File No : FR 1585 of 2012, FR 1586 of 2012, FR 1587 of 2012, FR 1588 of 2012

Local government - Planning scheme - Whether outbuildings and a fence built on a private laneway without approval and without the consent of the owners were exempt under the planning scheme - Whether construction of the outbuilding must be incidental to a dwelling on the same parcel of land and with consent of the owner - Whether a fence constructed needed to be with the owner's consent

Words and phrases - 'Carry out any development' - Whether it includes construction and use after construction

Criminal procedure - Whether time limitation for commencing a prosecution makes the date of the offence an essential element - Statutory interpretation - Significance of change in wording of statutory provision to the repealed provision

Criminal Procedure Act 2004 (WA), s 21

Criminal Procedure Bill 2004 (WA)

Planning and Development Act 2005 (WA), s 214, s 218

Town Planning and Development Act 1928 (WA), s 10(4)

1 COMMISSIONER SLEIGHT: The appellants, Mr John Mocilac and Ms Annette Kay Eckert, are partners. As at 27 January 2011 they were the registered proprietors of two residential properties, one at 15 Louisa Street, South Fremantle and the other at 193 South Terrace, South Fremantle. The two properties are adjacent to each other, separated by a private laneway which services various land owners in a subdivision. The appellants had no legal interest in the laneway.

2 According to the evidence of the appellant Mr Mocilac, the laneway was not well maintained and there was a lot of public use of it, such as people driving their cars on it and dropping litter. The appellants took matters into their own hands and closed off the laneway by building across the laneway a structure consisting of limestone pillars and double iron gates and a free standing shed of steel cladding. The appellants obtained no planning approval for the construction of the shed and the other structures.

3 On 27 January 2011 the structures on the laneway were observed by a senior building surveyor of the City of Fremantle. After an initial letter of demand, on 23 August 2011 the City of Fremantle served on the appellants a notice requiring the appellants to remove the structures from the laneway within 60 days. This was later extended until 27 November 2011. Notwithstanding this notice and the extension granted, the appellants failed to remove the structures.

4 The appellants were jointly charged with two offences:

(1) that on 27 January 2011 they did carry out development, namely the construction of certain structures consisting of:

on a private laneway (known as lot 0 on plan 245), without applying for and obtaining approval of the City of Fremantle as is required by cl 8.1 of the City of Fremantle Local Planning Scheme No 4 (the Scheme). This was in contravention of cl 11.4.1 of the Scheme and is an offence under s 218 of the Planning and Development Act 2005 (WA) (the Act).

(2) that on 24 November 2011 and continuing from that date the appellants did fail to comply with a direction notice served on 23 August 2011 (and the time for compliance being extended until 23 November 2011) under s 214 of the Act by failing to remove the items described in the direction notice as required by that direction notice, contrary to s 214(7) of the Act.

5 It should be stressed from the outset that the appellants were not charged with trespass and whether they were trespassing or not is irrelevant. The question is whether the appellants committed the offences under the Act which dealt with planning and development issues.

6 The appellants defended the two charges against them in the Fremantle Magistrates Court. Relevant to this appeal, the appellants raised two contentions in their defence; firstly, that in relation to count 1 of the prosecution notice which was filed on 20 January 2012, that the charge was out of time in that it was commenced outside the 12 month period designated in s 21 of the Criminal Procedure Act 2004 (WA) (the CPA); and, secondly, that in any event under the Scheme the structures on the laneway were exempt from the requirement of obtaining approval.

7 Following a trial in the Fremantle Magistrates Court before her Honour Magistrate E K Langdon, the appellants were convicted of both charges. The appellants appeal to this court against their convictions. On 14 October 2013 Justice Hall made an order that the applications for leave to appeal be heard at the same time as the appeal.

8 To understand the grounds of appeal it is necessary to give a brief outline of the relevant provisions of the Act, the Scheme and the Residential Design Codes (the R Codes). The starting point is that cl 8.1 of the Scheme, subject to certain exemptions under cl 8.2, provides that all development on lands zoned and reserved under the Scheme requires the prior approval of council. The clause reads as follows:

Subject to clause 8.2, all development on lands zoned and reserved under the Scheme requires the prior approval of the Council. A person must not commence or carry out any development without first having applied for and obtained the planning approval of the Council under Part 9.

9 Part 9 provides a procedure for applying for approval. Of some significance, as will be revealed later in this decision, is that the application must be signed by the owner.

10 Pursuant to a definition schedule contained in the Scheme, the word 'development' has the same meaning as in the Act. Section 4 of the Act relevantly defines 'development' 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;

(c) in the case of a place in which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or being that -

(i) is likely to change the character of that place or the external appearance of any building; or

(ii) would constitute an irreversible alteration of the fabric of any building.

11 Section 218 of the Act provides that a person who contravenes the provisions of a planning scheme commits an offence. It is this section that the appellants were charged under in relation to count 1 on the prosecution notice.

12 Section 214(3) and (7) of the Act have the effect that if a development has been undertaken in contravention of a planning scheme (which includes carrying out a development without approval) the responsible authority may give a written direction to the owner or to any other person who undertook the development to remove or pull down the development and if the person fails to comply with the written direction within the specified time (being not less than 60 days after service of the direction or within any further time allowed by the responsible authority) commits an offence. It is under this section that the appellants were charged on count 2 of the prosecution notice.

13 Central to the defence of the appellants at trial of both charges was that cl 8.2 of the Scheme provided that certain developments do not require the planning approval of the council. Listed amongst the developments that are exempt are 'minor developments as listed in schedule 15' (cl 8.2(1)). Listed in sch 15 are the following items upon which the appellants at trial and in this appeal rely:

Circumstances where development is permitted without approval and the exceptions to the exemption

Within or on the boundary of a place on the heritage list

Within or on the boundary of a property within a heritage area, but not on a place on the heritage list

Fence with secondary street setback area, unless within the primary street setback area

Any other fence within 3 m of the boundary of any land depicted on the Scheme map as a local reserve for open space or land shown on the Metropolitan Region Scheme as a regional reserve parks and recreation

Where compliance (sic) with the Acceptable Development provisions of the Residential Building Codes for outbuildings

Where compliant with the Acceptable Development provisions of the Residential Building Codes for outbuildings

14 A 'fence' is defined in sch 1 of the Scheme as meaning:

[A] vertical structure which may be attached to a building but is not necessary for the structure integrity of the building, for the purpose of forming a barrier or delineating an area of land and that does not support any form of roof and does not include screening material or a retaining wall.

15 An 'outbuilding' is defined in sch 1 of the Scheme as:

[The] same meaning as given to it in the [R Codes] and for the purposes of Schedule 15 shall also include garden sheds, tree and cubby houses and domestic animal enclosures.

16 The definition of 'outbuilding' contained in the R Codes is:

An enclosed nonhabitable structure that is detached from any dwelling.

17 The Scheme contains provisions for the area covered by the Scheme to be divided into zones. One of the zones is 'residential zones'. The Scheme expressly states the objectives of this zone include the following:

1. provide for residential uses at a range of densities with a variety of housing forms to meet the needs of different household types, while recognising the limitations on the development necessary to protect local character,
2. safeguard and enhance the amenity of residential areas and ensure that development, including alterations and additions, are sympathetic with the character of the area.

18 The Scheme contains a zoning table which sets out the various residential use classes which are permitted. The classes are described by reference to different types of dwellings and activities (for example single house, grouped dwellings, multiple dwelling etc or home store). There is no separate class for outbuildings.

19 It is not in dispute in this appeal that the appellants carried out a development consisting of a steel framed and clad structure, limestone piers and double iron gates on a private laneway without applying for and obtaining approval of the City of Fremantle. Subject to an issue of whether the date of the offence is an essential element on the first charge (an issue to be dealt with in ground 1 of this appeal), the appellants do not dispute that in order to be acquitted of both charges at trial they needed to prove on the balance of probabilities that the development came within the exceptions listed in cl 8.2 of the Scheme. This is because s 78(3) of the CPA provides as follows:

If a written law creates a simple offence and provides an exception in respect of the offence, the exception is to be taken not to apply unless the accused proves, on the balance of probabilities, that it does.

20 The learned magistrate concluded that the exceptions had not been established. The reasons for this conclusion are set out in her reasons as follows:

The exceptions provided under clause 8.2 of the scheme are not intended to circumvent the aims of the scheme which include to ensure development promotes a sense of community, provides safe and accessible open spaces and recognise and preserve the traditional setting of existing dwelling, including curtilage, garden areas and open space.

Nor are the exceptions provided under clause 8.2 of the scheme intended to usurp the rights of owners of abutting lots to use the private right of way on lot 0 for vehicular and pedestrian access. The subject land on lot 0 is zoned residential under the Town Planning Scheme No 4. That is evidenced by the beige coloured shading of the right of way shown in scheme map four tendered in evidence as exhibit 27.

The zoning table of Town Planning Scheme No 4 does not incorporate a separate use class for outbuilding as this type of development is considered to be incidental to residential development. An outbuilding is not defined in the scheme, save to say that under schedule one of the scheme the word has the meaning as given to it in the RCodes and the purposes of schedule 15 shall also include garden sheds.

I find that as lot 0 does not contain a dwelling, the garage structure in this case cannot be properly characterised as an outbuilding for the purposes of section 15 of the scheme and the RCodes because it is not detached from a dwelling and that is because there is no dwelling on lot 0.

I find that for the purposes of the scheme and the RCodes an out building is incidental to a residence and if there is no residence, as in this case on lot 0, it cannot be incidental and is a separate structure. Pursuant to clause 6.10 of the RCodes I find that the intent of clause 6.10 is to permit outbuildings as incidental facilities to serve the needs of residents.

In the absence of a dwelling on lot 0 the garage in case is the dominant building feature. Under the RCodes that does not meet the minimum design standards equivalent to a dwelling. The garage cannot be characterised as an outbuilding within the meaning of schedule 15 of the scheme. In other words, it is not the intent of the RCodes to permit the construction of such development that it is not ancillary to a dwelling.

The garage constructed in this case is therefore inconsistent with the intent of clause 6.10 of the R-Codes and accordingly I find that the planning approval is required under clause 8.1 of the scheme for that development. It is an undisputed fact that the development of these structures on lot 0 was not carried out by the owner of the land, or indeed by the lawful occupiers of the land. It is simply not possible for the City of Fremantle to grant approval of an application for the development without the consent of the landowner.

That finding is evidenced by the requirements specified on the application for planning and building approval as shown in schedule 6 of the scheme, that there be a signature of the landowner included on the application. I accept the prosecution's submission that the limestone piers and double iron gates on the right of way on lot 0 fall within the definition of building in the RCodes. Those structures are also not attached to a building or major developments on lot 0 and accordingly cannot be a permitted minor development.

Moreover, the garage and the fence and gate are blocking access to the right of way and in that respect they are inconsistent with the RCodes. The development, the subject of this trial, do not fall within the exception in clause 8.2 of the scheme as permitted development.

Accordingly, the development carried out by Mr Mocilac and Ms Eckert contravene section 218 of the Planning and Development Act. I find that the prosecution has proven beyond reasonable doubt charge number 1585 and 1587 of 2012 respectively.

Approval was required under clause 8.1 of the scheme in respect of the development. Given that is not disputed that the two accused failed to comply with the direction notice served on them on 3 August 2011 requiring them to remove the structures on the right of way, I find that the prosecution has proven beyond reasonable doubt the elements of charge number 1586 and 1588 of 2012 respectively. I therefore find Mr Mocilac and Ms Eckert, that you are guilty of those charges. Yes (ts 24 26, 29 August 2013).

21 Central to these reasons was the learned magistrate's conclusion that an outbuilding as provided for in the Scheme was an outbuilding incidental to a dwelling on the same lot, and the same reasoning applied to the limestone piers and double iron gates.

22 The grounds of appeal (ground 1 was amended at the hearing of the appeal) by the appellants are as follows:

1. In convicting the accuseds of Charges 1585 and 1587, the learned Magistrate erred in law, exceeded her jurisdiction and there was a miscarriage of justice in that the prosecution failed to prove beyond reasonable doubt an essential element of the offence, being the date on which it was committed.

1. Charges 1585 and 1587 allege that the offence was committed on 27 January 2011;
2. Each Prosecution Notice is dated 20 January 2012;

1. The uncontradicted evidence of Mr Mocilac was that the construction of the structures was completed by September 2010: T28 of 22 July 2013;

1. Because of s 21(2) of the Criminal Procedure Act 2004, the date of the offence is an essential element of the offence; and
2. Her Honour erred in law in finding that the date on which the offence occurred was the date the structures were discovered by the City's officer: T15 on 29 August 2013.

1. In convicting the accuseds of charges 1585 and 1587, the learned Magistrate erred in fact in finding that the 'steel framed and clad' structure the subject of the charges was a 'garage'.

1. Her Honour found that the structure was a garage because it was 'capable of accommodating a motor vehicle': T24 of 29 August 2013;
2. The capacity of a structure to store a motor vehicle is not determinative of the proper characterisation of a structure as a garage;

1. Rather, the proper characterisation of a structure as a garage is dependent upon its actual use; and

1. The uncontradicted evidence of both Mr Mocilac and Ms Eckert was that at no time had they stored a motor vehicle in the structure: T28, T3637 and T45 of 22 July 2013.

1. In convicting the accuseds of the charges, the learned Magistrate erred in law in failing to find that the 'steel framed and clad' structure the subject of the charges did not constitute an outbuilding for the purposes of clause 8.2(1) and Schedule 15 of the City of Fremantle Local Planning Scheme No. 4 (Scheme).

1. Her Honour found that the structure was a garage because it was 'capable of accommodating a motor vehicle': T24 of 29 August 2013; and
2. The learned Magistrate erred in law in finding (at T25 of 29 August 2013) that it was necessary for there to be a dwelling on the lot on which the structure is located in order for that structure to constitute an outbuilding for the purposes of the Scheme.

1. In convicting the accuseds of the charges, the learned Magistrate erred in law in failing to find that the limestone piers and the double iron gates constituted a fence.

