LAFOU PTY LTD and TOWN OF CLAREMONT - [2009] WASAT 187

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: LAFOU PTY LTD and TOWN OF CLAREMONT [2009] WASAT 187

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 16 SEPTEMBER 2009

DELIVERED : 23 SEPTEMBER 2009

FILE NO/S: DR 263 of 2009

BETWEEN: LAFOU PTY LTD
Applicant
AND
TOWN OF CLAREMONT
Respondent

Catchwords:

Local government direction - House, garage and fences demolished - Land subsequently transferred to applicant - Applicant did not undertake demolition or cause demolition to be undertaken - Local government direction required applicant to 'alter the Development', namely 'the clearing of the Land by demolishing and removing' the house, garage and fences, 'by restoring the Land as nearly as practicable to its condition immediately before the Development started' by rebuilding the house, garage and fences - Whether direction is authorised by s 214(3) of the Planning and Development Act 2005 (WA) - Whether direction can require rebuilding demolished building or structure - Whether 'development' includes 'demolition' for the purposes of s 214(3) of the Planning and Development Act 2005 (WA) - Whether contrary intention is apparent to application of defined meaning of 'development' - Whether rebuilding demolished building or structure involves 'alteration' of demolition - 'Demolition' is product, not process - Practical difficulties in rebuilding demolished building or structure - Whether direction can be given to landowner who did not undertake unlawful development - Whether direction can be given to landowner who acquired ownership after unlawful development was undertaken - Meaning of expression 'the owner or any other person who undertook the development'

Legislation:

Planning and Development Act 2005 (WA), s 4(1), s 214(1), s 214(2), s 214(3), s 214(4), s 215(1), s 215(2) s 255(1)

Result:

Direction set aside

Category: A

Representation:

Counsel:

Applicant: Mr MC Hotchkin
Respondent: Mr DP Gillett

Solicitors:

Applicant: Hotchkin Hanly
Respondent: McLeods

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

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned the scope of a responsible authority's power to give a direction under s 214(3) of the Planning and Development Act 2005 (WA) to remedy development undertaken in contravention of a planning scheme. In particular, the decision concerned:
1)Whether a direction can require the rebuilding of a demolished building or structure; and
2)Whether a direction can be given to a landowner who was not the owner at the time when unlawful development was undertaken and who did not undertake the unlawful development.
The Tribunal determined that a direction can require the rebuilding of a demolished building or structure. 'Development' includes 'demolition' and 'demolition' refers to the physical product of labouring operations, namely a partially demolished building or structure or a cleared site, rather than the labouring operations itself. Demolition, relevantly, involves a product, not a process. The section authorises a responsible authority to give a direction, among other things, 'to … alter', that is to make different in some particular or to modify, the development. It therefore authorises a direction to alter a cleared site by rebuilding a demolished building or structure on the site.
The Tribunal determined that a direction can only be given to a landowner who undertook unlawful development or to any other person who undertook unlawful development. A direction cannot be given to a landowner who acquired ownership after unlawful development was undertaken and who did not itself undertake the unlawful development.
In the circumstances of the case, the direction purportedly given by the responsible authority to the current landowner under s 214(3) of the Planning and Development Act 2005 (WA) was set aside, because the landowner was not the owner at the time when development comprising demolition was undertaken and did not itself undertake the development.

