Whether this is so will depend upon the proper interpretation of the development approval in all the circumstances.
In this case, the nature of the proposed extension is significant. As can be seen from the site map above, the proposed extension almost doubled the size of the building on the Land. The balance of the Land, upon which no building existed, was substantially reduced.
In 1982, the existing factory was zoned as 'General Industry'. The permitted uses under the 1974 Scheme, subject to conditions (cl 3.5), included Industry‑Service, Industry‑Light, and Industry‑General.
Clause 5.7 of the 1974 Scheme (which was not referred to the learned magistrate at trial) is concerned with the 'General Industry' use.
5.7General Industry:
(i)Within a lot or lots zoned for General Industry the car parking provision required under Table 4 shall occupy not more than 50% of the land between the building line and the street alignment of the lot or lots, the balance of the land between such building line and the street alignment shall be laid out and maintained as lawns, gardens or approved plantation strips or with the approval of Council trade displays or advertisements.
(ii)Trade displays or advertisements approved by Council under the preceding sub‑clause shall not occupy more than 10% of the land between the building line and the street alignment.
(iii)Notwithstanding anything contained in the preceding sub‑clauses of this clause vehicle parking or trade displays or advertisements shall not be permitted within 25 feet of a road or street corner.
Clause 5.7 relates to matters of 'use' which could be affected by the proposed extensions. This is because the extensions would substantially reduce the balance of the land without buildings. Clause 5.7 is not merely a direction to the Council concerning matters which can be approved. It is a general statement of duties arising in the General Industry zoning.
In the 1982 Approval, Condition 10 (signs associated with the development) and Conditions 12 ‑ 14 (car parking) were not merely concerned with the construction of the extension. They also related to these issues of General Industry use.
Therefore, the 1982 Approval was an express approval of construction development, as well as an implied approval of continued General Industry future use development. Both were subject to the conditions imposed.
The respondents submitted that such a conclusion would be contrary to the decision of the Full Court of the Supreme Court of Western Australia in City of Perth v Food Plus (Unreported, WASC, Library No 4862, 19 April 1983).
The City of Perth case involved applications by Food Plus to build convenience stores on two blocks of land which had been used as service stations. The proposals involved a change of use of the land.
Before the Town Planning Appeal Tribunal, the City of Perth argued that the conditions were invalid because they could not operate after the development had concluded. The City wanted to invalidate the conditions in order to invalidate the approval which it had initially granted to Food Plus.
The Tribunal rejected the argument. Mr D K Malcolm QC (as the former Chief Justice was then) and Mr P B Arney constituted the Tribunal. They held that whichever sense of 'development' to which the approval related - the use of the land (future use development), or the activities on the land (construction development) - the conditions imposed were not restricted to the period of the construction: Food Plus Pty Ltd v City of Perth (1982) 5 APAD 288, 292.
An appeal to Olney J was dismissed: City of Perth v Food Plus Pty Ltd [1983] WAR 382.
A further appeal was brought to the Full Court of the Supreme Court of Western Australia. That appeal was also dismissed: City of Perth v Food Plus (Unreported).
In the course of the appeal to the Full Court, the judgments commented on the meaning of the word 'development' in the Town Planning and Development Act 1928, s 2.
Wickham J remarked that the word development could mean 'the use of land ... or the development of land in the colloquial sense [construction development] ...' or both (2). See also University of Western Australia v City of Subiaco and Metropolitan Regional Planning Authority (Unreported, WASC, Library No 2838, 11 March 1980) (Burt CJ).
Wallace J remarked that where the development involved the commencement of a new use then the approval was an approval to commence the use and to continue it (3).
And Pigeon J also remarked that '[i]n this case an element of the development is a new "use" which must by definition be continuing' (5).
Each of the judgments was concerned with a situation in which an approval for development involved a new use. Each held that the approval for the construction involved an implied approval for the new use.
Contrary to the submissions of the respondents in this case, none of the judgments at any stage of the litigation in Food Plus denied that an approval for development could involve, by implication, an approval for the continued use of the land in the same manner as an existing use. This was not an issue in the litigation and nothing was said on this point.
I conclude that the 1982 Approval was not merely an approval for construction of the proposed factory extension. It also involved an implied approval for continued General Industry future use development.
The use by the respondents of the Land for their business was therefore a continuation of the development (in its extended sense). The respondents continued the 'development' by continuing the 'use' of the Land.

Issue 2: Was Condition 5 breached?

Condition 5 was for '[s]torage of materials to be within the building only'. No submission was made on the appeal that the City of Swan had failed to prove that the tyres, machinery and parts which were seen on 28 May 2010 had been 'stored' on the Land.
The simple question raised by the second issue was the meaning of 'materials' in Condition 5 in the 1982 Approval for an 'extension to [the] factory'.
Does 'materials' mean the building materials associated with the construction of a factory extension? Or does it mean all materials associated with the industrial use of the Land, at any time, including the tyres, machinery, parts and other materials which were seen stacked on the Land 30 years later?

