Basso-Brusa v City of Wanneroo
[2003] WASCA 103
•14 MAY 2003
BASSO-BRUSA & ORS -v- CITY OF WANNEROO [2003] WASCA 103
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 103 | |
| Case No: | SJA:1140/2002 | 6 MAY 2003 | |
| Coram: | PULLIN J | 14/05/03 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK BASSO-BRUSA PAUL BASSO-BRUSA CARL BASSO-BRUSA DELSTRAT PTY LTD CITY OF WANNEROO |
Catchwords: | Criminal law Honest claim of right Ignorance of the law Town planning Breach of planning approval |
Legislation: | Criminal Code, s 22 Town Planning & Development Act 1928, s 10 |
Case References: | Dinsdale v The Queen (2000) 202 CLR 321 Mitchell v Norman; Ex parte Norman [1965] Qd R 587 Molina v Zaknich (2001) 24 WAR 562 Pearce v Paskov [1968] WAR 66 Peat Resources of Australia Pty Ltd v Brown [2002] WASCA 342 R v Pollard [1962] QWN 13 Walden v Hensler (1987) 163 CLR 561 Waugh v Kippen (1986) 160 CLR 156 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Baldock v The Queen, unreported; CCA SCt of WA; Library No 930232; 30 April 1993 Clarkson v Aspinall; Ex parte Aspinall [1950] St R Qd 79 Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137 Foura v City of Henley & Grange (1977) 43 LGRA 76 Joint Property Ownership Pty Ltd v City of Subiaco, unreported; SCt of WA (Parker J); Library No 980055; 12 February 1998 Lizzio v Ryde Municipal Council (1983) 155 CLR 211 Love v Western Australian Planning Commission [1999] WATPAT 4 Metal Manufacturers Ltd v Lewis (1988) 13 NSWLR 315 Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 Palmer v Ostrowski (2002) 128 A Crim R 56 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 R v Bernhard [1938] 2 KB 264 Re Bolton; Ex parte Beane (1987) 61 ALJR 190 Robertson v Western Australian Planning Commission [2000] WATPAT 8 Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WATPAT 4 Weigall Constructions Pty Ltd v Melbourne & Metro Board of Works [1972] VR 781 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- PAUL BASSO-BRUSA
CARL BASSO-BRUSA
DELSTRAT PTY LTD
Appellants
AND
CITY OF WANNEROO
Respondent
Catchwords:
Criminal law - Honest claim of right - Ignorance of the law
Town planning - Breach of planning approval
Legislation:
Criminal Code, s 22
Town Planning & Development Act 1928, s 10
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellants : Mr M C Hotchkin
Respondent : Mr P L Wittkuhn
Solicitors:
Appellants : Hotchkin Hanly
Respondent : McLeods
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
Mitchell v Norman; Ex parte Norman [1965] Qd R 587
Molina v Zaknich (2001) 24 WAR 562
Pearce v Paskov [1968] WAR 66
Peat Resources of Australia Pty Ltd v Brown [2002] WASCA 342
R v Pollard [1962] QWN 13
Walden v Hensler (1987) 163 CLR 561
Waugh v Kippen (1986) 160 CLR 156
Case(s) also cited:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Baldock v The Queen, unreported; CCA SCt of WA; Library No 930232; 30 April 1993
Clarkson v Aspinall; Ex parte Aspinall [1950] St R Qd 79
Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137
Foura v City of Henley & Grange (1977) 43 LGRA 76
(Page 3)
Joint Property Ownership Pty Ltd v City of Subiaco, unreported; SCt of WA (Parker J); Library No 980055; 12 February 1998
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Love v Western Australian Planning Commission [1999] WATPAT 4
Metal Manufacturers Ltd v Lewis (1988) 13 NSWLR 315
Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580
Palmer v Ostrowski (2002) 128 A Crim R 56
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
R v Bernhard [1938] 2 KB 264
Re Bolton; Ex parte Beane (1987) 61 ALJR 190
Robertson v Western Australian Planning Commission [2000] WATPAT 8
Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WATPAT 4
Weigall Constructions Pty Ltd v Melbourne & Metro Board of Works [1972] VR 781
(Page 4)
1 PULLIN J: The appellants are appealing against their conviction by Mr P Thobaven SM on 26 November 2002 of five offences of contravening s 10(4)(a)(ii) of the Town Planning and Development Act, 1928. The appellants had been given approval by the respondent on 21 January 1999 to develop land at 50 Triumph Avenue, Wangara, by:
(a) "building a shed for a sawmill machine" and
(b) "using the site for storage of timber and timber logs".
