Stein and Shire of Chapman Valley - [2009] WASAT 113

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: STEIN and SHIRE OF CHAPMAN VALLEY [2009] WASAT 113

MEMBER: MR P McNAB (MEMBER)

HEARD: 13 JUNE 2008
27 JULY 2008
24 OCTOBER 2008
10 NOVEMBER 2008

DELIVERED : 13 MARCH 2009

FILE NO/S: DR 200 of 2008
DR 199 of 2008
DR 110 of 2008
CC 404 of 2008

BETWEEN: TIMOTHY STEIN
NICOLA JANE STEIN
Applicant
AND
SHIRE OF CHAPMAN VALLEY
Respondent

Catchwords:

Town planning - Local government - Dog kennels in rural area - Notices and directions - Enforcement of planning approval - Enforcement of related building licence - Planning notices and directions - Direction to reduce unauthorised works - Additional stop work notice in respect of building licence - Associated application for retrospective approval of part of works by recipient of notices - Tribunal first approving development in 2006 - Tribunal approval required Tribunal to approve plans - Failure by both parties to ensure adequate plans and specifications lodged or approved - Greater responsibility found to rest with Local Government to ensure proper plans lodged - Allegations that scope of works exceeded - Tribunal commissioning independent surveyor to assist with the review - Relevance of applicants acting in good faith - Extent of discretion in such circumstances - Whether additional works should be approved - Applications successful - Tribunal set aside notices and further incidental development approved

Legislation:

Building Regulations 1989 (WA), reg 10, reg 13(1)(a)
Health Act 1911(WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401A, s 401(1), s 409A
Planning and Development Act 2005 (WA), s 214
Shire of Chapman Valley Town Planning Scheme No. 1
State Administrative Tribunal Act 2004 (WA), s 64, s 29(6)

Result:

Applications for review allowed in all matters

Category: B

Representation:

Counsel:

Applicant: Mr P Quinlan
Respondent: Mr C Slarke

Solicitors:

Applicant: Altorfer & Stow
Respondent: McLeods Barristers & Solicitors

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

Clarke v Shire of Gisborne [1984] VR 971
Dawson and the City of Fremantle [2008] WASAT 125
Drake and City of South Perth [2005] WASAT 271
Dueschen and City of Stirling [2008] WASAT 181
Jovia Pty Ltd v Shire of Augusta-Margaret River [2003] WATPAT 146; (2003) 35 SR (WA) 188
Lee and City of Cockburn [2008] WASAT 268
R v Leominster District Council, ex parte Pothecary [1997] EWCA Civ 2585
R v Newham Justices, ex parte Hunt; R v Oxted Justices, ex parte Franklin [1976] 1 All ER 839
Re Griffiths, Ex parte Homestyle Pty Ltd [2005] WASCA 103; (2005) 139 LGERA 178
Stein and Shire of Chapman Valley [2006] WASAT 105
Stein and Shire of Chapman Valley [2006] WASAT 105(S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr and Mrs Stein first sought planning approval from the Shire of Chapman Valley for the development and use of their 8 hectare property for the boarding of up to 20 dogs back in 2005. The Shire refused approval but their decision was reversed in this Tribunal: see Stein and Shire of Chapman Valley [2006] WASAT 105 and Stein and Shire of Chapman Valley [2006] WASAT 105(S). The conditions of approval included the following:
All development shall be in accordance with the plan/s endorsed by the State Administrative Tribunal, and subject to any modifications required as a consequence of any other condition of this approval.
No such plans were ever presented to the Tribunal for endorsement. However, there was substantial indicative material (including sketches and a physical model) in both the Tribunal's and the Shire's records indicating the location, concept and scope of the kennels.
In 2008, after the applicants commenced construction of the kennels and associated works pursuant to both their conditional approval from the Tribunal and a building licence issued by the Shire, they received a stop work order and subsequently two written directions to alter their development in order, it was said, to bring the works back into compliance with the earlier approval. The applicants sought a review in the Tribunal of these notices.
The applicants also sought retrospective planning approval for some of the works which did exceed the scope of the 2006 approval. The Shire of Chapman Valley refused planning approval and the applicants also sought a review of this matter in the Tribunal.
All of the reviews were heard and determined together.
The Tribunal set aside all of the notices and granted retrospective approval to the applicants.
The Tribunal was not satisfied that it would be a proper exercise of discretion to affirm the decisions to issue the notices where the parties had failed to ensure that adequate plans and specifications were in place, as had been required by the Tribunal's two earlier decisions, and which was also a necessary step before the issue of a building licence.
However, in the Tribunal's view, a greater responsibility lay upon the Shire in this regard as the Shire was the designated regulatory body and must, generally speaking, carry out the Tribunal's decisions.
Further, even if it could be objectively demonstrated that the applicants were in error concerning the precise dimensions or location of some aspects of their project, they had nevertheless acted in good faith pursuant to their understanding, and within the limits of the conceptual approval given by the Tribunal.
The Tribunal discussed the authorities on the question of the extent of discretion available with respect to enforcement notices, citing an English authority which suggested that local governments 'can use their common sense and are entitled to take into account all the circumstances, and thus avoid the expenditure of public money unnecessarily' in a relevant case - see R v Newham Justices, ex parte Hunt; R v Oxted Justices, ex parte Franklin [1976] 1 All ER 839.
Retrospective development approval was given to the new works, as in the view of the Tribunal the scale of it (with an appropriate setback from the relevant boundary; and an appropriately managed site in respect of drainage, and vegetated in due course) married reasonably well into the existing approved development; was otherwise broadly consistent with that development; and would not, in the Tribunal's opinion, be excessive in bulk or scale having regard to the existing development. The Tribunal rejected the respondent's argument that the relevant context was a kennel for 20 dogs, saying:
Standing alone the additional development might not appear to be proportionate to the dog kennels themselves … but the scale and context of the whole development (kennels, proposed vegetation, road, bunds and car park) needs to be taken into account.
To assist in the review an independent surveyor was appointed by the Tribunal under s 64 of the State Administrative Tribunal Act 2004 (WA).
What follows is a formally revised and edited version of the reasons which were delivered orally by the Tribunal.

