Bransby v City of Wanneroo [No 2] - [2020] WASC 396

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BRANSBY -v- CITY OF WANNEROO [No 2] [2020] WASC 396
CORAM:   CURTHOYS J
HEARD:   12 NOVEMBER 2019
DELIVERED          :   3 NOVEMBER 2020
FILE NO/S:   SJA 1077 of 2018
BETWEEN:   JUSTIN DEAN BRANSBY
Appellant
AND
CITY OF WANNEROO
Respondent

Catchwords:

Illegal parking – Inference to be drawn from number of days of evidence of illegal parking

Legislation:

Criminal Appeals Act 2004 (WA), s 39, s 40
Criminal Procedure Act 2004 (WA), s 9, s 60, s 61, s 138
Planning and Development Act 2005 (WA), s 214, s 218, s 223
Sentencing Act 1995 (WA), s 6, s 53

Result:

Appeal allowed as to penalty

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	M Curwood

Solicitors:

Appellant	:	In Person
Respondent	:	De Vita Legal

Cases referred to in decision:

Austrend Construction Pty Ltd v City of Swan [2017] WASC 67
Bransby v City of Wanneroo [2019] WASC 305
D v Western Australia [2007] WASCA 272; (2007) 179 A Crim R 377
Harding v The State of Western Australia [2015] WASCA 27
Kamaljit v Kennedy [2014] WASC 184
McMahon v Western Australia [2010] WASCA 143
Ostrowski v Palmer [2004] HCA 30; 218 CLR 493
Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234
Roberts v The State of Western Australia [2014] WASCA 239
Rowsell v The State of Western Australia [2015] WASCA 2
Samuel v The State of Western Australia [2004] WASCA 154
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81

CURTHOYS J:

On 4 May 2018, the appellant, Mr Justin Bransby, was convicted of two breaches of the Planning and Development Act 2005 (WA) (PD Act) being:
(a)the accused carried out a development on Land at the Place in contravention of clause 60 of the City of Wanneroo Planning Scheme No. 2 – Deemed Provisions, namely the parking commercial vehicles within the front setback and the use of the Land as a storage yard without the prior approval of the City of Wanneroo, being the responsible authority within the meaning of the Planning And Development Act 2005 (WA) (the Act) and thereby contravened section 218 (b) of the Act.
(b)after being served with a written direction notice issued by the City of Wanneroo, being the responsible authority under the Act, such notice being served in accordance with section 214(3) of the Act, the accused failed to comply with the written direction by (i) failing to remove all but one (1) commercial vehicle from the Land at the Place and ensure that the remaining vehicle complies with clause 4.23 of the City of Wanneroo District Planning Scheme No 2 and (ii) cease to use the Land as a storage yard by removing all unauthorised building materials and temporary fencing from the Land at the Place, within the requirements of the direction notice and thereby contravened section 214(7)(b) of the Act, (JO 9863/17).
For both convictions, the Magistrate imposed a global fine of $37,500. This fine comprises a $20,000 fine for charge (a) and a $17,500 penalty, equating to $50 per day for each of 350 days, for charge (b).[1] He was ordered to pay $3,197.42 in costs.
[1] ts 15 (04/05/2018).
Mr Bransby's former spouse, Mrs Kasey Bransby, was convicted of the direction offence (charge (b)) but was not convicted in relation to the development offence (charge (a)).[2] Mrs Bransby was fined $20,000. There was no order as to costs.
[2] ts 15 (04/05/2018).
In this matter, Mr Bransby appeals against both of his convictions and the sentence imposed as a result of those convictions.
On 7 September 2018, McGrath J made orders relating to the conduct of the appeal.[3] On 21 February 2019, the appeals of both Mr and Mrs Bransby were dismissed for failure to comply with the orders of McGrath J.
[3] Order, McGrath J dated 7 September 2018 [4].
Mr Bransby successfully applied to have the dismissal of his appeal set aside.[4]
[4] Bransby v City of Wanneroo [2019] WASC 305.
Mrs Bransby did not apply to have the dismissal of the appeal set aside. No explanation was offered for that inexplicable course of conduct. The effect is that even if Mr Bransby is successful in his appeal, Mrs Bransby remains liable to pay the fine imposed on her.

Grounds of appeal

On 24 May 2018, Mr Bransby filed a Notice of Appeal in which he set out 10 grounds of appeal. Mr Bransby filed submissions in support of his appeal which effectively sought to amend the grounds of appeal. The respondent, the City of Wanneroo (the City), did not oppose the amendment.
On 7 September 2018, it was ordered that the appeal notice be amended by inserting the convictions recorded as:
(i)JO 986/2017 – Commenced/continued development in an area subject to a regional/local planning scheme but not in accordance with a scheme.
(ii)JO 9863/2017 – Failed to comply with a written direction to a person undertaking a development contrary to s 214(7) of the Planning and Development Act 2005.[5]
[5] Order, McGrath J dated 7 September 2018 [4].
For the purposes of this appeal, the grounds upon which Mr Bransby relies are as follows:
1.the appellant was denied natural justice in that an unfair trial was conducted, on the basis that the City failed to comply with the disclosure requirements of the Criminal Procedure Act 2004 (WA) (CP Act) and to provide full discovery of documents, exhibits, witness lists and statements prior to trial (Ground 1);
2.the Magistrate erred by not recognising that disclosure had not been undertaken pursuant to the CP Act, prior to trial (Ground 2);
3.the Magistrate erred in law and fact by failing to appropriately consider the meaning of the term 'adequate screening' and failed to give proper weight to the City's own internal records showing that the sea container on site did provide adequate screening for the large truck and thereby made a finding against the weight of the evidence (Ground 3);
4.the Magistrate failed to give proper weight to the evidence that the appellant had the appropriate building permits and had incessantly sought the City's direction for undertaking any activity (Ground 4); and
5.the penalties imposed were manifestly unjust, oppressive and excessive (Ground 5).[6]
[6] Appellant's Submissions, 28 October 2019 [14].

Leave to appeal

Section 9 of the CP Act requires that the appellant first obtain leave to appeal. Leave is required for each ground of appeal and the court must not give leave unless it is satisfied that the ground has a reasonable prospect of success.
The grant of leave under s 9 requires that each ground of appeal should have a rational and logical prospect of succeeding.[7]
[7] Samuel v The State of Western Australia [2004] WASCA 154.

Application to adduce additional evidence

Section 39(1) of the Criminal Appeals Act 2004 (WA) (Appeals Act) provides that an appeal court must decide the appeal on the evidence and material that was before the lower court which, in this case, is the Magistrates Court.
Section 39(4) of the Appeals Act provides that subsection (1) does not prevent an appeal court from considering any evidence that the lower court refused to admit.
Section 40(1)(e) of the Appeals Act provides that for the purposes of dealing with an appeal, the appeal court may admit any other evidence.
Appeal courts distinguish between fresh evidence and new evidence. Evidence is considered to be fresh if it did not exist at the time of trial or could not have been discovered at that time by the exercise of reasonable diligence.[8]
[8] Kamaljit v Kennedy [2014] WASC 184.
Mr Bransby sought to have admitted:
(a)evidence of other vehicles that were visible on other lots specifically, photographs purportedly showing a number of the City's worksites where commercial vehicles were parked; and
(b)evidence of his assets and liabilities.[9]
[9] Affidavit of Justin Dean Bransby affirmed on 28 October 2019, 6, Annexure JD‑1.
The court rejected his application in relation to (a) on the basis that it was irrelevant and that it was not fresh evidence.
The City did not oppose the admission of the evidence of Mr Bransby's assets and liabilities. That evidence was admitted even though it was not strictly speaking new evidence.

His Honour's reasons

In its submissions,[10] the City correctly summarised his Honour's reasons as follows:
[10] Respondent's Submissions, 4 November 2019 [15].
(1)the elements that had to be proved for each offence (Reasons pages 2 ‑ 39);
(2)an observation that Mrs Bransby had elected not to give evidence (Reasons page 3);
(3)the zoning classifications applicable to Mr Bransby's property, being special residential; 5 See transcript City of Wanneroo v Bransby, Magistrates Court, 11 April 2018 at pages 2 ‑ 14. 6 See transcript City of Wanneroo v Bransby, Magistrates Court, 11 April 2018 pages 8‑9. 7 See transcript City of Wanneroo v Bransby, Magistrates Court, 11 April 2018 page 9. 8 See [28] below 9 a reference to 'Reasons' is to the page number of the transcript of the hearing on 4 May 2018 during which the Magistrate delivered his reserved decision – City of Wanneroo v Bransby, Magistrates Court, 4 May 2018 5
(4)findings with respect to a vehicle referred to as the 'large truck', which the Magistrate was satisfied (on Mr Bransby's evidence) was a vehicle used by Mr Bransby in connection with his business 'Smash It Demolition and Earthworks Pty Ltd' of which he is a sole director. Further, that the court was satisfied on Mr Bransby's evidence that except when the truck was away from the Property for the purpose of that business, Mr Bransby parked the truck at the Property (Reasons page 4);
(5)findings based upon the photographic evidence tendered the large truck was parked at the Property on 4 January 2017, 24 April 2017, 9 May 2017, 10 May 2017, 27 August 2017, 3 October 2017, 20 October 2017, 19 December 2017, 6 April 2018 and 9 April 2018.
(6)Mr Bransby's evidence and the photographs of the large truck at the Property enabled the Magistrate to be satisfied beyond reasonable doubt that the large truck is a commercial vehicle as defined in schedule 1 of the Scheme and that he was satisfied on each 24‑hour period during the date range of the charges commencing 24 April 2017 up to the commencement of the trial that the vehicle remained on the Property for more than one hour per day10;
(7)parking commercial vehicles in a Special Residential zone is not permitted by clause 4.23.1 of the scheme unless there was a legal excuse and he was satisfied that Mr Bransby was carrying out a 'development' in the sense that he used the property in the form of parking that vehicle (Reasons page 5);
(8)Mr Bransby received a written direction notice from the City of Wanneroo (Reasons page 3);
(9)Mr Bransby did not remove or cease the commercial vehicle parking during the charge period so that with respect to the development offence the Magistrate was satisfied that he committed an offence unless there is a legal excuse that applies.
(10)two matters were raised by Mr Bransby by way of an excuse. The first was the provision in the scheme under clause 4.23.3 that allowed the parking of one commercial vehicle in a special residential zone. The second was that Mr Bransby gave evidence of relying upon oral advice of council officers that it was acceptable for him to park his truck on a location adjacent to a sea 10 See Reasons at pages 4 ‑ 5. 6 container that was on the Property on the basis that the sea container would screen the view of the truck from the road (Reasons page 5);
(11)with respect to the screening, the Magistrate found that Mr Bransby was required to prove that the vehicle was not readily visible from beyond the boundaries of the Property, that the vehicle was located behind the building setbacks, with adequate screening or parked in a garage. The photographic evidence shows that the large truck was parked in the middle of a driveway adjacent to a sea container. The Magistrate prepared a diagram which disclosed that the truck and the location of its parking from the photographs shows that it was clearly visible from a point beyond the boundary (Reasons page 7).
(12)with respect to the advice from the council, his Honour accepted that it was more probable than not that Mr Bransby was told or given this advice by council officers but that this was not a legal excuse to the charge (Reasons page 6). The first reason why the advice was not an excuse to the charge was found in the High Court case of Ostrowski v Palmer. The second reason why the excuse did not apply according was due to the written direction that was given to Mr and Mrs Bransby to remove the commercial vehicles on 10 February 2017 (Reasons page 6);
(13)the Magistrate made findings that other items of machinery and equipment fell within the definition of 'commercial vehicle' for the purposes of the scheme. At page 8 of the Reasons his honour found that an excavator, bobcat, grey trailer and red trailer as shown in Exhibit 10.9 and 10.14 (with the excavator sitting on the grey trailer) were, beyond reasonable doubt, commercial vehicles. His Honour relied upon Mr Bransby's evidence that those vehicles were usually used by him in connection with the business 'Smash It Demolition' and for the purpose of that business it was convenient for him to park those three vehicles at any work site he was working at or at a factory at an address in Gibberd Road in Balcatta. (Reasons page 8);
(14)based upon Mr Bransby's evidence that in addition to the Smash It Demolition business Mr Bransby used those vehicles in connection with construction being undertaken by him at the Property in accordance with a planning approval dated 5 June 2015, and a building permit of 30 July 2015 with an extension dated 27 October 2017 (Reasons Page 8). Mr Bransby's evidence was that he did not work on Sundays. The Magistrate inferred from that evidence (page 9 of Reasons), that if Mr Bransby was using the vehicles on a Saturday for work at the Property (which was his evidence) that those three vehicles remained present on the Sunday. The council officers evidence in the photographs also satisfied His Honour beyond reasonable doubt that the bobcat was present on the Property and not working on Tuesday, 9 May 2017, Friday, 20 October 2017, Friday, 6 April 2018 and on Monday, 9 April 2018. Similarly, with the excavator, His Honour found that it was present on the Property on 9 May 2017, 10 May 2017, 20 October 2017, 19 December 2017 and that the grey trailer was present on 24 April 2017 and 9 May 2017 and Wednesday, 10 May 2017. Further, that there was no reason to not accept Mr Bransby's evidence that he used those three vehicles when he could on the Property to do works which were approved and consistent with a building permit issued to him and that he did that work primarily on Saturdays. His Honour then found that a consequence those vehicles remained on the property on Sunday, and that the photographs consistently showed those vehicles were present on the property and not at a work site of Mr Bransby or at the business premises (Reasons page 9).
(15)His Honour then summarised at page 9 and 10 of the Reasons that parking occurred at the Property for 4 days in relation to the bobcat, 5 days in relation to the excavator and 3 days in relation to the grey trailer. However, his Honour would not draw an inference beyond reasonable doubt from those small number of days that those vehicles were parked at the Property for the entire charge period of April 2017 ‑ April 2018. However, he was satisfied beyond reasonable doubt that those vehicles were present on the days that they were photographed and each Saturday and Sunday during the charge period (on the basis of Mr Bransby's evidence that he worked at the Property using those vehicles on each Saturday). The Magistrate was satisfied beyond reasonable doubt of these matters on the basis of Mr Bransby's own evidence. The Magistrate then concluded after setting out the provisions of clause 4.23.8 of the Scheme that it was necessary for Mr and Mrs Bransby to prove on the balance of probabilities that those vehicles were used in connection with ongoing construction work legally being carried out and his Honour did make that finding that the three vehicles were used for the purpose of ongoing construction and working legally on Saturdays. However, he found that the vehicles were not being used on Sundays or on the dates of the photographs. 16. In his conclusions at page 15 of the Reasons, his Honour said that Mr Bransby was convicted with respect to the development offence and the written notice offence, specifically in relation to the large truck for the entire period of the charge period 8 from 27 April 2017 to the charge date and in relation to the excavator and the bobcat and the grey trailer, for 5 days in relation to the excavator, 4 days in relation to the bobcat, 3 days in relation to the trailer, and for each Sunday during the charge period.
I note that his Honour did not make any specific findings as to Mr Bransby's credibility except a favourable finding that the presence of the vehicles on his property in Wanneroo (the Wanneroo Property) was as a consequence of carrying out building work.