The meaning of 'storage of materials within the building only'

As set out above at [25] ‑ [29], the 1982 Approval was given under the 1974 Scheme, which has effect as if it were enacted under the Planning and Development Act 2005.
In the construction of legislation and delegated legislation, context must 'be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise': CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The respondents submitted that 'materials' in Condition 5 means 'building materials'. The City of Swan submitted that it means 'the very sort of thing that was stored in the open area in 2010, materials associated with the industrial use' (ts 23).
There is some ambiguity about the meaning of 'materials' in the 1982 Approval. That ambiguity cannot be resolved by reference to the application for approval for the extension of the factory, which was referred to, and incorporated into, the 1982 Approval. The City of Swan did not tender that application into evidence at trial.
The best construction of the word 'materials' in its context is, as the learned magistrate concluded, that it refers to 'building materials'. In particular, it refers to those building materials associated with the construction of the extension. This is for seven reasons.
First, in comparing the opposing definitions proposed by the parties, in the ordinary use of language, 'materials' is more naturally associated with 'building materials' than with 'materials associated with an industrial use'.
Divorced from context, 'materials' is capable of bearing an extremely broad meaning. Its etymology, from the Latin materia, connotes any form of matter: Macquarie Dictionary (4th ed) 884; New Shorter Oxford English Dictionary, 1713 ‑ 1714. But neither party contended that the reference to materials involved absolutely any matter at all. I agree.
Both parties sought to confine the reference to 'materials' either to 'building materials' or to 'materials associated with industrial use'. The former is the more natural meaning. It is pertinent that the first contextual example of the use of the word 'materials' in the New Shorter Oxford English Dictionary is to 'building materials' and no contextual example is given of an 'industrial use'.
Secondly, the two competing definitions on this appeal throw into contrast the two possible meanings of development. I have concluded that the 1982 Approval was concerned with both construction development and future use development. But the construction development was the express concern of the 1982 Approval. The future use development was only an implied concern. The 1982 Approval was entitled 'To Commence Development' and 'Extension to Factory'. A reasonable reader of Condition 5 would be likely to understand the condition as concerned with issues of the physical construction of the extensions rather than with any materials associated with the implied use approval. This suggests that the meaning of 'materials' is building materials associated with the construction of the extension.
Thirdly, and related to the second reason, is the general policy and purpose of Condition 5. The consideration of context in the exercise of interpretation 'includes the general purpose and policy of a provision': Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
In an approval for a building extension, the general purpose and policy of a condition ensuring that building materials are stored during the construction process can be immediately appreciated. It is to ensure that the construction process proceeds in an efficient and tidy manner with minimal disturbance. But it requires considerably more effort for a reasonable reader to appreciate the general purpose and policy of a condition, imposed in the context of approval of a building extension, which requires all materials associated with an industrial use be stored inside the building, for all time.
Fourthly, the other conditions were all concerned with matters arising from the construction of the extension; most of them expressly so. Only some of them incidentally raised issues concerning future use. For instance, Condition 1 was concerned with modifications to the site plan for the proposed extension; Condition 2 was concerned with modifications to the building plans for the extension; Conditions 7, 8, 9 and 10 raised issues of filling the site; drainage contributions from the extensions; and signage associated with the development; Conditions 11, 12, 13 and 14 were concerned with construction of the car park; Condition 15 was concerned with the building of the crossover; and Condition 16 the repairing of the fence. In this context the natural inference is that Condition 5 is also concerned with the construction of the extension and the storage of building materials during that construction process.
Fifthly, the definition suggested by the City of Swan is not entirely clear. What are 'industrial use' materials? Are they materials related to the industrial use contemplated by the zoning? Or are they concerned with the particular industrial use to which the factory was put in 1982 (about which there was no evidence)? And what if the zoned use changes?
In contrast, the respondents' suggested meaning of 'building materials' in the context of the 1982 Approval was much clearer. It is those materials associated with the building of the approved extension.
Sixthly, Condition 5 is immediately followed by another condition (Condition 6) which uses the word 'materials' in a sense which refers to the building materials associated with the construction of the extension. Condition 6 provides for '[t]he site to be cleaned up of all rubbish and materials'. The word 'site' is used in Condition 1 and Condition 7 in the context of the proposed building works. Condition 6 is expressed in the passive infinitive, using the past participle 'cleaned'. It expresses the idea of a single task that the site be cleaned up (ie from the construction work), not a continuous task extending indefinitely.
Seventhly, one of the aspects of context relevant to the construction of Condition 5 is that a breach of the condition has criminal consequences: Alcan (NT) Alumina v Commissioner of Territory Revenue (49) [57] (Hayne, Heydon, Crennan & Kiefel JJ).
The traditional approach has been to treat the criminal nature of a provision as creating a rule that in cases of ambiguity the doubt can be resolved in favour of the accused: Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569, 576 (Gibbs J); Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, 164 ‑ 165 (Gibbs CJ, Mason, Wilson & Dawson JJ).
In the United States this is referred to as a rule of lenity: United States v Thompson/Center Arms Co [1992] USSC 75; 504 US 505 (1992). See also Crandon v United States [1990] USSC 24; 494 US 152 (1990) and Muscarello v United States [1998] USSC 62; 524 US 125 (1998), discussed in Alcan (NT) Alumina v Commissioner of Territory Revenue (49) [55] (Hayne, Heydon, Crennan & Kiefel JJ).
As the law currently stands, this 'rule' exists but is one of last resort; it does not carry much weight as a matter of construction. However, as the joint judgment in Alcan (NT) Alumina v Commissioner of Territory Revenue recognised ((49) [57]), quite separately from the 'rule', the criminal nature of a provision is part of the context in which a provision falls to be interpreted.
If the construction urged by the City of Swan were correct it would mean that criminal consequences arose for breach of a condition:
(1)upon an occupier and lessee of the Land who was not initially subject to the condition;
(2)leasing from an owner several times removed from the owner who was subject to the condition;
(3)in relation to matters which are not directly related to the construction of the building extension which was the subject matter of the 1982 Approval; and
(4)almost 30 years after the condition was imposed on P. Astone.
This context militates against the City of Swan's construction.
In contrast with these seven reasons above which support the respondents' construction of 'materials', the City of Swan relied upon the use of the word 'building' in Condition 5 in support of its construction of 'materials'. The City of Swan submitted that storage of material 'within the building only' suggested that the condition was concerned with storage of all industrial materials, at any time. It was submitted that that word 'building' referred to the proposed extensions and that it would be impossible to store building materials in the proposed extensions before they were built.
I do not accept this submission. In two other conditions, the use of the word 'building' is qualified where it refers to the proposed extensions: 'proposed building' (Condition 1) and 'new building' (Condition 2). At least in these two conditions, a different phrase has been used to describe the extensions. It is entirely consistent with this to construe the word 'building', used without any qualification in Condition 5, to refer to the existing building.
For the seven reasons above, the learned magistrate's construction of the word 'materials' in Condition 5 was, with respect, correct.