Introduction

These proceedings concern some dog kennels located north of the City of Geraldton in the Shire of Chapman Valley (Shire).
The matter has a long history in the Tribunal, dating back to 2005. Accordingly, these reasons should be read consistently with the Tribunal's earlier related decisions and reasons in both Stein and Shire of Chapman Valley [2006] WASAT 105 and Stein and Shire of Chapman Valley [2006] WASAT 105(S).
Those earlier decisions were to do with planning approval and associated conditions for the kennels given by the Tribunal on the review of a refusal to do so by the Shire. And, as shall be seen, it will be necessary to reproduce some material from these decisions, as appears below.
The following four related matters are currently under review, and have been heard and determined together:
•CC 404 of 2008: which concerns a stop work order issued by the Shire under s 401A of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act);
•DR 110 of 2008: which concerns a notice and direction issued by the Shire under s 214 of the Planning and Development Act 2005 (WA) (PD Act);
•DR 199 of 2008: which concerns a second notice and direction issued by the Shire under s 214 of the PD Act; and
•DR 200 of 2008: which concerns the refusal by the Shire, in effect, to give retrospective planning approval to part of the development exceeding the 2006 planning approval given by the Tribunal (referred to above).
Further details of these notices are set out below.

Procedural history

As has been mentioned, these reviews were eventually heard and determined together. Both parties were represented by counsel, in fact the same counsel as first appeared back in 2005. Some mediation was attempted earlier in the matter. A considerable number of directions hearings were held, and the final hearing took place over a number of days and then over the course of several months. Included in these dates was a useful site inspection of the subject land.
It is convenient to mention at this point that the parties consented to the appointment of Mr R Hunt, a licensed surveyor, to provide independent expert evidence concerning such matters as the nature of the site, boundary lines, the existing works and various ground levels, expressed in various plans prepared by Mr Hunt. The usefulness of this procedure in assisting the Tribunal in surveying matters was also demonstrated in Lee and City of Cockburn [2008] WASAT 268, where a similar model was adopted. In this regard, and so far as is relevant, the Tribunal made the following orders in the present case on 13 June 2008:
…
2.By this order, the Tribunal foreshadows the appointment, pursuant to s 64 of the State Administrative Tribunal Act 2004 (WA) ('the Act'), of a person with relevant knowledge or experience (namely a licensed surveyor) ('the surveyor'), to assist the Tribunal in relation to these proceedings, whether by providing advice or professional services or by the giving of evidence.
3.Subject to s 64 of the Act, the Tribunal foreshadows that the parties may each be asked to contribute an equal amount to pay the costs of the surveyor.
4.The respondent shall as far as is practicable by 20 June 2008 and in consultation with the applicants' solicitors, prepare a neutral brief for the surveyor consistent with the tenor of discussions in the Tribunal on 13 June 2008.
5.The respondent shall as soon as is practicable approach both of the two local surveying firms (in the order of preference as discussed in the hearing in the Tribunal on 13 June 2008) to see whether there is a person who is suitable for appointment.
6.A copy of these orders shall be given to the proposed appointee or their firm.
This was a useful exercise in, amongst other things, assisting the Tribunal and the parties with constructing a de facto site plan, at least in respect of the works in their half-finished state, a result occasioned by a 'freeze' on the works effected by the service of the notices. Unfortunately, although contemplated by the Tribunal, it was not possible for Mr Hunt to attempt to 'translate' the 2006 approval (such it was) to any of the plans that were prepared.

The notices under review

For convenience of reference, I set out, so far as is relevant, a summary of the obligations raised by the notices, as understood by counsel for the applicants:

Application matter CC 404 of 2008

This application seeks review of a stop work order pursuant to [s] 401A of the Local Government (Miscellaneous Provisions) Act 1960 dated 5 February 2008. The stop work order raises issues of drainage and stability which have been addressed by [various engineering reports commissioned by the applicants]. It is understood by the Applicants that this stop work order has been superseded by the directions challenged in DR 110 of 2008 and DR 199 of 2008.
[The Order also seeks a 'revised plan' and queries certain specifications not detailed on the existing approved building plans.]

Application matter DR 110 of 2008

This application seeks [a] review of a direction given under s 214 of the PD Act dated 27 March 2008 to carry out certain works on the development, namely:
(a)reducing a bund on the southern side of the development to no more than 5 metres above the pad level;
(b)reducing a bund on the northern side of the development to no more than 6 metres above the pad level; and
(c)increasing the setback of the bund on the northern side to a minimum of 5 metres from the boundary.

Application matter DR 199 of 2008

This application seeks [a] review of a direction given under s 214 of the PD Act dated 6 May 2008 to carry out certain works on the development, namely:
(a)reducing the height of the cut into the limestone ridge on the eastern side of the development to a height of 6.5 metres above the pad level;
(b)by using material from the bunds on the northern and southern bunds [; and]
[(c)associated revegetation].

The material parts of the notices referred to above are in substantial accord with the text of the original notices, copies of which were supplied to the Tribunal by the respondent Shire.
The applicants do not take any issue with the form, content or service of the notices.
In the final related matter (DR 200 of 2008, seeking retrospective approval for certain works) the applicants describe their review as follows:
This application seeks review of the decision of the Respondent refusing to vary the set back on the northern side of the Development to one metre to accommodate the northern bund. If the Applicants' application for a variation of the set back were allowed, the works referred to … in DR 110 of 2008 [see above] would be substantially reduced.
The respondent refused to give its retrospective approval to this development, treated then as a variation, in summary because of: drainage concerns; the reduction of visual amenity; that it was 'contrary to' past approvals; and that there had been excessive removal of 'very good' vegetation. Later, attention would be drawn by the respondent to the alleged 'excessive' mass of the bund and that 'a driveway to the north has been constructed on top of the bund rather than around it'.

Summary of the issues

Thus, the issues for consideration may be shortly stated as:
•Should all or any of the notices under review be set aside?
•Should the applicants' further development application be approved and, if so, upon what conditions?

The parties' evidence

Written statements of evidence were received from:
•Mrs N Stein (one of the applicants);
•Mr L Smith (a structural engineer, called by the applicants);
•Mr R Maslen (a Chief Fire Control Officer, called by the applicants);
•Mr I D'Arcy (the respondent's Manager for Planning and Development);
•Mr A Abbott (the Shire's Building Surveyor); and
•Mr M Battilana (a former CEO of the Shire).
All witnesses were cross-examined, except Mr Battilana and Mr Maslen.
In short, both parties' major witnesses, so far as is material, set out their respective points of view on the interpretation or scope of the 2006 approval (as they understood it); the steps taken in furtherance of that approval (either to implement it, or to enforce it); and the communications that passed between the parties (and the resulting understandings, such as they were) in relation to the 2006 approval and related matters (such as the issue of a building licence), all of which have culminated in today's proceedings.
Given the approach of the Tribunal to resolving the issues (see immediately below, in the discussion of the case) it is unnecessary to set out in significant detail all of this material. Where necessary, essential points of difference between the witnesses are referred to below.

Discussion of the case and findings

It is instructive, if not necessary, to go back - and, regrettably, at some length - to the Tribunal's initial decision of 2006: Stein and Shire of Chapman Valley [2006] WASAT 105. So far as is relevant, the following passages from that decision set out the context in which approval was given by the Tribunal (emphasis added):
[14] During the first day of the hearing the applicants were invited to clarify and better particularise their preferred proposal. This followed earlier attempts in a directions hearing in the Tribunal, on 8 December 2005, to clarify matters and in effect to put the applicants to an election as regards their preferred location of the kennels.
[15] The particulars … and an accompanying sketch plan … were prepared in the course of a short adjournment on the first day of the hearing. (This first document has been edited by the Tribunal from the handwritten draft furnished, not only to avoid infelicities of expression and the like, but also so that it otherwise makes sense to the reader.)
[16] It will be observed that the modified proposal must also be read or viewed in conjunction with certain other documents (including the original modified proposal - see above; a further sketch plan, already mentioned … and a papier mâché model … The "new" proposal is a mixture of further particulars, some alterations (not, however, to the general concept of what was proposed) and a partial response both to the respondent's amenity concerns and its draft conditions. The document reads as follows:
1. The kennels will be located on a pad, namely a flat cut and fill site to the west of the existing house on the subject land. (Thus, the kennels have moved approximately 150 metres to the north-east from an earlier position on the western side of the horse stables.)
2. This pad is about 25 metres east to west, and 30 metres north to south.
3. Excavation will take place 7- 9 metres to the north and about 10 metres to the east. (This is a partial excavation of the ridge.)
4. The current (formerly proposed) cut is about 3.5 metres high.
5. The new cut will be about 6.5 metres from the highway. [This specification contains an error, and should read 'about 6.5 metres high' as per the original document received by the Tribunal in 2005.]
6. Material from this cut will be used to form a new batter on the southern side and will be about 5 metres high.
7. Some of this material will also be used to increase the height of the bund on the northern side of the kennels to a height of about 5 metres or greater above the level of the pad.
8. It is proposed to landscape these bunds with Geraldton Wax, Melaleuca River Gums, Poincianas; that is a combination of shrubs and trees - some of which are currently being propagated.
9. Access to the kennels and the pad will be via the existing concrete drive, with a new vehicle-passing embankment.
10. The kennels are to be constructed as described on an accompanying sketch plan …
11. The kennels are to be 6 metres deep (front to back). There will also be a 3 metre wide veranda across the length of the western façade.
12. The dog 'runs' will each be 9 metres long.
13. The total depth of the kennels and the runs is therefore 18 metres - extending out into the existing pad area by 8 metres.
14. The balance of the pad area is therefore about 17 metres deep - sufficient for parking and the manoeuvring of clients' vehicles (which will need to stop at the house before progressing to the kennels area).
15. Trucks that will visit (about once a month) will also be able to manoeuvre around the balance of the pad area.
16. The veranda roof will form a sound barrier and will deflect sound to the west.
17. Effluent disposal and washing down will be as described in the applicants' submission (that is, spoon drains into septics) and also in accordance with any local laws relating to animal establishments.
18. Control of dust during construction will be by way of water from a fire-fighting tank.
19. Chicken wire will be used on the slope of the bunding and "pig face" will be grown down the slope to help attenuate sound (with drip reticulation).
20. The applicants will be controlling access, as indicated in the respondent's draft conditions.
21. A management policy will include dogs not being in runs during pickup and drop off times, to contain noise inside kennel building.
[17] Mr Quinlan [counsel for the Steins] also gave a supplementary explanation of the proposal by reference to other photographs before the Tribunal, as did his client, Mrs Stein, in her evidence.
[18] It appears that, despite the applicants previously offering to move the kennels to 500 metres from the nearest inhabited dwelling and other incidental management arrangements, the current proposal, set out above, is mainly in response to noise concerns raised by Mr Lloyd, a noise expert engaged by the respondent … .
[19] Mr Slarke [counsel for the respondent] conceded, properly, that he was not materially prejudiced by the late production of the modified proposal and the accompanying documents and explanation, but he maintained that in any event it still was an inadequate basis for properly determining the matter, as much of the necessary engineering and construction data was missing. In fact, he spent a considerable amount of time cross-examining Mrs Stein in order to elucidate material details of such matters, as well as concerning operational details.
[I interpolate here that this cross-examination would be later used by Mr Slarke in these proceedings.]
[20] Notwithstanding these concerns, as the essential core of the proposal remains substantially the same as that contemplated in the original assessment by the respondent and since it has been better particularised, and as the respondent is not materially prejudiced thereby, the Tribunal should proceed to consider the proposal on its merits, making do, to the best it can, with what material has been provided. In Ellis v Yarra Ranges SC [2005] VCAT 175 the Tribunal noted, at [66]:
"While this is an application where perhaps further details could have been provided at the application stage in the form of acoustic details and environmental management details, I am satisfied that the proposal is acceptable and that some of these matters can be adequately dealt with by permit conditions."
[21] In short what is now proposed is a dog kennel divided into five runs, centrally located in the upper part of the subject land, and partly set back into a "bunker" of sorts cut into the ridge, facing out towards the sea.

It is important to emphasise how conceptual, lacking in precise detail and approximate much of all of this was, based as it was on hand-drawn sketches and, in effect, hand-written notes. In short, the particularisation was done largely on the run. At the time, Mr Slarke, with respect, correctly - if not, as it turns out, presciently - expressed the concern (shared by the Tribunal at the time) that much of the 'necessary engineering and construction data was missing'.
Unfortunately, in 2009 this would still seem to be the case.
Arguably, until the independent surveyor's work commissioned by the Tribunal appeared in this round of proceedings, no detailed work had been done to show the precise dimensions and precise location of the pad, and, perhaps more importantly, the associated earthworks and construction in their final form. Even then, such survey work is not the same as a proper site plan which to this day has not been organised.
Thus, the Tribunal went on to say back in 2006 (emphasis added):
[98] There will be a number of matters to be finalised between the parties. These include the engineering and construction specifications identified by Mr Slarke.
Consistent with that observation, and as foreshadowed in my decision in 2006 (see [89], Stein and Shire of Chapman Valley [2006] WASAT 105), the Tribunal's conditions of 2006 subsequently imposed by Mr L Graham in the Tribunal's supplementary decision (Stein and Shire of Chapman Valley [2006] WASAT 105(S)) included the following requirements (emphasis added):
That planning approval for the proposed use is granted in accordance with the following conditions:
(3) All development shall be in accordance with the plan/s endorsed by the State Administrative Tribunal, and subject to any modifications required as a consequence of any other condition of this approval.
Depending upon the context in any particular case, such a plan or plans would ordinarily encompass, at a minimum, a site plan and a definition of the relevant land, including, as appropriate, metes and bounds descriptions and related detail. In this case, some detailed engineering and construction specifications on one or more plans would be required. This was the evident context in which condition (3) was imposed.
This condition for endorsed plans seems to have been originally sought by the respondent: see [89] of the first 2006 reasons for decision. Presumably, the respondent was concerned, in part, that if the scope of any approval was later construed by reference to what the applicants had then lodged, ambiguities or doubts might have arisen. Condition (3), sensibly, addresses these proper concerns raised by the respondent.
The applicants, unfortunately, did not learn from any of this experience first time around in the Tribunal. They seem to have pressed on with mere sketches and a hope that what was relatively clear to them (and had been approved, in effect, in principle) or what may have turned out to be necessary or reasonable as an incident of what had been approved, would translate to an obvious reality that everyone, so they appear to have thought, would accept.
In the event, no such plan or plans, as envisaged by condition (3), were ever presented to the Tribunal for endorsement. No party has sought to explain why this was so. Had they been so presented, arguably, the events that we are now considering might never have arisen or if they had arisen they would have been resolved long ago.
Condition (3) does not impose any duty on any particular party to present such plans. The Tribunal has no executive arm to ensure compliance with this duty. It is up to the parties to see that the conditions are executed. However, s 29(6) of the State Administrative Tribunal Act 2004 (WA) expressly empowers the respondent 'to do anything necessary to implement the Tribunal's decision'.
The applicants would bear the prima facie duty to prepare such plans, but by no means is the respondent absolved from any responsibility for ensuring that such plans are finalised. After all, quite apart from anything else, a proper system of building licence control should result in relevant officers (or delegates or agents) entering into consultation with the planning department - or there being in place another internal mechanism - to ensure proper consistency between planning and building approvals.
Such proper standards of administration, if in place, may well have noticed the absence of final detailed plans. The request could then have gone out for such plans to be submitted to both the respondent and SAT.
In any case, a building licence should not be issued unless suitable plans are submitted. The Building Regulations 1989 (WA) provide, in reg 10, as follows:
10. Application for licence
(1) Every builder intending to construct a building or alter, add to, repair or underpin, demolish or remove an existing building shall before commencing -
(a) that construction, alteration, addition, repair or underpinning, demolition or removal; or
(b) any earthworks necessary for, or incidental to, that construction, alteration, addition, repair or underpinning, demolition or removal,
make written application to the local government for a licence to commence that work [emphasis added].
See also, reg 13(1)(a) of the Building Regulations 1989 (WA) requiring the 'plans, drawings and specifications' to be approved.
Here, both a reasonable excavation was intended and not insignificant associated earthworks required in connection with the erection of the kennels.
As the stop work order extends to the excavation, (and cl 20 of the Shire of Chapman Valley Building Licence Number 20070023 (building licence), in evidence here, refers to 'earthworks'), it is reasonable to assume that the building licence was always intended to regulate the excavation of the ridge cap and other work as incidents of the erection of the kennels.
However, by April 2007, the contracted (but authorised) building surveyor, Mr Abbott, who would later seek in 2007 'more relevant and detailed plans to reflect the actual construction to be undertaken', said:
The Shire had indicated to me that the building [licence] application accorded with the planning approval …
He immediately adds, however, that 'they [the Shire] requested the application be processed, inclusive of a geotechnical report and engineering detail'.
It does not seem that such reports and detail were ever sought from the applicants or, if they were sought, whether they were in fact provided. It does not seem to be the case, and it may be fairly concluded that the building licence, at least so far as the associated earthworks and construction are concerned, was issued on inadequate plans, even after the provision of some additional material later in 2007. Presumably, if such other engineering detail had been provided (that is, prior to construction), then we would not be here today.
There were discussions and exchanges between the parties before and after the issue of the notices, but it appears that no proper site plan was sought before the issue of the building licence. The applicants also gave instructions to their builders, but without detailed plans, only with, as it turns out, generally inadequate sketches. The builders most probably worked off conceptual notions and generalisations provided by the applicants. In particular, this would include the disputed so called 'starting point' for the pad excavation, a reference point first identified by Mrs Stein, and an issue that would occupy so much of the Tribunal's time.
From the respondent's point of view the allegedly extended scope of what had been actually constructed became more apparent when after the stop work order a further sketch plan and cross-section came in from the applicants (that is, in mid-February 2008). It appears that had that document been provided before the issue of the building licence in 2007, then the building licence would not have been issued as, from the respondent's point of view, that further sketch plan went beyond what was actually contemplated by the Tribunal's planning approval.
In any event, both parties were wrong to talk as if such plans had been approved by SAT in any final sense or even as was contemplated by the conditions. For example, Mr D'Arcy in an email of 28 February 2008 sought a copy of any '[SAT] endorsed plan' from the applicants, when, with respect, he ought reasonably to have known that no such plan had ever been presented to SAT. After all, the latest plan in his organisation's possession was a further rough - if more detailed - sketch plan of approximately two weeks earlier.
Likewise, Ms Stein was, with respect, wrong to talk in her email of 25 February 2008 of the papier mâché model and sketches as being 'endorsed by the SAT'. Clearly they had, but only in a general and conceptual sense, and not as required by the Tribunal's conditions.
Thus, major development and improvement of the subject land has proceeded in a fashion similar to that which was presented to Gobbo J in the Victorian Supreme Court in Clarke v Shire of Gisborne [1984] VR 971 at 989; (1984) 57 LGRA 135 at [153] (emphasis added):
It was said that the block plan was not drawn to scale and did not contain all necessary measurements and, above all, that it did not set out the method of drainage proposed … As to the plans and specifications, there is no doubt that the building plan was a primitive one.
This was a case dealing with a claim for negligence against the Shire. The Shire's conduct as regards this point was not found to have made any difference to the claim which was otherwise successful.
The same description ('primitive') could broadly apply here given what was originally submitted for a building plan as to, in particular, excavation of the limestone ridge behind the proposed kennels. See the building licence (issued only after more detail was sought from the applicants) and, in particular, the approved indicative 'landscape plan' - really only a sketch - described later by Mr D'Arcy, with respect, incorrectly as a 'site plan'. If it were a site plan, which I doubt, it was hopelessly inadequate for this task.
I think that I have said enough now to indicate that both parties failed in their respective duties to this Tribunal, if not to the public, to ensure that adequate site and engineering plans were developed prior to the works being commenced. However, I think that a greater duty in this regard is imposed upon the respondent Shire, as it has both the power and regulatory responsibility to ensure compliance with approvals granted by it or this Tribunal. That regulatory role is in cases like the present, with respect, inadequately exercised by the issuing of enforcement notices after the event.
In my view, the Tribunal is entitled to take all of these matters into account when exercising a relevant discretion (one that the respondent also has), particularly when the need to consider the exercise of the discretion might have been avoided, if the respondent's own administrative conduct had been otherwise.
It follows that, with respect, I do not accept Mr Slarke's contention that local governments would be placed in an awkward position if, when relying on certain 'assurances' by applicants for building licences as supplementary to perhaps very basic plans, they are subsequently denied the opportunity to have enforcement notices issued because proper plans were never submitted. Assurances only work if they are accurately communicated and recorded, accurately received and understood, and then only in the context of accurate specifications to start with.
Further, assurances, particularly those given orally and on the run are not a sure basis for anything important in public administration - particularly as it relates to regulating interests in land - which generally relies upon clear instruments setting out rights and responsibilities: see, for example, reg 13(1)(a) of the Building Regulations 1989 (WA) requiring the 'plans, drawings and specifications' to be approved.
The main thing is that successful enforcement, whether through prosecution or otherwise, is best guaranteed by insisting that proper plans are lodged and that any agreed variations are marked upon such plans.
In any event, apart from one matter, the February 2008 revised sketch plan seems to me to be still largely consistent with the concept of the proposed kennels as may be found, for example, in the papier mâché model and sketch in evidence in both sets of proceedings (that is, from 2006 and 2008). However, both the northern bund and its associated works do seem to have expanded (perhaps for acceptable or, if not acceptable, at least understandable reasons) beyond what was originally contemplated. The application to retrospectively vary the setback on the northern side from 5 metres to 1 metre supports such a finding.
It is unfortunate that the respondent's invitation of 29 April 2008 (conveyed by letter from Mr Slarke) for the applicants to seek retrospective approval of, as I understand it, all of the works alleged to be non-compliant, was not taken up by the applicants. It was also a course that I invited the applicants to consider. It could have been done, on a without prejudice basis, solely to facilitate matters further if it became necessary in the Tribunal to regularise any works. It is true that the scope of the review might then have expanded, but all of the relevant material would have covered all of the notices and any additional approval (if any) that might have been needed.
No doubt, for tactical reasons, the applicants thought that their case might be weakened if other than for the narrow setback issue they caused any doubt - even indirectly - to be raised as to the scope of their works. With hindsight, and without wishing to sound overly critical, I respectfully query that position, although, it might be admitted that the actual result in these combined cases might have, more or less, vindicated their position.
Of course, had the matter proceeded with a review of the impugned development, given the general consistency with the conceptual model originally proposed, it might well have been possible, in any event, that the existing development would have been retrospectively approved to the extent to which (if any) it in fact exceeded any previous approval. I will return to the position of development on the northern side below.

The respondent's case

Mr D'Arcy's supplementary witness statement, based upon the independent surveyor's work, is a detailed argument as to why it may be reasonably demonstrated, at least from one perspective, that the actual works exceed what was indicated or understood to be the position at the earlier hearing. This does not mean, however, that the applicants are somehow 'wrong' or otherwise in error by the recognition of the validity of this point of view. Indeed, Mrs Stein was unshakeable in her belief that an accurate starting point for excavation, in accordance with what she had understood she had indicated back in 2005, was conveyed to her contractor.
It needs to be emphasised that accepting Mr D'Arcy's detailed calculations for the sake of argument assumes that the very generalised figures, estimates and approximations made from the earlier hearings in 2005 and 2006 (which were, as we have seen, to be finalised in more detailed plans and specifications) have in fact been exceeded by what has been constructed or, in terms of vegetation, lost. In short, Mr D'Arcy's position is that the cut into the ridge commenced several metres further east than was originally indicated, resulting in larger dimensions and more fill. This is, as has been indicated, a contestable position, except perhaps as regards aspects of the expanded northern bund.
And, for the sake of argument, if one were to accept Mr D'Arcy's position as correct, it would not in any case necessarily provide an answer in discretionary enforcement proceedings where, as I have already indicated, such 'arguments' should have taken place well before the issue of a building licence.
Again, accepting Mr D'Arcy's position for the sake of argument, I also do not find anything in the applicants' conduct or attitude that indicates a lack of good faith on their part, even if they held a position that could later be seen as objectively doubtful. Chief amongst the indicators of the applicants' good faith is the steady stream of communications with the respondent, indicating a fairly transparent and open attitude, even if much of this communication was built upon their understanding of the original SAT approval.
In particular, I do not think that they wilfully or wantonly set about to dramatically expand the scope of their approval or to use up the extra overburden in overdevelopment on the northern side (or both). Rather, conceptual approval was translated by them into what they saw as the reasonable, necessary or incidental removal of trees, vegetation, soil and rocks and the installation of such additional drains or other works as was recommended along the way. They may have been naïve or amateurish in all of this, but, if so, then they were in a sense 'encouraged' at least in part by the issue of a building licence on inadequate plans and specifications, and more particularly by the failure of the Shire to demand proper plans (as foreshadowed by the development approval itself) before the issue of the building licence.
Thus, I can see how they might have subjectively held a frame of reference that assumed a central place for the dog kennel concept approved by the Tribunal, with all the work to be done necessarily consistent with that concept and its approximations, and the detail to be worked out as the development proceeded. The Shire did not, as I have indicated, ever take prior steps to point out what the consequences of such, in effect, ad hoc developmental work might be; consequences now seen in the notices under review.
If there were differences or misunderstandings between the parties in their respective recollections as to what was intended or understood in their various communications with each other, then it is likely that such differences reflect a failure to understand the respective frames of reference of each of the parties. Again, clear amendments to existing detailed plans would have avoided such differences or misunderstandings and fixed the parties' respective rights.

Tribunal's discretion with respect to notices

That the Tribunal, like the respondent, has a discretion in these matters concerning the issue of the various notices under review is not in doubt. Arguably, that discretion is a very wide one indeed.
The existence of such a discretion, at least in respect of s 401(1) of the LGMP Act was expressly recognised by the Court of Appeal in Re Griffiths, Ex parte Homestyle Pty Ltd[2005] WASCA 103; (2005) 139 LGERA 178 at [22] (per McLure JA). See also my decision in Dawson and the City of Fremantle [2008] WASAT 125 (Dawson), dealing with the discretion under s 409A of the LGMP Act (uncompleted buildings).
Dawson permitted an examination of the motives of the applicants, in particular whether they acted in good faith and whether what was being sought by the Local Government (there, a complete demolition of an uncompleted dwelling house), was proportionate in all of the circumstances having regard to the public interest sought to be enforced.
In England, it has been said that those exercising similar statutory discretions 'can use their common sense and are entitled to take into account all the circumstances, and thus avoid the expenditure of public money unnecessarily in a [relevant] case …'. See the discussion in R v Newham Justices, ex parte Hunt; R v Oxted Justices, ex parte Franklin [1976] 1 All ER 839, at 843.
Also in England, in reference to town planning enforcement notices, Halsbury's Laws of England, (4th ed, reissue), vol 46(2), carries the following annotation (at [561], n 5, emphasis added):
The power to issue an enforcement notice is discretionary and the decision by a local planning authority whether or not to issue a notice may not be challenged except on the ground that its issue was arbitrary or capricious: see Perry v Stanborough (Developments) Ltd (1977) 244 Estates Gazette 551 (authority's action in refusing to enforce a condition relating to construction of access roads from a development site to other sites, leaving the matter as one for negotiation between adjoining owners, upheld). 'I see no reason why the authority are not perfectly entitled in the exercise of the very wide discretion conferred upon them (and them alone) by the statute, to say simply that they do not propose to take enforcement action': Perry v Stanborough (Developments) Ltd supra at 555 per Fox J.

See also, Jovia Pty Ltd v Shire of Augusta-Margaret River [2003] WATPAT 146; (2003) 35 SR (WA) 188 and Drake and City of South Perth [2005] WASAT 271 at [92] - [97]. In respect of notices under the Health Act 1911 (WA), see Dueschen and City of Stirling [2008] WASAT 181.
There is no suggestion that the notices here have been issued by the respondent and its officers other than in good faith. Cf R v Leominster District Council, ex parte Pothecary [1997] EWCA Civ 2585; (1998) 10 Admin LR 484 (CA): 'I recognise that the law forbids the taking of enforcement action by way of punishing a developer for his breach of planning control.' (per Simon Brown LJ).
There are some common threads running through all such exercises of discretion. It is, as I have said, a very wide discretion; it is limited by the scope of the statutory purpose or object authorising the issue of a notice; and the discretion is to be exercised having regard to all of the circumstances of the case.
Here, I have found that although the applicants' conduct could be seen as mistaken and perhaps amateurish, there is nothing, in my view, to suggest that they have acted other than in good faith.
Further, I have sat through all of the evidence in both 2005 and 2008, closely inspected the various plans and photographs and also now spent some time on site. In my opinion, the development as it has turned out, apart perhaps from some expansion on the northern side, is largely consistent with the indications given in the initial hearing. Of course, this conclusion is largely impressionistic, and some dimensions might well have expanded since various figures were bandied about back in late 2005, but conceptually what is there today is not that dramatically inconsistent with the model (including the papier mâché model) conveyed by the applicants.
I accept Mr Quinlan's submission to this effect.
In any event, the overarching factor is that the Shire should have insisted upon receiving from the applicants proper final plans as condition (3) of the development approval required; moreover, the Shire should not have issued the building licence unless and until such plans had been provided; and in any event should not have issued a building licence without proper plans as to the proposed excavations and associated earthworks. Had the Shire taken any of these steps then, arguably, we would not be here today.
Balancing all of these factors with an obvious public interest in ensuring that an applicant adheres to the terms of their development or building approval, in the exercise of the Tribunal's discretion in the circumstances of this case I propose to set aside the three interconnected notices under review.

Retrospective planning approval

I turn to the retrospective approval sought for an 'encroachment' into the 5 metre setback.
The northern bund and road batter encroach to within 0.5 metres of the northern boundary. The relevant development standard in the Shire of Chapman Valley Town Planning Scheme No 1 is a 5 metre setback, clear of development. The applicants want, in effect, approval for what is already there to be scaled back to be within 1 metre of the boundary. It is common ground that access for firefighting purposes is not now in issue. Mr D'Arcy has indicated that internal expert advice to the respondent is that 3 metres in width is reasonable to permit drainage, and related access for machinery, inspection and maintenance.
On the material available to the Tribunal this position is reasonable and ought to be accepted.
For the reasons given earlier, the development taken as a whole is not inconsistent with the conceptual model (based upon various sources) presented back in 2005. This northern side development is, however, an extension or increase on what was earlier foreshadowed or considered (both as to its height and bulk), as is apparent from the setback variation sought by the applicants. Whether there are good technical reasons for it in terms of a better access road, or further noise attenuation need not be addressed as the scale of it (reduced to clear a 3 metre setback from the northern boundary, and appropriately managed for drainage, and vegetated in due course) marries reasonably well into the existing approved development; is otherwise broadly consistent with that development; and would not, in my opinion, be excessive in bulk or scale having regard to the existing development.
Standing alone the additional development might not appear to be proportionate to the dog kennels themselves (a point emphasised by Mr Slarke), but the scale and context of the whole development (kennels, proposed vegetation, road, bunds and car park) needs to be taken into account. That is what is relevant. The impact upon amenity is not likely to be any greater than in respect of what has already been approved; likewise, in respect of the impact on the existing topography of the site, taken as a whole.
The variation and works should therefore be approved upon certain conditions (see below), in effect, as an incident of the overall development.
Such an approval might have an effect in any event on both of the two PD Act notices (particularly the notice issued by the respondent on 27 March 2008), but these notices are going to be set aside for other discretionary reasons outlined above.

Orders

For all of these reasons there will be orders as follows:
In CC 404 of 2008:
1)The application for review is allowed.
2)The decision under review to issue a stop work order under s 401A of the Local Government (Miscellaneous Provisions) Act 1960 (WA) is set aside and in substitution therefor will be a decision not to issue such a notice.
3)Consequently, the subject notice ceases to have effect.
In DR 110 of 2008
1)The application for review is allowed.
2)The decision under review to issue a notice and direction under s 214 of the PD Act is set aside and in substitution therefor will be a decision not to issue such a notice.
3)Consequently, the subject notice and direction ceases to have effect.
In DR 199 of 2008
1)The application for review is allowed.
2)The decision under review to issue a notice and direction under s 214 of the PD Act is set aside and in substitution therefor will be a decision not to issue such a notice.
3)Consequently, the subject notice and direction ceases to have effect.
In DR 200 of 2008
1)The application for review is allowed.
2)The decision to refuse planning approval made by the Shire on 21 May 2008 is set aside and in substitution therefor there will be a grant of planning approval approving the subject works on the northern side of the development upon the following conditions:
a)as far as is practicable no development in connection with the dog kennels is to encroach into the northern side setback area beyond a corridor 3 metres wide from the northern property boundary;
b)no works undertaken in pursuit of this approval shall be commenced unless and until the applicants have first lodged with the Shire such details, plans and specifications as may be necessary (drawn or provided by relevant experts) and a consequential building licence has been issued by the Shire;
c)the building licence may impose such conditions as are reasonable for the suppression of dust and noise during any building work covered by the licence;
d)the applicants shall provide a suitable drainage management plan in connection with these works, to be approved to the satisfaction of the Shire;
e)the applicants shall provide a further landscaping plan not inconsistent with any related landscaping plan already approved by the Shire, to be approved to the satisfaction of the Shire;
f)if for any reason a building licence cannot be issued by the respondent for the subject works, then the Shire may give appropriate directions with respect to the matters specified in paragraphs (b) and (c).
3)There will be liberty to apply reserved for 21 days.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER