Smith & Anor and City of Fremantle

The applicants, Smith and another, challenged a decision made by the City of Fremantle under section 214(3) of the Planning and Development Act 2005 (WA). The city had issued a direction requiring the applicants to remove an air-conditioning unit installed on the east side of a dwelling at 12 Crandon Street, Fremantle, and restore the land to its prior condition. The applicants argued that the installation of the air-conditioning unit did not constitute "development" under the Act and thus did not require approval.

The central legal issue in the case was whether the installation of the air-conditioning unit amounted to "development" as defined by the Planning and Development Act 2005 (WA). The applicants contended that the unit was merely an addition to the existing structure and did not alter the essential character or use of the property. The City of Fremantle, on the other hand, argued that the installation constituted development that required approval under the Act.

The court found that the installation of the air-conditioning unit did indeed constitute "development" as it involved a physical change to the dwelling that altered its essential character. The court emphasised that the Act's definition of development includes any physical change to land, including alterations and additions to a building. Given the physical change caused by the installation of the air-conditioning unit, the court concluded that the city's direction to remove the unit and restore the land was lawful. The application for review was dismissed, and the city's decision was affirmed.