Preliminary issue

Lafou Pty Ltd (Lafou) is the owner of No 5 Victoria Avenue, Claremont (site). In or about August 2008, prior to Lafou acquiring ownership of the site, a house, garage and fences situated on the site were demolished. Lafou did not undertake the demolition nor cause it to be undertaken.
On or about 26 June 2009, after Lafou became the owner of the site, the Town of Claremont (Town or Council) purported to give a direction to Lafou under s 214(3) of the Planning and Development Act 2005 (WA) (PD Act) (direction). The direction states that the following development was undertaken on the site:
The clearing of the [site] by demolishing and removing:
(a)a large single storey brick Federation Bungalow house (House), the former location of which is highlighted in yellow on Annexure 1 hereto ('Annexure 1');
(b)a double garage with loft constructed from brick with corrugated iron roof ('Garage'), the former location of which is highlighted in pink on Annexure 1;
(c)brick fences along the northern and western boundaries of the [site] ('Brick Fence'), the former location of which is highlighted in blue on Annexure 1; and
(d)a brick and wrought iron fence along the western and southern boundaries of the [site] ('Brick and Wrought Iron Fence'), the former location of which is highlighted in orange on Annexure 1.
('the Development')
The direction requires Lafou to do the following:
Pursuant to section 214(3) of the Scheme [sic - PD Act], the Shire hereby directs you to alter the Development as specified in the Third Schedule hereto.
The Third Schedule to the direction states as follows:
Alter the Development by restoring the [site] as nearly as practicable to its condition immediately before the Development started by:
(a)Rebuilding the House in the location shown on Annexure 1 and in accordance with plans 8509-1 ‑ 8509-5 attached hereto as Annexures 2 - 6 respectively;
(b)Rebuilding the Double Garage in the location shown on Annexure 1 and in accordance with plans 8509-82 and 8509-83 attached hereto as Annexures 7 and 8 respectively; and
(c)Rebuilding the Brick Fence and the Brick and Wrought Iron Fence in accordance with plans 8509-81, 8509-91 and 8509-92 attached hereto as Annexures 1, 9 and 10 respectively.
On 2 July 2009, Lafou sought review by the Tribunal under s 255(1) of the PD Act of the Town's decision to give the direction. Lafou identified the following preliminary issue for determination:
Whether the purported exercise by the Town of a power to issue a direction pursuant to s 214(3) of the PD Act was validly exercised under s 214(3) of the Act.
Lafou argued that the Town did not validly exercise the power under s 214(3) for each of two reasons. First, s 214(3) does not authorise a responsible authority to give a direction requiring the rebuilding of a demolished building or structure. Second, s 214(3) of the PD Act does not authorise a responsible authority to give a direction to any landowner, other than an owner who undertook unlawful development.
For reasons which follow, the Tribunal rejects Lafou's first argument, but concurs with its second argument. The consequence is that the purported exercise by the Town of the power under s 214(3) of the PD Act was invalid and the direction should be set aside.
Before addressing the preliminary issue in detail, it is appropriate to set out in full not only s 214(3) of the PD Act, but the whole of s 214(1) ‑ (4) of the PD Act. This is because:
The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. (Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320 per Mason and Wilson JJ.)
As will be seen, the subsections preceding and following s 214(3) of the PD Act assist in the proper interpretation of that subsection. In particular, there is a close link between subsections (2) and (3) - the former enables unlawful development to be restrained, whereas the latter enables unlawful development to be remedied.

Section 214(1) - (4) of the PD Act

Section 214(1) ‑ (4) of the PD Act states as follows:
(1)For the purposes of subsections (2) and (3) -
(a)a development is undertaken in contravention of a planning scheme or an interim development order if the development -
(i)is required to comply with the planning scheme or interim development order; and
(ii)is commenced, continued or carried out otherwise than in accordance with the planning scheme or interim development order or otherwise than in accordance with any condition imposed with respect to that development by the responsible authority pursuant to its powers under that planning scheme or interim development order;
(b)a development is undertaken in contravention of planning control area requirements if the development -
(i)is commenced, continued or carried out in a planning control area without the prior approval of that development obtained under section 116; or
(ii)is commenced, continued or carried out otherwise than in accordance with the approval referred to in subparagraph (i) or otherwise than in accordance with the conditions, if any, subject to which that approval is given.
(2)If a development, or any part of a development, is undertaken in contravention of a planning scheme or an interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person undertaking that development to stop, and not recommence, the development or that part of the development that is undertaken in contravention of the planning scheme, interim development order or planning control area requirements.
(3)If a development has been undertaken in contravention of a planning scheme or interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person who undertook the development -
(a)to remove, pull down, take up, or alter the development; and
(b)to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority.
(4)The responsible authority may give directions under subsections (2) and (3)(a) and (b) in respect of the same development and in the same instrument.

Can a direction under s 214(3) of the PD Act require the rebuilding of a demolished building or structure?

Section 4(1) of the PD Act states that, in that Act, 'unless the contrary intention appears':
'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 Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 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;
Mr MC Hotchkin, counsel for Lafou, submitted that a contrary intention to the application of the defined meaning of 'development', including 'demolition', appears in s 214(3) of the PD Act, for two reasons.
First, Mr Hotchkin referred to the terms of para (a) of s 214(3) of the PD Act which authorise a responsible authority to give a direction 'to remove, pull down, take up, or alter the development'. Mr Hotchkin submitted that the verbs that appear in para (a) of s 214(3) are not conducive to the term 'development' bearing its defined meaning, including demolition, and militate against an interpretation under which 'development' would include demolition. Mr Hotchkin argued that:
The [Town's] direction is to 'alter' the 'development', as it exists, not to 'alter' what was the development, being the act of demolition. All the verbs used in paragraph (a), however, assume that something exists. (original emphasis)
According to The Macquarie Dictionary (4th ed, 2005), the verbs that appear in para (a) of s 214(3) of the PD Act have the following relevant meanings:
•to remove - 'to move from a place or positions; take away' and 'to move or shift to another place or position' (page 1199)
•to pull down - 'to demolish' (page 1149)
•to take up - 'to lift; pick up' (page 1436)
•to alter - 'to make different in some particular; modify' (page 40)
In Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 3, 4 and 24, the High Court of Australia held that, in a town planning context, a 'work' is 'the physical product of labouring operations', rather than the labouring operations itself. In that context, a 'work' involves a product, rather than a process. Similarly, in the definition of 'development' in the PD Act, a 'demolition' is the physical product of labouring operations, namely, in the case of a partial demolition, a partially demolished building or structure, or, in the case of a complete demolition, a cleared site. In the definition of 'development' in the PD Act, 'demolition' involves a product, not a process.
Lafou is correct in its submission that the verbs used in para (a) of s 214(3) of the PD Act assume 'that something exists'. In the case of development comprising 'demolition' there is something that exists following the undertaking of the development, namely either a partially demolished building or structure or a cleared site. However, Lafou's criticism of the direction on the basis that it is 'to "alter" the "development", as it exists, not to "alter" what was the development, being the act of demolition' is misplaced, because it confuses the process with the product.
A cleared site may be 'altered', that is made different in some particular or modified, by rebuilding a demolished building or structure on the site. The verb 'to alter' is, therefore, conducive to the term 'development' including 'demolition'. The terms of para (a) of s 214(3) of the PD Act do not manifest a contrary intention to the application of the definition of the term 'development' to the subsection.
Second, Mr Hotchkin submitted that a contrary intention to the application of the defined meaning of 'development', including 'demolition', to s 214(3) of the PD Act is apparent in consequence of the practical difficulties involved in remedying demolition. Mr Hotchkin argued that:
If something has been demolished it is very difficult, if not impossible, to identify precisely what has been demolished, and what is therefore required to re-instate it. For example, as in this case, there are no specifications detailing what materials must be used by [Lafou] to reconstruct the house, who is to say what [Lafou] should use in that regard? Differing materials or differing quality and age may be used but nothing is specified. What materials would be to the [Town's] 'satisfaction'? How is [Lafou] to know in 12 months' time whether it has completed or can complete a Direction to the [Town's] satisfaction when there are no specifications in the Direction? Is it up to [Lafou] to guess what materials ought to be used? What if the property has been sold to an unrelated third party who does not agree to provide access to his property?
In his oral submissions, Mr Hotchkin suggested that it is 'complete guesswork as to what to do when you are rebuilding something' and gave, as practical examples, a lack of knowledge as to the demolished building's roof tiles, timber flooring, internal features and walls.
However, s 214(3) of the PD Act recognises that unlawful development, as remedied in accordance with a direction under that subsection, is unlikely to be precisely the same as the pre-development situation. The PD Act provides a necessary degree of flexibility to address the very concerns raised by Mr Hotchkin. The verb 'to alter', that is to make different in some particular or to modify, imports flexibility. Furthermore, para (b) of s 214(3) refers to restoring the land 'as nearly as practicable' to its pre‑development situation. Paragraph (b) of s 214(3) also imports flexibility by the words 'to the satisfaction of the responsible authority'.
In this case, the direction is to alter the demolition 'by restoring the Land as nearly as practicable to its condition immediately before the Development started' by rebuilding the house, double garage and fences in accordance with plans attached to the direction. The direction is sufficiently specific as to what must be done to remedy the unlawful development, while still containing a necessary degree of flexibility by the words 'as nearly as practicable'.
Furthermore, the difficulties identified by Mr Hotchkin are not restricted to development comprising demolition. As Mr DP Gillett, counsel for the Town, observed, similar difficulties may arise in remedying unlawful development comprising erection, construction, alteration of or addition to any building or structure on land. Mr Gillett gave the example of an unlawful extension or addition to a building. In order to remedy the unlawful development, it may be necessary to entirely rebuild a demolished roof or walls. However, it is not necessary for the direction to specify the materials that the recipient of the direction must use to rebuild demolished elements of the building or structure. It would be sufficient for the direction to state that the unlawful development must be pulled down and the land restored as nearly as practicable to its condition immediately before the development started.
Finally, the potential problem of the land having been sold to an unrelated third party who does not agree to provide access to the property is not restricted to development comprising demolition, but could equally apply in relation to any other form of development. The fact that the land may have been sold to an unrelated third party who does not agree to provide access to enable a person to remedy unlawful development may be a relevant factor in the exercise of discretion as to whether to give a direction or to confirm a direction on review, but it does not affect the lawful capacity to give a direction.
It follows that practical difficulties involved in remedying unlawful development comprising demolition do not indicate a contrary intention to the application of the definition of 'development', including demolition, to that term in s 214(3) of the PD Act.
Furthermore, there are two strong textual indications that the term 'development' in s 214(3) of the PD Act bears its defined meaning under s 4(1) of the PD Act.
First, the same words 'a development … undertaken in contravention of a planning scheme' appear in both s 214(2) and s 214(3) of the PD Act. Mr Hotchkin properly conceded that the term 'development' in s 214(2) of the PD Act bears its defined meaning under s 4(1) of the PD Act, including demolition. The same words used in two related subsections of the same section of legislation would normally have the same meaning.
Second, s 214(4) of the PD Act contemplates that the term 'development' has the same meaning in s 214(2) and s 214(3) of the PD Act, because it authorises a responsible authority to give directions under both subsections 'in respect of the same development'.

It follows that, ascertaining the legislative intention by reference to the language of the instrument viewed as a whole, the term 'development' in s 214(3) of the PD Act includes demolition.
A purposive interpretation of s 214(3) of the PD Act arrives at the same result. The apparent legislative purpose of s 214(3) of the PD Act is to remedy development of land that has been undertaken in contravention of planning law. The demolition of a building or structure without development approval, which a planning scheme requires, is unlawful development of land. A direction requiring the rebuilding of a demolished building or structure in those circumstances involves the remedying of unlawful development comprising demolition. It could not have been the legislative intention to allow unlawful development comprising demolition to be incapable of being remedied under s 214(3) of the PD Act.
Moreover, as noted earlier, it was properly conceded on behalf of Lafou that the term 'development' in s 214(2) of the PD Act bears its defined meaning, including demolition. Section 214(2) of the PD Act authorises a responsible authority to give a direction 'to stop, and not recommence' development comprising demolition. It could not have been the legislative intention to enable a responsible authority to give a direction to stop demolition, but not to authorise the responsible authority to give a direction to rebuild the demolished part of the building or structure. Furthermore, it could not have been the legislative intention to not authorise a responsible authority to require the rebuilding of a building or structure that has been totally demolished simply because the responsible authority did not give the direction before the demolition was complete. Certainly, as the Tribunal said in Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301 at [63] (Morea Architects), 'the time which has elapsed since the development was undertaken in contravention of the scheme' is a relevant consideration in the exercise of discretion as to whether a direction should be given under s 214 of the PD Act. However, delay does not preclude lawful authority to give a direction.
It follows that a direction under s 214(3) of the PD Act can require the rebuilding of a demolished building or structure.

Can a direction under s 214(3) of the PD Act be given to a landowner who did not undertake unlawful development or who acquired ownership after unlawful development was undertaken?

Section 214(3) of the PD Act authorises a responsible authority to give a direction to 'the owner or any other person who undertook the [unlawful] development'. Lafou argued that, on its proper interpretation, this expression means that a direction may only be given to a landowner who:
•was the owner of the land at the time when the unlawful development was undertaken on the land; and
•itself undertook the unlawful development on the land.
In contrast, the Town argued that s 214(3) of the PD Act authorises a responsible authority to give a direction to a landowner irrespective of whether it was the owner of the land at the time when unlawful development was undertaken on the land and whether it undertook the unlawful development or not. The Town submitted that, if it had been intended that a direction under s 214(3) of the PD Act could only be given to the person who undertook the unlawful development, then it would have been unnecessary for the words 'the owner' to appear in the subsection, as the owner would automatically be caught in the event that it undertook the development. The Town submitted that the fact that s 214(3) of the PD Act specifically provides that a direction can be given to 'the owner', 'makes it clear the legislature intended a direction given pursuant to that section could be given to either the owner of the land upon which the development was carried out or the person who actually undertook the development'. Furthermore, the Town submitted that the interpretation suggested by Lafou would result:
in there being no means of remedying unlawful development once ownership of land upon which the unlawful development had been carried out changed or where an owner refuses to let a person who carried out unlawful development on their land without their knowledge to re-enter the land to carry out remedial works.
Read in context, the words 'who undertook the development' in s 214(3) of the PD Act (and the words 'undertaking that development' in s 214(2) of the PD Act) qualify all of the preceding words 'the owner or any other person', and not just the immediately preceding words 'any other person'. A direction may only be given under s 214(3) of the PD Act to the owner who undertook the development or any other person who undertook the development. Similarly, a direction may only be given under s 214(2) of the PD Act to the owner undertaking the development or to any other person undertaking the development.
It is correct, as the Town submitted, that it would have been sufficient to convey this meaning for the Act to say 'the person who undertook the development', in place of 'the owner or any other person who undertook the development' in s 214(3) of the PD Act, and 'the person undertaking that development' in place of 'the owner or any other person undertaking that development' in s 214(2) of the PD Act. However, the word 'other' indicates a clear link between 'the owner' and the qualification of having undertaken or undertaking the development. For the Town's proposed interpretation of the meaning of the provision to be correct, the word 'other' would have to be ignored. Further, while it is strictly unnecessary for the words 'the owner' to appear in the section, because of the words that follow, it is, nevertheless, understandable that Parliament would have specifically referred to 'the owner', as it will often be the owner who undertakes development on the owner's land.
It also follows from the requirement that 'the owner' undertook or is undertaking development that 'the owner' must be the landowner at the time when the development was or is undertaken, and cannot extend to a subsequent owner. Further support for this interpretation is found in s 214(4) of the PD Act, which enables a responsible authority to give directions under s 214(2) and s 214(3)(a) and s214(3)(b) of the PD Act 'in respect of the same development and in the same instrument'. This indicates not only that s 214(2) and s 214(3) of the PD Act are concerned with restraining and remedying the same unlawful development, but also that the potential recipients of directions under each subsection are the same persons. The identity of the person undertaking the unlawful development for the purposes of s 214(2) is the same as the identity of the person who undertook the unlawful development for the purposes of s 214(3) of the PD Act. Similarly, the identity of 'the owner' for the purposes of s 214(2) is the same as the identity of the owner for the purposes of s 214(3) of the PD Act. Plainly, 'the owner', for the purposes of s 214(2) of the PD Act, is the owner at the time when the development is being undertaken. It therefore follows that 'the owner', for the purposes of s 214(3) of the PD Act, is also the owner at the time when the development was undertaken.
Furthermore, the purpose of the legislation would not be served by exposing a landowner, who acquired ownership after unlawful development was carried out on the land, to a direction that the owner remedy the unlawful development. Indeed, it would be contrary to the legislative purpose to expose innocent third parties to an order to remedy unlawful development that they did not undertake.
While, ideally, responsible authorities should act promptly to give directions to restrain and/or remedy unlawful development under s 214(2) and s 214(3) of the PD Act, it is conceivable that the identity of the landowner may change before the responsible authority is in a position to give a direction, either because of a deliberate attempt on the part of the landowner to seek to avoid having to remedy unlawful development or an innocent change of ownership. However, this prospect does not warrant a different interpretation of s 214(3) of the PD Act under which a subsequent landowner could be the subject of a direction. Despite a change or changes of ownership of the land in question, the responsible authority retains the ability under s 214(3) of the PD Act to give a direction to the landowner or any other person who undertook the unlawful development. It is true that the recipient of such a direction would need to obtain permission from the current landowner to enter the land and comply with the direction. However, if that permission were not obtained, or if the direction were not otherwise complied with according to its terms, the responsible authority may itself enter the land and carry out the direction in accordance with s 215(1) of the PD Act. The responsible authority may then recover any expense involved in implementing the direction from the person to whom the direction was given as a debt in a court of competent jurisdiction under s 215(2) of the PD Act.
In the present case, assuming that the demolition of the house, garage and fences on the site was unlawful development for the purposes of s 214(3) of the PD Act, and that it would be a proper exercise of discretion having regard to the matters for consideration identified in Morea Architects at [63] and any other relevant consideration, the Council could give a direction under s 214(3) of the PD Act to the owner of the site, at the time of the demolition, who undertook that development, or to any other person who undertook that development, and require that person to rebuild the demolished buildings and structures. However, the Tribunal does not express any view in relation to whether the demolition of the house, garage and fences was unlawful for the purposes of s 214(3) of the PD Act, nor whether it would be an appropriate exercise of discretion under that section to give a direction. The Tribunal also notes that the fact that ownership of the land has changed may be a relevant consideration in the exercise of discretion. However, if there were a relationship between the current landowner and the owner or any other person who undertook the development, then this consideration may not militate against the giving of a direction. The Tribunal does not express any considered view in relation to this topic.
It follows that the direction given by the Town to Lafou is not authorised by s 214(3) of the PD Act.

Conclusion

The direction given by the Town to Lafou is not authorised by s 214(3) of the PD Act, because Lafou is not 'the owner or any other person who undertook the development'. The answer to the preliminary issue identified by Lafou is 'No'. The direction should, therefore, be set aside.

Orders

The Tribunal makes the following orders:
1.The answer to the preliminary issue is 'No'.
2.The application for review is allowed.
3.The direction given by the respondent to the applicant on or about 26 June 2009, purportedly pursuant to s 214(3) of the Planning and Development Act 2005 (WA), is set aside.

I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER