Fix WA Pty Ltd v City of Armadale - [2019] WASC 356 (S)

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION: FIX WA PTY LTD & ANOR -v- CITY OF ARMADALE [2019] WASC 356
CORAM:   HILL J
HEARD:   19 JUNE 2019
DELIVERED          :   4 OCTOBER 2019
FILE NO/S:   SJA 1126 of 2018
BETWEEN:   FIX WA PTY LTD
First Appellant
AMAN SINGH
Second Appellant
AND
CITY OF ARMADALE
Respondent

ON APPEAL FROM:
For File No:   SJA 1126 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE SCADDAN
File Number             :   AR 4913 of 2017, AR 4914 of 2017, AR 4915 of 2017, AR 4916 of 2017, AR 4917 of 2017,
AR 4918 of 2017

Catchwords:

Planning and development - Whether amendment to approval required - One unit currently being used as two residences - Whether permanent - Prosecution for use of dwellings being in breach of Residential Design Code - Prosecution for use of unit not in accordance with approved plans - Prosecution for change of use

Words and Phrases - Dwelling

Criminal law and procedure - Liability of former director of corporation for actions committed by company

Criminal law and procedure - Fine for breach of planning scheme - Whether sentence excessive given charges arose from one set of facts

Legislation:

Interpretation Act 1984 (WA), s 19(1)
Planning and Development Act 2005 (WA), s 218(a), s 218(c), s 223
Sentencing Act 1995 (WA), s 40(5)

Result:

Grounds 1 and 2
Application for leave to appeal allowed
Appeal dismissed

Ground 3
Application for leave to appeal allowed
Appeal allowed
Appellant's convictions on AR 4915/2017 and AR 4918/2017 be set aside
Judgments of acquittal be entered on AR 4915/2017 and AR 4918/2017

Ground 4
Application for leave to appeal allowed

Category: B

Representation:

Counsel:

First Appellant	:	Mr P G McGowan
Second Appellant	:	Mr P G McGowan
Respondent	:	Ms A M Wood & Ms C Hamilton

Solicitors:

First Appellant	:	Lewis Blyth & Hooper (Gosnells)
Second Appellant	:	Lewis Blyth & Hooper (Gosnells)
Respondent	:	Kott Gunning

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Baker Investments Pty Ltd v City of Vincent [2017] WASC 263
Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84
City of Albany v Cuscuna Nominees Pty Ltd [2015] WASC 91
City of Swan v West Australian Shalom Group Inc [2017] WASC 217
Clay v City of Nedlands [2012] WASC 402
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Daniele v Shire of Swan (1998) 20 WAR 164; (1998) 100 LGERA 325
Derring Lane Pty Ltd v Port Phillip City Council [No 2] [1999] VSC 269; (1999) 108 LGERA 129
Federal Commissioner of Taxation v Miller (1946) 73 CLR 93
Hafza v Director-General of Social Security (1985) 60 ALR 674
Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405
Norman v Norman [No 3] (1969) 16 FLR 231
Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
University of Western Australia v City of Subiaco (1980) 52 LGRA 360

HILL J:

This appeal concerns a development in Kelmscott and whether works that were carried out in one of the residential units after construction created two separate dwellings within the one unit. It was not in dispute that the works were carried out without the respondent's approval. The contest between the parties was whether approval was required and whether the failure to obtain approval breached the Planning and Development Act 2005 (WA) (the Act).
On 9 October 2018, the learned magistrate convicted each of the first and second appellants (appellants) of three offences contrary to s 218(a) and s 218(c) of the Act and published detailed written reasons. The offences alleged that:
(a)the use of the grouped dwelling with a higher density than permitted under Residential Design Codes was a breach of s 218(a) of the Act;
(b)the use of a single unit as two distinct units was not in accordance with the approved plans, in breach of s 218(a) and 218(c) of the Act; and
(c)the appellants changed the use of one of the units from one dwelling unit to two dwelling units in contravention of the City of Armadale Town Planning Scheme, in breach of s 218(a) and 218(c) of the Act.
In respect of the first appellant, the learned magistrate imposed a fine of $25,000 and a daily penalty amounting to $31,900. The second appellant received a fine of $15,000 and a daily penalty amounting to $15,950. Each appellant was ordered to pay costs of $6,855.
The appellants seek leave to appeal against the convictions and the sentences imposed by the learned magistrate.

Notice of Appeal and Leave to Appeal

The appellants filed their notice of appeal on 5 November 2018 which was brought within time.[1]
[1] Criminal Appeals Act 2004 (WA), s 10(3).
Under the notice of appeal, there are four grounds of appeal, namely that:
1.The learned magistrate erred in law in finding that the works the subject of the charges required development approval when the learned magistrate should have found:
(a)the works were internal building works which did not materially affect the external appearance of the building;
(b)as a result, pursuant to cl 8.2 of the Scheme and cl 60 and 61 of the Planning and Development (Local Planning Schemes) Regulations 2015 meant that no such planning approval was required.
2.The learned magistrate erred in fact and in law in finding that the works the subject of the charges created another dwelling.
3.The learned magistrate erred in fact and in law finding that the use of the dwelling had changed such that further development approval was required.
4.Alternatively, the sentences imposed were excessive in that:
(a)the works were carried out as one development and should have been assessed accordingly;
(b)Aman Singh was the principal of Fix WA Pty Ltd and the imposition of separate penalties involved doubly penalising the accused.
The appellants require leave to appeal.[2] The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a rational and logical prospect of succeeding.[3]
[2] Criminal Appeals Act, s 9(1).
[3] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