The validity of the storage condition

For completeness, I should address a further, related, argument made by the respondents. The respondents submitted that if 'materials' meant all materials associated with industrial use of the Land indefinitely, then the condition would be invalid.
A construction which results in the validity of a condition imposed by reference to a power authorised by statute will be preferred to one which results in invalidity: see, in the context of by‑laws, Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977, 983 (Griffith CJ) and D Pearce and S Argument Delegated Legislation in Australia (3rd ed) 376.
A condition will be invalid if there is no source of power by which it could have been imposed. The source of power to impose Condition 5 was derived from the 1974 Scheme, which was itself empowered by the Town Planning and Development Act 1928, and continued in force by the Planning and Development Act 2005.
A condition will lack power if a substantial purpose for which it is imposed is not one of the purposes of the legislation; or if it does not fairly and reasonably relate to the permitted development; or if it is so unreasonable that no reasonable planning authority could have imposed it: Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 55 ‑ 56 [57] ‑ [58] (McHugh J); Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 [45] (Allanson J).
Because I have reached the conclusion that Condition 5 is concerned with the storage of building materials associated with construction of the extension, I do not need to address whether it would be invalid if it were construed as the City of Swan submitted.
However, although the natural and contextual meaning of 'materials' is not 'all materials associated with an industrial use' indefinitely, I consider that it is unlikely that if the word were construed in that way the condition would be invalid for any of the following reasons: an ulterior purpose; not being fairly and reasonably related to the permitted development; or being so unreasonable that no reasonable planning authority could have imposed it.
The reason why invalidity would be unlikely is because, as I have explained, the 1982 Approval permitted, by implication, the continued use of the Land for General Industry. Conditions could be imposed upon that use. The area of the Land without buildings would be substantially reduced by the construction of the extension. In these circumstances, the construction of 'materials' which was proposed by the City of Swan would be unlikely to involve an ulterior purpose, a lack of reasonable relation to the proposed development, or manifest unreasonableness.

Conclusion

By using the Land for their business, the respondent occupiers of the Land, Mr Basil Gurney and Mr Stuart Gurney, commenced, continued or carried out the 1982 development. This is because on the proper construction of the 1982 Approval, the 'development' approved was not confined to the approval for construction. It was also an approval for the continued use of the Land under the General Industry zoning.
However, neither respondent breached Condition 5 of the 1982 Approval by the materials which they left on the Land in 2010. The condition requiring '[s]torage of materials to be within the building only' was concerned with storage of building materials associated with the construction in 1982. Hence, neither committed the offence charged under s 218 of the Planning and Development Act 2005.
The respondents have since moved the conduct of their business to different premises (Magistrates Court ts 41).

Annexure A: