City of Armadale v Hendry
[2014] WASCA 209
•10 NOVEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CITY OF ARMADALE -v- HENDRY [2014] WASCA 209
CORAM: MARTIN CJ
BUSS JA
MAZZA JA
HEARD: 18 AUGUST 2014
DELIVERED : 10 NOVEMBER 2014
FILE NO/S: CACR 236 of 2013
BETWEEN: CITY OF ARMADALE
Appellant
AND
JAMES ROBERT McINTYRE HENDRY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HALL J
Citation :CITY OF ARMADALE -v- HENDRY [2013] WASC 422
File No :SJA 1064 of 2013
Catchwords:
Criminal law - Appeal against acquittal - Alleged contraventions of a town planning scheme - Turns on own facts
Legislation:
City of Armadale Town Planning Scheme No 4, cl 8.1
Result:
Leave to appeal on grounds 1 and 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr G M G McIntyre SC & Ms A M Wood
Respondent: No appearance
Solicitors:
Appellant: Kott Gunning Lawyers
Respondent: No appearance
Case(s) referred to in judgment(s):
City of Armadale v Hendry [2013] WASC 422
MARTIN CJ: This application for leave to appeal and appeal should be dismissed for the reasons given by Buss JA, with which I agree.
BUSS JA: On 24 April 2013, the respondent was acquitted, after a trial in the Magistrates Court before Magistrate Flynn, on two charges in a prosecution notice dated 23 May 2012.
The charges alleged:
(a)on 26 May 2011, the respondent, who was the owner and occupier of 9 Baryna Street, Armadale (the Property), contravened the City of Armadale Town Planning Scheme No 4 (the Scheme) by carrying on a 'vehicle wrecking' use on the Property without approval as required by cl 8.1 of the Scheme (charge 1); and
(b)on 14 September 2011, and continuing from that date, the respondent, who was the owner and occupier of the Property, contravened the Scheme by carrying on a 'vehicle wrecking' use on the Property without approval as required by cl 8.1 of the Scheme (charge 2).
The appellant applied for leave to appeal to the Supreme Court against the magistrate's decision to acquit the respondent. Hall J refused leave and dismissed the appeal. See City of Armadale v Hendry [2013] WASC 422.
The appellant has now applied for leave to appeal to this court against Hall J's decision.
The relevant provisions of the Scheme
The relevant provisions of the Scheme are as follows.
Clause 4.1.1 provides that the Scheme area is classified into the zones shown on the Scheme Map. By cl 4.1.2, the zones are delineated and depicted on the Scheme Map according to the legend on the Scheme Map.
Clause 4.2.1 provides that the objectives of the 'Residential' zone are:
(a)to provide for a range of housing and a choice of residential densities to meet the needs of the variety of household types which make up the community;
(b)to provide for a range of associated compatible activities and development, which will assist in the creation of efficient and sustainable residential neighbourhoods; and
(c)to facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
Clause 4.3 is concerned with the zoning table set out at the end of pt 4 of the Scheme. Clause 4.3 reads, relevantly:
4.3.1.The Zoning Table indicates, subject to all the provisions of the Scheme, the uses permitted in the Scheme area in the various zones and the general zoning permissibility of any use is determined by cross reference between the list of use classes on the left hand side of the Zoning Table and the list of zones at the top of the Zoning Table.
4.3.2.The symbols used in the cross reference in the Zoning Table have the following meanings ‑
'P'means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme;
'D'means that the use is not permitted unless the City has exercised its discretion by granting planning approval;
'A'means that the use is not permitted unless the City has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4;
'X'means a use that is not permitted by the Scheme.
4.3.3.Except as otherwise provided for under the Scheme, a change in the use of land from one use to another is permitted if ‑
(a)the City has exercised its discretion by granting planning approval;
(b)the change is to a use which is designated with the symbol 'P' in the cross reference to that zone in the Zoning Table and the proposed use complies with all the relevant development standards and any requirements of the Scheme;
(c)the change is an extension of a use within the boundary of the lot which does not change the predominant use of the lot; or
(d)the change is to an incidental use that does not change the predominant use of the land.
Clause 4.4 is concerned with the interpretation of the zoning table. It provides, relevantly:
4.4.1.Where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.
4.4.2.If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the City may ‑
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
4.4.3.Where a person proposes to carry out more than one use on land, each individual use shall be required to meet the requirements of the Scheme.
4.4.4.Where a use is mentioned in the Zoning Table, it is deemed to include activities incidental to that use.
Clause 8.2 deals with permitted development. By cl 8.2(g):
Except as otherwise provided in the Scheme, for the purposes of the Scheme the following development does not require the planning approval of the City ‑
…
(g)any domestic recreation or social activity ancillary to the residential use of a site, including incidental development relating to such activity unless the development involves the exercise of discretion under the Scheme or Residential Design Codes, but excluding the construction of a tennis court involving the use of lighting for night games.
In the zoning table 'vehicle wrecking' is designated as a use that is not permitted by the Scheme in areas zoned 'Residential'.
Schedule 1 of the Scheme contains a dictionary of defined words and expressions.
By cl 1 of sch 1, in the Scheme, unless the context otherwise requires:
(a)'incidental use' means 'a use of premises which is ancillary and subordinate to the predominant use';
(b)'predominant use' means 'the primary use of premises to which all other uses carried out on the premises are subordinate, incidental or ancillary'; and
(c)'premises' means 'land or buildings'.
Clause 2 of sch 1 provides that, in the Scheme, unless the context otherwise requires, 'vehicle wrecking' means 'any land or buildings used for the breaking up, dismantling or storage of vehicles, and may include the sale of second‑hand parts and accessories'.
The magistrate's findings of fact
The magistrate made the following findings of fact:
(a)The respondent was born on 16 October 1986.
(b)The respondent commenced residing at the Property in late 2007 or early 2008 when he was 21.
(c)The respondent continued to reside at the Property up to the date of the trial.
(d)The respondent's father resided at the Property until he died in 2011 or 2012.
(e)The Property has a land area of about 800 sqm. It is rectangular in shape. The front yard is about 175 sqm. The rear yard, including a swimming pool and some buildings, is about 425 sqm. The house is less than 250 sqm and includes, within that area, a courtyard.
(f)As at 26 May 2011, there were five motor vehicles on the Property. They comprised a maroon Mitsubishi Magna owned by Peter Sulley (who was at the time the boyfriend of the respondent's sister); a green Ford Granada and two Ford Cortinas (owned by the respondent's father when he was alive and, after his death, by the respondent's mother); and a white Audi (owned by the respondent). All of the vehicles, except the Audi, were in various states of disrepair.
(g)As at 26 May 2011, the maroon Magna was in the front yard. It was missing a door, its bonnet, windscreens and some panels. No seats were attached to it. Some of the items missing from the Magna were scattered around the front yard. At all material times the vehicle was owned by Mr Sulley.
(h)Some time before 26 May 2011 Mr Sulley asked for, and the respondent gave him, permission to leave the Magna at the Property. When the Magna was left at the Property it was intact. Later, Mr Sulley commenced work on the vehicle. The respondent must have been aware that, at some stage, Mr Sulley had commenced dismantling the Magna. The respondent did nothing about it, but Mr Sulley did not request his permission to dismantle the vehicle. Although the respondent did not do anything about Mr Sulley's dismantling activities, he did not encourage him. On becoming aware that, some time after 26 May 2011, Mr Sulley had commenced selling parts of the Magna, the respondent instructed Mr Sulley to remove the vehicle from the Property.
(i)As at 26 May 2011, the green Granada was under the roof of the house in a room that appeared to be used as a carport. One side of the room was exposed. The vehicle appeared to be in the process of being restored. Part of the paintwork was in an excellent condition, but the bonnet had been removed and was sitting in the courtyard. A large part of the engine was missing and part of it was on the ground next to the vehicle.
(j)There was no evidence that, on 26 May 2011, the respondent did any work on the green Granada. However, at some point, either before or after 26 May 2011, he assisted his father, on his father's instructions, in restoring the vehicle. This occurred on a relatively few number of occasions. Most of the restorative work took place at another location. The respondent's involvement in restoring the green Granada was certainly less than 10 occasions and may have been as few as one or two.
(k)As at 26 May 2011, the two Ford Cortinas (one light blue and the other dark blue) were on the Property. Both were in a state of disrepair, especially the dark blue vehicle. It was missing wheels and the body was in very poor condition. The vehicles were located inside a fence along the western boundary of the Property. They were not visible from the street. The Ford Cortinas were owned by the respondent's father and, after the father's death, by the respondent's mother. There was no evidence that the respondent had done anything with respect to the vehicles other than, on occasions, push them to a more convenient location at the request or, perhaps, on behalf of his father or mother.
(l)As at 26 May 2011, the white Audi was in the front yard of the Property. It was in a reasonable state of repair. The respondent was regularly driving the vehicle.
(m)Between September 2011 and September 2012, there were six motor vehicles on the Property. They included the green Granada, the light blue Ford Cortina and the white Audi, all of which were present as at 26 May 2011. The ownership of those vehicles had not changed. The green Granada and the light blue Ford Cortina remained in a state of disrepair. The respondent had ceased using the white Audi because, by that time, it had a mechanical problem. The other three vehicles on the Property between September 2011 and September 2012 were a VC Commodore, a white Magna and a dark coloured Lancia. The VC Commodore and the white Magna were initially usable but had since developed mechanical and other problems.
(n)The green Granada and the light blue Cortina were on the Property at the commencement of the period applicable to charge 2, namely 14 September 2011. There was no change from the condition of the vehicles as at 26 May 2011. Similar activities to those conducted as at 26 May 2011 were carried on with respect to the vehicles throughout the period the subject of count 2 until the green Granada was removed from the Property at some point after 17 January 2012 and the light blue Cortina was removed at some point between February 2012 and 6 April 2012.
(o)The white Audi remained on the Property until it was towed away, on the respondent's instructions, on a date between February 2012 and April 2012.
(p)The VC Commodore was used by the respondent, for a relatively short period, as his main means of transport. However, between September 2011 and December 2011 the vehicle developed serious mechanical problems. It remained on the Property for the remainder of the period the subject of charge 2.
(q)The white Magna was a late model. There was some relatively minor damage to the rear of the vehicle. It was not fitted with licence plates. The respondent was in effect the owner of the vehicle. He acquired it from his sister at about the time of his father's death. The vehicle was not able to be driven because of its condition. It remained on the Property until it was removed between February 2012 and April 2012.
(r)In about January 2012, the respondent acquired the dark coloured Lancia. The precise condition of the Lancia was not the subject of detailed evidence. However, it was located on the Property between 8 January 2012 and the end of the period the subject of charge 2.
The magistrate's reasons for decision
At all material times, the Property was zoned 'Residential' under the Scheme.
The magistrate identified in his reasons two critical issues in the case. The first was whether the respondent's conduct in relation to the vehicles was incidental to a use permitted in a 'Residential' zone (ts 3). The second was whether the respondent's conduct in relation to the vehicles, if not incidental to a use permitted in a 'Residential' zone, was within the definition of 'vehicle wrecking'.
As to the first issue, his Honour said:
Clause 4.4.4 of the scheme, effectively provides that if the use of those vehicles was incidental to a permitted use, then [the respondent] must be acquitted. To a similar effect, clause 8.2 subclause (g) permits a domestic recreation or social activity ancillary to a residential use and if [the respondent's] conduct in relation to the vehicles can be characterised in that way, he must be acquitted. I will say now what my conclusion is at the end of the case in relation to those issues, really to aid the parties to follow my reasons. I have concluded that [the respondent's] conduct with respect to all of the vehicles, except in relation to Peter Sulley's maroon Mitsubishi Magna, falls within the definition of being incidental to a permitted use in a residential zone (ts 3 ‑ 4).
The magistrate's reasoning for concluding that the conduct with respect to all of the vehicles, except Mr Sulley's maroon Magna, was an 'incidental use' (as defined in cl 1 of sch 1 of the Scheme) to the permitted use of the Property under the 'Residential' zoning, was as follows:
(a)The use of the Property by the respondent in connection with the vehicles he owned (being the white Audi in the case of charges 1 and 2; the white Magna in the case of charge 2; the VC Commodore in the case of charge 2; and the dark coloured Lancia in the case of charge 2) was 'incidental to the permitted use of the Property as a dwelling house' and, also, was 'permitted as a domestic activity ancillary to the residential use' (ts 8).
(b)The respondent's vehicles suffered mechanical failures and collisions. This tended to occur serially rather than simultaneously (ts 8).
(c)The issue for his Honour was 'whether or not having regard to the fact and degree of [the respondent's] use of the Property, and having regard to the regularity and extent of his activities with respect to those vehicles, his use can be described as incidental to the use of the dwelling house' (ts 8).
(d)As to charge 1, the white Audi was the respondent's means of transport and that was 'clearly incidental' (ts 8). As to charge 2, notwithstanding that there were at various times four vehicles, two of which were the respondent's, 'the trend relevant to the question of fact and degree was downward'; that is, after April 2012 there were only two vehicles (ts 8). The respondent was 'taking steps to remove those vehicles over time, which had proved mechanically or for some other reason to be no longer usable' (ts 8).
(e)Most of the vehicles on the Property were behind a fence, either on the side of the Property or in the carport. The respondent 'was careful to avoid unlawful driving … of unlicensed vehicles' (ts 9). For the respondent to have had 'as many as four vehicles during the relatively brief period of January 2012 to April 2012, although marginal, [was in his Honour's view] incidental to [the use of] the dwelling house [on] the Property' (ts 9).
(f)As to the respondent's conduct in relation to the green Granada, the light blue Cortina and the dark blue Cortina, the respondent's father was restoring those vehicles and, in his Honour's assessment, that was 'a classic hobby that [the father] was conducting, which was incidental to the domestic use of the Property' (ts 9). The respondent's involvement 'can also be characterised in that way; [it was] an incidental use of a dwelling' (ts 9).
(g)Insofar as the respondent's mother retained a vehicle or vehicles on the Property, the 'incidental use of a property must also include, from time to time, the retaining of items, including goods, which are in effect inherited, in this case the vehicles, pending the disposition of those vehicles' (ts 9). After having regard to 'the number and the time frame', his Honour was satisfied that the respondent's mother's use 'by retaining the vehicles pending their disposition … was incidental', and the respondent's involvement, to the extent that he assisted his mother, was 'also incidental to the dwelling house' (ts 9).
(h)It followed that, with respect to all of the vehicles except the maroon Magna, the respondent's use of the Property 'was also incidental to the dwelling house use' (ts 9).
(i)As to charge 1, Mr Sulley dismantled the maroon Magna and 'the parts [were] spread over the front yard' (ts 9). His Honour decided that, '[h]aving regard to the spread of the parts over the front yard … the use of the Property by Mr Sulley was not incidental to a dwelling house use; there were too many parts over too wide an area to be characterised in that way' (ts 9).
(j)If, contrary his finding, Mr Sulley's activities with respect to the maroon Magna were incidental to the residential use of the Property, then the storage on the Property of the items removed from the Magna would constitute 'vehicle wrecking' (even though there was 'no actual dismantling taking place on 26 May [2011]'), and charge 1 would have been proved 'with respect to the storage aspect' (ts 11 ‑ 12).
As to the second issue, his Honour said:
On the second issue, I have concluded that Peter Sulley's conduct, with respect to charge number 1, falls within the definition of vehicle wrecking as dismantling and storage. However, the prosecution has failed to prove that [the respondent] aided Mr Sulley in the dismantling or storage and has failed to prove that he did an act for the purpose of aiding Mr Sulley in the dismantling and the storage. The result is that [the respondent] will not be convicted as an accessory. The result will be at the end of my reasons that [the respondent] will be acquitted of the charges, both charge 1 and charge 2 (ts 4).
The magistrate's reasoning for concluding that, although Mr Sulley's conduct with respect to charge 1 fell within the definition of 'vehicle wrecking' in that it involved dismantling and storage, the appellant had failed to prove that the respondent had done an act for the purpose of aiding Mr Sulley to dismantle and store parts from the maroon Magna as at 26 May 2011, was as follows:
(a)The respondent's conduct in granting permission to Mr Sulley 'to leave an intact vehicle at the front of [the] Property, and then [the respondent's] conduct in doing nothing, whilst Mr Sulley engaged in the … dismantling and storing' was not 'aiding' within s 7 of the Criminal Code (WA) (ts 10).
(b)The fact that the respondent must have been aware of Mr Sulley's conduct in 'dismantling and storing is not sufficient at law for him to have … aided Mr Sulley' (ts 10).
The magistrate also said, in relation to the definition of 'vehicle wrecking' in cl 2 of sch 1 of the Scheme, that the reference in the definition to 'storage' is 'to a storage of those vehicles which are being broken up, or which are being dismantled on the land' (ts 11). His Honour's view was that the phrase 'storage of vehicles' in the definition was 'qualified by the words breaking up and dismantling' (ts 11). His Honour gave reasons in support of his view but it is unnecessary to reproduce them.
The magistrate held, on the basis of his construction of the phrase 'storage of vehicles' in the definition of 'vehicle wrecking', that the use of the Property at material times for the storage of vehicles (other than the maroon Magna) and the activities carried on with respect to those vehicles did not constitute 'vehicle wrecking', as defined. All of the vehicles (other than the maroon Magna) were being stored on the Property either because restoration work was being carried out on them or because they had suffered mechanical failures or were otherwise in need of repair. None of them had been broken up or dismantled within the meaning of those expressions in the definition of 'vehicle wrecking'.
The magistrate therefore acquitted the respondent on charge 1 and charge 2.
The appeal before the primary judge
The appellant relied on three grounds of appeal before the primary judge, which read:
1.That His Honour erred at law by finding that [the respondent] did not aid or abet the vehicle wrecking taking place at the premises in relation to the vehicle owned by Mr Sulley being a maroon Magna (See the definition of vehicle wrecking at page 100 of the City of Armadale Town Planning Scheme No 4 ('The Scheme'));
2.That His Honour erred at law by finding that [the respondent's] use of the property for vehicle wrecking in respect of the Green Granada and two Ford Cortinas was incidental to the permitted use of Dwelling House and fall [sic] within the use of Domestic Recreation, notwithstanding the prohibition of the use of vehicle wrecking in the Zoning Table for residentially zoned areas.
3.That His Honour erred by taking into account for the purposes of whether to convict or not, whether a vehicle which was alleged to be part of a charge of vehicle wrecking, could be seen from the road.
The primary judge held that ground 1 was not reasonably arguable and leave to appeal in respect of it should be refused. His Honour said:
(a)The appellant's case at trial in relation to the maroon Magna was that the respondent had aided Mr Sulley in dismantling the vehicle by permitting him to leave the vehicle on the Property and not requiring him to remove it when it became obvious that Mr Sulley was dismantling the vehicle [40].
(b)The magistrate concluded that although this activity was not incidental to the residential use of the Property, the respondent did not aid Mr Sulley merely by being aware that Mr Sulley was dismantling the maroon Magna and doing nothing to stop it [40].
(c)It was doubtful that Mr Sulley could properly be characterised as a principal offender. The obligation to comply with the Scheme is imposed primarily on those who own or occupy land. Mr Sulley was not an owner or occupier of the Property but merely an invitee. The real question 'was not whether the respondent aided Mr Sulley but whether the respondent breached the Scheme by either himself wrecking vehicles or permitting others to do so on land that he owned' [41].
(d)Ground 1 as formulated was misconceived:
Properly understood, the liability of the respondent never depended upon him being an aider to Mr Sulley's activities. Accordingly, whether or not his Honour made an error of law in regard to what was necessary for the respondent to be liable as an aider pursuant to s 7 of the Criminal Code was immaterial. Whether or not, if the case had been presented differently by the prosecution, his Honour would have found that the respondent was liable for the vehicle wrecking undertaken by Mr Sulley because he had permitted it to occur cannot be known. It would not be appropriate to allow this appeal on some basis other than that advanced at the hearing and on appeal [44].
The primary judge held that ground 2 had no reasonable prospect of success and leave to appeal in respect of it should be refused. His Honour said:
(a)The appellant did not dispute the magistrate's characterisation of most of the respondent's conduct 'as incidental to residential use of the [Property]' [46].
(b)The appellant's submission was that the conduct in question was not incidental 'but, rather, that only certain activities are permitted under the incidental exception in clause 4.4.4 of the Scheme' [46]. It was argued that 'activities incidental to a permitted use cannot include uses which are specifically prohibited' [47]. On this argument, vehicle wrecking is never permissible even if it is incidental to the residential use of premises [47].
(c)The submission should be rejected:
The Scheme is concerned with uses of land, not with all human activity. Whether land is used in a particular way must always be a question of fact and degree. Not all human activity however brief, transient or superficial will constitute a use of the land on which it occurs. A clear distinction is drawn between 'activities' and 'uses'. The exception for incidental 'activities' supports this distinction. The exception recognises that the use categories will not always have precise boundaries. Some activities may not obviously be included under a particular use as defined but will be so clearly incidental to that use that it would defy common sense to suggest that it is not within the ambit of the permitted use. The Scheme is prescriptive but it is also intended to be practical [48].
(d)The appellant advanced an additional submission, namely that 'incidental activities could only include those activities that would be permitted under some other category of the zoning table and not those that were expressly prohibited' [49].
(e)The additional submission should be rejected:
[The additional submission] conflates 'activities' and 'uses'. Furthermore, if correct it would raise a question as to the purpose of the incidental exception. Activities that would otherwise fall under a permitted use would obviously be permitted whether they were incidental or not. If the incidental exception has any purpose it must be to permit activities that might, if they were not merely incidental, be prohibited. This is illustrated by looking at other use classes in the zoning table. Amongst the prohibited uses in a residential zone is 'motor vehicle repair'. This term is defined in sch 1 to mean:
Premises used for or in connection with:
(a)electrical and mechanical repairs, or overhauls to vehicles; or
(b)repairs to tyres;
but does not include premises used for recapping or re-treading of tyres, panel beating, spray painting or chassis reshaping.
The appellant submitted that the owner of residential premises could never lawfully repair their own vehicle as such a use was prohibited and in those circumstances could not fall within an incidental activity. This would include, apparently, changing a flat tyre. The same would apply to car parking and storage, both of which are also prohibited in a residential area. The absurdity of this result weighs strongly against the appellant's argument [49] ‑ [50].
(f)The appellant advanced a further submission, namely that 'if incidental activities could include land uses which are specifically prohibited under the zoning table this would be contrary to the purpose and object of the Scheme' [51].
(g)The further submission should be rejected:
Whether or not an activity would be incompatible with these objectives would largely depend not only upon the nature of that activity but on the size and frequency of it. If a prohibited activity occurred with sufficient frequency and was of sufficient size that it could be properly designated as a use of the land then it would be prohibited under the zoning table. However, if it was an infrequent activity and clearly related to the permitted use of the land as a dwelling then it is difficult to see why that would be inconsistent with the object of the residential zone. If activities are truly incidental to use of the land for residential purposes then they must be 'associated compatible activities'. To suggest that some activities which are properly incidental to residential use are prohibited because if they became a use in their own right they would be prohibited is to read into the Scheme a level of management of human conduct that it does not purport to cover. As I have noted earlier, the Scheme is concerned with uses of land, not with regulating all human activity that could not properly be described as a use [53].
(h)The magistrate's approach to the question was correct in that:
[I]f an activity is incidental to a permitted use then it is deemed to be included in that permitted use pursuant to cl 4.4.4 of the Scheme. Whether an activity is truly incidental to a permitted use or has itself become a separate and distinct use is a question of fact and degree. The fact that an activity might be prohibited if it was sufficiently significant to constitute a use is immaterial [60].
(i)The magistrate's findings of fact were not challenged. In particular:
[The magistrate's] findings that the activities of the respondent were not of sufficient duration or significance to constitute a separate use of the land and that they were incidental to the use of the land as a dwelling house were not the subject of challenge. What was the subject of challenge was whether an owner or occupier of land could dismantle or store a car as an activity incidental to use of the land for a dwelling house. This ground of appeal has no reasonable prospect of success and leave in respect of it is refused [60].
The primary judge held that ground 3 was without merit and leave to appeal in respect of it should be refused. His Honour said:
(a)The appellant submitted that the magistrate erred by taking into account whether vehicles could be seen from the road when deciding whether the charges had been proved [61].
(b)It was not an element of the offences that the use be capable of being observed from the street [62].
(c)The magistrate did not, however, make the alleged error. The magistrate, in the course of reciting the material facts, mentioned that some of the vehicles were located behind a fence. The magistrate was merely referring to the surrounding circumstances. It explained why the precise condition of some of the vehicles at particular times was difficult to ascertain [62].
(d)The magistrate did not acquit the respondent on the basis that some of the vehicles could not be seen from the road [62].
Accordingly, the primary judge refused leave to appeal on all grounds. The appeal was therefore taken to have been dismissed. See s 9 of the Criminal Appeals Act 2004 (WA).
The appellant's grounds of appeal before this court
The appellant relies on three grounds in its appeal from the primary judge's decision.
The grounds read:
1.That the learned Justice erred in law by finding that the use of the land occupied by the Respondent, and zoned for residential use, to break up, dismantle or store the vehicle, being a maroon coloured Magna belonging to Mr Sulley was a use within the use permitted by the City of Armadale Town Planning Scheme No 4.
2.That the learned Justice erred in law in finding that the use of the land for activities by Mr Sulley which constituted 'vehicle wrecking', as defined by the City of Armadale Town Planning Scheme No 4, Schedule 1, was an activity incidental to the use of land zoned for residential use, within the terms of clause 4.4.4 of the City of Armadale Town Planning Scheme No 4.
3.That the learned Justice erred in law by finding that the use of the land occupied by the Respondent, and zoned for residential use, for the activity of breaking up, dismantling and storing several vehicles ‑
(i)on 26 May 2011; and/or
(ii)during the period from 14 September 2011 and 25 September 2012
was a use within the uses permitted by the City of Armadale Town Planning Scheme No 4 for that land.
PARTICULARS
(a)The learned Justice erred in law by finding that the use of the land occupied by the Respondent, and zoned for residential use, for the activity of breaking up, dismantling and storing several vehicles was a use incidental to the residential use permitted by the City of Armadale Town Planning Scheme No 4 for that land;
(b)The learned Justice erred in law by finding that the activity of breaking up, dismantling and storing several vehicles on the land was not inconsistent with the residential use of the land;
(c)The learned Justice erred in law by finding that the use of the land occupied by the Respondent, and zoned for residential use, for the activity of breaking up, dismantling and storing several vehicles was not a use prohibited by the City of Armadale Town Planning Scheme No 4 for that land;
(d)The learned Justice erred in law by finding that the activity of breaking up, dismantling and storing several vehicles on the land was not inconsistent with the prohibition on vehicle wrecking in the residential zone in the City of Armadale Town Planning Scheme No 4;
(e)The learned Justice erred in concluding that the fact that an activity might be prohibited if it is sufficiently significant to constitute a use is immaterial to a determination of whether an activity is truly incidental to a permitted use.
On 3 March 2014, Mazza JA granted leave to appeal on ground 3 and referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.
A feature of the grounds of appeal
A feature of the grounds of appeal is that the appellant, consistent with its stance in the appeal before the primary judge, does not challenge any of the findings of fact made by the magistrate.
The merits of ground of appeal 1
Ground 1 alleges that the primary judge erred in law by finding that the use of the Property 'to break up, dismantle or store' the maroon Magna owned by Mr Sulley was a use permitted under the Scheme.
Ground 1 does not accurately state the basis on which the primary judge disposed of the appeal before him. Also, it ignores relevant findings by the magistrate.
In my opinion, ground 1 has no reasonable prospect of success.
First, ground 1, which relates to charge 1, is concerned solely with the maroon Magna owned by Mr Sulley.
Secondly, charge 1 alleged that, on 26 May 2011, the respondent, as the owner and occupier of the Property, contravened the Scheme by carrying on a 'vehicle wrecking' use on the Property without the requisite approval.
Thirdly, the appellant conducted the prosecution before the magistrate on the basis that the critical questions in relation to the maroon Magna were whether Mr Sulley's activities on the Property with the vehicle involved 'vehicle wrecking'; and, if so, whether those activities constituted a use of the Property by Mr Sulley that was unlawful under the Scheme; and, if so, whether the respondent aided and abetted Mr Sulley's unlawful use of the Property.
Fourthly, the appellant's approach was fundamentally misconceived. Mr Sulley was never the owner or occupier of the Property.
Fifthly, the critical questions, as a matter of law, in relation to the maroon Magna were whether Mr Sulley's activities on the Property with the vehicle involved 'vehicle wrecking'; and, if so, whether those activities constituted a use of the Property that was unlawful under the Scheme; and, if so, whether the respondent, as the owner and occupier of the Property, knew of and consented to that unlawful use of the Property.
Sixthly, the magistrate found that:
(a)the appellant had 'failed to prove that [the respondent] did an act for the purpose of aiding Mr Sulley in the dismantling and the storage' of the maroon Magna (ts 4); and
(b)the mere fact the respondent must have been aware of Mr Sulley's conduct in 'dismantling and storing' the vehicle was not sufficient at law for him to have aided Mr Sulley.
Seventhly, the appellant has not challenged before this court, and did not challenge before the primary judge, the magistrate's finding that the appellant had failed to prove that the respondent did an act for the purpose of aiding Mr Sulley.
Eighthly, as the primary judge stated in essence in his reasons, it would not be just, in the circumstances, to permit the appellant, on appeal, to argue its case in relation to the maroon Magna in a manner that is materially different from the fundamentally misconceived approach it adopted in the prosecution of the respondent at trial.
I would refuse leave to appeal on ground 1.
The merits of ground of appeal 2
Ground 2 alleges that the primary judge erred in law in finding that the use of the Property by Mr Sulley to break up, dismantle or store the maroon Magna owned by him was incidental to the residential use of the Property.
Ground 2 does not accurately state the basis on which the primary judge disposed of the appeal before him. Also, it ignores relevant findings by the magistrate.
In my opinion, ground 2 has no reasonable prospect of success.
The magistrate found that Mr Sulley's activities in relation to the maroon Magna were not incidental to the residential use of the Property (ts 9).
However, his Honour went on to state that if, contrary to his view, Mr Sulley's activities were incidental to the residential use of the Property, then the storage on the Property of the items which had been removed from the Magna would constitute 'vehicle wrecking' (even though there was 'no actual dismantling taking place on 26 May [2011]'), and charge 1 would have been proved 'with respect to the storage aspect' (ts 11 ‑ 12).
The appellant's appeal against the primary judge's decision to dismiss the appeal from the magistrate's acquittal of the respondent on charge 1, in relation to Mr Sulley's activities with the maroon Magna, is hopeless unless the appellant establishes that the magistrate should have found that the respondent aided Mr Sulley. Generally for the reasons I have given in the context of ground 1, the appellant's argument on that point is without merit.
I would refuse leave to appeal on ground 2.
The merits of ground of appeal 3
Ground 3 alleges that the primary judge erred in law by finding that the use of the Property 'for the activity of breaking up, dismantling and storing' several vehicles on 26 May 2011 (in the case of charge 1) and between 14 September 2011 and 25 September 2012 (in the case of charge 2) was a use permitted under the Scheme.
In my opinion, ground 3 is without merit.
Ground 3 is predicated on the assumption that the Property was being used on the material dates for a purpose that was prohibited under the Scheme, namely 'vehicle wrecking', as defined in cl 2 of sch 1 of the Scheme.
However, whether the activities in question constituted a use of the Property that was not permitted, or was prohibited, under the Scheme turned on whether those activities could properly be characterised as an 'incidental use' (as defined in cl 1 of sch 1 of the Scheme) to the residential use of the Property.
The primary judge was correct, generally for the reasons he gave, in deciding that if an activity is incidental to a permitted use then, by cl 4.4.4 of the Scheme, the incidental activity is deemed to be included in that permitted use. Also, the primary judge was correct, generally for the reasons he gave, in holding that whether an activity is incidental to a permitted use is a question of fact and degree and involves an evaluation of, relevantly, the regularity and extent of the activity. Further, the primary judge was correct, generally for the reasons he gave, in deciding that, on a proper construction of the Scheme as a whole, the fact that under the Scheme an activity (for example, 'vehicle wrecking') is a prohibited use on land zoned 'Residential' does not derogate from the operation of cl 4.4.4. In other words, if a use that would otherwise be a prohibited use (for example, 'vehicle wrecking') is merely incidental to the residential use of land zoned 'Residential', the incidental use will not be unlawful.
The magistrate found that the use of the Property at material times for the storing of the vehicles (other than the maroon Magna) and the activities carried on with respect to those vehicles were incidental to the residential use of the Property. That finding of fact, and the subordinate findings underpinning that finding, are not challenged before this court and were not challenged before the primary judge. The failure to attack those findings is fatal to ground 3.
It is unnecessary to determine the correctness of the magistrate's view as to the proper construction of the phrase 'storage of vehicles' in the definition of 'vehicle wrecking'.
Conclusion
Neither ground 1 nor ground 2 has a reasonable prospect of success. Leave to appeal must be refused on those grounds. Ground 3 has not been made out. The appeal should be dismissed.
MAZZA JA: I agree with Buss JA.
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