1. Her Honour erred in law in finding that the limestone piers and the double iron gates constituted a 'building';
2. Her Honour erred in law in finding that the limestone piers and the double iron gates 'cannot be a permitted minor development' for the purposes of clause 8.2 of the Scheme because they were 'not attached to a building or major development'; and

1. Her Honour erred in law in finding that the limestone piers and the double iron gates do not fall within in clause 8.2 of the Scheme because they 'are blocking access to the right of way and in that respect they are inconsistent with the RCodes'.

1. In convicting the accuseds of the charges, the learned Magistrate erred in law in finding (at T25 of 29 August 2013) that the necessity of an owner's consent for an application for development approval was relevant to determining whether approval for the development was necessary under the Scheme.
2. In convicting the accuseds of the charges, the learned Magistrate erred in law, alternatively there was a miscarriage of justice, by misdirecting herself in the exercise of her discretion in refusing the accuseds' application to reopen its case on 29 August 2013.

1. In order to satisfy the exception in clause 8.2 of the Scheme, it was necessary for the accuseds to demonstrate that in each case the structure (the 'outbuilding' and the 'fence') was not 'within or on the boundary of a place on the heritage list'.
2. The accuseds sought leave to call evidence to address that issue.

1. In refusing leave, the learned Magistrate (at T1112 of 29 August 2013) erred in finding that:
   1. The 'survey ... was not disclosed to the prosecution before the trial' when there was no obligation on the accuseds to do so;
   2. It 'would be unjust to allow the case to be reopened for the witnesses to ... give evidence about the location of structures in relation to the boundaries when those structures may or may not have altered since the charge date' when that might properly have been addressed in the course of such evidence;
   3. '...concessions [were] made ...as to the structures being constructed on Lot 0 and the defence case was not put on the basis that the structures were on the boundary of lot 193 South Terrace' when that statement (which accurately summarises the accuseds' position) is consistent with (rather than inconsistent with) what the accuseds sought to demonstrate through the survey evidence; and
   4. The 'heritage list is not material to the case' and it (the heritage list) 'would not assist the defence, ... to discharge its onus of proving that the exemption under clause 8.2 applies' when the presence of the structures on or on the boundary of a place on the heritage list was an element of the exception.

23 I will now deal with each ground of appeal separately, although it is conceded by counsel for the appellants that if the appellants are unsuccessful on grounds 3, 4, and 5 then count 6 must also fail.

24 This ground relates to charge 1 only against the appellants.

25 To best understand this ground of appeal it is helpful to consider the original ground of appeal pleaded. In the appeal notice the ground was pleaded on the basis that the charge had been brought outside of the limitation period prescribed by s 21(2) of the CPA and therefore the charge was outside the jurisdiction of the court. Section 21(2) of the CPA provides as follows:

A prosecution of a person for a simple offence must be commenced within 12 months after the date on which the offence was allegedly committed, unless another written law provides otherwise or the person consents to it being commenced at a later time.

26 Section 21(2) of the CPA replaced the former s 51 of the Justices Act 1902 (WA) which provided as follows in relation to the limitation period for complaints on simple offences:

In any case of a simple offence or other matter, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within 12 months from the time when the matter of complaint arose.

27 Similar provisions to s 51 of the Justices Act 1902 provision have been interpreted as meaning that the time limitation runs 12 months from the date of the actual commission of the offence: Nottage v Tarac Manufactures (Adelaide) Ltd [1941] SAStRp 36; [1941] SASR 162; Ex parte Wakefield [1927] NSWStRp 33; (1927) 27 SR (NSW) 261.

28 The original ground would have failed because s 21(2) of the CPA does not prescribe a time limitation of 12 months from the date of the offence or the date of the alleged offence but rather 'within 12 months after the date on which the offence was allegedly committed'. In the prosecution notice, the date on which the offence was allegedly committed was 27 January 2011 and therefore the filing of the prosecution notice on 20 January 2012 was within the time limit prescribed by s 21(2) of the CPA_._ However, the amended ground 1 changes the nature of the contention of the appellants significantly. The essence of the amended ground is that s 21(2) of the CPA has the effect that the 'date on which the offence was allegedly committed' becomes an essential element and unless the prosecution proves the offence occurred on the date alleged then the prosecution fails.

29 The evidence of Mr V Thompson, an officer of the City of Fremantle, was that he inspected the laneway on 27 January 2011and observed the presence of the structures on the laneway. This appears to be the basis for alleging the offence took place on 27 January 2011, the respondent having no knowledge as to how long the structures had been place.

30 The evidence of the appellant Mr Mocilac was that the shed was finished in June 2010 and the pillars and gates were finished in September 2010.

31 The learned magistrate dealt with this issue in her reasons as follows:

I find that on 27 January 2011, being the date that Mr Thompson discovered the armed authorise structures on lot 0, is the date of the offence in charge one. Mr Thompson says that the structure is a steel framed structure being used for a garage. He said it is fully enclosed and there are also some iron gates constructed on the same private of way.