Factual Background

On 27 July 2011, Essential First Choice Homes on behalf of Bassi Developments Pty Ltd (Bassi), the owner of the land, submitted an application to the City of Armadale to develop Lot 3 on Survey Strata Plan 64866 contained in Certificate of Title Volume 2808 Folio 881, commonly referred to as 3/13 Bray Street, Kelmscott (Bray Street), as seven grouped dwellings. Bray Street is 1,820.10 m2 and is located within the City of Armadale. The second appellant was a director of Bassi.
On 6 October 2011, the City of Armadale granted approval for 'seven (7) grouped dwellings' at Bray Street subject to the conditions set out in determination.[4] The lot sizes for each of the grouped dwellings were between 208 m2 and 240 m2 with Unit 3 (the Property) being 227.35 m2.[5]
[4] Letter from the City of Armadale to Essential First Choice Homes Pty Ltd dated 6 October 2011 (Exhibit 2).
[5] Approved building plans (Exhibit 12).
The seven grouped dwellings at 13 Bray Street were constructed in accordance with the approved plans, subject to minor variations. These included the construction of a 'shopper door' in the garage as well as a store room in the Property.
On 23 April 2014, the first appellant acquired Bray Street.
On 11 April 2016, a complaint was made to the respondent in respect of the Property. On 12 April 2016, the respondent's Liaison and Compliance Officer, Graham Holmes, reviewed the approved plans. On the same day, Mr Holmes and Sarah Wilkins conducted an external inspection of the Property. On 14 April 2016, Mr Holmes and Ms Wilkins attended the Property again but were unable to gain entry.
At approximately 4.00 pm on 9 May 2016, Mr Holmes attended Bray Street to inspect the 'front unit' of the Property (referred to at trial as area 1) and to take photographs. The photographs taken by Mr Holmes showed that a hinged door had been installed in the opening between the dining and living rooms, and the kitchen. The door had no handle and appeared to be deadlocked. A refrigerator and clothes dryer obstructed the opening on one side. In the area marked 'study' on the approved plans, tiling had been laid above an upright stove, a kitchenette with overhead and under bench cupboards had been installed, and plumbing for a sink and washing machine, as well as an additional gas bayonet and power points had been installed.
During Mr Holmes' inspection on 9 May 2016, the tenant of area 1 of the Property produced a copy of an expired Residential Tenancy Agreement for the period 10 September 2014 to 9 September 2015. The Residential Tenancy Agreement referred to area 1 as 3/13 Bray Street, Kelmscott.
On 8 June 2016, Mr Holmes and Melissa Clark attended Bray Street and inspected the 'rear unit' of the Property (referred to at trial as area 2). Mr Holmes took photographs and observed that the opening between area 1 and area 2 had been boarded up by a partition. There was no handle on this partition. During the inspection, the tenant of area 2 gave Mr Holmes a copy of a Residential Tenancy Agreement for the period 7 January 2015 to 6 July 2015. This agreement referred to area 2 as 3A/13 Bray Street, Kelmscott.
On 16 November 2016, the second appellant ceased to be a director of the first appellant. His wife became the sole director from that time.
On 8 December 2016, the respondent wrote to the first appellant regarding non‑compliance with the development approval issued for Bray Street.[6] The letter set out the details of the inspection of the Property including that an additional kitchen had been installed in the 'study' area, which enabled the three bedroom unit to be rented out as two separate units. The letter requested the first appellant ensure the Property be brought into compliance with the development approval that had been issued, by removing the additional kitchen and plumbing.
[6] Letter dated 8 December 2016 (Exhibit 7).
In response, the first appellant wrote to the respondent on 29 January 2017 advising that the current configuration of the Property was consistent with the interpretation of a dwelling under the Residential Design Codes.[7]
[7] Letter dated 29 January 2017 (Exhibit 8).
On 3 May 2017 Mr Holmes carried out an internet search of Bray Street and returned results showing area 2 or Unit 3A was advertised for lease.[8]
[8] Three page internet search (Exhibit 9).
The prosecution and court hearing notices were served on both the first and second appellants on 3 April 2017 via registered post.
Specifically, the appellants were charged with the following offences:
(a)on or before 9 May 2016 and continuing from that date at 3/13 Bray Street, Kelmscott commenced or carried on development, namely the use of a grouped dwelling with a higher density than is permitted by the Residential Design Codes in contravention of cl 5.2 of the City of Armadale Town Planning Scheme Number 4 (Scheme) contrary to s 218(a) of the Act;
(b)on or before 9 May 2016 and continuing from that date at 3/13 Bray Street, Kelmscott commenced or carried on development, namely the use of a single unit in a grouped dwelling as two distinct units not in accordance with plans forming part of Planning Approval 10.2011.3240.1 issued by the Scheme contrary to s 218(a) and (c) of the Act; and
(c)on or before 9 May 2016 and continuing from that date at 3/13 Bray Street, Kelmscott commenced or carried on development by changing the use of one of the grouped dwelling units from one dwelling to two dwelling units in contravention of cl 8.1 and cl 11.4 of the Scheme contrary to s 218(a) and (c) of the Act.
The matter was listed for hearing from 25 to 26 July 2018 before the learned magistrate. At the commencement of the hearing, counsel for the appellants advised her Honour that 'as much as 95 per cent of the evidence is not in issue'.[9]
[9] ts 4.

Prosecution's case at trial

The prosecution relied on a statement of material facts, most of which was agreed, and tendered a number of exhibits.
The approved plan for the Property showed a door in the opening between the living room and kitchen although no door was installed at the time of construction by the builder. The door was installed later, on the instruction of the second appellant.
The prosecution called two witnesses to give evidence: Mr Holmes and Paul Rosser, the City of Armadale's coordinator of statutory planning.
Mr Holmes gave evidence of his investigation into Bray Street following receipt of a complaint alleging that the Property was now two units. Mr Holmes was shown the photographs he had taken during the investigation, and in particular the partition that existed between the opening of area 1 and area 2 of the Property.
In relation to the inspection of area 1 (or Unit 3), Mr Holmes gave the following evidence:[10]
[10] ts 58.
Where does that door lead to?--- The door separates the two units. If you were to open the door, you would be into the other unit, which is a two bed, one bath unit.
And did you open the door?--- No. Couldn't.
Why couldn't you?--- It has a deadlock on it. There's no handle, and there was no key.
…
HER HONOUR: You couldn't open the door is what you're saying?--- Yes. I couldn't open the door.
All right. Because you're saying that there was no handle, it was a deadlock and there was no key in the lock when you were there?--- That's correct.
He confirmed that there was no way of accessing either unit from the other. In relation to his inspection of area 2 (or Unit 3A) on 8 June 2016, Mr Holmes gave evidence that:[11]
[11] ts 61.
It [the photograph of the opening] shows just a blank door. There's no door there. I know from a previous inspection that there is a door there, but that has all been blanked off. It was either blanked off with plasterboard – probably plasterboard. Could have been plywood. I'm not sure. But it was sealed in position with a sealant.
…
Okay. And was - - -? - - - There was no way it could be opened.
Mr Holmes' evidence was that on visiting both area 1 and area 2, they were occupied separately. His evidence was that:[12]
[12] ts 67.
It [area 1] was very occupied. Yes. Furniture. Obviously the kitchen was being used. The bed was unmade. …
[Area 2] was, again, fully furnished. The tenant took me through the whole thing to show me ---
And when you say the tenant, was it the same tenant from the unit [area 1] and in the back? --- No. A different tenant.
And did either of the tenant from – did the tenant from the front or area 1 go with you into the area 2 section? --- No.
Did the area 2's tenant go with you into area 1's section? --- No.
In cross‑examination, Mr Holmes acknowledged that there were differences between development plans and building plans, with the latter being a more comprehensive document.[13] He also gave evidence that there were no separate power boards or water meters for area 1 and area 2.[14]
[13] ts 68 - 71.
[14] ts 72.
Mr Rosser was employed as the Coordinator of Statutory Planning by the respondent. He gave evidence that Bray Street is zoned residential with a density coding of R25/40. This requires a minimum lot size of 180 m2 and an average lot size of 220 m2.[15]
[15] ts 75 - 76.
Mr Rosser gave opinion evidence at the trial. No objection was taken by the appellants to this evidence being given at trial.[16] Mr Rosser gave evidence that he calculated the approximate area of each area of the Property. Area 1 was calculated as being 45 m2, whilst area 2 was approximately 130 m2 with a range of error of 5 – 10 m2. Mr Rosser's opinion was:^[17]
[16] ts 75.
[17] ts 77.
[T]here are two dwellings where one was approved. Now I base that solely on the definition of dwelling in the R codes and what has been described in the city's business records. We have a situation where the definition talks about portions of a building constituting a dwelling and, in this case, we have two separate portions leading me to conclude there are two dwellings.
Mr Rosser gave evidence about what the zoning of R25/40 meant. He stated that an application had been made and granted to develop Bray Street under R25/40.[18] As a result of this designation, Mr Rosser stated that neither area 1 nor area 2 were within the minimum lot size required by the Residential Design Codes.[19] Mr Rosser's evidence was that if there was non‑compliance with the standards, it was necessary to seek to vary the standards by reference to the design principles. In respect of the minimum lot size, Mr Rosser's evidence was that it was not possible to vary the minimum site area. He also gave evidence that no application for amendment had been made by the appellants.[20]
[18] ts 78.
[19] ts 79.
[20] ts 81.
In cross-examination, Mr Rosser was asked if the internal works affected the external appearance of Bray Street. He agreed that the only aspect of the external appearance that had been changed was the stickers denoting area 1 and area 2 as units 3 and 3A respectively on the exterior of the Property.[21] Mr Rosser's evidence was that the works done within the Property were not permanent; nothing had created a permanent state of affairs which separated unit 3 from unit 3A.[22] His evidence was that the intention of the works, together with the leasing of the two separate portions of the Property, was for permanent separation of these portions.
[21] ts 88.
[22] ts 99.
In closing its case, the prosecution submitted that as at the date of the last inspection, namely 9 May 2016, and continuing from that date, the Property did not comply with the Residential Design Codes. The prosecution submitted that cl 61 of the Deemed Provisions overruled cl 8.2 of the City of Armadale Town Planning Scheme. On this basis, the prosecution contended that an application to amend the plans is and was necessary, even if the works were only internal.[23]
[23] ts 143.

Appellants' case at trial

The appellants called one witness to give evidence in their defence: Mr Singh, the second appellant.
Mr Singh confirmed he was a director of the first appellant until November 2016, and had been involved in the initial application for the Property as the then director of Bassi.[24]
[24] ts 113.
The evidence of Mr Singh was that when the Property was initially constructed, there was a door between what was now area 1 and area 2. He deposed that it was a 'normal handled door … [with] just a privacy [lock]'.[25] The then tenant of the Property requested that a subtenancy be created, and that a kitchenette be installed in what was then a study. When a new tenant moved into area 1, they requested the door handle be changed to a lock to ensure greater privacy between the two areas.[26] Mr Singh gave evidence that the boarding up of one side of the doorway was not carried out or consented to by him.[27] Mr Singh did not give evidence as to when these alterations had occurred.
[25] ts 117.
[26] ts 118.
[27] ts 123.
In cross‑examination, Mr Singh stated that the deadlocked door could be opened by a key on either side and that both tenants had a key.[28] His evidence was that the tenants were aware that the Property was a shared house and that they did not have exclusive use of the Property.[29] Mr Singh was shown the leases of each of area 1 and area 2 which contained a quiet enjoyment clause. Mr Singh deposed that both sets of tenants:[30]
[28] ts 128.
[29] ts 129.
[30] ts 131.
[H]ad peace and quiet but they were – they are very well aware that there's entry into shared accommodation over there. People will have access over to the common areas. People will have access – there is a – the key is left on the property just as a security over there as well, so in case if tenant one or tenant two needs to access the second half.

In closing the appellants' case, counsel submitted that the issue for determination was whether there had been a change of use of the Property, on the basis there were now allegedly eight dwellings. The appellants' counsel argued that neither area 1 nor area 2 constituted separate dwellings and that, as a result, there were still seven dwellings at Bray Street. He submitted that the works undertaken at the Property were not a permanent change and that the required density that applied to the Property (namely not more than six disparate people) had never been exceeded.

Reasons of the learned magistrate

On 9 October 2018, the learned magistrate delivered reasons for her decision.
The learned magistrate found that the effect of the modifications and works carried out at the Property converted a single dwelling into two dwellings,[31] creating an eighth grouped dwelling.[32] Her Honour found this contravened the planning approval granted by the City of Armadale for seven grouped dwellings and contravened the R 40 minimum lot size per dwelling under the Residential Design Codes.
Her Honour held that for the purposes of the Scheme, 'dwelling' has the same meaning as that contained in the Residential Design Codes, namely 'a building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family'.[33] The learned magistrate held that the word 'permanent' referred to the purpose of the building or portion of a building.[34]
As a result, the learned magistrate found the appellants guilty on all charges.

Statutory Background

[31] Reasons for decision [50].

[32] Reasons for decision [53].

[33] Reasons for decision [37].

[34] Reasons for decision [40].

The City of Armadale Town Planning Scheme No 4 is a local planning scheme made under s 72 of the Act. The purpose of the Scheme includes to zone land within the respondent for the purposes defined in the Scheme[35] and to control development.[36]
[35] Scheme, cl 1.5(c).
[36] Scheme, cl 1.5(d).
Part 4 of the Scheme deals with zoning and the use of land. The Scheme includes a zoning table which sets out various use classes that can be carried on within the zones. The use classes are described by reference to different types of dwellings and activities. Relevantly, the use classes includes as a category 'grouped dwellings'. Grouped dwellings are not permitted within a residential zone unless the respondent has exercised its discretion to grant planning approval for this use.
Part 5 of the Scheme addresses general development requirements. Pursuant to cl 5.2.2 of the Scheme, development of land for residential purposes is required to comply with the Residential Design Codes.
The Residential Design Codes (R‑Codes) are prepared by the Western Australian Planning Commission under s 26 of the Act. The purpose of the R‑Codes is to provide a comprehensive basis for the control of residential development throughout Western Australia.[37]
[37] R-Codes, cl 1.2.
Part 5 of the R‑Codes sets out the design elements for single houses, grouped dwellings and certain multiple dwellings. Section 5.1 is entitled 'Context'. Its objectives include to ensure that residential development meets community expectations in regard to appearance, use and density. Clause 5.1.1 deals with site area. The 'deemed to comply' requirement in cl 1.1 is that the development complies with the dwelling type and site area requirements set out in Table 1 and the provisions set out there. The Table sets out a minimum site area requirement for multiple dwellings in areas with different density codes. For a development with an R‑Code of R 40, the minimum site per dwelling is 180 m2 and the average is 220 m2.
The R-Codes define 'dwelling' as:[38]
[38] R-Codes, 'Appendix 1'.
A building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family.
Part 8 of the Scheme deals with the development of land. Pursuant to cl 8.1 of the Scheme and subject to cl 8.2, all development within the City of Armadale requires the prior approval of the respondent.
Development in the Scheme is defined as having the same meaning as s 4 of the Act. Section 4 relevantly defines 'development' 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;
(b)the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a protection order made under the Heritage Act 2018 Part 4 Division 1 applies, any act or thing that —
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building.
In University of Western Australia v City of Subiaco[39], Burt CJ held that development encompasses two ideas; first the '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 second 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself'.
[39] University of Western Australia v City of Subiaco (1980) 52 LGRA 360, 363 ‑ 364.
The context in which 'development' is used may require a different meaning to be attributed to it depending upon the context.[40] However, relevantly for the purposes of this case, it is clear that the word 'development' includes 'use' and not just construction of the units at Bray Street.[41]
[40] 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].
[41] Mocilac v City of Fremantle [41].
Clause 8.1 of the Scheme requires that the use of Bray Street and the activities carried out on Bray Street must have the approval of the respondent. If Bray Street is used without the prior approval of the respondent, there will be a failure to comply with the requirements of the Scheme.
Clause 8.2 of the Scheme relevantly provides that:
Except as otherwise provided in the Scheme, for the purposes of the Scheme the following development does not require the planning approval of the [respondent]
(a)the carrying out of any building or work which affects only the interior of a building and which does not materially affect the external appearance of the building …
Clause 8.3 of the Scheme governs the amendment or revocation of planning approval. Specifically it provides that:
[The respondent] may, on written application from the owner of land in respect of which planning approval has been granted, revoke or amend the planning approval, prior to the commencement of the use or development subject of the planning approval.
Part 9 of the Scheme sets out the requirements for a party to obtain planning approval and pt 10 governs the procedure for dealing with applications.
Part 11 is headed 'Enforcement and Administration'. It includes cl 11.4.1 which relevantly provides that a person must not:
(a)contravene or fail to comply with the provisions of the Scheme; or
(b)use any land or commence or continue to carry out any development:
(ii)unless all approvals have been granted;
(iii)otherwise than in accordance with any conditions imposed on the grant and issue of approval.
The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) took effect on 19 October 2015. Regulation 10(4) provides that the provisions in sch 2 to the Regulations are Deemed Provisions which apply to all local planning schemes, whether or not they are specifically incorporated in the local planning scheme. Pursuant to s 257B of the Act, the 'Deemed Provisions' have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force. If a Deemed Provision is inconsistent with another provision of a local planning scheme to which the Deemed Provision applies, the Deemed Provision prevails and the other provision, to the extent of the inconsistency, has no effect.
Part 7 of the Deemed Provisions is entitled 'Requirement for development approval'. Pursuant to cl 60, a person must not commence or carry out any works on land unless the person has obtained the development approval of the local government or the development is of a type referred to in cl 61. Clause 61(1) provides that development approval of the local government is not required for the works specified in that clause. This included at sub‑cl (b), the carrying out of internal building work.
Clause 77 of the Deemed Provisions deals with the amendment or cancellation of development approvals. It specifically provides that:
(1)An owner of land in respect of which development approval has been granted by the local government may make an application to the local government requesting the local government to do any or all of the following ‑
(a)to amend the approval so as to extend the period within which any development approved must be substantially commenced;
(b)to amend or delete any condition to which the approval is subject;
(c)to amend an aspect of the development approved which, if amended, would not substantially change the development approved;
(d)to cancel the approval.
(2)An application under subclause (1) ‑
(a)is to be made in accordance with the requirements in Part 8 and dealt with under this Part as if it were an application for development approval; and
(b)may be made during or after the period within which the development approved must be substantially commenced.
