SINGLETON and TOWN OF PORT HEDLAND - [2007] WASAT 188

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SINGLETON and TOWN OF PORT HEDLAND [2007] WASAT 188

MEMBER: MR M SPILLANE (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 18 JULY 2007

FILE NO/S: DR 9 of 2007

BETWEEN: ANDREW RADFORD SINGLETON
Applicant
AND
TOWN OF PORT HEDLAND
Respondent

Catchwords:

Town planning - Preliminary point - Is dumping of waste/fill development

Legislation:

Environmental Planning and Assessment Act 1979 (NSW)
Planning and Development Act 2005 (WA), s 4(1), s 4(1)(a), s 4(1)(b), s 4(1)(c), s 214(3)
Town Planning and Development Act 1928 (WA), s 2(1)
Town of Port Hedland Town Planning Scheme No 5, cl 4.1.3(d), Appendix 1

Result:

The preliminary question was answered in the affirmative

Category: B

Representation:

Counsel:

Applicant: Mr B Eagle
Respondent: Mr P Wittenoom

Solicitors:

Applicant: Eagle & Partners
Respondent: McLeods

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

Holroyd City Council v John Murdoch [1994] NSWLEC 25
Parramatta City Council v Shell Company of Australia Ltd [1972] 1 NSWLR 483; (1972) 26 LGRA 25
Randall and Town of Vincent [2005] WASAT 129
Smith & Anor and City of Fremantle [2007] WASAT 153
University of Western Australia v City of Subiaco (1980) 52 LGRA 360

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal was asked to decide whether the dumping of waste (including but not limited to building rubble, concrete blocks and metal) was "development" as defined in the Planning and Development Act 2005 (WA) or the Town of Port Hedland Town Planning Scheme No 5. Having considered the facts, the Tribunal found that such activity was development which required the approval of the Town of Port Hedland prior to commencement.

Introduction

The sole issue in this review is whether item 2 in the schedule to the s 214(3) direction, dated 7 November 2006, issued by the Town of Port Hedland (respondent, Council or Town) to Mr Andrew Radford Singleton (applicant) describing the development as:
"Dumping of waste (including but not limited to building rubble, concrete blocks and metal) in and adjacent to the excavated borrow pit located in the North‑East corner on the Land."
constitutes "development" as defined in the Planning and Development Act 2005 (WA) (PD Act) and the Town of Port Hedland Town Planning Scheme No 5 (TPS 5).

Factual background

The applicant brought an application for review against a direction under s 214(3) of the PD Act, issued to the applicant by the respondent on 7 November 2006.
In that direction the affected land was described as No 9 Greenfield Street, Boodarie (Lot 3 on Plan 23734, Certificate of Title Volume 2178 Folio 534) with an area of 2.1559 hectares.
The direction stated that development had been undertaken in contravention of TPS 5 in that planning approval of the Council of the Town had not been obtained prior to the commencement of the development, which development was described as being the "dumping of waste (including but not limited to building rubble, concrete blocks and metal) in and adjacent to the excavated borrow pit located in the North‑East corner on the Land."
In an affidavit dated 4 April 2007 filed with the Tribunal, the applicant explained that when he purchased the land in May 2006 there was a quarried hole situated on the land that had apparently been created by excavation prior to his occupation. The applicant acknowledged that he has been filling the hole and estimates the dimensions of the hole as being approximately 40 metres long by 5 metres wide and up to 3 metres deep, and that it presently lies beneath the 17.5 metre flood datum level and is subject to flooding.
Richard Derek John Bairstow, the manager of planning for the respondent, also filed an affidavit. He described the excavation at the north‑east corner of the land as a "borrow pit" and estimated the measurements as approximately 15 metres by 20 metres with depths being 2 to 3 metres. As for the filling, he stated:
"Against one face of the borrow pit, and extending underwater, are blocks of concrete, pieces of metal, building rubble and other unidentified material/matter. These occupied almost the entire length of one face of the borrow pit.
...
I stood on top of that material at the edge of the borrow pit, and I could see that, extending back several metres from the borrow pit, there was more rubble underground although the surface was roughly of natural ground level. That area had a covering of red earth but rubble was visibly protruding in some places. This indicated to me that the borrow pit had previously been larger and had been partly backfilled and was continuing to be progressively backfilled back to natural ground level with building rubble."
Two A4 colour photographs which clearly illustrate the scope of the filling that had been carried out were also attached to the affidavit.

Submissions

Written submissions were received from both the applicant and the respondent. The applicant, in defining development, referred to the Common Oxford English Dictionary as an aid to defining the words "use" and "development" when dealing with the definition of "development" contained in the PD Act. The applicant submitted that par A of that definition has no application to the present case and in respect of par B, which states "the carrying out on the land of any excavation or other works", the applicant submitted:
"It is submitted that the words 'other works' must be construed as being works similar to, or in the nature of, the act of 'excavation'. In fact the Applicant has been carrying out activities which are the opposite of excavation. He has been filling an excavation. It is submitted that the legislature, had it intended to cover filling activities, would have specifically including 'filling' in the paragraph, and the omission of the word from the paragraph is significant."
The respondent, in its submissions, explained that "development" as defined in Appendix 1 to the TPS 5 is very close to that which applied under the Town Planning and Development Act 1928 (WA), s 2(1) which itself is unchanged under s 4(1) of the PD Act, save that what are now paragraphs (a), (b) and (c) in the current definition previously read as unbroken and un‑enumerated text in the previous definition. The respondent also referred to the oft‑quoted passage of Burt CJ in University of Western Australia v City of Subiaco (1980) 52 LGRA 360 where he stated:
"In my opinion, the definition of 'development' in the Town Planning and Development Act makes use of and it encompasses two ideas. The first is the 'use' of the land which 'comprises activities which are done ... 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: see Parkes v. Environmental Secretary (1978) 1 WLR 1308 at 1311 per Lord Denning MR'."
The respondent went on to argue:
"'Dumping of waste (including but not limited to building rubble, concrete blocks and metal) in and adjacent to the excavated borrow pit located in the North‑East corner on the Land' is a form of 'activity which results in some physical alteration to the land which has some degree of permanence to the land itself'. It is accordingly a form of 'development'."
The respondent also argued that:
"Filling of land can also be seen as straddling the dichotomy between 'physical alteration' and 'use'. A person or persons may have a desire to dispose of excess material. In that sense, the person or persons use the land which is filled for the purpose of dumping or disposal. Likewise, the owner or person otherwise permitting the dumping/disposal exploits their own land to accommodate the dumping/disposal. It is often an arrangement of mutual advantage, involving payment by the disposer to the owner; or alternatively the owner wishes to attain or regain a desired level for the property. It is unnecessary for present purposes, however, to explore whether the arrangement was of mutual advantage to various individuals.
In the sense referred to in the first four sentences of the preceding paragraph, the 'use' limb of 'development' is also activated."

Consideration

The term "development" is defined in s 4(1) of the PD Act, unless the contrary intention appears 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; ..."
Apart from Burt CJ's helpful explanation in University of Western Australia v City of Subiaco referred to earlier, in Randall and Town of Vincent [2005] WASAT 129 Senior Member Parry determined at [93] that a purposive approach to the determination of whether a particular activity constitutes a "use" of land for the purposes of the definition of "development" in the PD Act was appropriate.
In Smith & Anor and City of Fremantle [2007] WASAT 153 at [21], in dealing with whether the installation of an air‑conditioning unit was something that required development approval, Senior Member Parry stated:
"For reasons discussed in relation to similar legislation in Mulcahy v Blue Mountains City Council, I consider that a purposive approach should be adopted in the determination of whether a particular activity constitutes 'the development or use of any land' for the purposes of the definition of 'development' in the PD Act as incorporated into TPS 3. Clause 1 of TPS 3 states that the Council made the Scheme for purposes including 'controlling land development' and 'promoting and safeguarding the health, safety, convenience and economic and general welfare of its inhabitants and the amenities of the district'. ... I consider that it was, therefore, within the clear scope and purpose of TPS 3 to regulate, by requiring the submission of a development application and its planning assessment, the installation of the air-conditioning unit in the circumstances of this case."
In the present case, the relevant town planning scheme is TPS 5, the general objectives of which, amongst other things, are to:
"(a)encourage an appropriate balance between economic and social development, conservation of the natural environment, and improvements in lifestyle and amenity,
...
(e)define the uses and types of development to be permitted on land within the Scheme Area, and
(f)control and regulate the development of land, erection and demolition of buildings and the carrying out of works."
In Holroyd City Council v John Murdoch [1994] NSWLEC 25, Stein J in the Land and Environment Court of New South Wales dealt with an allegation that the respondent in that case allowed fill to be deposited on land without obtaining the development consent required under the Environmental Planning and Assessment Act 1979 (NSW), which Act used relatively similar language in defining "development" and defined it as being:
"(a)the use of land;
...
(d)the carrying out of a work."
In determining that matter, Stein J stated:
"I am confident in holding that the land has been used since late 1991 for the storage of fill and waste materials; that this use constitutes 'development' under the Act and requires the consent of the Council which has never been granted."
This is an argument put forward by the respondent in this case and if it were necessary the Tribunal may well be satisfied that the depositing and storage of fill on the applicant's site in the present case is a "use" which constitutes development and requires consent.
However, as the definition of development both in the PD Act and TPS 5 states:
"'development' means the development or use of any land, including ‑
...
(b)the carrying out on the land of any excavation or other works; ..."
The finding that the depositing of fill on the land as admitted by the applicant is a "work" would be adequate on its own to constitute development and require Council approval under TPS 5.
In Parramatta City Council v Shell Company of Australia Ltd [1972] 1 NSWLR 483; (1972) 26 LGRA 25, Street J dealt with the question of whether the depositing of fill is a "work" and at page 30 stated:
"The first question involves, ultimately, considerations of degree. 'Development' in s. 342T is defined as including 'the erection of any building, and the carrying out of any work ...'. In Parramatta City Council v. Brickworks Ltd (1972) 45 ALJR 254 the High Court gave some consideration to the meaning of the word 'work' in a context related, but not identical, to the context relevant to the present dispute. In the course of his judgment, Gibbs J. said:
'It may be doubted whether 'work', in its strict dictionary meaning, would nowadays include a quarry, but like the word 'works' considered in Merri Creek Quarry Pty Ltd v. Foletta (1951) 82 CLR 347, 'work' is not of fixed connotation, but elastic or indefinite, and its meaning must depend on the actual language and context of the statutory provision in question (see per Dixon J. at p. 353). It is apparent from the context of cl. 33 and the definition of 'existing work' contained in cl. 3 that the connotation of the word in cl. 33 must include something which has been carried out on land, and is situated on land, but is not a building or structure. Having regard to the wide meaning of the word 'structure' it is impossible to resist the conclusion that 'work' must be intended to refer to something done to the land itself, and that it therefore includes a quarry or mine.'
To a similar effect are some observations in the judgment of Hope J. in Warringah Shire Council v. Jackson (1970) 21 LGRA 204. At p. 210 his Honour said:
'... I think that both the excavation of land and the reclamation of land from the sea can constitute a work for the purposes of the Ordinance. ... In particular, I think that the excavation of the whole or substantially the whole of lot 3, which was carried out in 1967 was a work within the meaning of the Ordinance. Furthermore I think that the filling in of land normally covered by the waters, such as the waters of Pittwater, that is, a work of reclamation, would also normally be a work for the purposes of the Ordinance.'
The question I have to determine is whether the depositing on this land of the quantity of filling described earlier is a 'work' within s. 342T. I take respectful guidance from the foregoing statements of the meaning of the word in a different, but nevertheless cognate, context.
As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as a 'work', and thus a 'development', within the relevant legislation. The building‑up of a large sports ground or oval could readily and properly be regarded as a 'work'. At the other end of the scale, the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a 'work'. In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance. The spreading of 1,200 cubic yards of filling or topsoil over a very large area might well not be of such significance as to amount to a 'work'. But the depositing of that quantity in a suburban allotment, having the effect of building up the height of that allotment at one corner to a point eight feet six inches above its natural level, and the creation of a relatively level surface extending over most of a block of land such as this is, in my view, a 'work' within the meaning of the Act. I am accordingly of the view that the depositing of this filling amounted to 'development'. As such, it could only lawfully have been placed there if the defendant had the requisite authority to carry out such development."
In the present case, nearly exactly the same matter falls to be determined and, having considered the affidavits filed on behalf of the applicant and the respondent together with the photographs, and keeping in mind the scheme objectives of TPS 5, the Tribunal is satisfied that the filling that has so far occurred on the site is of sufficient scale to constitute "works" as contemplated by the Act and therefore a "development" under both the PD Act and TPS 5 and requires the prior approval of Council.
In his affidavit of 4 April 2007, the applicant submitted "that the works undertaken so far, and the works which are proposed ... fall within the exception set forth in paragraph (d) of clause 4.1.3 of TPS 5."
Clause 4.1.3(d) of TPS 5 states:
"Unless otherwise referred to in subclause 4.1.4 the planning approval of Council is not required for the following development of land:
...
(d)The carrying out of works urgently necessary for public safety, the safety or security of plant or equipment or the maintenance of essential services."
In attempting to invoke this particular exception, the applicant submitted:
"That there is no barrier that would prevent access to the hole between the hole and the house where I will live with my family as from about 7 to 10 days hence. There is a potential danger that a person could fall into the hole, with the resultant risk of drowning or suffering serious injury. In particular I am most concerned about the safety of my 4‑year‑old daughter, who may gain access to the hole and be injured. It is primarily because of my concern for her safety that I began filling the hole."
It is clear that the exception referred to, which removes the necessity to obtain the approval of Council, refers specifically to "[t]he carrying out of works urgently necessary for public safety, the safety or security of plant or equipment or the maintenance of essential services." One can readily see why in such circumstances urgent works may sometimes need to be carried out quickly and so be exempt from normal approval requirements.
However, the danger alluded to by the applicant is not a matter of public safety, rather it is an entirely private matter arising on private property, similar to the danger that a swimming pool on private property may present, and there is no sufficient evidence before the Tribunal to find firstly that the danger alluded to is a danger to members of the public and secondly that that such danger could not be easily alleviated by other means such as some form of barrier. Under the circumstances, the Tribunal is not convinced that the danger as stated would bring the matter within the scope of cl 4.1.3(d) of TPS 5.

Conclusion

The Tribunal is satisfied that the works identified in item 2 of the s 214(3) direction dated 7 November 2006, namely "the dumping of waste (including but not limited to building rubble, concrete blocks and metal) in and adjacent to the excavated borrow pit located in the North‑East corner on the Land" constitutes "development" under the PD Act and TPS 5 and furthermore that such works do not fall within the exception set forth in par (d) of cl 4.1.3 of TPS 5.

Orders

1.The question whether the "dumping of waste (including but not limited to building rubble, concrete blocks and metal) in and adjacent to the excavated borrow pit located in the North‑East corner on the Land" constitutes "development" under the Planning and Development Act 2005 (WA) and Town of Port Hedland Town Planning Scheme No 5 is answered in the affirmative.
2.Planning approved is required.
3.The matter is adjourned to further directions.

I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________
MR M SPILLANE, MEMBER