The recent decision of the Supreme Court in City of Swan v All Earth Group Pty Ltd [2021] WASC 279 offers a useful interpretation of the requirement for development approval in this State, and more particularly clarification of who may be prosecuted under the Planning and Development Act 2005 (PD Act) for failure to obtain such approval.
The facts in this matter are fairly straight forward and involve the prosecution of a business specialising in civil contracting, earth works and related activities for carrying out works on land without the benefit of a development approval (contrary to a section 218 of the PD Act and clause 60 of the deemed provisions set out in schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (deemed provisions).
As a result of earth moving works that the company had done, it had a large amount of surplus excavated sand, clay and gravel that it offered to landowners in the area for use as fill.
Three landowners took up the offer and the company deposited the fill in locations identified by the landowner over a period of time on multiple days. The quantities of fill delivered ranged from 2,417 tonnes to 11,418 tonnes. Relevantly, in each case the landowner did the additional work to level/use the fill.
The City of Swan (City) chose to prosecute the civil contractor rather than the individual landowners for carrying out development (i.e. the deposit of fill) without the necessary approval.
The Magistrate determining the prosecution at first instance made a finding that the company be acquitted of all charges for a range of reasons, most notably including:
The City sought to appeal the Magistrates decision to the Supreme Court on a single ground of appeal. The single ground of appeal simply stated was that the Magistrate had erred in law in finding that the company was not guilty of the charges on the basis that it was not responsible for attaining a development approval for the works the subject of the charges.
In analysing the appeal grounds, the Supreme Court assessed key terms in the PD Act relevant to the prosecution including ‘works’ and ‘development’.
In relation to the definition of ‘works’ the Supreme Court deferred to clause 1 of the deemed provisions which provides the appropriate clarity. The Supreme Court did however elaborate on the meaning of the words ‘other works’ to refer to something done on the land (as distinct to a building), other than excavation that physically changes the land.
In relation to the definition of ‘development’, the court again deferred to the definition in the PD Act and the deemed provisions. Relevant to this definition however, some further analysis was required in order to understand whether it extended to an entity effectively delivering materials to a site requiring a development approval.
Relevant to the Supreme Court’s assessment of that question was the definition of ‘person’ as it applies to clause 60 and considered in the light of clause 62 of the deemed provisions (clause 62 requires an application for development approval being signed by the landowner).
The Supreme Court found [at 134] that the fact that an application for development approval must be signed by the landowner does not suggest that the landowner is the only person who be liable for works done if necessary development approval was not obtained.
What this means (and as expressed by the Supreme Court in the decision [at 148] is that a landowner does not have the ‘primary liability’ for not obtaining a development approval). Rather, anyone who does works (constituting development) when there is not the necessary approval, will commit an offence under section 218 of the PD Act.
On that basis, the Supreme Court found that the Magistrate had erred in acquitting the accused in this matter and granted leave and allowed the appeal paving the way for orders to be made that the accused was in fact guilty of the offence charged.
This case offers a useful precedent regarding potential liability for prosecution in circumstances that no development approvals are in place.
What the decision makes clear is that the responsibility for prosecution for failure to obtain a development approval lies not only with the landowner but also contractors carrying out works (that meet the threshold requirements of ‘development’ in the deemed provisions). A failure to ensure necessary approvals are in place may result in enforcement action or prosecution.
If you have any questions in relation to this case or any aspect of the application, please do not hesitate to contact the Lavan Planning team.
