An open field with one half covered in grass and the other half dirt

City of Swan v All Earth Group Pty Ltd [2021] WASC 279

Background

All Earth Group Pty Ltd (Respondent) were in possession of excess fill material from a recently completed earthworks project. The Respondent offered the fill material to nearby landowners and as a result delivered to and roughly spread the fill material on three neighbouring properties.

The City of Swan (Appellant) unsuccessfully prosecuted the Respondent on three charges, for each property, of carrying out works on land in the City of Swan Local Planning Scheme No.17 (LPS 17) scheme area without having obtained the development approval and thereby contravening section 218(a) of the Planning and Development Act 2005 (WA) (PD Act) which provides that person who contravenes the provisions of a planning scheme commits an offence.

In this case, the relevant provision of LPS 17 was clause 60 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions). The Deemed Provisions are to be read as part of LPS 17. Clause 60 provide that a person must not commence or carry out any works on, or use, land in the Scheme area unless they have obtained the development approval of the local government under the scheme. The Respondent was acquitted of all three charges.

The Appellant sought leave to appeal against the acquittals. The application for leave to appeal was ordered to be heard at the same time as the appeal.

Issues

Three preliminary issues related to whether:

  • the City was trying to run a new case on appeal;
  • if so, should this be permitted; and
  • the magistrate found that the Respondent’s actions required development approval.

The main issues related to the statutory construction of ‘works’ and ‘person’ in clause 60 of the Deemed Provisions.

Held

As to the preliminary issues, Archer J concluded that the City was not trying to run a new case on appeal and that the magistrate did find that the Respondent’s actions required development approval.

On analysis of the Deemed Provisions, other common law interpretations and relevant similar provisions in the Building Act 2011 (WA) it was found that ‘works’ include some action which physically changes the land and constitutes a ‘development’ having regard to the degree of physical alteration (as set out in Ivo Nominees[1]) the permeance of the alteration and all of the circumstances.

A ‘person’ for the purposes of clause 60 of the Deemed Provisions will capture all those who carry out works on land which would fall within the definition of ‘works’, regardless of whether the works done by that person are part of a larger scope of works which would also fall within that definition of ‘works’. Anyone who does ‘works’ without first obtaining development approval will commit an offence.[2]

Archer J held that the Respondent’s delivery and rough distribution of fill material to all three properties constituted ‘works’ which physically altered the land with a level of permanence constituting a development. The Respondent was responsible for ensuring that they were carrying out works under a development approval. The Appellant was granted leave to appeal, and the appeal was allowed.

Conclusion

The classic definition of development was set out in the University of Western Australia v City of Subiaco (1980) 52 LGRA 360. Burt CJ held at [363]-[364]:

In my opinion the definition of ‘development’ in the Town Planning and Development Act makes use of and 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’

How much physical works are sufficient to constitute development is a question of fact and degree. Clearly mowing a lawn is too trivial but clearing of vegetation can constitute development.[3]

 

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

[2] Unless works are exempt from requiring development approval, see clause 61 of the Deemed Provisions.

[3] Palos Verdes Estates v Carbon (1991) 6 WAR 223, 235 (Malcolm CJ).