Shire of Murray v IVO Nominees Pty Ltd - [2020] WASCA 45

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SHIRE OF MURRAY -v- IVO NOMINEES PTY LTD [2020] WASCA 45
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   7 NOVEMBER 2019
DELIVERED          :   8 APRIL 2020
FILE NO/S:   CACR 44 of 2019
BETWEEN:   SHIRE OF MURRAY
Appellant
AND
IVO NOMINEES PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CURTHOYS J
Citation: IVO NOMINEES PTY LTD -v- SHIRE OF MURRAY [2019] WASC 67
File Number            :   SJA 1079 of 2018

Catchwords:

Local government - Planning - Town planning scheme - Non-conforming use clause - Distinction between use and development - Land used for rural purposes before and after amendment to the planning scheme - Whether clause protecting continued use of the land precluded need for approval before carrying out development in the form of substantial clearing activities

Legislation:

Shire of Murray Town Planning Scheme No 4 1989, cl 8.1

Result:

Leave to appeal on grounds 1 and 2 granted
Appeal allowed
Orders made by the primary judge set aside

Category: B

Representation:

Counsel:

Appellant	:	H H Jackson SC
Respondent	:	P G McGowan & L E Rowley

Solicitors:

Appellant	:	McLeods
Respondent	:	Rowley Legal

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

Aquatic Airways Pty Ltd v Warringah Shire Council (1990) 71 LGRA 10
Baulkham Hills Shire Council v O'Donnell (1987) 62 LGRA 7
Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134
Calgary Healthcare Tasmania Inc v Hobart City Council [2006] TASSC 10; (2006) 15 Tas R 271
Claude Neon Ltd v City of Perth [1983] WAR 147
Daniele v Shire of Swan (1998) 20 WAR 164
Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 59 ALJR 105
Hunter v City of Joondalup [2016] WASC 424
IVO Nominees Pty Ltd v Shire of Murray [2019] WASC 67
Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405
Nancy Shetland Pty Ltd v The Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448
Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council [2001] VSC 302; (2001) 117 LGERA 43
University of Western Australia v City of Subiaco (1980) 52 LGRA 360

JUDGMENT OF THE COURT:

Introduction

On 4 April 2016, the appellant (the Shire) commenced two prosecutions against the respondent (IVO), alleging that IVO carried out development of land without the approval of the Shire Council, thereby contravening cl 3.1.2 of the Shire of Murray Town Planning Scheme No 4 1989 (WA) (TPS 4), contrary to s 218(a) of the Planning and Development Act 2005 (WA) (the PD Act). The magistrate convicted IVO of the two offences.
IVO appealed against the magistrate's decision. In its appeal to the primary judge, IVO contended that the clearing activities the subject of the two charges did not require development approval because its non‑conforming use rights under cl 8.1 of TPS 4 encompassed those activities. The primary judge accepted IVO's contention, upheld the appeal and set aside the convictions.[1]
[1] IVO Nominees Pty Ltd v Shire of Murray [2019] WASC 67 (primary reasons).
The Shire now appeals the primary judge's decision, contending in grounds of appeal 1 and 2 that, on a proper construction of TPS 4, the non‑conforming use rights under cl 8.1 did not encompass the clearing activity the subject of the charges.
For the reasons that follow, we accept the Shire's contention. Consequently, we would uphold the appeal, set aside the primary judge's decision and order that the appeal from the magistrate be dismissed.

The charges

As already noted, both prosecution notices alleged that IVO carried out development of land without the approval of the Council. Both alleged that, in so acting, IVO contravened cl 3.1.2 of TPS 4 (set out below), contrary to s 218(a) of the PD Act. That section provides that a person who contravenes the provisions of a planning scheme commits an offence.
The substance of the charges was as follows. The first allegation was that, in April 2015, IVO cleared 11 hectares of land. The second was that, in May and June 2015, IVO significantly deepened and widened an existing drain on the property and, in doing so, cleared vegetation.[2]
[2] Magistrate's decision [3].