2 It is conceded by counsel for the respondent that it is implicit in (a), and in the conditions to the approval read as a whole, that not only may the shed be built but also that sawmilling may be carried out in the shed.
Conditions 2, 4, 5 and 11 of the Conditions of Approval read:
- "2. The timber storage area as highlighted in red on the approved plan shall only be used for timber storage purposes. No timber sawing to be carried out from this portion of the site.
…
4. The timber storage area as highlighted in red on the approved plans, shall be completely screened from the adjoining properties and the street by the means of walls, fences and/or vegetation to the height of 4 metres (maximum height of walls/fences to be 1.8 metres), prior to any timber storage commencing. This screening shall be thereafter maintained to the satisfaction of the Shire. Details of the intended form of screening to be submitted to the Shire for approval with the Building Licence submission. The provision of screening to the common boundaries of Lot 46 with Lots 45 and 58 may be deferred until such times as the operator of activities on Lot 46 differs to the operators of activities on Lots 45 and 58.
5. The maximum height of any timber stacks shall not exceed 4 metres.
…
11. The submission of and approval from the Shire, of an acoustic consultant's report demonstrating to the satisfaction of the Shire that the proposed development is
(Page 5)
- capable of containing all noise emissions in accordance with the Environmental Protection Act 1986. All noise attenuating measures recommended by the report to (sic) carried out prior to the use of the shed for timber sawing commencing."
3 The plan referred to in Condition 2 depicted a site of 7,599 square metres. The shed took up only a small fraction of the site. The terms of the approval and the conditions are clear in meaning. The entire site outside the shed was to be used for timber storage, with stacks to be limited in height and screened by fencing and landscaping. This was doubtless to protect the amenity of the area.
4 The facts proved to the Magistrate's required satisfaction were that on the dates alleged, the appellants used a chainsaw to cut timber in the log storage area and not in the shed. The evidence led by the appellants was that the general procedure in their business at the site was to dock or cut logs using a chainsaw in the storage area so that the logs could fit into the milling shed, or to remove defects in the logs. This involved 20 to 30 minutes of chainsaw operations in the storage area everyday.
5 The respondent considered that this was a use contrary to the approval and its conditions. As a result, the appellants acknowledged that they would have to lodge an application to allow the chainsaw operations to take place. This application was made and had not been dealt with when the offences occurred. The application was later refused.
6 The use of the chainsaw continued and the respondent prosecuted the appellants, the appellants were convicted and fined, and the appellants now appeal, arguing that:
"(a) The learned Magistrate erred in law in interpreting the words 'timber sawing' as used in condition 2 of the development approval dated 2 January 1999 ('the Approval') as including the use of a chainsaw (and thereby prohibiting its use), when on its proper construction it referred only to the mill-saw the subject of the development approval …
(b) The learned Magistrate erred in law in holding that the principle of statutory interpretation requiring an ambiguous penal statute to be interpreted in favour of a defendant did not have application to the interpretation of condition 2 of the Approval.
(Page 6)
- (c) The learned Magistrate erred in law in holding that the Applicants did not have an honest claim of right to use a chainsaw for the purposes of the approved use, in that:
(i) the learned Magistrate misdirected himself in failing to apply the proper test, namely whether the Applicants honestly believed that they were entitled to use a chainsaw in the log storage area as a standard part of the approved use;
(ii) the learned Magistrate failed to give any reasons or any adequate reasons as to why the Applicants' claim of right was not honest;
(iii) the learned Magistrate made no findings of fact capable of leading to the conclusion that the Applicants did not honestly believe that they were entitled to use a chainsaw; and
(iv) the evidence established that the Applicants did have an honest belief that they were entitled to use a chainsaw.
(d) The learned Magistrate erred in law in imposing a penalty against the Applicants that was in all the circumstances manifestly excessive."
7 In my opinion, grounds (a) and (b) must fail. There is no ambiguity about the approval or condition 2. The approval permits the appellants to use the storage area for the storage of timber and timber logs only.
8 There was an argument by the appellants that chainsawing was not the type of sawing referred to in the main part of the approval, and that the reference to sawing in condition 2 should be read down to mean sawing with a "sawmill machine" and not sawing with a chainsaw. In my view, there is no merit in that argument. In its ordinary meaning, a saw is a tool or device for cutting (see Macquarie Dictionary). A chainsaw is a device for cutting. It is a device for cutting wood in particular. In my opinion, the reference to timber sawing in condition 2 should not be read down to mean sawing with a milling saw.
9 Condition 2 has two components. The first is a statement in the first sentence about the operations (and the only operations) permitted in the timber storage area. The second is a statement in the second sentence
(Page 7)
- about what was expressly forbidden in that area. I have discussed what was forbidden. What was permitted was storage only. Even if the prohibitory sentence was not included, chainsawing would not be permitted.
10 What may be observed is that approval has not been given to carry out a sawmilling operation over the whole of the land. The approval is much more limited. It restricts sawmilling to the shed. The rest of the site may only be used for storage of logs. This latter use permits operations incidental to the storage of logs, such as the use of, for example, a forklift to shift the logs. It is argued that cutting the logs by chainsaw is incidental to the storage of the logs. In my opinion, that argument must fail because even if that use is incidental, it is an incidental use which was expressly forbidden. In any event, it is not obvious to me that cutting logs with a chainsaw is incidental to the storage of logs.
11 There is no room for operation of any rule of construction which states that ambiguous penal statutes should be interpreted in favour of the appellant; as to which see Waugh v Kippen (1986) 160 CLR 156. In my view, there is no ambiguity.
12 I should add that the appellants referred to evidence about what council officer Bairstow thought the approval meant or did not mean. In my view, the evidence referred to was irrelevant to the issue of the proper construction of the approval. So too was evidence about the difference between "docking" of logs and "sawing" of logs.
13 Ground (c) contends that the learned Magistrate erred in holding that the appellants did not have a defence under s 22 of the Criminal Code. Section 22 of the Criminal Code reads:
"22. Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."
14 The leading authority in this State on the meaning of s 22 of the Criminal Code, until the High Court's decision in Walden v Hensler
(Page 8)
- (1987) 163 CLR 561 and the Full Court's decision of Molina v Zaknich (2001) 24 WAR 562, was Pearce v Paskov [1968] WAR 66, in which Virtue J said at 72:
"Part VI of the Criminal Code is headed 'Offences relating to property and contracts', and I have no doubt that the phrase 'offences relating to property' in s. 22 should be construed as applying exclusively to offences of the character of those defined in that Part of theCode. These offences can be classified under the headings of wrongful or fraudulent interference with the property of others which involve deprivation of or interference with the proprietary or possessory rights of the true owner or person in possession, or acts involving destruction or damage to the property of others. I consider that such a construction is supported by the provision that the existence of an intent to defraud would deprive a defendant of the benefit of the protection."
"… consistently with Walden v Hensler, a broad, not a restricted approach should be adopted. The time has come to say that the passage quoted in Pearce v Paskov no longer represents the law in Western Australia and should not be followed.
In my opinion, it is at least consistent with three judgments in Walden v Hensler to say that s 22 should be given its literal and broad effect. It follows that it can have application to offences such as the Police Act, s 82B."
16 As a result, it is my opinion that s 22 of the Criminal Code may have application to charges under the Town Planning and Development Act. A defence under s 22 can only arise in the case of offences relating to property, and where the act or omission constituting the offence was done or omitted with respect to property.
17 The appellants argued that the offence did relate to property insofar as it was alleged that the appellants used their land otherwise than in accordance with the condition imposed on the approval, and that the acts
(Page 9)
- done were with respect to the property. The respondent argued on the other hand that the act done, that is chainsawing, was not done with respect to property. In my view, it is not necessary to deal with those submissions because, even assuming that the offence was one "relating to property" and that the act done was done with respect to property, the appellants failed to show there was any evidence of an honest claim of right.
18 I recognise that there can be a "claim of right" although there is no formal or express declaration of the existence of a right at the time the alleged offence occurs. For example, a man who takes another person's chattel honestly believing it to be his own and that he is entitled to take it, takes it in the exercise of an honest claim of right within the meaning of s 22 of the Criminal Code, even if he says nothing to anyone at the time he takes it: Mitchell v Norman; Ex parte Norman [1965] Qd R 587 at 594-595; Walden v Hensler (supra), per Brennan J at 568.
19 An accused person acts in the exercise of an honest claim of right if he honestly believes himself to be entitled to do what he is doing. It is not necessary that the right be one recognised by law. It may be unfounded in law or fact: Walden v Hensler (supra), per Brennan J at 569; Toohey J at 600; and Gaudron J at 606; and R v Pollard [1962] QWN 13.
20 The connotation of the phrase "honest claim of right" must, however, be determined in the context of the opening provision of s 22 of the Criminal Code that ignorance of the law does not itself afford any excuse for an act or omission which would otherwise constitute an offence. Plainly, the fact that a person can honestly say that he thought he was entitled to do the relevant act because he was unaware that it was proscribed by the criminal law, does not provide him with a defence of honest claim of right under s 22 of the Criminal Code. Walden v Hensler (supra) per Deane J at 580-581. Deane J went on, at page 581, to give examples of circumstances which would not give rise to any defence. One example was a person having a genuine belief of some special entitlement to property of a particular kind (eg narcotic drugs) which would not suffice to avoid criminal responsibility for a breach of a general proscription of selling, buying or possessing such property if that general proscription is aimed at preventing all traffic, or all unlicensed traffic, in property of that kind. He then went on to say that:
"In such cases, the absence of knowledge of criminality flows, upon analysis, merely from ignorance of the applicable provisions of the criminal law and the honest belief that what
(Page 10)
- was done with respect to property was done with the authority of the owner or, for that matter, in the exercise of actual rights of ownership is simply irrelevant to the alleged offence which can be committed by owner and stranger alike. In contrast, the existence of an honest claim of such authority or ownership would provide the basis of a defence under s. 22 of the Code to a charge of larceny of the relevant property since such authority or ownership would, if it existed, constitute an answer to the charge.
It should be apparent from the foregoing that the answer to the question whether an honest belief of entitlement to act in a particular way with respect to property constitutes a defence of honest claim of right under s. 22 of the Code can only be ascertained by reference to the elements of the alleged offence."
21 So what right did the appellants claim in this case? They claimed they were entitled to saw timber on the area of their land which was designated for storage of timber. Counsel for the appellants submitted that they claimed they had the right to do so because they had approval from the respondent. It was submitted that if the belief were honestly held, then it would afford a defence to a charge of using land contrary to the approval granted by the respondent.
22 However, this submission by counsel for the appellants is not evidence. It is legal argument from counsel about what he said was the correct interpretation of the terms of the approval. The evidence about what the appellants claimed about the use of the chainsaw appears from a document written by a person on behalf of the appellants and from evidence from one of the appellants.
23 The first document is a letter of 5 May 1999 on Seacrest Homes letterhead. I was informed by counsel for the appellants that this is a business name owned by the corporate appellant. I was also informed by counsel for the appellant that this letter was written with the authority of the appellants. It is clear that before this letter was written, complaint had been made by the respondent that a chainsaw could not be used. The letter reads:
"… Would you please supply information in regard to the useage of a chain saw and what regulation states that a chain saw cannot be used for any purpose without a permit. …"
(Page 11)
24 On 17 May 1999, a further letter was written by Seacrest Homes to the respondent, explaining that it was not feasible to pre-cut logs to length prior to delivery. The letter continued:
"As a consequence of this we will need to lodge an application with the City of Joondalup to allow for the intermittent use of a chain saw on Lot 46 to allow the logs to be simply cut to length prior to entering the sawing shed.
I contacted the Parks & Gardens division with the City of Joondalup this morning and spoke to Darwin who confirmed that Stihl Chain saws which is the same brand that we own are regularly used by employees of the City of Joondalup. There are a number of other private companies within the City of Joondalup that regularly use chain saws as part of their business operations.
Please advise us on the correct procedure for us to obtain approval to use the chain saw in our business operation as I believe that clause (2) of the planning conditions is discriminary (sic) against our company. …"
25 The first-named appellant gave evidence and was cross-examined about the use of the chainsaw. He gave evidence that it had always been his intention to dock logs to length before they entered the sawmilling shed where the milling takes place. The following questions and answers appear from the transcript.
"Okay. It was always your intention but you accept that it's nowhere set out in your application or on your plan - - ?---Well - -
- - that - - ?--- - - only because we didn't believe that you needed a planning approval to operate a chainsaw in the City of Wanneroo.
And that's - - you had that belief because you - - because people can operate chainsaws in their backyard on the weekend once every few months without having to apply for a development approval for that. Is that the sort of - - ?---Well, as - -
MR WITTKUHN: Is that the reason you - - that you're saying you had that understanding?---Well, we understand that chainsaws are used - yeah - everywhere. There's a lot of people
(Page 12)
- using chainsaws. We've had chainsaws before - - in our operation before we built the milling shed. We've had chainsaws for a long time. We've never once been asked to submit a planning application for chainsaws in our other businesses."
26 This evidence does not reveal any claim by the appellants that they thought the approval and its conditions authorised them to use a chainsaw in the timber storage area. It is a quite different claim, namely a claim that as far as the appellants knew they were free to use a chainsaw, there being no prohibition against the use of a chainsaw by them or by anybody else within the City of Wanneroo. That is a claim which, upon analysis, amounts to a claim that they did not know that there was a law which restricts the use of land unless approval of council is given. The law which prevents people from "developing" land (which expression includes "using land") without approval is to be found in the combined effect of cl 7 of the respondent's Town Planning Scheme No 1 and s 10 of the Town Planning and Development Act. The appellants were therefore claiming that they were ignorant of the law, and s 22 of the Criminal Code makes it plain that such a defence cannot succeed.
27 The learned Magistrate's reasons are somewhat confusing in relation to the s 22 defence but, in my view, it does not matter because there was no evidence which required the prosecution to prove beyond reasonable doubt that there was no honest claim of right.
28 As to the ground complaining about penalty, the sole ground is that in the circumstances the fine was manifestly excessive. See Dinsdale v The Queen (2000) 202 CLR 321. The ground of appeal does not allege any other error of sentencing principle. The maximum penalty for individuals for each offence was $50,000, and the maximum penalty for the company was $250,000 for each offence. His Worship fined the three individuals $10,000 each, and the corporate appellant was fined $20,000. The total fines imposed for all offences therefore amounted to $50,000 in relation to offences where the aggregate maximum fines which could have been imposed for the five offences was $250,000 for the individuals and $1,250,000 for the company.
29 The Magistrate took into account factors which were all relevant in relation to sentencing. It is clear that the use of the chainsaws was a continuing method of operation rather than isolated instances; that the purpose of town planning restrictions was to control the impact on surrounding neighbours or businesses; that the sawmill was part of a large
(Page 13)
- integrated business; and that the appellants were warned about the illegal use before they were prosecuted. The corporate appellant had two previous convictions in relation to this land. The turnover of the joinery operation is approximately $1.5 million per annum, and the sawmill employs eight to ten people.
30 As mentioned, it forms part of a larger commercial enterprise. This is a relevant consideration. See Peat Resources of Australia Pty Ltd v Brown [2002] WASCA 342.His Worship viewed the charges globally and treated the five charges as one charge, and the maximum penalty was treated as applying only once. Viewed in that way, the maximum fines of $300,000 could have been imposed. The total fines of $50,000 amounts to only one-sixth of that amount. It was not strictly correct for the Magistrate to approach the matter in this way. He should have set an appropriate penalty for each offence and then applied the totality principle. However, his Worship's error was in favour of the appellants. He treated the five offences as one offence. Perhaps this is why there is no appeal based on error of principle. The appeal ground assumes that correct principles were applied and complains only that the sentence was manifestly excessive.
31 In my view, there is nothing to indicate that the fines in this case were manifestly excessive.
32 For those reasons, I dismiss the appeal.
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