(3)Despite subclause (2), the local government may waive or vary a requirement in Part 8 or this Part in respect of an application if the local government is satisfied that the application relates to a minor amendment to the development approval.
(4)The local government may determine an application made under subclause (1) by ‑
63(a)    approving the application without conditions; or
64(b)    approving the application with conditions; or
65(c)    refusing the application.
Section 218 of the Act deals with contraventions of planning schemes. Specifically, this section provides that:
A person who ‑
(a)contravenes the provisions of a 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 phrase 'carry out any development' is wide enough to cover development that occurs after construction and includes carrying on a use of the land by the presence of a structure on the land.[42]
[42] Mocilac v City of Fremantle [39] - [40]; cited with approval in City of Albany v Cuscana Nominees Pty Ltd [2015] WASC 91 [35].
The penalties for offences under the Act are set out in s 223 of the Act:
Unless otherwise provided, a person who commits an offence under this Act is liable to a fine of $200 000 and, in the case of a continuing offence, a further fine of $25 000 for each day during which the offence continues.
Where an offender is a body corporate, they are liable to a fine of five times the maximum fine that could be imposed on a natural person.[43]
[43] Sentencing Act 1995 (WA), s 40(5).
The starting point in considering the meaning of the Act is to consider the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose.[44] Extrinsic materials can be considered to confirm the ordinary meaning conveyed by the text of the provision, or to determine the meaning of a provision where the provision is ambiguous or obscure, or where the ordinary meaning gives rise to a result that is manifestly absurd or unreasonable.[45]
[44] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [4].
[45] Interpretation Act 1984 (WA), s 19(1).
The approach to statutory construction was summarised by Buss JA (as he then was) in Caratti v Mammoth Investments Pty Ltd as follows:[46]
The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. (citations omitted)
[46] Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84 [390] - [392].
These principles also apply to the construction of subsidiary or delegated legislation.[47]
[47] Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398. See also Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132 [23] (McClure JA).
In respect of the proper construction of the Scheme, as noted by Banks‑Smith J in City of Swan v West Australian Shalom Group Inc:[48]
It is a relevant aspect of the context of words in a planning scheme that they were not drafted by a Parliamentary draftsperson. Accordingly a planning scheme should be construed broadly, rather than pedantically and with a sensible practical approach. However, that does not mean that different rules of construction apply. (citations omitted)
[48] City of Swan v West Australian Shalom Group Inc [2017] WASC 217 [37].
Much of the argument before the learned magistrate and on appeal concerned firstly, whether approval was required for the works that were undertaken at the Property and secondly, the proper construction of 'dwelling', in particular, what was meant by the word 'permanent'.
In respect of the first issue, on its face, there were two elements of the approval granted to the first appellant. The first element was that the respondent granted planning approval for the development of Bray Street for the purpose of 'Grouped Dwellings'. The second element was approval to carry out the physical development in accordance with the approved plans.
As noted by Chaney J in City of Albany v Cuscuna Nominees Pty Ltd:[49]
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.
[49] City of Albany v Cuscuna Nominees Pty Ltd [2015] WASC 91 [37].
This distinction appears in the terms of the Scheme. A note to cl 8.1 of the Scheme states that '[t]he planning approval of the [respondent] is required for both the development of the land (subject of this Part) and the use of land (subject of Part 4).' As noted above, pt 4 of the Scheme sets out the zones and use of the land in the Scheme Map and includes the zoning table. Clause 8.1 is in pt 8 of the Scheme, which is headed 'Development of Land'. The use of the word 'development' in the heading and the note to cl 8.1 is, in the context in which it appears, a reference to what Burt CJ referred to as activities resulting in a physical alteration to the land.
In Baker Investments Pty Ltd v City of Vincent, Le Miere J, in considering the Deemed Provisions, stated:[50]
[I]t would be contrary to the planning purpose of both cl 77 and the requirement to obtain and comply with the terms of the development approval if cl 61(1)(i) allowed individual aspects of a previously approved development to be amended without approval. To do so would allow the alteration of aspects of the approved development which, individually or cumulatively, were important to the exercise of discretion to approve, thereby undermining the basis for the initial approval. To do so would also create practical difficulties in enforcement, because the development as constructed would be different from the approved plans.
[50] Baker Investments Pty Ltd v City of Vincent [2017] WASC 263 [47]
In my view, his Honour's comments apply equally to planning approvals and extend beyond the matters referred to in cl 61(1)(i) of the Deemed Provisions.
The Scheme specifically provides for a land owner to apply to amend a planning approval which has already been given.[51] In my view, it would be contrary to the planning purpose of the Scheme and the requirement to obtain planning approval for the use of Bray Street for the purpose of 'Grouped Dwellings', if amendments could be made to the application that formed the basis of the approval which, individually or cumulatively, were important to the exercise of the discretion to approval. These amendments, if made without approval, would mean that the use of the land was occurring without the prior approval of the respondent in breach of cl 8.1 of the Scheme.
[51] Scheme, cl 8.3.
Given the terms of the Scheme, which contemplate that amendments can be made to existing approvals, it is not necessary for me to consider whether the Deemed Provisions applied to the works carried out at the Property.
In considering whether the appellants were required to seek planning approval or to seek to amend the planning approval it had previously received for the works carried out at the Property, it is necessary to consider the nature of the works carried out and whether these works were, either individually or cumulatively, important to the original exercise of the discretion to approve the development.
In this case, in considering whether the works carried out at the Property came within the existing planning approval or required the applicant to apply to amend the planning approval that had already been granted, it is necessary to consider what aspects of the application were important to the exercise of the discretion to give planning approval. In this regard, it is clear that the number of dwellings at Bray Street was a critical element of the planning consent. This is because the question as to whether the development complied with the R‑Codes specification for the minimum site per dwelling depended on the number of dwellings at Bray Street. If the proposed development did not comply with the minimum site requirements, planning approval would not have been given to use the site for 'Grouped Dwellings'.
In addition to the planning approval that was given by the respondent, the respondent granted development approval for the development of Bray Street in accordance with the amended plans received on 5 October 2011. These amended plans included the construction of seven units or dwellings. For this reason, whether there has been a contravention of the development approval depends on whether the development is, at the time of the charge, seven grouped dwellings or eight grouped dwellings.
Accordingly, if the works carried out at the Property had the effect of creating an eighth grouped dwelling, the construction will not be in accordance with the planning approval in breach of s 218(a) of the Act and will not have been developed in accordance with the approved plans or the Scheme in breach of s 218(c) of the Act.

Turning then to the question as to whether the works carried out at the Property created an eighth dwelling, the issue is whether, as a result of these works, two separate portions of the Property were being used for the purpose of human habitation on a permanent basis.
The learned magistrate held that the word 'permanent' was not a reference to whether the works within the Property were permanent but the use to which the Property was put. That is, the word 'permanent' referred to whether it was intended that the Property be used for residential purposes by two separate groups.
In my view, for the following reasons, the learned magistrate was correct to find that the reference to 'permanent' was a reference to the use of the building and to reject the argument by the appellants that it referred to the works that had been carried out. First, in the context of the definition of dwelling, the definition contemplates that a portion of a building and not the whole building may be used as a permanent residence. Second, in its context, the word 'permanent' is a reference to the use of the dwelling by a person or group of persons as a place of residence for an extended period of time. Third, this construction is consistent with the accepted definition of 'reside' which is the place at which a person dwells permanently[52] or, to put it another way, the place where a person has an intention to return and an attitude that it is their 'home'.[53]
[52] Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 [99] - [100]; Derring Lane Pty Ltd v Port Phillip City Council [No 2] [1999] VSC 269; (1999) 108 LGERA 129 [12].
[53] Hafza v Director‑General of Social Security (1985) 60 ALR 674, 680 - 681 (Wilcox J); Norman v Norman [No 3] (1969) 16 FLR 231, 236.
In considering a different town planning scheme but an identical definition of dwelling, Hall J stated in Clay v City of Nedlands:[54]
The reference to 'permanent basis' clearly precludes those for whom the premises are a transient place to stay and whose permanent place of residence is elsewhere.
[54] Clay v City of Nedlands [2012] WASC 402 [32] - [34].
I respectfully agree with his Honour.
I now turn to consider the four grounds of appeal.

Disposition of appeal

Ground One - Whether the works required development approval

The learned magistrate held that the development approval required the development to occur in accordance with the approved plans.[55] On this basis, her Honour considered that if the appellants wanted to convert the study into a kitchenette, this required development approval even though the works were purely internal.[56] In respect of the installation of the internal door and plasterboard, her Honour considered that it was arguable that the installation of the plasterboard required planning approval as while the approved plans showed a possible door, the installation of the plasterboard meant that it could not be opened.[57]
[55] Reasons for decision [27].
[56] Reasons for decision [29].
[57] Reasons for decision [31].
In respect of the planning approval, the learned magistrate held that the planning approval for Bray Street was for seven grouped dwellings[58] and that the effect of the works at the Property changed the development from a seven grouped dwelling to an eight grouped dwelling.[59] This change meant that the Property did not meet the minimum requirements for the lot size of a dwelling[60] and Bray Street did not meet the requirements of the R‑Codes, in breach of cl 5.2 of the Scheme.[61]
[58] Reasons for decision [51].
[59] Reasons for decision [53].
[60] Reasons for decision [64].
[61] Reasons for decision [71].
The appellants submitted that the works that were carried out, namely the installation of a kitchenette as well as a door in the space between areas 1 and 2 of the Property, were internal works. The only evidence of external works was the placement of the numbers 3A on one of the doors of the Property. The appellants contended that this was not a change in the external appearance of the building and, as such, pursuant to cl 8.2 of the Scheme, it was not necessary for the appellants to obtain approval for these works.
The appellants submitted that the use that was approved for the land was 'grouped dwelling'. The works that were done did not change the use of Bray Street, as each of the units including the Property were still being used as grouped dwellings. The appellants contended that the number of units (seven or eight) was not relevant to the respondent's approval of the use of the land.
The respondent contended that the use of the Property was not in accordance with the conditions imposed upon the issue of any approval of the Scheme as required by cl 11.4.1 of the Scheme. As such, the exception under cl 8.2 did not apply to the works that had been carried out.
As set out above, it is my view that in determining whether planning approval was required for the works, the focus is not on whether the modifications depart from the approved plans but whether the modifications, individually or cumulatively, were matters which were important to the exercise of the discretion by the respondent to give planning approval.
For this reason, it is my view that the learned magistrate erred in concluding that any modification to the Property that was a departure from the approved plans required planning approval.
Despite an error of law having been identified by the appellants, this court can still dismiss the appeal if, despite this error, no substantial miscarriage of justice has occurred.[62] For this reason, it is necessary for me to consider whether, on the evidence before the learned magistrate, the appellants could have been convicted of a breach of s 218(a) of the Act.
[62] Criminal Appeals Act, s 14(2).
In this case, for the reasons that are set out below in relation to Ground Two, it is my view that the cumulative effect of the works that were carried out at the Property created another dwelling. This impacted the minimum lot size for each of the units at Bray Street as well as the average lot size. Had the application for planning approval been submitted to the respondent seeking approval for the use of Bray Street as grouped dwellings with eight units and not seven, the respondent would not have approved its use as the proposed plans would not have complied with the R‑Codes which was a requirement pursuant to cl 5.2 of the Scheme. As such, in my view, the cumulative effect of the modifications were important to the exercise of the discretion to give planning approval. Accordingly, the appellants were required to obtain an amended planning approval, prior to carrying out the works.
For this reason, the works that were carried out at the Property, while being internal works and occurring after construction had been finalised, required the approval of the respondent pursuant to cl 8.3 of the Scheme prior to being undertaken.
Accordingly, I consider that planning approval was required for the works and that the failure of the appellants to obtain planning approval was a breach of s 218(a) of the Act. Consequently, notwithstanding the error of law by the learned magistrate, the appellants should still have been convicted of a breach of s 218(a) of the Act. For this reason, I do not consider there has been any substantial miscarriage of justice. While I would grant leave to appeal, I would dismiss this ground of appeal.

Ground Two - Whether the works created another dwelling

The learned magistrate found that the works and modifications that were carried out at the Property enabled the Property to be separately occupied as two separate dwellings.[63]
[63] Reasons for decision [50].
In reaching this conclusion, her Honour relied on the following matters:[64]
(a)each area contains features that enable separate occupation, namely a kitchen or kitchenette, bathroom, bedroom and living area;
(b)there were separate residential tenancies for each area;
(c)the tenancy agreements described each area separately and were not a subletting arrangement. The agreements required each tenant to pay weekly rent in different amounts for each area and a separate security bond; pay 50% of the usage and supply charges for utilities; and included terms of exclusive occupation and quiet enjoyment of the area the subject of the lease;
(d)each tenant could access their premises by a separate door which had a unit number affixed;
(e)the door between the areas had been boarded up to the knowledge of the appellants and no action had been taken to remove this;
(f)the advertisement for one of the areas did not indicate the premises were part of a sharing arrangement or subleasing arrangement but represented it was an independent unit.
[64] Reasons for decision [47].
The appellants submitted that the works did not change the use of the dwelling from 'grouped dwelling' or create another dwelling. In this regard, the appellants contended that dwellings relate to subdivision of the land, strata development and the grant of titles. Given that area 1 and area 2 within the Property were not the subject of separate titles, the works did not create another dwelling.
The respondent contended that the works undertaken by the appellants did create two dwellings. In any event, the respondent submitted that the charges did not require this finding to be made as the assertion that the works created two separate dwellings was a particular of the charge of why the first appellant's development did not comply with planning approval.
In my view, in considering whether the works that were undertaken created another dwelling, the question is whether the works meant that each of the areas could be used by a person or group of persons as a place of residence for an extended period of time as the place where a person has an intention to return, and in respect of which they have an attitude that it is their 'home'. That is, a dwelling is not required to be the subject of separate legal titles although the existence of separate legal titles will be a relevant but not determinative factor.
In this case, for the reasons referred to by the learned magistrate which are summarised above, I consider that the works and modifications undertaken at the Property had the effect of creating another dwelling. The effect of these works and modifications was that the development of the Property was now a development of eight dwellings not seven dwellings. This development was not in accordance with the approved plans in breach of s 218(c) of the Act.
Accordingly, while I would grant leave to appeal, I would dismiss this ground of appeal.

Ground Three - Whether the use of the dwelling had changed

As noted above, the learned magistrate held that the planning approval for Bray Street was for seven grouped dwellings and that the effect of the works at the Property changed the use from seven grouped dwellings to eight grouped dwellings.[65]
[65] Reasons for decision [53], [73].
The appellants submitted that there was no change in use. That is, as noted above, the use that was approved for the land was 'grouped dwelling' which did not change as a result of the works. The appellants contended that the question as to whether there were seven or eight units at Bray Street was not relevant to the question as to whether there had been a change of use.
In response, the respondent submitted that the planning approval issued by the respondent was for both 'use development' and 'built development'. In this case, the 'built development' did not comply with the approved plans because of the installation of the deadlocked door and the installation of the kitchen. In addition, the 'use development' that was approved by the respondent was seven grouped dwellings when, as a result of the works carried out, there were now eight grouped dwellings.
As noted above, there were two elements to the approval granted to the appellants. The first was planning consent for the land to be developed and used as 'Grouped Dwellings'. The second was approval to carry out physical development of Bray Street of seven grouped dwellings in accordance with the approved plan.
As was noted by Chaney J in City of Albany v Cuscuna Nominees Pty Ltd:[66]
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.
[66] City of Albany v Cuscuna Nominees Pty Ltd [37].
The creation of two dwellings at the Property did not alter the use of Bray Street; it was still being used as 'Grouped Dwellings' in accordance with pt 4 of the Scheme. Accordingly, in my view, it cannot be said that the appellants' use of the Property for the purpose of a grouped dwelling was carried on without approval under the Scheme.
On this basis, I would grant leave to appeal in relation to ground three and allow the appeal on this ground. I would set aside the appellants' convictions on AR 4915/2017 and AR 4918/2017 and in lieu thereof order that a judgment of acquittal be entered on each of these charges.

Ground Four - Sentences were excessive

The appellants were sentenced on 9 October 2019 at a hearing which immediately followed the learned magistrate's delivery of her written reasons to convict each of the appellants.
The maximum penalty for a breach of s 218 of the Act at the date of the offences was $1 million and a daily rate of $125,000 for a corporation and $200,000 and a daily rate of $25,000 for individuals.
In sentencing the appellants, the learned magistrate acknowledged there was no established range of sentences for offences covered by the Act. Her Honour stated:[67]
[T]here's no established range of sentences for types of offending covered by the Planning and Development Act, and that has been observed in a number of Supreme Court cases. And the types of offences can vary significantly from, by way of example, minor unapproved works made to a residence by an owner builder, to significant works at a major commercial development.
Thus, the – the idea that you can find a – a pattern with respect to the range of penalties is impeded by the different circumstances in which the type of offending may have – may have occurred.
[67] ts 180 - 181.
Her Honour held that the breach related to the development approval and the conditions of that approval. She considered that the appellants gained some commercial benefit by leasing out each of area 1 and area 2 separately. She found that this was done knowingly and deliberately. She also noted that when the matter was first raised with the appellants, they did not submit an application for amendment or variation of the approvals they had obtained.
In respect of the two accused, the learned Magistrate stated that:[68]
In this particular case, there are two accused, one is an individual and the other is a body corporate. The individual was a director of the company and, if my recollection serves me correctly, that ended in November 2016. And there doesn't seem to have been any issue taken with respect to the prosecution's submission that the offending period is from 9 May 2016 continuing until 21 March 2017, so the individual's individual role whilst extended to that time as well in terms of the involvement that the individual had with the company as a sole director, the company's culpability extended beyond the individual's role as a sole director with the company.
[68] ts 181.
The learned magistrate noted that the offences, whilst separate offences, were connected and that it was appropriate to impose a global fine for the three offences on each of the accused. She went on to state:[69]
[W]hilst I am not prepared to treat the total fine and distribute the fine between the two accused, I do consider it is appropriate to apply a fine globally to the three offences for each of the accused, given that the – particularly the offence as it related to the R-Codes and density, in my view, was different to the other two offences in a fairly significant way, the circumstances of the offences were manifested from the same set of facts.
There's no issue, as I say, raised by the accused person, or the company, with respect to the daily – sorry, to their maximum penalties. As I say, for an individual, it's $200,000, for the – for a fine and a daily penalty of $25,000. For a corporate entity it's a $1 million fine with $125,000 daily penalty. I note the cost of – the total cost of the development. As I say, this is not – if I have to categorise it, and I suspect I probably do – this is not a breach at the highest end.
I would be struggling to accept that it was even a breach at the middle range. At, yes, at best, I think, it is a – a breach towards the lower to middle range of the offending spectrum as it relates to both individuals and a corporate entity. However, it does involve some commercial benefit. It does involve decisions made by the company and the individual to continue to use the land in a way that the court has found was contrary to the scheme and to the Planning and Development Act, and it does involve the company and the individual deciding to take that action in preference to any other action.
And it also involves, obviously, taking a matter to court, and I've already made a comment with respect to that. So there is the need for specific deterrent penalty, but more importantly, there is a need for general deterrent penalty, having regard to the observations that I've made that are relevant to Planning and Development Act sentencing matters. Taking all of that into account, with respect to Fix WA, noting my observations of where I feel this fits in the spectrum, there will be a fine of $25,000.
With respect to the additional penalty as it relates to a daily rate, there will be a daily rate of $100 per day over 319 days. That is a penalty of $31,900 and costs, which have not been challenged, if I can put it that way, apportioned to the company, of $6855. With respect to the – Mr Singh, as an individual, I impose a fine of $15,000 with the additional penalty of $50 per day on a daily rate at three – at $319, which is $15,950 and, again, apportion costs as indicated by the prosecution, of $6855. And if it wasn't clear, the penalty in both cases is a global penalty.
[69] ts 185.
No complaint was made about the fact that the learned magistrate imposed a global fine on each of the appellants. As the offences were part of a series of offences of the same or a similar kind, the imposition of a single fine for all of the offences was open to her Honour.[70]
[70] Sentencing Act 1995 (WA), s 54(1).
The appellants submitted that the factual circumstances for all three offences were the same. In addition, they asserted that the learned magistrate should have treated the first and second appellants as one. For these reasons, the appellants contended that one penalty should have been imposed.
The respondent submitted that the second appellant had ceased to be a director of the first appellant prior to the charges being issued. Pursuant to the Criminal Procedure Act 2004 (WA) s 180, the second appellant, who was a director of the first appellant at the time of the offences, could be charged and convicted with these offences.
In respect of the submission that the learned magistrate should have treated the three offences as the same offence, it is clear from her Honour's reasons that she sentenced each appellant to a global fine for the three offences as each offence arose from the same set of facts. Accordingly, this submission has no merit.

It is trite that a company can only act through its officers and agents. Where an offence is committed by a company, its officers (including its directors) may be charged with the commission of the offence.[71]
[71] Criminal Procedure Act, s 180.
In circumstances where the second appellant resigned as a director of the first appellant during the offending period (of 9 May 2016 until 21 March 2017), in my view the first appellant and second appellant could not be said to be the one offender. On this basis, the learned magistrate did not err in failing to impose one penalty on both accused.
As noted above, I have allowed ground three of the appeal and acquitted each of the appellants of one of the charges they faced. This raises the question as to whether the sentence imposed by the learned magistrate in respect of the three charges remains the appropriate sentence or whether, on this basis, the sentence is excessive.
Neither the appellants nor the respondent had an opportunity to make any submissions on this point at the hearing of the appeal. I will hear from counsel concerning the appropriate order in light of these reasons.

Conclusion

In respect of grounds one and two, while I would grant leave to appeal on these grounds, these grounds of appeal have not been made out.
As noted above, I would allow ground three of the appeal. This has the consequence that each of the appellants should be acquitted of the third of the charges they faced. Each of the appellant's convictions on charges AR 4915/2017 and AR 4918/2017 should be set aside and in lieu thereof judgments of acquittal be entered.
Given this finding, I will hear from counsel in respect of ground four of the appeal and whether, in light of this finding, the sentences imposed by the learned magistrate were excessive.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MG
Research Orderly to the Honourable Justice Hill

3 OCTOBER 2019

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   FIX WA PTY LTD -v- CITY OF ARMADALE [2019] WASC 356 (S)
CORAM:   HILL J
HEARD:   28 OCTOBER 2019
DELIVERED          :   28 OCTOBER 2019
FILE NO/S:   SJA 1126 of 2018
BETWEEN:   FIX WA PTY LTD
First Appellant
AMAN SINGH
Second Appellant
AND
CITY OF ARMADALE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D SCADDAN
File Number             :   AR 4913 of 2017, AR 4914 of 2017, AR 4915 of 2017, AR 4916 of 2017, AR 4917 of 2017, AR 4918 of 2017

Catchwords:

Planning and development - Whether different sentence should be substituted where the conviction for one of the offences has been quashed - Original sentence appropriate in all the circumstances

Legislation:

Sentencing Act 1995 (WA), s 11(1), s 54

Result:

Ground 4 appeal dismissed