Facts not in dispute at trial

The following matters were not in dispute:[3]
(1)IVO was, at all relevant times, the registered proprietor of the land the subject of the charges.
(2)The land fell within TPS 4, which came into operation in 1989.
(3)The land has been used for some form of agricultural or farming purposes since TPS 4 was gazetted in 1989.
(4)The land was zoned 'rural' until, by an amendment to TPS 4 taking effect in 1996, the land was rezoned to 'special development'.
(5)IVO did not seek any approval for clearing from the Council.
[3] Magistrate's decision [5].

The relevant provisions of TPS 4

TPS 4 follows the conventional structure for town planning schemes in Western Australia. It comprises the scheme map, scheme text and scheme report.[4]
[4] TPS 4, cl 1.4.
Clause 3.1 regulates use and development of land. It provides as follows:
3.1.1Subject to the provisions of the Scheme, a person shall not use any land or erect a building or structure for a use or purpose herein specified otherwise than in accordance with the provisions of the Scheme.
3.1.2Subject to the provisions of the Scheme, a person shall not commence or carry out the development of any land:
(i)without the approval of the Council to carry out that development; and
(ii)if that approval is granted subject to any conditions, otherwise than in accordance and compliance with those conditions. (emphasis added)
Prior to 7 March 1997, the definition of 'development' in appendix I of TPS 4 provided that it 'means the use (including a material change in the use) or development of any land and includes the erection, construction, alteration or carrying out as the case may be, of any building, structure, erection, excavation or other works on any land' (emphasis added).[5]
[5] Western Australia, Government Gazette, No 61 (23 June 1989) 1841.
Clauses 3.2 and 3.3 respectively provide for an application for approval for the commencement of development and for the determination of such an application.
Part V of TPS 4 provides for the creation and regulation of zones within the scheme area. Clause 5.2.1 provides that the Zoning Table indicates the various uses and developments permitted by the scheme in the various zones, such uses and developments being determined by cross-reference between the list of 'Use and Development Classes' in the left hand side of the Table and the list of 'Zones' along the top of the Table. Clause 5.2.2 defines the symbols used in the Zoning Table as follows:
'P'Uses which are permitted provided that the relevant standards and requirements laid down in the Scheme and all conditions (if any) imposed by Council in granting planning approval are complied with.
'AA'Uses which the Council may at its discretion permit provided it is satisfied that such use would not be contrary to the orderly and proper planning of the area.
'SA'Uses and development which the Council exercising the discretionary powers available to it may approve under the Scheme except that such approval shall not be granted by the Council until:
(a)full details and particulars of the proposal have been advertised by the Council or the applicant at least twice in a newspaper circulating in the district. Such advertisement shall specify the manner in which and the period (not being less than 21 days) during which submissions may be made to the Council;
(b)a sign giving the same details as the advertisement referred to in paragraph (a) above has been affixed by the applicant in a conspicuous position on the land for the entire duration of the advertisement period;
(c)adjoining property owners have been notified of proposal in writing by the Council and invited to make submissions; and
(d)the Council has considered any submissions received.
…
'X'Uses and developments which are not permitted under this Scheme.

When TPS 4 was gazetted on 23 June 1989,[6] the uses and development classes within the rural zone in the Zoning Table that were marked 'P' (and were thus permitted) included 'Rural Pursuit' and 'Intensive Agriculture'.
[6] Western Australia, Government Gazette, No 61 (23 June 1989) 1825 - 1845.
'Rural Pursuit' was defined to mean and include 'agriculture, horticulture, forestry, pasture and poultry farming'.
'Intensive Agriculture' was defined to mean
agricultural practices which are carried out with the aid of techniques including water reticulation to render the land capable of sustaining considerably greater numbers of stock, higher crop yields, or different types of crops than could be produced without the aid of those techniques.
The definition of both 'Rural Pursuit' and 'Intensive Agriculture' were amended by amendment 37 to TPS 4, gazetted on 3 November 1995.[7]
[7] Western Australia, Government Gazette, No 149 (3 November 1995) 5195 - 5198.
The definition of 'Rural Pursuit' was amended to mean 'agriculture, animal husbandry, arboriculture and silviculture without irrigation, and hydroponics, but not including any use defined as Intensive Agriculture'.
The definition of 'Intensive Agriculture' was amended to mean, relevantly:
the use of land for the purposes of trade, commercial reward or gain, including such buildings and earthworks, normally associated with the following -
…
(c)the development of land for irrigated fodder production and irrigated pasture (including turf farms);
(d)the keeping, rearing or fattening of pigs, poultry (for either egg or meat production), rabbits (for either meat or fur production), and other livestock in feed lots, including cattle feed lots, or the development of land for this purpose[;]
(e)dairy milking sheds;
…
The 1995 amendment also changed the permissibility of 'Intensive Agriculture' within the rural zone in the Zoning Table from 'P' to 'AA'.
The land the subject of the charges was rezoned from 'Rural' to 'Special Development Zone' by amendment 72 to TPS 4, gazetted on 3 September 1996.[8]
[8] Western Australia, Government Gazette, No 125 (3 September 1996) 4393 - 4396.
The 1996 amendment changed the permissibility of 'Rural Pursuit' within the 'Special Development Zone' from 'P' to 'SA' and 'Intensive Agriculture' from 'AA' to 'X'.
In 2015, at the time of the alleged offences, the land was zoned 'Special Development Zone'.[9] There had been no relevant change to the permissibility of 'Rural Pursuit' and 'Intensive Agriculture', which remained 'SA' and 'X' respectively.
[9] Exhibit 1, sch 7, pages 189 - 190, BGAB 277 - 278; transcript, Shire of Murray v IVO Nominees Pty Ltd, Mandurah Magistrates Court, 20 November 2017, ts 9.
Part VIII makes provision as to non‑conforming uses of lands. Clause 8.1 provides as follows:
No provisions of the Scheme shall prevent:
(i)the continued use of any land or building for the purpose for which it was being lawfully used at the time of coming into force of the Scheme; or
(ii)the carrying out of any development thereon for which immediately prior to that time a permit or permits, lawfully required to authorise the development to be carried out, were duly obtained and are current. (emphasis added)
Clause 8.2 relevantly provides as follows:
If at the gazettal date any land, building or structure is being lawfully used for a purpose or in a manner not permitted by the Scheme (hereinafter referred to as a 'Non-Conforming Use') the Non-Conforming Use may continue subject to the following restrictions:
(i)The Non-Conforming Use shall not be extended beyond the boundaries of the lot or lots upon which the Non-Conforming Use is in fact being carried on at the gazettal date.
…

The decision of the magistrate

Before the magistrate there were factual disputes concerning the nature and extent of the vegetation removed from the land in April 2015 and the extent of the works done to the drain in May and June 2015.[10] The magistrate resolved those disputes adversely to IVO.
[10] Magistrate's reasons [6].
In summary, the magistrate found that:
(1)As to the first charge, IVO had caused 11 hectares of dense bush and mature trees to be cleared using heavy machinery. Large trees were excavated and cleared, together with undergrowth. The land was significantly altered by the removal of dense bushland.[11]
(2)As to the second charge, IVO had caused the installation of a culvert and digging of a drain to a depth of nearly 2 m, a width of 10 m and a length of about 70 m. That involved the removal or displacement of large amounts of soil and the excavation of substantial vegetation.[12]
(3)In relation to each charge, the activity outlined above amounted to development, in that it resulted in some physical alteration to the land which had a degree of permanence.[13]
(4)Clause 8.1 of TPS 4 distinguished between the 'use' and the 'development' of the land; the protection provided by cl 8.1(i) related only to use and did not protect development.[14] Thus, IVO's development of the land, constituted by the clearing activity the subject of the two charges, was not protected by cl 8.1(i).
[11] Magistrate's reasons [86], [108].
[12] Magistrate's reasons [94], [110].
[13] Magistrate's reasons [104], [108] ‑ [110].
[14] Magistrate's reasons [100] - [104], referring to University of Western Australia v City of Subiaco (1980) 52 LGRA 360; Daniele v Shire of Swan (1998) 20 WAR 164, 168; Hunter v City of Joondalup [2016] WASC 424 [11] - [13]; Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [36].
IVO's appeal against the magistrate's decision challenged only the reasoning and conclusions in (4).

The primary decision

After setting out the background and outlining the magistrate's findings, the primary judge gave detailed consideration to cases concerning what he termed 'characterising a non‑conforming use'.[15]
[15] Primary reasons [38] - [56].
In particular, his Honour made detailed reference to, and ultimately relied heavily upon, the decision of this court in Re Shire of Carnarvon; Ex Parte Humphrey,[16] especially at [30] - [38], and the decision of the High Court in Dorrestijn v South Australian Planning Commission.[17] The former decision, to which we will refer in detail later in these reasons, concerned cl 7.1.1(a) of the Shire of Carnarvon's town planning scheme, which was in materially indistinguishable terms from cl 8.1(i) of TPS 4. The primary judge quoted McLure JA's conclusion that:[18]
there can be changes in the activities (uses) on the land that are protected by cl 7.1.1. The test is variously formulated as whether there has been a change in the essential nature of the use, whether the 'new' activity is within the same genus as the existing use and whether the use is in substance the same.
[16] Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182.
[17] Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 59 ALJR 105.
[18] Primary reasons [46], quoting Re Shire of Carnarvon; Ex parte Humphrey [36].
The judge noted the manner in which McLure JA posed the relevant questions in Re Shire of Carnarvon; Ex parte Humphrey.[19] After considering other decisions, the primary judge framed the questions for him in a manner corresponding to the questions framed by McLure JA in Re Shire of Carnarvon; Ex parte Humphrey. The primary judge stated that the relevant questions were:[20]
(a)whether the cleared portion of vegetation and the drain excavation was the subject of non-conforming use rights when [TPS 4] came into force in June 1989 and or September 1996, and if so;
(b)whether there has been an alteration or extension that is outside the scope of the protection in cl 8.1(i) of [TPS 4]?
[19] Primary reasons [48], referring to Re Shire of Carnarvon; Ex parte Humphrey [38].
[20] Primary reasons [56].
The judge found that the use of the land for the purposes of grazing cattle and the production of cattle feed was use of the land for a 'Rural Pursuit' and was lawful prior to 1996 when the zoning changed.[21] The fulfilment of the purpose for which the property was being used did not require the immediate physical use of every part of the property.[22]
[21] Primary reasons [63].
[22] Primary reasons [63].
The judge further found that the clearing of the vegetation the subject of the charge was carried out by IVO for the purpose of 'cattle grazing and feed'[23] and the excavation of drains was carried out 'for the purpose of providing water for the cattle'.[24] These uses were a continuation of the use of the property and consistent with the overall purpose of the property.[25] Consequently, his Honour found that the vegetation clearing and the excavation of drains were 'permitted non-conforming activities within the scope of the terms and definitions and within the purpose for which the land was being used before the zoning change in 1996'.[26]
[23] Primary reasons [68].
[24] Primary reasons [69].
[25] Primary reasons [68] - [69].
[26] Primary reasons [70].
Because those activities were part of the continuing non‑conforming use, the judge found that the question of development approval did not arise and that it was not necessary to consider whether the activities constituted development.[27]
[27] Primary reasons [67], [73], referring to Re Shire of Carnarvon; Ex parte Humphrey [30].
Consequently, the primary judge upheld the appeal and set aside the convictions.

The parties' submissions

In essence, the Shire submits that, when clause 8.1 is properly construed, cl 8.1(i) provides no protection to IVO. The Shire's submissions may be summarised as follows:
(1)The two prohibitions in cl 3.1.1 and cl 3.1.2, and the two limbs of cl 8.1, reflect the well-recognised distinction between the concepts of use and development. Clause 3.1.1 controls the use of land; clause 3.1.2 controls the commencement or carrying out of development of land. The two limbs of clause 8.1 should be construed consonantly with those two prohibitions. Thus, clause 8.1(i) protects only continued use; the carrying out of development is not within its ambit. Clause 8.1(ii) permits the carrying out of development if, and only if, the necessary permit had been obtained already.
(2)The magistrate found, and it is not in doubt, that IVO's clearing activities amounted to development because they were, within the meaning of the definition of development, the 'carrying out … of … excavation … on any land'. Applying the construction of cl 8.1 explained above, cl 8.1(i) provides no protection in relation to the carrying out of development.
In response, IVO adopts the judge's reasoning and relies heavily on what is said in Shire of Carnarvon ex parte Humphrey [30] - [38]. It accepts that, viewed as a 'standalone' question, IVO's activities fell within the definition of development.[28] However, it submits that this is beside the point, as that is not the relevant question.[29] It submits that its clearing activities were, as the magistrate and judge found, done for farming and agricultural purposes. Those purposes were lawful prior to 1996 because they fell within the definitions of both 'Rural Pursuit' and 'Intensive Agriculture', which were permitted uses of the land. Because cl 8.1(i) protects the continuation of IVO's lawful use of the land for farming and agricultural purposes, IVO's clearing activities were protected by cl 8.1(i), so that no approval was required.[30]
[28] Appeal ts 12, 15.
[29] Appeal ts 11, 12.
[30] Respondent's submissions [29] - [34]; appeal ts 14 - 17.

For the reasons below, we accept the Shire's submissions.

Disposition

It is not in doubt that clause 8.1 has an ambulatory operation so that, when the scheme is amended, any use that was lawful prior to the amendment continues to be lawful after it.[31]
[31] Appeal ts 9.
The distinction between the concepts of use and development, in the framework of the definition of 'development', has been well‑recognised. It was explained by Burt CJ in University of Western Australia v City of Subiaco,[32] who observed that the definition in the Town Planning and Development Act 1928 (WA) (in substantially identical terms to the definition in TPS 4):
makes use of and it encompasses two ideas. The first is 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 the second being 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself'. (citation omitted)
[32] University of Western Australia v City of Subiaco (363 - 364). This passage has been cited with approval in many cases - see Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134 [107] and the cases referred to in footnote 14 above.
Thus, by the extended definition of 'development' in TPS 4, 'development' as defined encompasses both use and what might be said to be development in its ordinary sense. In the framework of the definition, use is a subset of the broader concept of development in that both are an activity done in or on the land, but use, unlike development, does not interfere with the actual physical characteristics of the land.
Whether an activity amounts to 'development' in the second sense used by Burt CJ - its ordinary sense - is a question of fact to be determined having regard to the degree of physical alteration to the land, the degree of permanence of the physical alteration and all of the circumstances.[33]
[33] Claude Neon Ltd v City of Perth [1983] WAR 147, 149.
Clause 8.1(i) authorises the continued use of the land for farming purposes - IVO could not be prosecuted for contravening cl 3.1.1 by using the land for farming purposes notwithstanding the inconsistency of that use with the new zoning of the land as 'special development'. However, in our view, on a proper construction of cl 8.1, cl 8.1(i) does not affect any requirement for approval in order to commence or carry out any development (in the second sense identified by Burt CJ - its ordinary sense) of the land. The carrying out of such development is protected under cl 8.1 only by cl 8.1(ii), which applies if the permit(s) necessary before the scheme or amendment to the scheme came into effect had already been obtained.
This construction is consistent with, and supported by, the text and structure of TPS 4, especially cl 3.1.1 and cl 3.1.2. Clause 3.1.1 controls the use of land; clause 3.1.2 controls the commencement or carrying out of development of land. That structure reflects the well-established distinction recognised in the cases referred to in [39] above. Clause 5.2.1 and the terms of the Zoning Table reinforce the usage, in TPS 4, of 'use' and 'development' in these distinct senses.[34] See [12] above. We accept the Shire's submission (set out in [35](1) above) that the two limbs of cl 8.1 should be construed consonantly with the conditional prohibitions in cl 3.1.1 and cl 3.1.2 respectively.
[34] See also cl 3.3A and cl 3.5.
This construction accords with the evident object of cl 8.1(i) - to preserve a landowner's right to continue to use land for the purpose for which it was being lawfully used when the scheme, or a provision of the scheme, came into force.[35] By contrast, on IVO's construction, cl 8.1(i) would not merely preserve a landowner's rights, it would enhance them. Before the amendment of the scheme in 1996 by the change in the zoning, cl 3.1.2 required IVO to obtain approval before commencing or carrying out any development by way of construction or the excavation or removal of dense bushland or substantial vegetation. IVO does not contend otherwise. Yet, on IVO's (and the judge's) construction, after the amendment of the scheme, no approval is required for an activity which (viewed as a standalone question) would amount to development, so long as the activity is undertaken for the purpose of farming. So long as it is undertaken for that purpose, on IVO's construction the activity is part of the use and so is protected. But that was not the case before the amendment - approval was required for the commencement or carrying out of any development. Clause 8.1(i) should not be construed to operate in a manner that puts a landowner in a better position after an amendment to the scheme than they were in before the amendment took effect.
[35] See, for example, Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305, 309 ‑ 310.
Contrary to IVO's submission,[36] this construction does not require that every time a farmer wished to plough a field or grow a crop, development approval would be required. Applying the test identified in [41] above, those activities would not amount to 'development' and so no approval would be required.
[36] Appeal ts 17 - 18.
Other cases provide limited assistance as to the proper construction of cl 8.1 of TPS 4. Nonetheless, it may be noted that a number of cases have recognised the distinction between use and development in construing a non‑conforming use clause as protecting use, but not extending to the carrying out of development.[37]
[37] Nancy Shetland Pty Ltd v The Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448, 448 ‑ 449; Aquatic Airways Pty Ltd v Warringah Shire Council (1990) 71 LGRA 10, 17 ‑ 19; Calgary Healthcare Tasmania Inc v Hobart City Council [2006] TASSC 10; (2006) 15 Tas R 271 [15] ‑ [20]; Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council [2001] VSC 302; (2001) 117 LGERA 43 [17] ‑ [24].
We turn to explain why, in our respectful opinion, the authorities relied upon by the primary judge and IVO do not sustain their construction of cl 8.1(i).
We begin with the decision of the High Court in Dorrestijn v South Australian Planning Commission. In that case, a majority of the High Court construed a non‑conforming use provision as protecting the clearing of land in connection with the landowner's use of the land for farming purposes. This was so notwithstanding that the clearing of the land fell within the definition of development, so that the carrying out of the clearing would otherwise have infringed the prohibition on the undertaking of development without consent. Summarised in that manner, the decision might seem to support the conclusion reached by the primary judge. However, in our respectful opinion, when attention is directed, as it must be, to the terms of the legislation under consideration in Dorrestijn, the significant differences in the relevant legislative provisions mean that the case does not assist the resolution of the present case.
In Dorrestijn, s 47 of the Planning Act 1982 (SA) prohibited development without the approval of the planning authority. However, nothing in the Act prohibited use of the land. The non‑conforming use provision, s 56(1) of the Planning Act, was in terms comparable to cl 8.1 of TPS 4. It provided as follows:
(1)Notwithstanding any other provision of this Act, no provision of the Development Plan shall -
(a)prevent the continued use, subject to and in accordance with the conditions (if any) attached to that use of land for the purposes for which that land was lawfully being used at the time the provision took effect; or
(b)prevent the carrying out or completion of a development, subject to and in accordance with the conditions (if any) affecting the development, for which every consent, approval or authorization required under any Act authorizing or permitting the development had been obtained and was current when the provision took effect.
In construing s 56(1)(a), the majority pointed to the absence in the Act of a prohibition against the continuing use of land for purposes which do not accord with the principles of development or the provisions of the Development Plan. Their Honours observed that on the respondent's argument in that case, s 56(1)(a) would have no practical operation at all. In that context, the majority preferred a construction by which development and continued use were not to be regarded as mutually exclusive concepts and by which the concept of continued use included 'such developments as would necessarily, if not ordinarily, be involved in the use of land for the particular purpose for which it continues to be used'.[38]
[38] Dorrestijn (108).
By contrast with Dorrestijn, TPS 4 contains distinct express controls of each of use (cl 3.1.1) and the carrying out of development (cl 3.1.2). Thus, the feature of the statutory planning scheme which was critical to the decision in Dorrestijn does not apply in the present case. Dorrestijn has been distinguished on this basis in other cases in similar contexts.[39]
[39] See, for example, Aquatic Airways Pty Ltd v Warringah Shire Council (18 - 19); Baulkham Hills Shire Council v O'Donnell (1987) 62 LGRA 7, 16 - 18.
We turn to the decision of this court in Re Shire of Carnarvon; Ex parte Humphrey. That case concerned whether there was a material change in use for which approval was required.[40] Both the judge and IVO relied heavily on what was said by McLure JA in [30] of Shire of Carnarvon; Ex parte Humphrey, as follows:
The phrase 'continued use' in an existing use saving provision was considered by the High Court in Dorrestijn v South Australian Planning Commission (1984) 56 ALR 295. The question in issue in that case was whether the clearing of land on which the appellant farmed was a 'development' and whether it required the consent of the local planning authority under South Australian planning legislation. The term 'development' was statutorily defined to include a change in use of the land. However, there was an existing use provision which permitted the continued use of land for purposes for which it was lawfully being used at the relevant time. The majority (Mason ACJ, Deane and Dawson JJ at 300) held that the phrase 'continued use' included such developments as would necessarily, if not ordinarily, be involved in the use of land for the particular purpose for which it continues to be used. The clearing of land on which the appellant farmed was held to be within the existing use protection for which approval was not required notwithstanding that clearing fell within the definition of 'development'.
[40] Re Shire of Carnarvon; Ex parte Humphrey [19], [42].
However, for the reasons already given, Dorrestijn involved a materially different statutory planning scheme.
IVO and the judge also relied on her Honour's observations from [31] ‑ [37]. However, those observations, and the cases to which McLure JA referred, are directed to the different question, with which Re Shire of Carnarvon; Ex parte Humphrey was concerned, of whether changes in activity were of such an extent and nature to mean that the new use is no longer, in substance, the same use and thus falls outside the existing use protection. Those observations were not directed to the fundamentally different question, with which the present case is concerned, of whether a non‑conforming use clause precludes the need for approval in order to commence or carry out a development (used in its ordinary sense).
The manner in which McLure JA framed the question in Re Shire of Carnarvon; Ex parte Humphrey[41] reflected the issues in that case. Because, as we have explained, the issue of construction in the present case is significantly different, in our respectful opinion the judge erred in transposing, as he did,[42] the questions as framed by McLure JA into the questions necessary for resolution of the present case.
[41] Re Shire of Carnarvon; Ex parte Humphrey [38].
[42] Primary reasons [56].
For these reasons, we accept the Shire's construction of cl 8.1(i).
Thus, in our respectful opinion, the primary judge erred in his construction of cl 8.1(i) and, consequently, erred in concluding that the question of whether the clearing activities amounted to development, so as to require development approval, did not arise.[43] It also follows that the judge's finding, and IVO's submission, that the clearing activities were a continuation of the lawful use of the land for farming and agricultural purposes is not to the point.
[43] Primary reasons [67], [73].
As already noted, IVO accepts that, viewed as a standalone question, its clearing activities amounted to a carrying out of development.[44] In so concluding, the magistrate applied, with respect correctly, the test set out at [41] above - that the question of whether an activity amounts to 'development' is a question of fact to be determined having regard to the degree of physical alteration to the land, an examination of the degree of permanence of the physical alteration, and all of the circumstances.[45]
[44] Appeal ts 12, 15.
[45] Magistrates reasons [107].
Consequently, the magistrate correctly concluded that the two charges had been made out.
For these reasons, the Shire's grounds of appeal must be upheld.

Conclusion

For the above reasons, in our respectful opinion, the primary judge erred in setting aside the magistrate's decision. The magistrate's decision was correct. We would make orders to the following effect:
(1)Leave to appeal on grounds 1 and 2 is granted.
(2)The appeal is upheld.
(3)The orders made by the primary judge are set aside. In substitution for those orders, the following orders are made:
(a)Leave to appeal on grounds 1 and 2 is granted.
(b)Leave to appeal on ground 3 is refused.
(c)The appeal is dismissed.
(d)The appellant pay the respondent's costs of the appeal.
We would hear from the parties as to the costs of the appeal to this court.

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

SL
Associate to the Honourable Justice Beech

8 APRIL 2020

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION: SHIRE OF MURRAY -v- IVO NOMINEES PTY LTD [2020] WASCA 45 (S)
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   8 APRIL 2020
DELIVERED          :   8 APRIL 2020
PUBLISHED           :   4 MAY 2020
FILE NO/S:   CACR 44 of 2019
BETWEEN:   SHIRE OF MURRAY
Appellant
AND
IVO NOMINEES PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CURTHOYS J
Citation: IVO NOMINEES PTY LTD -v- SHIRE OF MURRAY [2019] WASC 67
File Number            :   SJA 1079 of 2018

Catchwords:

Practice and procedure - Criminal appeal - Application for costs - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(h), s 18, s 19(2)(b), s 20

Result:

Application for costs granted

Category: B

Representation:

Counsel:

Appellant	:	Mr D P Gillett
Respondent	:	Ms L E Rowley

Solicitors:

Appellant	:	McLeods
Respondent	:	Rowley Legal

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

Kezic v City of Sterling [2019] WASCA 136
Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45

REASONS OF THE COURT:

(This judgment was delivered extemporaneously on 8 April 2020 and has been edited from the transcript.)

On 8 April 2020, this court delivered judgment in Shire of Murray v IVO Nominees Pty Ltd.[46]
[46] Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45.
The court allowed the appeal and made ancillary orders.
At judgment delivery:
(a)the appellant sought an order that the respondent pay the appellant's costs of the appeal; and
(b)the respondent sought an order that each party pay its own costs of the appeal.
Counsel for the respondent noted that the Magistrate had imposed on the respondent a fine of $180,000 and had ordered the respondent to pay the appellant's costs of the proceedings in the Magistrates Court. Counsel submitted, in effect, that if the respondent was ordered to pay the appellant's costs of the appeal, the order would unreasonably add to 'the general economic burden placed upon the respondent as a consequence of the prosecution' (appeal ts 29).
At judgment delivery, the court made the order sought by the appellant, namely that the respondent pay the appellant's costs of the appeal, for the following reasons.

By s 19(2)(b) of the Criminal Appeals Act 2004 (WA), this court may make an order as to the costs of the appeal. See also s 14(1)(h) read with s 18. Under s 19(2)(b), there is no general rule that costs follow the event. Rather, save that the discretion must be exercised judicially, the court has a general and unconstrained discretion with respect to costs to be exercised with reference to all relevant circumstances including any relevant aspect of the public interest, except in certain limited cases referred to in s 20 which do not apply in the present case. See Kezic v City of Sterling.[47]
[47] Kezic v City of Sterling [2019] WASCA 136 [21].
The success of an appellant or a respondent in an appeal to this court under Part 2 Division 3 of the Criminal Appeals Act is a relevant and ordinarily a weighty factor to be taken into account in the exercise of this court's discretion with respect to costs.
In the present case, a costs order against the respondent is appropriate. First, the appellant was successful in the Magistrates Court and in the appeal to this court. Secondly, the respondent's arguments in the Magistrates Court and in this court were rejected. Thirdly, there is no relevant aspect of the public interest in the present case that militates against making an order for costs. It is just in all the circumstances that the respondent pay the appellant's costs of the appeal. Counsel for the respondent's submissions in opposition to the costs order sought by the appellant do not sustain a contrary conclusion.

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

KS
Associate to the Honourable Justice Buss

4 MAY 2020