Grounds of Appeal

Ground 1

Ground 1 states:
the appellant was denied natural justice in that an unfair trial was conducted, on the basis that the City of Wanneroo failed to comply with the disclosure requirements of the Criminal Procedure Act 2004 (CP Act) and to provide him with full discovery of documents, exhibits, witness lists and statements prior to trial (Ground 1).[11]
[11] Appellant's Submissions, 28 October 2019 [14.1].
Section 60 of the CP Act relevantly provides:
(1)In this section and sections 61 and 62, unless the contrary intention appears –
listed simple offence means a simple offence that is prescribed to be a listed simple offence for the purposes of this section.
(2)This section applies if an accused pleads not guilty to –
(a)an either way charge that is to be dealt with summarily; or
(b)a charge of a simple offence, whether orally or by means of a written plea,
…
(5)In the case of a charge of any other simple offence, the court –
(a)may order the prosecutor to serve the accused with any confessional material (as defined in section 42(1)) of the accused that is relevant to the charge and that the accused has not already received from the prosecutor; and
(b)if it makes an order under paragraph (a), may also order the prosecutor to comply with section 61; and
(c)in any event must adjourn the charge to a new court date that allows a reasonable time for the prosecutor to comply with any order made under paragraph (a) or (b). (emphasis added)
…
Section 61(5) of the CP Act relevantly provides:

If –
…
(c)an order is made under section 60(5)(b) in respect of a charge of any other simple offence,
the prosecutor must serve the accused with the following –

(d)any confessional material of the accused that is relevant to the charge and that the accused has not already received from the prosecutor;
(e)any evidentiary material that is relevant to the charge;
(f)a copy of the accused's criminal record, if the accused has not already received it from the prosecutor;
(g)any document that is prescribed.

It was common ground between the parties that the charges were 'other simple offence[s]'. Accordingly, any disclosure obligation under the CP Act arose under s 60(5).
The obligation to make disclosure in the case of 'any other simple offence' arises only if an order is made under s 60(5). The court has discretion as to whether to make such an order. No disclosure order was sought by Mr Bransby and no such order was made. It follows that there was no obligation on the part of the City to comply with the disclosure requirements of the CP Act.

Mr Bransby correctly submitted that the statutory provisions of the CP Act do not exclude the common law duty of disclosure.[12]
[12] D v Western Australia [2007] WASCA 272; (2007) 179 A Crim R 377 [35].
However, the prosecution is not obliged to disclose every piece of evidence upon which it proposes to rely at trial. As Le Miere J stated in D v Western Australia at [30]:
The duty of disclosure at common law stems from the concept of a fair trial. Fairness requires that the prosecution disclose to the defence any information that is or might become relevant to the issues at trial. (See Steytler J's summary of relevant case law in Easterday v The Queen[2003] WASCA 69 [194]). The prosecution has a general duty to disclose any material 'which can be seen on a sensible appraisal by the prosecution ... to be relevant or potentially relevant to an issue in the case': Mallard v The Queen [2003] WASCA 296; 28 WAR 1 [18]. The accused should not have to 'fossick' for information to which they would otherwise be entitled in the course of a proper prosecution against them: Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 [23].
The obligation only arises if the prosecution's failure to disclose the evidence results in the accused not receiving a fair trial.
In many cases, particularly those involving simple offences, the prosecution's evidence will be self‑evident from the nature of the charge.
Mr Bransby submitted that 'he was not provided with the City of Wanneroo's exhibits, witness lists and witness statements prior to the commencement of trial'.[13]
[13] Appellant's Submissions [25].
Mr Bransby further submitted that he 'only became aware that the City of Wanneroo proposed to summons two witnesses to give evidence at trial on the first day of trial. As a result, the appellant had no other choice than to cross‑examine the prosecution's two witnesses, without having reviewed their witness statements and/or being afforded the opportunity to prepare'.[14]
[14] Appellant's Submissions [26].
Essentially, the charge against Mr Bransby involved an allegation that Mr Bransby parked vehicles on the Wanneroo Property. It was self‑evident that the City would need to call witnesses to the effect that vehicles were parked on the Wanneroo Property. It was also self‑evident that Mr Bransby would need to challenge the evidence of the City's witnesses that vehicles were parked there.
Mr Bransby submitted that there was a substantial miscarriage of justice because the City's non‑disclosure of its exhibits, witness lists and witness statements to him prior to trial:[15]
1.deprived the Mr Bransby of a fair trial according to law, resulting in a material irregularity in the trial. There was a significant possibility that the irregularity affected the outcome;[16] and
2.amounted in a serious departure from the essential requirements of the trial process, that is, that the defendant be provided with all material that is relevant to an issue in the case.
[15] Appellant's Submissions [32].
[16] McMahon v Western Australia [2010] WASCA 143.
Mr Bransby is obviously aware of the City's case and the witnesses' evidence having had that evidence disclosed during the course of the trial.
Mr Bransby did not point to any specific prejudice to him arising from the evidence at trial that is even remotely capable of providing a basis for a finding that there has been a substantial miscarriage of justice. At best, Mr Bransby refers to a failure of form and not of substance. He did not identify any unfairness arising from the specific evidence that was led by the City.
In the circumstances of this case, the prosecution's duty of disclosure did not require the City to disclose those witness statements. There was no unfairness. There was no breach of the City's common law disclosure obligations.
Ground 1 is without substance. Leave to appeal is refused.

Ground 2

Ground 2 states 'the Magistrate erred by not recognising that disclosure had not been undertaken pursuant to the CP Act, prior to trial'.[17]
[17] Appellant's Submissions [14.2].
In support of Ground 2, Mr Bransby submitted that the Magistrate erred by not recognising that disclosure had not been undertaken, ordered or satisfied pursuant to the CP Act, prior to trial.[18]
[18] Appellant's Submissions [34].
Section 138 of the CP Act provides:
…
(2)The powers in this section may be exercised by a court on its own initiative or on an application by a party to a case.
(3)A court may, in respect of a disclosure requirement, make an order –
(a)that dispenses with all or part of the requirement, if it is satisfied –
(i)there is a good reason to do so; and
(ii)no miscarriage of justice will result;
or
(b)that shortens or extends the time for obeying the requirement; or
(c)that amends or cancels an order made previously under this section, whether by the court or some other court; or
(d)as to any other matter that the court considers is just.
Mr Bransby submitted that the Magistrates Court did not consider whether disclosure ought be dispensed with pursuant to s 138(3) of the CP Act and allowed the trial to proceed without appropriate disclosure having been made prior to trial.[19]
[19] Appellant's Submissions [36].
If there is no disclosure requirement, then there is no requirement to consider whether to dispense with the requirement. As stated in relation to Ground 1, no disclosure requirement arose under the CP Act or at common law. Accordingly, the Magistrate did not err in failing to consider whether a disclosure requirement should be dispensed with.
Ground 2 is without substance. Leave is refused.

Ground 3

Ground 3 states:
the Magistrate erred in law and fact by failing to appropriately consider the meaning of the term 'adequate screening' and failed to give proper weight to the City of Wanneroo's own internal records showing that the sea container on site did provide adequate screening for the large truck and thereby made a finding against the weight of the evidence (Ground 3);[20]
[20] Appellant's Submissions [14.3].
Section 218 of the PD Act provides:
A person who –
(a)contravenes the provisions of a planning scheme; or
(b)commences, continues or carries out any development in any part of a region the subject of a region planning scheme or any part of an area the subject of a local planning scheme or improvement scheme otherwise than in accordance with the provisions of the planning scheme; or
(c)commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply with any such condition,
commits an offence.
Section 214(3) of the PD Act provides:
If a development has been undertaken in contravention of a planning scheme or interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person who undertook the development –
(a)to remove, pull down, take up, or alter the development; and
(b)to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority.
Section 214(7) of the PD Act provides:
A person who –
(a)fails to comply with a direction given to the person under subsection (2); or
(b)fails to comply with a direction given to the person under subsection (3) or (5) within the time specified in the direction, or within any further time allowed by the responsible authority,
commits an offence.
Clause 4.23.3 of the City of Wanneroo District Planning Scheme Number 2 (the Scheme) provides that a commercial vehicle could only be stored on a special residential zone if each of the 12 separate matters were satisfied. Clause 4.23.3 specifically provides:
A person may only park a commercial vehicle on a lot in the zones referred to in this clause if:
(a)the lot on which the vehicle is parked contains only a single house (including any associated outbuildings) provided that Council may permit the parking of such vehicle on a lot which contains grouped dwellings if it is of the opinion that this will not adversely affect the amenity of the grouped dwelling development or the surrounding area;
(b)in the case of a lot in the Residential, Mixed Use, Business, Urban Development, Centre, Marina and Commercial zones the vehicle is parked entirely on the subject lot and is located on a hard standing area which is located behind the front of the dwelling, or alternatively the vehicle is parked within a garage. In the case of a lot in the Special Residential, Special Rural, Rural Community, General Rural and Rural Resource Zones, the vehicle(s) shall not be readily visible from beyond the property boundaries and shall be located within the building envelope (if applicable) and behind the building setbacks, with adequate screening or alternatively parked within a garage;
(c)the vehicle is used as an essential part of the lawful occupation of an occupant of the dwelling. The foregoing requirement of this item shall not be satisfied in any case unless the owner of the vehicle or an occupier of the dwelling within seven days of the Council making a request, supplies to the Council full information as to the name and occupation of the person said to be using the vehicle. The request for that information is made for the purpose of this item by posting the request to the address of the owner of the vehicle shown on the vehicle registration, or by posting the request to or leaving it at the dwelling addressed in general way to the occupier. The parking of the vehicle on the lot does not authorise the conduct on that lot of the occupation of the vehicle user;
(d)the vehicle does not exceed 3 metres in height (including the load), 2.5 metres in width, or 8 metres in length, except in the case of a lot in the Special Rural, Rural Community, General Rural and Rural Resource Zones where the height and width are not controlled but the maximum vehicle combination length shall not exceed 19 metres;
(e)the vehicle is not started or manoeuvred on site between the hours of 10.00 pm and 6.00 am the next following day;
(f)while on the lot, the vehicle's motor is not left running while the vehicle is unattended or in any event for any period in excess of five minutes;
(g)storage of liquid fuels on the lot complies with the Explosive and Dangerous Goods Act, 1961;
(h)the vehicle is not used or designed for use for the transportation of livestock or the transportation or disposal of liquid or solid wastes or other use so as to cause nuisance or pollution as defined in the Health Act 1911 and/or the Environmental Protection Act 1986;
(i)the vehicle is not carrying a refrigeration unit which is operating on a continuous or intermittent basis;
(j)while on the lot, there is no transfer of goods or passengers from one vehicle to another vehicle, unloading or unloading of the vehicle, or storage of goods associated with the use of the vehicle;
(k)the vehicle is not used or operated as a tow truck or other emergency vehicle, between the hours of 10.00 pm to 6.00 am in a manner that adversely affects the residential amenity of the area;
(l)the parking and manoeuvring of the vehicle shall not cause damage or removal to existing vegetation on the lot.
Mr Bransby relied on cl 4.23.3(b) as the basis for storing his commercial vehicles on a special residential zone.
Mr Bransby's lot was in a special residential zone.[21] Accordingly, the relevant part of cl 4.23.3(b) was the following:
[T]he vehicle(s) shall not be readily visible from beyond the property boundaries and shall be located within the building envelope (if applicable) and behind the building setbacks, with adequate screening or alternatively parked within a garage;
[21] ts 4 (04/05/2018).
It is not in dispute that the vehicle was not parked in a garage.
The Magistrate made the following findings in relation to Ground 3:
It's convenient to consider the evidence in this case by reference to the items which are the subject of the prosecution case. And I start with what I will call the large truck. This is the item which is graphically shown in a photograph which became exhibit 10.2. I'm satisfied on the evidence of Mr Bransby that he operates this vehicle in connection with a business of Smash It Demolition & Earthworks Pty Ltd, of which he is the sole director, and I'm satisfied on his evidence that, except when the truck is away from the property for the purpose of that business, it was convenient for him to park it on the property and he did so. I'm satisfied on the evidence of council officers, primarily photographs that they took – the council officers were Mr Hudson and Ms Robinson – that that large truck was parked on the property on the following dates – and – namely, Wednesday, 4 January 2017; Monday, 24 April 2017; Tuesday, 9 May 2017; Wednesday, 10 May 2017; Sunday, 27 August 2017 – there's an overhead photo relevant there – Friday, 20 October 2017 – again, there's an overhead photo – Sunday, 3 October 2017 – that's a Sunday; there's an overhead photo – Friday the 19th – sorry, Tuesday, 19 December 2017 – there's an overhead photo – Friday, 6 April 2018; and Monday, 9 April 2018.
The inference to be drawn, from the whole of the evidence which I've summarised, Mr Bransby's evidence and the council officers' photographs, is as follows: I'm satisfied beyond reasonable doubt that the large truck is a commercial vehicle as defined in schedule 1 of the scheme. I'm satisfied that on each 24 hour period of what I will refer to as the charge period – that is, commencing 24 April last year up until the trial date – the vehicle remained on the property for more than one hour.
That is, the vehicle was parked on each of those days. And I'm satisfied that it was Mr Bransby who was the person who parked the vehicle. Parking of commercial vehicles in a special residential zone is not permitted by clause 4.23.1. And unless there's a legal excuse, I can be satisfied that Mr Bransby carried out a development, in the sense that he used the property in the form of parking the vehicle. And unless there's a legal excuse, I'm satisfied of the elements, and Mr Bransby will be convicted in relation to the development offence.
Again, I can be satisfied that each of them did not remove – or did not cease the commercial vehicle parking of the large truck during the charge period. So that with respect to the development offence, I can be satisfied that each of them committed that offence, unless there's a legal excuse that applies. Mr and Ms Bransby raise two matters to answer the charge in relation to the large truck. Firstly, they rely upon the provision of the scheme that allow the parking of one commercial vehicle in a special residential zone. That's clause 4.23.3, and I will come to that shortly.
On the diagram, I've marked, in the letter A, an entrance to a driveway, and the driveway I've shown with dotted lines on either side of what I will refer to as the Decora Court driveway, and that heads east from Decora Court in the direction of a building that I've marked as a workshop. The photographic evidence shows that the large truck was parked in the middle of the Decora driveway, adjacent to the sea container, on 4 January 2017, 27 August 2017, 20 October 2017, 3 December 2017, 19 December 2017 and 11 February 2018.
The photographic evidence also shows that the large truck was parked on what I will refer to as the Kentia Loop driveway. On the diagram that I've prepared, I've marked in a letter B the entrance to another driveway. That's a driveway which extends south from B, the entrance to the driveway, along the dotted lines. The truck is shown to be parked in that driveway on 24 April 2017. The truck and the location that I've indicated, on the dates that I've indicated, was clearly visible to any person standing at a point A or at a point B.
It was visible from a point beyond the boundary. There was no artificial or natural screening of those driveways. I cannot be satisfied on the balance of probabilities that the vehicle was not readily visible from a point beyond the boundary. The issue is not, as Mr and Ms Bransby argue, whether or not the truck was visible from Kentia Loop, but rather, the ordinary words of the scheme provide that the commercial vehicle must not be visible from beyond the property boundaries.
And from each of point B, when the truck was parked on the Kentia Loop driveway, and from point A, when the truck was parked, as it mostly was, on the Decora Court driveway, it was clearly visible. The result is, with respect to large truck, the prosecution has satisfied me of the elements of the development offence and the written notice offence in relation to Mr Bransby. …[22]

Was the vehicle readily visible from beyond the property boundaries?

[22] ts 4 ‑ 7 (04/05/2018).

His Honour found that he was 'not satisfied on the balance of probabilities' that the appellant had satisfied cl 4.23.3(b) of the Scheme, which requires that commercial 'vehicle(s) … not be readily visible from beyond the property boundaries … with adequate screening or alternatively parked within a garage'.[23]
[23] ts 6 (04/05/2018).
Mr Bransby contends that the Magistrate erred in law and fact by failing to appropriately consider the meaning of the term 'adequate screening' and failed to give proper weight to the City's own internal records which showed that the sea container at the Wanneroo Property provided adequate screening for the large truck.[24]
[24] Appellant's Submissions [14.3].
Mr Bransby submitted that:
[A]s the term 'adequate screening' is not defined in the Scheme, the ordinary meaning of the words should be applied. The legal dictionary's definition of the phrase 'readily visible' means an 'object that stands out as a prominent feature'.
As such, the City of Wanneroo failed to establish that the large truck, and the Small Vehicles, were not readily visible from beyond the Wanneroo Property's boundaries, in that the evidence did not prove that the large truck and the Small Vehicles stood out as a 'prominent feature on the land'.[25]
[25] Appellant's Submissions [56] ‑ [57].
The Macquarie Dictionary defines 'readily' as 'promptly, quickly; easily'. The Oxford English Dictionary defines 'readily' as '[q]uickly, without delay … without difficulty, easily.'
The term 'readily visible' must be considered in the context of the Scheme. The relevant part of the Scheme concerns the parking of vehicles on property. Seen in that context, the question of whether the vehicle is readily visible simply means can the vehicle be seen 'quickly and easily'. The photographic evidence and the evidence of the City's officers makes it clear that the vehicles were 'readily visible' from beyond the property boundaries. There is no evidence of screening, let alone adequate screening.

The number of days on which the vehicle was parked

Mr Bransby specifically raised whether an inference could be drawn from the number of days the vehicle was parked, both in his closing at trial and on appeal. His Honour held that, on the basis of all the evidence before him, he was satisfied beyond reasonable doubt that the large truck was parked on each day of the charge period, that is, from 24 April 2017 until the trial on 11 April 2018. This period equates to a total of 350 days.
It is not clear to me from his Honour's reasons how he drew the conclusion that the large truck was parked for the entirety of the 350 days.
The City's submissions did not identify any relevant admissions by Mr Bransby indicating that the large truck was parked on the property for more than 10 days.

Mr Bransby's evidence was that he had built up a load and had brought the bobcat and truck to the property to transport it away.[26]
[26] ts 39 (13/04/2018).
In relation to the bobcat, excavator and grey trailer (the Small Vehicles), his Honour found that they were present on the Wanneroo Property only on those days in which they were photographed by the City's officers. On this basis, his Honour was satisfied that:[27]
1.the bobcat was parked for four days over a period from 9 May 2017 to 9 April 2018;
2.the excavator was parked for four days over a period from 9 May 2017 to 19 December 2017; and
3.the grey trailer was parked for three days over a period from 24 April 2017 to 10 May 2017.
[27] ts 9 ‑ 10 (04/05/2018).
Further, his Honour made findings that each of the Small Vehicles waswere also parked on the Wanneroo Property on each Sunday during the charge period.[28] However, his Honour did not make findings in relation to the large truck being parked on Sundays.
[28] ts 10 (04/05/2018).
Yet, when it came to the large truck, his Honour readily drew the inference that it was parked on the Wanneroo Property over the entire charge period. Although his Honour arrived at this conclusion on the basis of the 'whole of the evidence', it seems that it was primarily based on the photographs taken by the City's officers on 10 days over an approximate 16‑month period.[29]
[29] ts 4 (04/05/2018).
The 10 days specifically identified by his Honour are a relatively small number of days in the context of the number of days overall, that is 350 days. If the number of specific days were a substantial majority of the number of days overall, it might be possible to infer that the vehicle were parked there every day, but that is certainly not the case.
The City essentially relied on the court drawing an inference from the presence of the large truck on 10 days over 16 months that it was present on the Wanneroo Property for 350 days.
Notably, his Honour was not prepared to draw an inference from the photographs of the Small Vehicles taken over four days that they were present on the Wanneroo Property for 350 days.[30]
[30] ts 10 (04/05/2018).
Mr Bransby gave evidence that he used the Small Vehicles in connection with his business. He also gave evidence that he usually parked them at the worksite, that is, where he was undertaking demolition,[31] or at a factory at an address on Gibberd Road, Balcatta. His Honour accepted Mr Bransby's evidence as to how he used the Small Vehicles.[32]
[31] ts 52 ‑ 53 (13/04/2018).
[32] ts 8 (04/05/2018).
However, his Honour implicitly rejected Mr Bransby's evidence as to when the large truck was parked on the Wanneroo Property in that he found that the truck was parked there for 350 days. Yet, he did not expressly reject Mr Bransby's evidence.
In order to establish beyond reasonable doubt that the vehicles were parked on the Wanneroo Property for the entire charge period, the City could have sent an officer every day to photograph the vehicles or keep a record. Alternatively, the City could have obtained admissions from Mr Bransby in cross‑examination.
While it was not necessary for the City to have photographic or some other evidence from each and every day of the 350‑day period, it required more evidence than photographs taken on 10 days over 16 months. The City officers did not give evidence beyond the specific days identified by his Honour. Therefore, in order to establish that the vehicles were present every day during the charge period, the City's case required admissions from Mr Bransby. As stated, the City's submissions do not identify any relevant admissions from Mr Bransby. Mrs Bransby did not give evidence.
I am not persuaded that one can infer beyond reasonable doubt that the large truck was parked on the Wanneroo Property on each and every day between 24 April 2017 and 11 April 2018.
His Honour erred in fact in making that finding.
Leave to appeal is granted in relation to Ground 3. The effect is that the conviction should be set aside in relation to the 350 days and Mr Bransby should be convicted of breaching s 218(b) of the PD Act only on the basis of the specified days set out by his Honour, that is a total of 10 days. Obviously, this has significant implications for the penalty.

Ground 4

Ground 4 states 'the Magistrate failed to give proper weight to the evidence that the appellant had the appropriate building permits and had incessantly sought the City's direction for undertaking any activity'.[33]
[33] Appellant's Submissions [14.4].
Mr Bransby did not press the matter relating to the oral advice from the City, in light of the decision in Ostrowski v Palmer.[34]
[34] Ostrowski v Palmer [2004] HCA 30; 218 CLR 493.
At trial, the City submitted that Mr Bransby's building permits (the Permits):
1.did not permit him to carry out commercial vehicle parking on the Wanneroo Property; and
2.did not change the use of the land and that the defence of 'lawful use' would only apply where there was approval from the City to use the land for a particular business.[35]
[35] Appellant's Submissions [60].
Clause 4.23.1 of the Scheme provides that the provisions of cl 4.23 do not apply 'when the commercial vehicle parking is in association with or incidental to a commercial use which has been approved by the Council or a use that is otherwise lawfully being undertaken'.
Schedule 1 of the Scheme defines 'incidental use' as a 'use of premises which is ancillary and subordinate to the predominant use'.
Mr Bransby submitted that the Permits authorised him to undertake significant construction works on the Wanneroo Property and that the parking of the large truck and Small Vehicles on the Wanneroo Property was an incidental use to the predominant use, for which he had approval from the City.[36]
[36] Appellant's Submissions [63].
Based on the evidence at trial, his Honour found that:
1.the large truck was not used in association with or incidentally to the construction works on the Wanneroo Property; and
2.the Small Vehicles were being used in accordance with the Permits, however were parked on the Wanneroo Property on:
(a)the days on which photographs were taken by the City's officers; and
(b)every Sunday of the charge periodCharge Period by virtue of the appellant's own evidence given at trial that he did not work on Sundays.[37]
[37] Appellant's Submissions [64].
Mr Bransby submitted notes that the large truck was required to move the bobcat and excavator and was incidental to the construction works. There was no evidence as to how often it was necessary to move the bobcat and excavator. To the extent that the large truck was used to move the excavator and bobcat to and from site, one would expect that the truck was only there to drop off and pick up the equipment. In which case, there would be no reason for it to be there for any extended period for the purposes of construction works.
Further, cl 4.23.8 of the Scheme provides:
A vehicle shall be considered to be parked on a lot for the purpose of this clause if it remains on that lot for more than one hour in aggregate over any period of 24 hours unless the vehicle has been used bona fide in connection with ongoing construction work legally being carried out at the lot, the burden of proving which shall lie upon the person asserting it.
Mr Bransby submitted that as the large truck and Small Vehicles were used in connection with ongoing construction work legally being carried out on the Wanneroo Property, that is, pursuant to the Permits those vehicles were not parked on the Wanneroo Property for the charge period.[38]
[38] Appellant's Submissions [67].
The onus was on Mr Bransby to establish on the balance of probabilities that the large truck was being used in connection with on‑going construction work. His Honour found that Mr Bransby had not satisfied him on the balance of probabilities that the large truck was being used in connection with ongoing construction work being carried out on the Wanneroo Property. That finding was open to his Honour.

Ground 5

Ground 5 states 'the penalties imposed were manifestly unjust, oppressive and excessive'.[39]
[39] Appellant's Submissions [14.5].
Given the findings I have made with respect to Ground 3, the penalties should be set aside and Mr Bransby re‑sentenced.
The factual error is material to the exercise of the sentencing discretion.[40] The penalty for 10 days will be very different to that for 350 days.
[40] Harding v The State of Western Australia [2015] WASCA 27 [36] ‑ [40], [73] ‑ [74]); Roberts v The State of Western Australia [2014] WASCA 239 [48]; Rowsell v The State of Western Australia [2015] WASCA 2.
The principles to be applied are set out at s 6 of the Sentencing Act 1995 (WA):
(1)A sentence imposed on an offender must be commensurate with the seriousness of the offence.
(2)The seriousness of an offence must be determined by taking into account –
(a)the statutory penalty for the offence; and
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
(c)any aggravating factors; and
(d)any mitigating factors.
Section 53 of the Sentencing Act provides:
(1)Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account –
(a)the means of the offender; and
(b)the extent to which payment of the fine will burden the offender.
(2)A court may fine an offender even though it has been unable to find out about the matters in subsection (1).
(3)A court must not fine an offender if satisfied that after paying compensation to the victim in accordance with a compensation order under Part 16, the offender will be unable to pay the fine within a reasonable time.
Section 54 provides:
(1)A court sentencing an offender for 2 or more offences that –
(a)are founded on the same facts; or
(b)form, or are part of, a series of offences of the same or a similar kind,
may impose a single fine for all of the offences.
(2)A fine imposed under subsection (1) must not be more than the sum of the fines provided by the statutory penalties for each of the offences.
(3)If a fine is imposed under subsection (1) and on appeal a conviction for one of the offences (or more than one) is quashed, the appeal court may substitute a fine of another amount for the fine imposed.
Section 223 of the PD Act provides:
Unless otherwise provided, a person who commits an offence under this Act is liable to a fine of $200,000 and, in the case of a continuing offence, a further fine of $25,000 for each day during which the offence continues.
In Swan Bay Holdings Pty Ltd v City of Cockburn[41] Hasluck J stated at [74]:
Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose. This requires that breaches of the law be underpinned by significant penalties in order to deter infringements.
[41] Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81.
Section 218 of the PD Act covers a wide range of offending behaviour.
The City submitted that in determining the seriousness of the offending, the following factors are of relevance:[42]
(a)the nature of the breach and whether it was inadvertent or blatant and pre‑meditated;[43]
(b)any steps taken by the landowner to rectify any breach;
(c)whether the breach was reversible and the distinction between use and development. Construction or permanent alteration may be of relevance but as observed by Fiannaca J in Caruso v Shire of Margaret River,[44] breaches involving construction will not always be more serious than those involving the use of land;[45]
(d)the scale of breach;[46] and
(e)the extent of any commercial benefit.[47] In Oztran Aust Pty Ltd v Town of Port Hedland,[48] Banks Smith J stated at [22]:
At their highest, the authorities make clear that commercial benefit is a factor to be taken into account in assessing the seriousness of the offence, the circumstances of the offence and any aggravating factors. It is also appropriate that the level of any fine imposed be assessed bearing in mind the purpose in criminal sentencing of deterrence. The level of any fine should be such that it is not merely seen as a cost of doing business. It should be sufficiently high to deter repetition by the offender.
[42] Respondent's Submissions [42].
[43] Austrend Construction Pty Ltd v City of Swan [2017] WASC 67 [20].
[44] Caruso v Shire of Margaret River [2016] WASC 379 [134] ‑ [135].
[45] Austrend Construction Pty Ltd v City of Swan [23] ‑ [25].
[46] Austrend Construction Pty Ltd v City of Swan [25].
[47] Austrend Construction Pty Ltd v City of Swan [28].
[48] Oztran Aust Pty Ltd v Town of Port Hedland[2017] WASC 28.
I accept that these are relevant factors.
His Honour specifically found, on the balance of probabilities, that Mr Bransby was informed by the City before December 2015 that it was 'fine to park his truck adjacent to the sea container'.[49] Although Mr Bransby may have believed that he was complying with the PD Act initially, by 10 February 2017, when he was served with a written direction to remove the commercial vehicles, he must have been aware that he was breaching the PD Act.[50]
[49] ts 6 (04/05/2018).
[50] ts 6 (04/05/2018).
I have concluded that the breach was relatively minor. The offending took place on 10 days overall with 10 days in relation to the truck, four days in relation to the bobcat, five days in relation to the excavator and three days in relation to the grey trailer. The offending took place on 10 days over a period of about 16 months, that is, from 4 January 2017 to 9 April 2018. Although this demonstrates a degree of persistence, it is not even one day per month.
Although his Honour found that there was a commercial benefit to Mr Bransby parking on the Wanneroo Property, that finding was based on the inference that he parked there for 350 days. I do not see how there could be a commercial benefit in parking the vehicles for 10 days over 16 months.
I note his Honour's finding that the Small Vehicles were also parked on a Sunday on the basis of Mr Bransby's evidence that he had used them on the Saturday. However, in the absence of a finding that the Small Vehicles were used on a Saturday, it is not possible to conclude that the Small Vehicles were parked on a Sunday.
The breach was temporary in that it could be remedied by removing the vehicles from the Wanneroo Property. There was no element of permanence to it. It was easily reversible and indeed has been reversed.
In Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda,[51] an officer of the shire attended the property and took photographs. The inspection revealed that the property contained five commercial vehicles, trucks, seven trailers, one bobcat, 28 sealed drums of 205 litres each, a padlocked sea container and considerable damage to the surface of the road and verge. The inspection also revealed a significant workshop with various tools, equipment and car parts associated with the servicing of commercial vehicles.
[51] Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234.
The Magistrate found the appellant in breach of s 218 of the PD Act and issued a fine of $1,000 per day for 169 days. In dismissing the appeal, Commissioner Sleight described the conduct at [61]:
[A]s a largescale operation which was conducted on the land with a flagrant disregard for the need to seek approval. No remorse has been shown. In fact, the submissions presented on behalf of the appellant have sought to trivialise the nature of the offence. In my view, even though this was a first offence, in view of the flagrant nature of the offending behaviour, I am not satisfied that the penalties imposed were manifestly excessive.
When compared to the conduct in Pavlinovich, Mr Bransby's conduct was relatively minor. It was not a large scale operation and there was no commercial benefit.
It is also important to note that Mr Bransby has no previous offences.
Mr Bransby has prepared a schedule of assets and liabilities for him and Mrs Bransby.[52] Mr Bransby is presently involved in proceedings in the Family Court of Western Australia with Mrs Bransby in relation to a final property settlement and parenting matters.
[52] See 'JDB-01' of the Affidavit of Justin Dean Bransby affirmed on 28 October 2019.
Mr Bransby submits that his current means and the extent to which payment of the fine will burden him and Mrs Bransby should have been considered by the Magistrate in imposing the penalty.[53]
[53] Appellant's Submissions [80].
Mr Bransby's conduct essentially relates to illegal parking on 10 days. The Small Vehicles were also parked on four of those days. There is no evidence that Mr Bransby persistently failed to comply with the directions notice.
I have considered Mr Bransby's assets and liabilities.
It is appropriate to fix a global fine. I fix the fine at $3,500. If any party disagrees with my preliminary view, they should file written submissions within seven days of the date of judgment.
Mr Bransby has succeeded in his appeal in that the penalty has been reduced.
My preliminary view is that a no costs order should be made to the City and that the City should pay Mr Bransby's disbursements.

Orders

I make the following orders:
1.Leave to appeal is refused on Ground 1, Ground 2 and Ground 4.
2.Leave to appeal is granted on Ground 3 and Ground 5.
3.The penalty is set aside and in lieu thereof the penalty is fixed at $3,500.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Research Orderly to the Honourable Justice Curthoys
2 NOVEMBER 2020