32 Generally, the date of an offence, whether specified in an indictment or a prosecution notice, is not treated as a material fact which the prosecution must prove beyond a reasonable doubt in order to make good its accusation. This has been so from time immemorial: R v Dossi (1918) 13 Cr App Rep 158; WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66, 80 (Kirby J). However it has been recognised that statutory provisions may render the specification of a date material. A clear example is where the age of an alleged victim is an essential element of a charge of a sexual offence: WGC (81) (Kirby J).

33 In Hackwill v Kay [1960] VicRp 98; [1960] VR 632 the Full Court held that on a proper construction of a provision of a time limitation for prosecution that the date of the alleged offence became a most material matter and part of the essence of the charge. The relevant provision considered by the Victorian Full Court, which was in general terms more similar to s 51 of the Justices Act 1902 than s 21(2) of the CPA, provided that an information for the offence 'shall be laid within 12 months from the date when the matter of such information arose and not afterwards'. The court stated in support of its conclusion as follows:

This is supported by note (q) in paragraph 702 of Halsbury, 3rd edition, volume 10 pp 3878, where the learned authors of the article on 'Criminal Law and Procedure' state four cases which they say time is of the essence of the offence and therefore must be inserted and truly stated in the indictment. The fourth case is 'when the prosecution for a particular crime must be commenced within a certain time of the commission of the alleged criminal act'. The list of contributors to that article contains names very distinguished in a criminal law. In our opinion, the passage is in accordance with principal and with common sense and we accept it as a correct statement of the law (634).

34 Counsel for the appellants was unable to provide any excurial material which assists in the interpretation of s 21(2) of the CPA. Hansard reveals that there was no discussion of the proposed s 21(2) in the Criminal Procedure Bill 2004 (WA). An explanatory note to the Bill simply states 'The provision is based on section 51 of the Justices Act 1902'.

35 As a matter of statutory interpretation where a section in an Act of Parliament uses different language to that of a repealed provision it replaces, the alteration must be taken to have been made deliberately: DR Fraser & Co Ltd v Minister for National Revenue [1949] AC 24, 33; Transport Accident Commission v Treloar [1992] VicRp 31; [1992] 1 VR 447, 462. In my opinion the change of wording introduced by s 21(2) of the CPA reveals an intention that the date of the offence is less critical. It is not meant to provide an immunity from prosecution on the basis that the offence occurred more than 12 months before a prosecution commences. Rather I conclude that the intention of Parliament was to prevent tardiness on the part of a prosecuting authority by requiring it to commence a prosecution within 12 months of the date on which the offence was allegedly committed. Otherwise there is no explanation for the changes introduced by the language of s 21(2) of the CPA. As the section is directed at preventing tardiness on the part of prosecutors it does not in my view create the date of the offence as an essential element and therefore the general principle applies that the prosecution need not prove the date of the offence.

36 Further, even if the date on which it is alleged the offence committed is an essential element, I conclude that the learned magistrate was correct to conclude that the date of the offence was the 27 January 2011. In the present case the appellants contend the development that was the subject of the charge was the 'construction' of the structures, not the ongoing use of the land. It is submitted this distinction is supported by the decision of Burt CJ in University of Western Australia v City of Subiaco (1980) 52 LGRA 360. However, Burt CJ did not draw a distinction between 'use' and 'development' but between 'use' and 'construction' and held that the meaning of the word 'use' in a clause of a planning scheme, exempting approval for uses connected to university purposes, referred to activities on the land rather than alteration to the land (for example by construction). Accordingly he held that the proposed construction of a building on the land did not come within the exemption relating to 'uses' (364). It was clearly recognised by Burt CJ that the word 'development' encompasses both 'construction' and 'use'. He stated as follows:

In my opinion the definition of 'development' in the Town Planning and Development Act 2005 makes use of and it encompasses two ideas. The first is to use 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 that result in some physical alteration to the land which has some degree of permanence to the land itself' (376).

37 The effect of this decision is that although a distinction can be drawn between the 'use' of the land and 'construction of things' on the land, both concepts can be incorporated in the notion of a development. This is also supported by the decision in Daniele v Shire of Swan (1998) 20 WAR 164 which concerned the question of whether the placement of a number of railway carriages on a parcel of land constituted a development without approval contrary to the provisions of the town planning scheme of the Shire of Swan. The appellant in that case argued that the placement of railway carriages on the land constituted a 'use' of the land but not a 'development'. The court found that the placement of the railway carriages on the land constituted a development that required approval. Ipp J (with whom Owen J agreed), while acknowledging that, depending on the context, the words 'development' and 'use' may have distinct meanings, that in the context of s 10(4) of the Town Planning and Development Act 1928 (WA) (which is in similar terms to the combined effect s 218 of the Act and cl 8.1 of the Scheme) the use of the word 'development' had an extended meaning and included the concept of use of the land (173).

38 In my opinion the wider meaning of the word 'development' in cl 8.1 of the Scheme is put beyond doubt by the definition in s 4 of the Act which specifically refers to 'use'.

39 The next question to consider is whether the wording 'carry out any development' is wide enough to cover a development beyond construction stage and includes carrying on a use of the land by the presence of the constructed structure on the land.

40 In the case of Esther Investment Pty Ltd v Dawson (1985) 62 LGRA 53, the Full Court dealt with a situation where the appellants were charged with continuing to carry out a development otherwise than in accordance with a condition imposed by the relevant authority, contrary to the Metropolitan Region Town Planning Scheme Act 1959 (WA). The Full Court held that 'continuing to carry out a development' was limited to the construction of the building because development did not extend to a continuing use. However, in Daniele v Shire of Swan, Ipp J, having concluded (after allowing for the amendments that were made to the legislation) that a 'development' included the concept of 'use', held that the decision in Esther could be confined to the interpretation of the legislation at the time, and that 'continuing to carry out a development' went beyond mere construction. His Honour stated as follows:

Therefore, s42 as construed in Esther Investments Pty Ltd v Dawson was very different to the present s10(4)(a)(ii). The Court in that case was construing the term 'development' in the context of s42 as it then was. By reason of the amendments which have occurred, that context is very different to that presently applicable.

As Brinsden J observed in Esther Investments Pty Ltd v Dawson (at 60), the purpose of the Scheme is to zone land into general categories and to control its subsequent use and improvement. The Scheme Act supports and advances this purpose. The Town Planning Act acts together with the Scheme Act in controlling the development and use of land. That being so, in my opinion, under the present expanded form of s10(4)(a)(ii) (ie expanded in comparison with s42 as it was prior to the 1979 amendment) the term 'development' does not mean 'the building which is to be erected and which is erected pursuant to the approval which has been given' (being the words employed by Burt CJ in regard to the section in its earlier form). That is far too narrow a view of the term in the context of the relevant legislation (17).

41 Following a similar process of reasoning, in view of my conclusion that the word 'development' in cl 8.1 of the Scheme goes beyond mere construction and includes 'use', I also conclude that the wording in cl 8.1 of the Scheme prohibiting a person from carrying out 'any development' is sufficiently wide to create an offence by the continuing use of the land by the presence of a structure on the land without approval. Although in the prosecution notice the carrying out of the development is particularised by the use of the word 'construction' I believe that this does not confine the charge simply to the construction process but includes the use after construction. Even if a narrower view is given to the word 'construction' in the prosecution notice I believe that a departure from this particular is not fatal to the prosecution case. A divergence between particulars and the evidence does not necessarily mean that a different offence is alleged, but it may mean that the fairness of the trial is drawn into question: Cotter v The State of Western Australia [2011] WASCA 202 [31]. No unfairness exists in this matter as the issue of whether the continuing presence of the structures on the land constituted an offence was fully ventilated at both the trial and the hearing of this appeal.

42 Leave will be granted to appeal on ground 1 but for the above reasons ground 1 is dismissed.

43 The use of the word 'garage' in the first charge against the appellants was a descriptive term to describe the steel framed and clad structure the appellants had placed on the laneway without approval. Whether this structure should be described as a shed or some other description other than 'garage' is irrelevant to the charge against the appellants. The use of the description 'garage' was simply meant to identify the development the subject of the charge and the prosecution was not required to prove that the development met this description in order to prove the charge. Giving a description of the development by using the word 'garage' was simply an issue of fairness so that the appellants at all times were aware of the development that was the subject of the charge: Cotter [31]. No unfairness arose in this case as there was no misunderstanding by the appellants as to development that was the subject of the charge.

44 It is unnecessary for me to decide whether the learned magistrate was wrong to find the steel framed and clad structure was a 'garage' as that issue was irrelevant.

45 The above reasons leave to appeal is refused on ground 2.

46 The appellants' submission is that the learned magistrate erred in finding that the outbuilding needed to be incidental to a dwelling. Further, it was contended by the appellants that even if the outbuilding needed to be incidental to a dwelling, it need not be incidental to a dwelling on the same lot so that the outbuilding on the laneway could be incidental to the dwelling on either of the two properties of the appellants.

47 Counsel appearing for the appellants placed reliance upon the definition of an outbuilding in the R Codes that required the outbuilding to be detached from 'any building'. It was submitted that the steel frame and clad structure on the carriageway met this description and therefore did not require approval. It was submitted by counsel for the appellants that the suggestion that an outbuilding can only be incidental to a dwelling which is located on the same lot as the outbuilding is contrary to common experience that land holders often occupy more than one lot and, indeed a single dwelling can straddle two or more lots. Further, it is submitted on behalf of the appellants that the learned magistrate erred in law in taking into account that the zoning table did not provide separately for outbuildings and that this supported the conclusion that an outbuilding needed to be incidental to a dwelling. It was contended on behalf of the appellants that the zoning tables are concerned with 'use' of the land, not development and cannot be taken into account in interpreting the provisions concerning development in cl 8.1 and cl 8.2 of the Scheme.

48 I reject the appellants' submissions for the following reasons:

1. The appellants' submissions are predicated on a literal and narrow interpretation of cl 8.2 without adequately taking into account the context in which the provisions fall. In my opinion the wider approach taken by the learned magistrate was correct, taking into account the interrelationship of provisions and purposes of the Act, the Scheme (including the zoning tables) and the R Codes in deciding the proper interpretation of cl 8.1 and cl 8.2 of the Scheme. This approach is consistent with well recognised principles of statutory and regulatory interpretation. In the High Court decision of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, the plurality of McHugh, Gummow, Kirby and Hayne JJ stated:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme [69] [70].

There is clearly an interrelationship between provisions concerning the 'use' of land and the 'development' (within the narrow sense) of land within the Act, the Scheme and the R Codes. The Scheme is made under powers conferred by pt 5 of the Act. Section 69 of the Act provides that the general objects of a scheme are to include 'making suitable provisions for the improvement, development and use of land in the local planning scheme' (emphasis added). Under sch 7 of the Act, a scheme may provide for 'zoning and standards for the development of the class or kind of building'. Clause 8.1 of the Scheme applies to a development on zoned land. Clause 5.2.2 of the Scheme provides that:

Unless otherwise provided for in this Scheme, the development of land for any of the residential purposes dealt with by the Residential Designed Codes is to conform to the provisions of those Codes.

Given these provisions, it would be wrong not to take into account the overall planning and development provisions within the Act, the Scheme and the R Codes in interpreting cl 8.1 and cl 8.2 of the Scheme.

Further I reject the submission of the appellants that the zoning tables contained in the Scheme should not be taken into account as zoning issues concern questions relating to the 'use' of land and not 'development' questions. For reasons I have stated earlier in this decision in relation to ground one of the appeal, the concept of development encompasses the idea of 'use' of the land.

1. The learned magistrate's conclusion that the exemption in cl 8.2(l) and sch 15 in relation to outbuildings only applies to outbuildings incidental to a dwelling on the same lot is supported by the interrelationship between sch 15 and the R Codes. Under sch 15 to qualify for exemption an outbuilding must not only fall within the definition contained in the R Codes but be 'compliant with the Acceptable Development provisions of the [R Codes] for outbuildings'. The Acceptable Development provisions of the R Codes must be read in context. Clause 1.4 of the R Codes provides that the codes 'apply to all residential development'. The Acceptable Development provisions are contained in cl 6.10 of pt 6 of the R Codes. Part 6 deals with issues of the density of developments within the zoning areas. The heading of pt 6 is 'Design elements for single house(s), or grouped dwellings, or multiple dwellings in areas with a coding of less than R 30' (as I understand it, there is no dispute that the laneway was located in an area coded less than R 30). Clause 6.10 relevantly provides as follows:

Objective

To ensure that (a) outbuildings and fixtures attached to buildings do not detract from the streetscape, or the amenity of the development or that of adjoining residents; and (b) adequate provision is made for incidental facilities serving residents' needs.

The acceptable development provisions illustrate one way of meeting the associated performance criteria.

P1 Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties

1. are not attached to a dwelling;
2. are nonhabitable;
3. collectively do not exceed 60 sq m in area or 10 per cent in aggregate of the site area, whichever is the lesser;
4. do not exceed a wall height of 2.4 m;
5. do not exceed ridge height of 4.2 m;
6. are not within the primary street setback area;
7. do not reduce the amount of open space required in table 1; and
8. comply with the sitting and design requirements for the dwelling, but do not need to meet rear setback requirements of table 1.

The magistrate made a finding that the steel framed and clad structure on the laneway met the measurement requirements of cl 6.10.1(A1).

In my opinion, to be compliant with the Acceptable Development provisions of the R Codes, given the wording of pt 6, the outbuilding must not only meet the measurement requirements but be incidental to a dwelling on the land the subject of the outbuilding development. To reach a conclusion contrary to this would be inconsistent with the context in which the Acceptable Development provisions apply and the heading of cl 6.10. It would potentially mean that the objectives of the R Codes to control the density of developments on plots of land would be defeated. Further it will also be inconsistent with item A1(viii) of the Acceptable Development provisions which expressly provides that outbuildings must comply with 'the setting and design requirements for the dwelling' (emphasis added).

Finally it is difficult to see how the objectives of the residential zone of the Scheme referred to earlier in this decision (which includes controlling density, preserving local character and enhancing the amenity of residential areas) could be achieved if outbuildings could be built on any person's land and not a part of an incidental development to the dwelling on the land. Accordingly, I reject the contention that the structure on lot 0 could be incidental to a dwelling on adjacent land owned by the appellants.

1. I reject submissions that a requirement that an outbuilding must be incidental to a dwelling on the same lot is contrary to common experience. There is no evidence of the socalled 'common experience'. In any event the presence of structures over two lots may be due to provisions within a planning scheme different to the Scheme of the City of Fremantle, or perhaps due to a development made with approval.
2. For the reason set out later in this decision in relation to ground 5 I conclude that the magistrate was entitled to take into account that there was no evidence that owners of the laneway had given their consent to the construction of the steel framed and clad structure.

49 For the above reasons I find that the learned magistrate was correct to find that outbuilding to be exempt from the requirement to be approved by council, the structure needed to be incidental to a dwelling on the same property. Leave will be granted to appeal on ground 3 but for the above reasons ground 3 is dismissed.

50 In light of my dismissal of ground 3 of the appeal it is unnecessary to decide ground 4. This is because even if ground 4 is successful, in light of my conclusion that the steel framed and clad structure required approval, the appellants would still be guilty of the two offences for which they were charged. However for completeness sake I will deal with ground 4.

51 Pursuant to sch 15, fences of certain dimensions and in certain circumstances are exempt from requiring approval. The magistrate in her reasons did not give consideration as to whether the limestone pier and double iron gates constituted a fence and so came within the exemption provided by sch 15. A fence is defined within the Scheme in sch 1 as:

[A] vertical structure which may be attached to a building but is not necessary for the structure integrity of the building, for the purpose of forming a barrier or delineating an area of land and does not support any form of roof and does not include screening material or a retaining wall.

52 I conclude that by failing to give consideration as to whether the limestone piers and double iron gates constituted a fence under sch 15 the magistrate fell into the error. However, for reasons that I set out below in relation to ground 5 I do not believe that even if the limestone piers and double iron gates fell within the descriptions of the exemptions provided by sch 15 that such exemptions can apply unless the development has occurred with the consent of the owner of the property.

53 Leave will be granted to appeal on ground 4 but for the above reasons ground 4 is dismissed.

54 The contention of the appellants is that the learned magistrate fell into error in finding that the necessity of an owner's consent for an application for development approval was relevant to determining whether the approval of the development was necessary under the Scheme. For reasons given earlier in this decision, the learned magistrate was entitled to look at the provisions of the Act, the Scheme and the R Codes in order to reach a conclusion as to the correct interpretation of the wording of the exemptions contained in cl 8.2 and sch 15 of the Scheme. In my opinion it is relevant to consider that an application for approval of a development requires the consent of the owner of the land. The requirement of the consent of the owner is suggestive that approval of the Scheme is not only dependent upon the relevant authority accepting that the development should be approved but it should not give approval without the consent and in accordance with the wishes of the owner of the land. It is reasonable to conclude that the exemptions provided under cl 8.2(l) are exempt from obtaining approval of the local authority because of the minor nature of the development and being less likely to impinge upon the Scheme's objectives. However it is quite a different thing to say that a minor development is unlikely to impinge upon the wishes of the owner. The facts of this case demonstrate how significant a minor development might impinge upon the rights and wishes of the owner. It would be an extraordinary consequence that an interpretation should be placed upon the wording of the Scheme which would allow a person in defiance of the owner's rights to make a development of any sort without the owner's consent. For this reason I believe the magistrate was entitled to take into account whether the owner's consent for the development had not been obtained in deciding whether the development of the obstruction to the laneway constituted an exempt development under cl 8.2.

55 Leave will be granted to appeal on ground 5 but for the above reasons ground 5 is dismissed.

56 Ground 6 concerns an unsuccessful attempt by trial counsel for the appellants (a different counsel to the appellants' counsel on hearing of the appeal) to reopen the case for the appellants to adduce evidence of the status of the laneway as to whether it fell within or on the boundary of a place on the heritage list, or within or on the boundary of a property within a heritage area, but not on a place on the heritage list. Under sch 15 this evidence is necessary in order to establish the exemption which might apply for both the outbuildings, the limestone piers and double iron gates. It is conceded by counsel for the appellants that if grounds 3, 4 and 5 are dismissed then ground 6 necessarily will also fail. This is because if the magistrate was correct in concluding that the iron framed and cladded structure and the limestone piers and double iron gates were not capable of being exempt items because they were not incidental to a dwelling and and/or had been erected without the consent of the owner, then the issues raised by sch 15 as to the heritage listing become redundant. In view of my conclusions in relation to grounds 3, 4 and 5, ground 6 is also dismissed.

58 For the above reasons the appeal in this matter is dismissed.