City of Kalamunda v A.C.N. 605 729 995 Pty Ltd
[2020] WASC 341
•2 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CITY OF KALAMUNDA -v- A.C.N. 605 729 995 PTY LTD [2020] WASC 341
CORAM: CURTHOYS J
HEARD: 23 SEPTEMBER 2019
DELIVERED : 2 OCTOBER 2020
FILE NO/S: SJA 1005 of 2019
BETWEEN: CITY OF KALAMUNDA
Appellant
AND
A.C.N. 605 729 995 PTY LTD
First Respondent
JUDITH LINDA SAVAGE
Second Respondent
FREDERICK THOMAS SAVAGE
Third Respondent
FILE NO/S: SJA 1024 of 2019
BETWEEN: A.C.N 605 729 995 PTY LTD
JUDITH LINDA SAVAGE
FREDERICK THOMAS SAVAGE
Appellants
AND
CITY OF KALAMUNDA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S P SHARRATT
File Number : ACN 605 729 995 PTY LTD: MI 8667-8668 of 2016
JUDITH LINDA SAVAGE: MI 8669-8870 of 2016
FREDERICK THOMAS SAVAGE: MI 8871-8872 of 2016
Catchwords:
Development - Clearing of vegetation - Burden of proof - Bushfire - Order of a competent authority - Exception - Credibility - Incontrovertibly established by facts or glaringly improbable
Legislation:
Bush Fires Act 1954, s 31, s 33(1)
Criminal Appeals Act 2004 (WA), s 9
Criminal Code (WA), s 31
Criminal Procedure Act 2004 (WA), s 31, s 71
Planning and Development Act 2005, s 7, s 218, sch 7
Result:
Appeal dismissed
Category: B
Representation:
SJA 1005 of 2019
Counsel:
| Appellant | : | J L W Henderson |
| First Respondent | : | A G Elliott |
| Second Respondent | : | A G Elliott |
| Third Respondent | : | A G Elliott |
Solicitors:
| Appellant | : | Kott Gunning |
| First Respondent | : | Edwards Mac Scovell Legal |
| Second Respondent | : | Edwards Mac Scovell Legal |
| Third Respondent | : | Edwards Mac Scovell Legal |
SJA 1024 of 2019
Counsel:
| Appellants | : | A G Elliott |
| Respondent | : | J L W Henderson |
Solicitors:
| Appellants | : | Edwards Mac Scovell Legal |
| Respondent | : | Kott Gunning |
Case(s) referred to in decision(s):
Claude Neon Ltd v City of Perth [1983] WAR 147
Nationwide News Pty Limited v Rush [2020] FCAFC 115
NPK -v- The State of Western Australia [2020] WASCA 50
Samuels v The State of Western Australia [2005] WASCA 193; 30 WAR 473
Semple v Williams (1990) 156 LSJS 40
Shire of Murray v Ivo Nominees Pty Ltd [2020] WASCA 45
Washbourne v State Energy Commission (WA) (1992) 8 WAR 188
CURTHOYS J:
Introduction
The first respondent (the Company) is the registered proprietor of Lot 150, commonly known as 720 Welshpool Road East, Wattle Grove, Western Australia (the Property). Mr and Mrs Savage are directors of the Company.
When appropriate I have referred to the respondents collectively, i.e. Mr and Mrs Savage and the Company as the Savages.
The issue that arises in this appeal is whether the clearing of vegetation by the Savages was a development that required approval from the Shire (now City) of Kalamunda for the purposes of the Planning and Development Act 2005. I have referred to the appellant as the 'Shire' in these reasons because that was its status at the time of the events.
It was accepted in the court below, and on appeal, that clearing of vegetation occurred on the Property, in circumstances where the Shire had not given approval for that clearing to be undertaken.
The Charge
The Charge was as follows:
The First, Second, and Third Accused, prior to or on 28 January 2016 and continuing from that date, at 720 Welshpool Road East, Wattle Grove WA ('the Property'), did commence or carry out (or cause to commence or carry out) development on the Property (namely clearing) without obtaining the prior approval of the Shire of Kalamunda ('Shire') as is required by clause 8.1 of the Shire of Kalamunda Local Planning Scheme No. 3. This is an offence under section 218 of the Planning and Development Act 2005.
The Shire provided the following particulars of the Charge:
1.in respect of charge 1 of 2, the clearing that is said to have been done prior to or on 28 January 2016 is evident in the photographs dated 28 January 2016 (and aerial photographs);
2.…; and
3.in respect of both requests above, vegetation is alleged to have been cleared from the property in question. Please find attached aerial photographs which exist in the Shire of Kalamunda's business records in which the locations and extent of the clearing can clearly be seen.
(T4 24.4.17, e-mail 21.4.17)
The aerial photographs are exhibit 24.
In opening, counsel for the Shire asserted that the evidence would demonstrate extensive clearing of native vegetation on the land.[1] It was stated that:
Clearing occurred adjacent to an area burnt by bush - by wildfire, and several - piles of several large uprooted trees had been pushed up. Most of the trees were Marri in origin, and that there was no visible fire damage on many of the trees, and the earthmoving equipment was parked on the property. (Ibid)
[1] ts 6.
In the course of the hearing counsel for the Shire withdrew the issue of excavation/earthworks as a basis for conviction, saying:
WOOD, MS: The charge is for clearing, not earthworks. So if this is going to be a long, extended discussion about earthworks I'm not sure of the relevance, because the prosecution charge is actually in relation to clearing.[2]
[2] ts 100, 29 January 2018.
The Savages were acquitted of the Charge.
The Shire's approach to the prosecution appears to be that it simply needed to prove that an area of vegetation or the Property was cleared thus development in the relevant sense had occurred.
The Savages contended that there was no legal requirement to seek development approval for the clearing because the works were required under the Bush Fires Act 1954. This gives rise to the issue of authorisation or justification (s 31 of the Criminal Code).
The grounds of appeal
Six grounds of appeal were filed by the Shire. Only four were pursued at the hearing. Those grounds were:
1.The learned magistrate erred in law when he concluded that the removal of established trees by the accused was not development per se.
2.The learned magistrate erred in law in finding that the burden of proof with respect to the health and condition of the cleared trees prior to the date of their clearance lay with the prosecution.
3.The learned magistrate erred in fact or law or both in finding that all of the second accused's actions were aspects of maintenance.
4.The learned magistrate erred in fact in finding that the evidence of the third accused was entirely consistent with his emails to the Shire of Kalamunda.
Grounds 2 and 6 were abandoned.
Leave to appeal
Section 9 of the Criminal Appeals Act 2004 (WA) provides that the leave of the Supreme Court is required for each ground of appeal. Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of success.
The Shire submitted that in Samuels v Western Australia[3] their Honours suggested that a ground of appeal on a point on which the law is unclear and in a state of development, and where the ground might succeed if the point were accepted, would be unlikely to be held to have no reasonable prospect of succeeding. The Shire submitted that ground 1 of the appeal falls into that category.
[3] Samuels v The State of Western Australia [2005] WASCA 193; 30 WAR 473 [59].
Background
The 'development' is alleged to have occurred on the Property.
The Company purchased the Property in late 2015. Settlement occurred on 20 January 2016.[4]
[4] ts 12.9 ‑ 13.1, 20 September 2018; exhibit 3.
The Property is a semirural property of 3.912 hectares. A house surrounded by gardens, planted trees, stables and sheds was at the front half of the Property. There was also a roadway running down the middle of the Property. At the back half of the Property, which had previously been cleared, there was a horse jumping ring and areas where vegetation had since regrown (see exhibit 32A and exhibit 32B).
The entire Property was fenced, although the evidence demonstrated that the fence lines did not always correspond with the boundary line, and that numerous introduced trees were growing on or about the fence and boundary lines at various locations across the Property.[5]
[5] ts 43 ‑ 45, 49 ‑ 50, 20 September 2018.
The December 2015 fire
Between the sale of the Property and settlement a bushfire burnt the adjacent Crown reserve, Hartfield Park, and a substantial area at the rear of the Property, including parts of the fence line. The fire burnt over two days - 21 and 22 December 2015.
It was obvious from the duration of the fire and from photographs of the fire damage that it was a severe fire
The Savages' statutory obligation in relation to bush fire risk
Lot 150 was subject to statutory obligations under the Bush Fires Act 1954.
Section 33(1) of Bush Fires Act 1954 relevantly provided:
(1)Subject to subsection (2) a local government at any time, and from time to time, may, and if so required by the Minister shall, as a measure for preventing the outbreak of a bush fire, or for preventing the spread or extension of a bush fire which may occur, give notice in writing to an owner or occupier of land situate within the district of the local government or shall give notice to all owners or occupiers of land in its district by publishing a notice in the Government Gazette and in a newspaper circulating in the area requiring him or them as the case may be within a time specified in the notice to do or to commence to do at a time so specified all or any of the following things -
(a)to plough, cultivate, scarify, burn or otherwise clear upon the land fire‑breaks in such manner, at such places, of such dimensions, and to such number, and whether in parallel or otherwise, as the local government may and is hereby empowered to determine and as are specified in the notice, and thereafter to maintain the fire‑breaks clear of inflammable matter;
(b)to act as and when specified in the notice with respect to anything which is upon the land, and which in the opinion of the local government or its duly authorised officer, is or is likely to be conducive to the outbreak of a bush fire or the spread or extension of a bush fire,
and the notice may require the owner or occupier to do so -
(c)as a separate operation, or in co‑ordination with any other person, carrying out a similar operation on adjoining or neighbouring land; and
(d)in any event, to the satisfaction of either the local government or its duly authorised officer, according to which of them is specified in the notice.
(2)A notice in writing under subsection (1) may be given to an owner or occupier of land by posting it to him at his last postal address known to the local government and may be given to an owner of land by posting it to him at the address shown in the rate record kept by the local government pursuant to the Local Government Act 1995, as his address for the service of rate notices.
(2a)…
(3)The owner or occupier of land to whom a notice has been given under subsection (1) and who fails or neglects in any respect duly to comply with the requisitions of the notice is guilty of an offence.
Penalty: $5 000.
(4)Where an owner or occupier of land who has received notice under subsection (1) fails or neglects to comply with the requisitions of the notice within the time specified in the notice -
(a)the local government may direct its bush fire control officer, or any other officer of the local government, to enter upon the land of the owner or occupier and to carry out the requisitions of the notice which have not been complied with; and
(b)the bush fire control officer or other officer may, in pursuance of the direction, enter upon the land of the owner or occupier with such servants, workmen, or contractors, and with such vehicles, machinery, and appliances as he deems fit, and may do such acts, matters and things as may be necessary to carry out the requisitions of the notice.
(5)The amount of any costs and expenses incurred by the bush fire control officer or other officer in doing the acts, matters, or things provided for in subsection (4) -
(a)shall be ascertained and fixed by the local government and a certificate signed by the mayor or president of the local government shall be prima facie evidence of the amount; and
(b)may be recovered by the local government in any court of competent jurisdiction as a debt due from the owner or occupier of land to the local government.
(5a)A local government may make local laws in accordance with subdivision 2 of Division 2 of Part 3 of the Local Government Act 1995 -
(a)requiring owners and occupiers of land in its district to clear fire‑breaks in such manner, at such places, at such times, of such dimensions and to such number, and whether in parallel or otherwise, as are specified in the local laws and to maintain the fire‑breaks clear of inflammable matter;
(b)providing that things required by the local laws to be done shall be done to the satisfaction of the local government or its duly authorised officer.
(5b)Where an owner or occupier of land fails or neglects in any respect to comply with the requirements of local laws made under subsection (5a) the provisions of subsections (3), (4) and (5) apply mutatis mutandis as if those requirements were the requisitions of a notice given under subsection (1).
(5c)Nothing in subsection (5a) affects the power of a local government to give notice under subsection (1) nor its duty to do so if so required by the Minister.
(5d)Where the provisions of local laws made under subsection (5a) are inconsistent with those of a notice given under subsection (1) or under section 34 or 35, the provisions of that notice shall, to the extent of the inconsistency, prevail.
(6)…
(7)…
(8)…
Notices issued under the Bush Fires Act
The Shire regularly published firebreak and fuel load notices pursuant to the Bush Fires Act.[6] The Property had been at the subject of notices issued by the Shire.[7]
[6] ts 108, 29 January 2018.
[7] ts 109, 29 January 2018.
The Shire issued a Firebreak and Fuel Load Notice for 2015/2016 under the Bush Fires Act ('the Notice') which relevantly provided:
'Firebreak'
Means a strip or area of trafficable ground, which is at least three (3) metres wide with a minimum height of four (4) metres, which is kept and maintained totally clear of all inflammable matter. Any living or dead trees, scrub or any other material encroaching within the minimum height of the firebreak must be pruned or removed'
'Flammable Matter'
Means any dead or dry grass, vegetation, substance, object, thing or material that may catch fire and burn.
1. Land with a building on it with an area greater than 4,000m2
You are required to:
Construct bare earth firebreaks three (3) metres wide inside and along all boundaries of land in a continuous form, including on boundaries adjacent to roads, rail and drain reserves and all public open space reserves, with all overhanging branches, trees, limbs etc. to be trimmed back from over the firebreak area to a minimum height of four (4) metres;
Remove all flammable matter except living trees, shrubs, plants under cultivation and lawns, three (3) metres wide and minimum height of four (4) metres immediately surrounding all buildings situated on the land;
Clear firebreaks three (3) metres wide and minimum height of four (4) metres immediately surrounding any place where wood or timber piles, haystacks, tyres, vehicles, flammable liquids, chemicals and gas products are kept on the land buildings situated on the land;
Have all flammable material except living trees, shrubs, plants under cultivation and lawns slashed, mowed or trimmed down by other means to a height no greater than 50mm across the entire property; …
The requirement set out above will not apply until 1 January if the land is stocked and an authorised officer has, before 17 October, given written permission to allow the grass to be grazed down to a height no greater than 50mm across the entire property by 31 December.
…
Significantly, owners were required to complete the works 'on or before 1 November in each year, or within 14 days of becoming an owner or occupier of land if after that date'. Further 'the applicable works must be completed before 1 November in each year and maintained up to and including 31 March in the following calendar year.'
The alleged development occurred squarely within the period set out in the Notice.
The Company was clearly under an obligation to comply with the Notice by reason of s 33 of the Bush Fires Act and faced a fine if they failed to do so: (s 33(3)).
Similarly, the Shire issued a Firebreak and Fuel Load Notice for 2016/2017 under the Bush Fires Act which provided:[8]
[8] Exhibit 23, Firebreak and Fuel Load Notice 2016/2017.
'Firebreak'
Means a strip or area of trafficable ground, which is at least three (3) metres wide with a minimum height of four (4) metres, which is kept and maintained totally clear of all inflammable matter. Any living or dead trees, scrub or any other material encroaching within the minimum height of the firebreak must be pruned or removed'
'Inflammable Matter'
Means any dead or dry grass, vegetation, substance, object, thing or material that may catch fire and burn.
'Minimum Height'
Means a continuous vertical uninterrupted line at a right angle to the horizontal line of the firebreak to a minimum height of 4 metres from the ground.
1. Land with a building on it with an area greater than 5,000m2
You are required to:
•Have all inflammable matter except living trees, shrubs, plants under cultivation and lawns, slashed, mowed or trimmed down by other means to a height no greater than 50mm across the entire property. ·
•The requirement set out above will not apply until 1 January if the land is stocked and an authorised officer has, before 17 October, given written permission to allow the grass to be grazed down to a height no greater than 50mm across the entire property by 31 December.
•Install bare earth firebreaks three (3) metres wide immediately inside and along all boundaries of land in a continuous form, including on boundaries adjacent to roads, rail and drain reserves and all public open space reserves, with all overhanging branches, trees, limbs etc. to be trimmed back from over the firebreak area to a minimum height of four (4) metres. Driveways must also be maintained to these conditions.
…
On 23 October 2017 the Shire's Fire Control Officer issued a 'Bush Fire Safety Inspection' Notice for Lot 720. It relevantly provided:[9]
[9] Exhibit 27, Bushfire Safety Inspection Notice 3044 relating to lot 720.
Bush Fire Safety Inspection
You are required to Prepare your Property
A Fire Control Officer has attended and inspected your property on [20.10.17].
Currently your property is not compliant with the Shire of Kalamunda, Statutory Notice to All Landowners & Occupiers in accordance with Section 33(1) of the Bush Fires Act 1954 (as amended).
The following work must be undertaken prior to 1 November and maintained until 31 March of next year:
Slash all long standing grass to a height no greater than 5cm.
Install/upgrade a 3 metre wide and 4 metre high fire break immediately inside all external boundaries.
Other: Please remove piles of dead flammable material from property.
This card is giving you advanced notice of the requirements to ensure you are Bush Fire Safe and compliant with the requirements of Section 33(1) of the Bush Fires Act 1954 (as amended).
Failure to undertake the works prior to 1 November may result in an infringement, legal action and/or contractors engaged to complete works at owner's expense.
On 17 October 2017 a bushfire safety inspection notice was also issued for an adjoining property owned by the Company, 774 Welshpool Road East, with substantially the same requirements as those relating to the Property.[10]
[10] Exhibit 26; ts 40, 20 September 2018.
Although a number of the notices tendered in evidence were issued subsequent to the alleged development they confirm the general obligation to comply with the requirements of the Bush Fires Act in relation to the Property and the wider areas.
Legislation - Planning
Section s 218 of the Planning and Development Act relevantly provides:
218.Planning scheme or condition on development, contravening etc. A person who -
…
(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; ...
commits an offence.
Schedule 7 of the Planning and Development Act provides the matters which may be dealt with under a planning scheme. They expressly include:[11]
The conservation of the natural environment of the scheme area including the protection of natural resources, the preservation of trees., vegetation and other flora and fauna, and the maintenance of ecological processes and genetic diversity.
[11] Schedule 7, s 4(2).
The relevant planning scheme is Shire of Kalamunda Local Planning Scheme 3 (Kalamunda LPS 3), which contains the following obligation:
8.1REQUIREMENT FOR APPROVAL TO COMMENCE DEVELOPMENT
Subject to clause 8.2, all development on land zoned and reserved under the Scheme requires the prior approval of the local government. A person must not commence or carry out any development without first having applied for and obtained the planning approval of the local government under Part 9.
The Kalamunda LPS 3 zoning of the Property was Rural Composite.[12]
[12] ts 15, 4 April 2017; exhibit 18, page 2.
The authorities
In Shire of Murray v Ivo Nominees Pty Ltd,[13] the Court of Appeal stated:
The distinction between the concepts of use and development, in the framework of the definition of 'development', has been well‑recognised. It was explained by Burt CJ in University of Western Australia v City of Subiaco [(1980) 52 LGRA 360] who observed that the definition in the Town Planning and Development Act 1928 (WA) (in substantially identical terms to the definition in TPS 4):
makes use of and it encompasses two ideas. The first is the 'use' of the land which 'comprises activities which are done in ... or on the land but do not interfere with the actual physical characteristics of the land' and the second being 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself'.
Thus, by the extended definition of 'development' in TPS 4, 'development' as defined encompasses both use and what might be said to be development in its ordinary sense. In the framework of the definition, use is a subset of the broader concept of development in that both are an activity done in or on the land, but use, unlike development, does not interfere with the actual physical characteristics of the land.
Whether an activity amounts to 'development' in the second sense used by Burt CJ - its ordinary sense - is a question of fact to be determined having regard to the degree of physical alteration to the land, the degree of permanence of the physical alteration and all of the circumstances.
[13] Shire of Murray v Ivo Nominees Pty Ltd [2020] WASCA 45 [39] - [41].
In Claude Neon Ltd v City of Perth,[14] Pidgeon J stated:
I would consider that it is at all times a matter of degree. Work could be of such a minor nature that it could not have been intended that it be encompassed within the concept of town planning and development.
In Parramatta City Council v Shell Co of Australia Ltd (1972) 26 LGRA 25 one of the questions Street J. was required to consider was whether the action in depositing 1,200 cubic yards of filling on certain land was 'development'. His Honour stated the question involves ultimately considerations of degree. He said (at 31):
'As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as a "work", and thus a "development", within the relevant legislation. The building-up of a large sports ground or oval could readily and properly be regarded as a "work". At the other end of the scale, the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a "work". In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance. The spreading of 1,200 cubic yards of filling or topsoil over a very large area might well not be of such significance as to amount to a "work". But the depositing of that quantity in a suburban allotment, having the effect of building up the height of that allotment at one corner to a point 8 feet 6 inches above its natural level, and the creation of a relatively level surface extending over most of a block of land such as this, is, in my view, a "work" within the meaning of the Act. I am accordingly of the view that the depositing of this filling amounted to "development." '
I consider therefore that the answer to the first question is dependent upon a finding of fact as to the degree of change of use or physical alteration to the land and it would include as envisaged by the Chief Justice an examination of the degree of permanence of the physical alteration. It must be looked at subjectively having regard to the location of the land concerned and the area it is in.
[14] Claude Neon Ltd v City of Perth[1983] WAR 147.
Section 31(1)(b) Criminal Code
Section 31(1)(b) of the Criminal Code provides:
A person is not criminally responsible for an act done, or an omission made, in any of the following circumstances -
(b)in obedience to the order of a competent authority which the person is bound by law to obey …
The magistrate's factual findings
His Honour gave oral reasons on 3 December 2018.
Evidence was given on behalf of the Savages by Mr Frederick Savage. His Honour found him to be a credible witness.[15] His Honour considered that Mr Savage's evidence was consistent with what he put in writing to the Shire of Kalamunda at the time, and was consistent with the physical evidence, being photographs which were tendered which showed the state of the Property at various stages.[16]
[15] ts 6 ‑ 7.
[16] ts 6.
His Honour found that Mr Savage was an experienced surveyor who has spent years on the land and was familiar with working in the bush.[17] He also found him to have superior knowledge concerning the identification of trees to each of the Shire officers who testified at the hearing.[18]
[17] ts 6.
[18] ts 7.
His Honour preferred the evidence of Mr Savage to Mr Toleman and the other Shire witnesses.[19]
[19] ts 7.
In addition His Honour made findings that:
(a)a bad fire burnt out Hartfield Park (which adjoins the Property to the west) over the two days of 21 ‑ 22 December, 2015;[20]
[20] ts 5.
(b)the fire came south, north and east of Tonkin Highway;[21]
[21] ts 5.
(c)the fire was particularly bad at the very rear of the block;[22]
[22] ts 6.
(d)firefighting helicopters were dumping water in large buckets filled from a nearby basin;[23]
[23] ts 5.
(e)attending firefighters pushed over a number of big trees for the purpose of firefighting;[24]
[24] ts 6.
(f)Mr Savage was the only witness called who saw the fire;[25]
[25] ts 5.
(g)prior to the fire, firebreaks on the land were minimal on the eastern side and non-existent on the west;[26]
[26] ts 6.
(h)following the fire there was a large outbreak of Watsonia weed on lot 150;[27]
[27] ts 6.
(i)Watsonia is a weed which propagates after fire damage and is both noxious and inflammable;[28]
[28] ts 6.
(j)Mr Savage received fire notices over adjacent blocks, requesting that he install fire breaks, slash the blocks, trim trees, etcetera, prior to the fire;[29]
[29] ts 6.
(k)Mr Savage had received a fine for a failure to comply with a previous fire notice;[30]
[30] ts 6.
(l)dead or non‑native trees were in the way of the fire break or the fence line;[31]
[31] ts 6 ‑ 7.
(m)Mr Savage wanted to re-establish the fire breaks, push up the dead trees and wood into piles to avoid the consequences of another fire;[32]
(n)mindful of the consequences of failure to comply with a fire notice, Mr Savage set out to remove any dead trees lying down or standing up, clear trees from fire breaks, erect fences and knock down any trees along the fence lines and scarify and then poison the outbreak of Watsonia;[33]
(o)Mr Savage brought machinery and workers on the land and gave them instructions as to the work they were to perform;[34]
(p)Mr Savage caused about 20 non‑native trees that straddled the correct fence alignment of his block to be cleared;[35]
(q)the dead and non-native trees were pushed into piles - there were no live or native trees in the piles;[36]
(r)the Watsonia was poisoned rather than raked and poisoned as Mr Savage originally planned;[37]
(s)the non-native trees were either knocked down by the firemen or knocked down for fences or access tracks;[38]
(t)Mr Savage did not clear any naturally occurring vegetation;[39]
(u)Mr Savage had no plans for the development of that portion of the Property which was burnt by the wildfire;[40] and
(v)Mr Savage 'had a plan for a garden centre at the front half, but nothing out the back [of the Property]'.[41]
[32] ts 6.
[33] ts 6.
[34] ts 6.
[35] ts 7.
[36] ts 7.
[37] ts 7.
[38] ts 7.
[39] ts 7.
[40] ts 5.
[41] ts 5.
The Shire Officers who attended the property on 28 January 2016 (Ian Toleman - taking photographs from the property boundary), 12 February 2016 (Amrita Malhi - also visited multiple times in mid‑2016) and 13 February 2016 (Karen Hudson - to serve an envelope) seemingly had little to no knowledge of the fire and the impact it had on Lot 150 or the adjoining Crown land.[42] Further to this, the Shire does not appear to have made any inquiries with the Fire Department as to what areas were damaged by the fire.[43]
[42] ts 51.4, 24 April 2017; ts 74.1, 29 January 2018.
[43] ts 73.8, 29 January 2018.
His Honour also found that the photographs introduced into evidence by the Shire did not clearly demonstrate the existence of green leaves as alleged by the prosecution, and that some of the trees in the photographs taken by the third respondent before the clearing show the existence of leaves on branches that appear dead.[44]
[44] ts 6.5.
When discussing the prosecution contention that Mr Savage was not a credible witness because Mr Toleman's photographs did not demonstrate the degree of blackening of the trunks of trees as described by Mr Savage, His Honour noted that:
(a)Mr Toleman's inspection was carried out from the fence line some distance from the stockpiles;
(b)the resulting photographs do not clearly demonstrate the existence of green leaves as asserted by the prosecution;
(c)some trees in Mr Savage's photographs taken before the clearing show the existence of leaves on the branches of trees that appear dead;
(d)Mr Toleman's inspection occurred a month after the fire and was restricted to photographs taken from that fence line; and
(e)a lot of blackened bark no doubt would have been removed during the stockpiling process.
His Honour made a large number of carefully considered factual findings. Only two of those factual findings was seriously challenged on appeal, i.e. the communications by Mr Savage with the Shire and the fire damage to trees. The challenge to those findings needs to be considered in the context of unchallenged findings, particularly as to the fire, the actions of the fire fighters and the fire damage overall.
Ground 1: The learned magistrate erred in law when he concluded that the removal of established trees by the accused was not development per se
Before turning to consider the submissions, it is clear that 'clearing' of established trees leading to significant permanent alteration by the removal of dense bushland may constitute 'development' within the meaning of the Planning and Development Act (e.g. Ivo [26]).
The Shire's submissions
The Shire submitted:
15.His Honour's finding with respect to whether clearing comprised development was to the effect that clearing vegetation including established trees without 'developmental ideation' was not development for the purpose of the Planning and Development Act 2005.[45]
[45] ts 8, 3 December 2018 (Reasons).
16.This ground of appeal challenges that finding as a matter of law. For the reasons that follow, the appellants say that on a proper construction, the term 'development' in the Planning and Development Act includes such clearing of vegetation, including established trees, as occurred on the Property in the relevant timeframe, regardless of whether that clearing was with the express intention of any subsequent development requiring the removal of the trees.
…
21.His Honour's analysis of the term 'development' was reasonably concise, and included the following:
The prosecution assert that all clearing is development and refer to the definition of that term in the Planning and Development Act. 'Development is defined in section 4 as follows:
Development means the development or use of any land -
And then the definition section gives three examples of what development or use is. First, it's a:
... demolition, erection, construction, alteration of or addition to any structure or building on the land;
Clearly, that's not illustrated here. Secondly:
... the carrying out on the land of any excavation or other works;
It certainly is arguable that scarifying out Watsonia by the roots with a rake could qualify as 'other works' similar to 'excavation', as both invoke a sort of disturbance to the soil. But Mr Savage didn't wind up doing that in the end/ he poisoned the Watsonia. Knocking down trees and removing stumps and piling them up is sufficiently semantically similar to qualify as 'other works' when juxtaposed with the term 'excavation' of the land, as they are actions operating on the land which change it.
22.His Honour appears to be considering the examples above as though they comprised the definition itself. In fact, the definition of 'development' in 4 of the Planning and Development Act critically uses the word 'including' to describe the examples that follow. It is a non‑exhaustive list of what comprises 'development' and is illustrative in nature rather than definitive.
23.His Honour did not consider the meaning of the words 'other works' but moved to the dictionary definition of the word 'development', relying on the Shorter Oxford Dictionary to define it as 'a gradual unfolding'. On that basis he concluded that if there had been a plan to make a carpark which required the removal of trees then the removal of trees for the carpark would be development. Although he does not appear to have clearly stated it he has apparently relied on the corollary in respect of Charge 1. In the absence of a plan to use the land for a carpark or similar, his Honour has concluded that the removal of trees did not comprise development per se.
24.His Honours reliance on the dictionary definition of 'development' at that stage of his reasons was, for the reasons given below, somewhat misplaced. In any event, his Honour did not explain why he only considered the first of a number of definitions of 'development' which are contained in the Shorter Oxford Dictionary when it in fact includes all of the following definitions of 'development':
i.A gradual unfolding: a fuller working out of the details of anything. Also quasi-concr that in which this is realised.
ii.Evolution; the production of a natural force, energy or new form of matter.
iii.The growth of what is in the germ; the condition of that which is developed;
iv.Growth from within;
v.A developed or well grown; and
vi.The developed result or product (emphases added).
25.With respect to His Honour, it is clear from the Shorter Oxford Dictionary complete definition that the removal of vegetation and/or established trees can itself comprise development of the land. The land was previously vegetated, including with established trees. It was 'developed' by the removal of those trees to be the developed result or product of land that was cleared land. His Honour considered that proposition in terms of 'use of land' but not in terms of the definition of development, and the starting and finishing condition of the land.
26.According to the Shorter Oxford Dictionary definition, the clearing could be and was development.
27.If one refers to the Macquarie Dictionary definition of 'development' the position becomes even clearer:
i.the act, process or result of developing.
ii.a developed state, form, or product.
iii.evolution, growth, expansion.
iv.a fact or circumstance bringing about a new situation.
v.the erection, alteration, or demolition of a building, or the change of use of buildings or land.
vi.a building project, usually large, as an office block, housing estate, shopping complex, etc.: a new development for sale off the plan.
vii.the preparation of vacant land for building by the provision of roads, sewerage, etc.: a vacant site with potential for development.
viii.Music the part of a movement or composition in which a theme or themes are developed.
ix.Metalwork a flat pattern of something to be bent into shape, as a tin box.
28.Item vii. above is of particular interest; it is apparent from the photographic evidence at trial that the effect of clearing the site of vegetation, including trees, was to create a vacant site with potential for development, regardless of whether that was the intention at the time that the trees were removed.
29.In any event, it is clear that the definition of 'development' in section 4 of the PDA intentionally goes beyond the dictionary definition, because it expressly states that 'development means the development or use of any land' (emphasis added). It then uses the above referenced example of 'excavation or other works'.
30.Neither excavation nor other works is defined to be in any way dependent on the purpose for which they are conducted. The fact of excavation or 'other works' alone is sufficient to comprise 'development'. It would be nonsensical to suggest that major earthworks for purely aesthetic purposes could not comprise 'development' in and of themselves; it is not clear why the same should not apply to 'other works'.
31.Neither 'Works' nor 'other works' is defined in Section 4 of the PDA. There is a definition of 'public work' which expressly 'includes any public work as defined in the Public Works Act 1902.' For the purpose of the Public Works Act, removing trees can comprise 'work' for some purposes.[46]
[46] Section 108, Public Works Act 1902 (WA).
32.The term 'works' is ambiguous both in its lengthy dictionary definition and in common (and legal) usage. It can refer to anything from literary works to the working parts of a mechanical contrivance such as a clock. It can include any product of exertion, and in particular is often used to refer to the entire works performed by an agent in respect of construction, sometimes including items that (but for the construction contract) would not ordinarily be referred to as 'works'.
33.It is in that context that the clearing of established trees in particular is said to comprise development, either by virtue of it falling within the category of 'other works' or otherwise, remembering that the definition of 'development' contains a non-exhaustive list.
…
39.The emphasis placed on preservation and enhancement of the natural environment, the amenity of the area, the landscape, and environmental qualities of the area at the outset of Kalamunda LPS 3 are entirely consistent with the matters which may be dealt with by a planning scheme in Schedule 7 of the Planning and Development Act.
40.In that context, the express inclusion of 'the carrying out on the land of any excavation or other works' must include such clearing of vegetation as can be said to affect the preservation and enhancement of the natural environment, the amenity of the area, and the environmental qualities of the area.
41.The respondents proposed in their closing submissions that s 121 of the Planning and Development Act precluded the definition of 'development' including 'clearing'. Section 121 of the Planning and Development Act provides for the Commission to enter into an agreement with an owner relating to:
(i)the planning, replanning, design, redesign, consolidation, resubdivision, clearing, development, reconstruction or rehabilitation of the land ...
42.The respondents argued that if clearing fell within the definition of 'development' then its separate inclusion in the above provision would be otiose.[47]
43.The submission is predicated on a false assumption. 'Clearing' in the context of the charge of breaching s 218 of the Planning and Development Act refers to the clearing of vegetation and particularly of established trees. 'Clearing' for the purposes of s 121 of the Planning and Development Act is not defined. It could have any number of meanings that go beyond the clearing of trees. It certainly collects the definition of 'clearing' in s 51A of the Environmental Protection Act which relates to native vegetation and includes actions that could not reasonably be categorised as 'development'.[48]
44.The appellant respectfully submits that the proper construction of 'development' for the purpose of s 218 of the Planning and Development Act includes the clearing of established trees over extensive land per se.
45.That being the case, the appellant submits that the charge was proved beyond reasonable doubt, and a verdict of guilty should be entered for each of the accused.
The Savages' submissions
[47] Closing submissions on behalf of the accused at [61) page 21.
[48] Such as any grazing of stock that leads to damage to native vegetation.
The Savages submitted:
51.It is correct to say that the learned magistrate considered that the existence of some 'developmental ideation' was essential before conduct could be said to amount to commencing, continuing or carrying out 'any development' (to adopt the words in subsection 218(b) of the Planning and Development Act 2005.
52.The respondents contend that his Honour was correct in the approach which he took.
53.At paragraph 21 of the appellant's submissions it is asserted that the learned magistrate appears to have considered the examples set out in his reasons at page 8 as though they comprise the definition itself.
54.The definition in the Planning and Development Act (which repealed and superseded the Town Planning Act) is as follows:
development means the development or use of any land, including -
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or thing that -
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building;
That definition is very similar to the definition in the Town Planning Act.
54.Clearing does not fall within any of the inclusive definitions set out in the above definition. It is accepted that those matters listed are illustrative rather than representing the absolute boundaries or four corners of the definition. Nevertheless, the ejusdem generis principle of statutory construction applies, with the effect that development must be in the nature of those matters.
56.The exercise carried out by the learned magistrate at ts 8 was simply an exercise in ensuring that each of the inclusive definitions was addressed.
…
58.'Use of the land' as contemplated in the definition must be a substantial use in temporal terms. A transient activity does not amount to a use.
59.Simply because an activity is carried out on the land does not make it (for development purposes) the use of the land. One may kick a football on a piece of industrial land without the conclusion that the land use is recreational, just as one may build a piece of furniture in one’s garage without the land use becoming manufacturing.
60.Clearing does not constitute a use of the land per se. Land may be cleared in order for some other use to be implemented, eg. farming, industrial, manufacturing, or leisure, but clearing itself is not a use of the land. It is a transient activity.
61.His Honour found that there had been no prior determination as to the use of the land made by the council, and observed that there was 'no evidence that there was or is now any use of the land. It's lying fallow.' His Honour was correct in ruling that 'that a change from tree to a partially-treed - to cleared is [not] a use'.[49]
[49] ts 9.2.
62.It is submitted that his Honour was correct in determining that there is a need for developmental ideation in this instance.
63.There are two ways of approaching this issue. The first is to say that when a person carries out works which they are required to effect by law (in this case, by way of illustration, the removal of fire hazards and installation of fire breaks) then that does not amount to the commencement, continuation or carrying out of any development, because it is the satisfaction of a mandatory requirement rather than a desire or intention to develop the land.
64.The second involves recognising that the act of demolishing, erecting, constructing altering or adding to any building or structure on the land necessarily constitutes development by reason of par (a) of the inclusive definition, as does the carrying out of any excavation. Each of those demonstrate a developmental ideation.
65.It is submitted that an interpretation that dictates that an activity which is not intended to develop the land constitutes development must be erroneous. That submissions recognises that an intention to develop may be inferred. Such an inference was not open here.
6.The criticism of his Honour's application of the dictionary definition of 'development' at pars 24 and 25 of the appellant's submissions is, with respect, without foundation. The respondents accept that the definition of development is as set out in par 24. His Honour was not obligated to address paras (ii), (iii), (iv), and (v) because plainly, none of them apply. It is difficult to see how the sixth limb could help explain the meaning here as it is circuitous - effectively, that development is that which is developed.
67.The respondents disagree with the contention in par 25 of the appellant's submissions. There is nothing about the removal of vegetation (with or without established trees) that constitutes evolutional or growth. That is precisely the reason why activities such as demolition and excavation are specifically provided for in the inclusive definitions.
68.The appellant's argument seems to be that, notwithstanding that the clearing of land is not identified as a specific activity which amounts to development, the creation of such a state must amount to development. The respondents contend that this is confusing the 'development limb' in the definition with the 'use limb' in the definition.
69.If the appellant's contention is correct then any change in the condition of the land, for any reason, will amount to development.
70.It appears that that is precisely the incongruous outcome which his Honour's insistence upon the presence of some developmental ideation is intended to address.
71.With respect, the Macquarie dictionary definition of 'development' is no more helpful to the appellant's cause. The emphasis apparent in the submissions implies that items (v) and (vii) other relevant limbs. Item (v) adds nothing to the statutory definition. Item (vii) requires the addition of roads, sewerage, etcetera to the vacant land rather than merely removing vegetation from the land. This definition in particular carries with it the notion of some developmental ideation. This is evident from the phrase 'the preparation of vacant land for building'.
72.Paragraph 28 of the appellant's submissions confuses the potential for development with actual development. The land in this case had the same potential for development both before and after the pushing up of the dead trees and vegetation.
73.Paragraph 28 of the appellant's submissions goes on to say that there would be development 'regardless of whether that was the intention of the time that the trees were removed'. It is already been submitted that this proposition is in complete contrast to item (vii) in the Macquarie dictionary definition. The argument about the existence of 'a vacant site' also fails on a factual basis. In the first place, the dead trees and vegetation were pushed up into three or more very large piles which by reason of their location and size amounted to an obstacle to 'development' because of their presence. Secondly, the purpose of the clearing was to reduce the risk of bushfire damage in future, in accordance with the Bush Fires Act, and the fact that the site became largely vacant of vegetation (most of which was either dead or noxious as a result of the fire) is incidental to the need to comply with the fire hazard reduction obligations imposed on the landowner. Thirdly, if it is accepted by the court, as it was by the learned magistrate, that the purpose of the clearing was to reduce the available fire load, it is apparent that the clearing not only did not contravene the scheme, but in fact served to assist the objectives of the scheme by reducing the risk of a fire causing more significant damage to surrounding properties by virtue of the respondents removing fuel from lot 150 and taking steps to establish firebreaks and access paths for firefighters, lowering the chances of any future fire (such as the one which occurred on the two months before) spreading beyond lot 150.
74.By par 29 of the appellant's submissions it is contended that excavation or other works are sufficient to warrant conviction in this instance. That is, surely, a question for another case because the prosecution expressly disavowed reliance on excavation in this instance.
75.The phrase 'other works' should be read in accordance with the ejusdem generis principle of statutory construction, and be limited to works of a similar character to excavation.
76.In fact, that is precisely the approach which his Honour took at ts 8.4 when he said:
Knocking down trees and removing stumps and piling them up is sufficiently semantically similar to qualify as 'other works' when juxtaposed with the term 'excavation' of the land, as they are actions operating on the land which change it.
77.His Honour went on to say that if the clearing had been 'the first stage of a plan' then that would amount to development. The appellant does not, and cannot, point to any evidence of an intention on the part of the respondents to use the cleared area of land for any differing purpose. Prior to the fire it had lain fallow, and afterwards it remained fallow.
78.It would be absurd to treat the performance of a statutory obligation as an activity which requires approval prior to doing so, particularly in circumstances where a failure to do so results in criminal liability.
79.[Schedule 7 of the Planning & Development Act] is irrelevant to the determination of the issue in this case. It deals with matters which may be dealt with under planning scheme. What is in issue here is whether a particular planning scheme was breached. Had there been a breach of a specific provision of the scheme then that could have been pleaded specifically.
80.The purposes of the scheme, discussed at pars 34 et seq are not helpful to determining the meaning of the term 'development'. The purposes are relevant to what qualities are sought or desirable and are relevant to the approval process. They do not assist in determining what requires approval.
81.In considering par 40 of the appellant's submissions, it is useful to remember not only is the minimisation of bushfire risk one of the objectives of the scheme but as a matter of logic, complying with the requirements of the bushfires act has a much broader impact in effecting the preservation and enhancement of the natural environment, the amenity of the area, and the environmental qualities of the area.
82.Paragraph 43 of the appellant's submissions ignores the principle of statutory construction that where a term is used in a statutory instrument, it is to be expected that the parliamentary draftsman will use the term consistently throughout the act.
83.Section 121 of the Act provides for the Commission's powers as to land under an improvement plan, and specifically allows the Commission with the approval of the Governor to do various things. One of those powers is to enter into an agreement with the owner relating to:
(i)the planning, replanning, design, redesign, consolidation, resubdivision, clearing, development, reconstruction or rehabilitation of the land (emphasis added).
84.If clearing per se fell within the definition of 'development', then it would be otiose to include the word 'clearing' within the above provision. There is a further reason why development does not include clearing. It is relevant to notice that rehabilitation (which is the opposite, one might think, of clearing) is also specifically included.
85.Paragraph 44 of the appellant's submissions adds a qualification to the appellant's argument in relation to the meaning of 'development' which is either illogical or incongruous. The contention therein is that development 'includes the clearing of established trees over extensive land per se'. In other words, the phrase 'of established trees over extensive land' has been added to the term 'clearing' in order to give effect to some aspect or nuance of meaning to the word 'clearing'. If clearing amounts to development, than it should apply to clearing to whatever extent, and of whatever vegetation, and for whatever purpose. The fact that the appellant finds it necessary to qualify the circumstances which amount to clearing detract from its argument that clearing per se amounts to development.
Ground 1 - Analysis
As is apparent from the submissions much ink was spent analysing whether clearing is within the definition of 'development'. However, it is clear from the authorities that clearing may be 'development'.
The real issue is whether the clearing in this instance constituted 'development'.
If a bushfire is bearing down on a property and it is necessary to construct a fire break to prevent the fire spreading onto the property it could hardly be said to be a 'development' requiring the approval of the Shire, even if it involved the permanent removal of established trees and even if it involved extensive clearing.
The Shire's contention that because the proper construction of 'development' includes the clearing of established trees over extensive land means the charge was proved reasonable doubt is not correct.
Claude Neon was principally concerned with whether an activity was of such a degree as to constitute development. The court stated that whether an activity on the land is 'development' is to be determined 'subjectively having regard to the location of the land concerned and the area it is in'.
It is hard to see how clearing a firebreak on the boundary could constitute 'development'. An owner, or occupier is required to install firebreaks irrespective of what it intends to do with the land.
I accept that compliance with the matters identified in the Notice does lead to a permanent alteration of the land. The whole point of a firebreak is to clear an area so as to prevent the spread of fire.
However, when regard is had to the whole of the circumstances compliance with the Notice does not constitute 'development'. The requirement of the Notice was to bring the Property into conformity with the Shire's requirements. If the previous owners had complied with the Bush Fires Act then the Company would not have been required to do anything, other than perhaps minor maintenance by grading etc.
I fail to see how the Company could be required to seek the Shire's permission to comply with the Notice when a failure to do so would have exposed them to a potential prosecution.
The good citizens of the Shire would doubtless have been mystified by such a requirement.
There was no development in the relevant sense in the Company complying with the Notice. It did no more than bring the Property to the standard required by the Notice.
I do not accept in order to establish development a finding of 'developmental ideation' is required if this suggests some form of intention on the part of the owner. There is nothing in the Planning and Development Act to suggest that a person's intention is relevant to whether an undertaking constitutes 'development' in the relevant sense. The test is objective having regard to what has happened to the land. Although the term 'subjective' is used in Claude Neon I think His Honour meant no more than that whether what has happened to the land constitutes 'development' is a matter of degree, this is evident from the example provided in the judgment. I think that His Honour intended no more than that different persons may have different views as to whether the necessary degree of activity has occurred so as to constitute 'development' within a range of views.
Although I would grant leave to appeal on ground 1 because of the reference to 'developed ideation', ground 1 should be dismissed.
Ground 3: The learned magistrate erred in law in finding that the burden of proof with respect to the health and condition of the cleared trees prior to the date of their clearance lay with the prosecution
Shire's submissions
The Shire submitted:[50]
[50] Reasons page 2.
47.The appellant's case at first instance was that with respect to the balance of trees that were outside the firebreak and not on the fence line, the mere fact of them being burned on the exterior, subject to alleged fire damage that was not apparent on the exterior, surrounded by noxious weed, or non‑native did not authorise, justify, or excuse removing them without development approval. Rather, those were matters relevant to whether approval might have been granted had it been applied for, and of course relevant to any penalty imposed by the Court.
48.The appellant met its burden of proof with respect to the lack of any authorisation, justification or excuse, in that the evidence adduced by the prosecution proved that clearing of established trees had occurred in areas that were outside the required firebreak, and away from the fence line. It was, in fact, never in dispute that a significant number of the trees removed from the Property were not established within the area comprising a 3 m perimeter of the Property.
49.It was not established in the judgement that any of the matters raised by the respondents with respect to firebreaks, fences, trees posing a hazard because of their condition, removal of noxious weeds, and the removal of non-native trees comprised a 'defence raised fairly on the facts' and should therefore appropriately be dealt with in accordance with the principle that the prosecution 'negative any defence raised fairly on the facts'.
50.To the extent that any of those matters comprised an 'exception' within the meaning of s 78 (3) of the Criminal Procedure Act 2004 it required the defendants to prove the relevant facts on the balance of probabilities. Section 218 of the Planning and Development Act (which creates the offence with which the respondents were charged) creates an exception in respect of the offence within the meaning of s 78 of the Criminal Procedure Act 2004, being (otherwise than in accordance with the provisions of the local planning scheme'. That exception is to be taken not to apply unless the accused proves, on the balance of probabilities, that it does.[51] To the extent that any of the matters relied on by the respondents were said to bring the clearing into accord with the provisions of the local planning scheme, the respondents bore the burden of proving the relevant facts.
[51] Section 78(3), Criminal Procedure Act 2004 (WA).
51.The lack of clarity in the defence submissions at first instance and the judgment makes further submissions on this ground problematic. A number of potentially relevant observations can be made in general terms about the defence as run by the respondents, however.
52.The respondents advanced in their submissions the proposition that 'approval is only required where the activity is neither mandated or permitted under other legislation (which the Town Planning Scheme is expressed to be subject to)'.[52]
[52] Defence reply to prosecution's closing submissions 23.10.2018 [7].
53.It is not clear why activities 'permitted' under other legislation are said to be exempt from the need for approval, nor is it clear how each and every pleaded activity is said to be 'permitted' under other legislation, with the exception of the firebreak minimum requirements.
54.It is not clear why State Planning Policy 3.7 (Planning in Bushfire Prone Areas -SPP 3.7) is said in and of itself to relieve the obligation for development approval. It is noteworthy in this regard that SPP 3.7 anticipates its use in determining the outcome of development approvals: it includes as a policy objective: 'ensure that. ... development applications take into account bushfire protection measures ... '[53]
[53] State Planning Policy 3.7 Planning In Bushfire Prone Areas (5) page 2.
55.The respondents indicated that:
'Clearing of native vegetation done, for example, under the Environmental Protection Act 1986 (EPA), is not subject to the Town Planning Scheme ... any clearing done under that act is not governed by the scheme ...'[54]
[54] Defence reply to prosecution's closing submissions 23.10.2018 [47].
56.It is not clear why that should be the case, where there has not been any express authorisation for clearing under the EPA. In any event, it does not appear to have been the respondents' case that the clearing was of native vegetation and therefore was governed by the EPA. His Honour found that 'I accept … Mr Savage's assertion that there were no naturally occurring native vegetation, such as Marri, that were cleared by him.'[55]
57.The appellant respectfully submits that the prosecution did not bear the burden of proving:
1.that the cleared trees fell outside reasonable (as opposed to mandatory) fire breaks and fence lines;
2.that the condition of trees ensured their survival for the foreseeable future;
3.that the removal of trees was not required to treat noxious weeds; or
4. whether the cleared trees were native or non-native.
The Savages' submissions
[55] Reasons page 7.
The Savages submitted:
86.The appellant's submissions on this ground implies a challenge to various findings made by the learned magistrate, and which have not been expressly challenged in this appeal by the words 'the mere fact of them being burned on the exterior, subject to alleged fire damage that was not apparent on the exterior, surrounded by a noxious weed, or non-native'.
87.The respondents' case below, and found to be so by the learned magistrate, was that the vegetation which had been cleared was either fire damaged, dead and non-native, or was Watsonia plants which were noxious.
88.The argument proceeds that those circumstances did not authorise justify or excuse the removal of the vegetation without development approval. Paragraph 47 asserts that those were matters relevant to whether approval might’ve been granted had been applied for (or were ultimately relevant to any penalty imposed by the court).
89.This misapprehends the issues in the trial below.
90.This important to remember that, at trial, there were two charges which covered (effectively) two different periods of clearing. Count 1 related to the initial clearing prior to the alleged service of the directions notice on 14 February, 2016, and count 2 related to the clearing of particular trees which occurred thereafter. Count 1 related to an expansive area of fire damaged trees and vegetation, whereas count 2 largely related to areas which had not been damaged by the wildfire.
91.What was put below (perhaps not as clearly as is now articulated) is that the clearing of the dead trees and other vegetation, and of the Watsonia plants which propagated following the fire, was required in order to satisfy the respondents’ obligations under the Bush Fires Act 1954 and Agriculture and Related Resources Protection Act 1976 (in particular).
92.The 'defence' which was advanced went beyond the question of firebreaks and fence lines, and included the obligation to remove material which represented a fire hazard by providing a ready fuel-load.
93.The very fact that the appellant had served notices requiring compliance with the Bush Fires Act 1954 was enough to demonstrate the need for compliance. More than that, the evidence about the nature and location of the land was enough provide an evidentiary basis for concluding that the respondents were subject to those obligations.
94.As has already been observed, this particular area had been designated as a Bushfire Prone Area. The significance of that designation is addressed below.
95.Clause 6.7 of the relevant Town Planning Scheme deals with Bushfire Prone Areas. Subclause 6.7.2 provides as follows:
6.7.2 Purpose
The purpose and intent of designating a Bushfire Prone Area is to:
(a)identify land that is bushfire prone by reason of it being subject to, or likely to be subject to, a bushfire hazard;
(b)ensure that development within a Bushfire Prone Area is effectively designed in accordance with AS3959 to address the level of bushfire hazard applying to the land;
(c)facilitate improved strategic planning for bushfires and more effective bushfire risk management; and
(d)implement the requirements under State Planning Policy 3.4 and the Planning for Bush Fire Protection Guidelines.
Note: The designation of particular parts of the district as Bushfire Prone Areas does not mean that land not designated as a Bushfire Prone Area is free from risk associated with bushfire threat.
96.The issue of the defendants' obligations under the Bush Fires Act 1954, is significant.
97.Not only did the defendants have statutory obligations to clear trees and vegetation under the Bush Fires Act 1954, but notices were given to the defendants requiring them to comply with those obligations and, as Exhibit 30 demonstrates (albeit at a later time) penalties were imposed by the issue of infringement notices for alleged failures to comply in respect of the adjoining block, lot 774.
98.Returning to the point begun in par 91 above, the issue of justification authorisation having been raised, it was necessary for the appellant to demonstrate the absence of authorisation or justification.
99.The findings of the learned magistrate make clear that the appellant failed to do so.
100.It is no answer to that finding, or the course taken below, for the appellant to now say that there was no burden of proof with respect to the health and condition of the cleared trees prior to the date of their clearance upon the prosecution.
101.In the absence of evidence raising the question of authorisation or justification, then the premise in this ground of appeal would be correct. The difficulty lies in the circumstances that in this case there was evidence that fairly and squarely raised that question.
102.It is accepted that his Honour did not descend to the minutiae of the issues raised in the evidence and canvassed in written submissions running to 89 pages. His Honour's ex tempore judgement runs to nine pages of transcript, two of which address the question of failure to prove service of the directions notice the subject of count 2.
103.In considering any appeal, it is both unrealistic and inappropriate to attempt to dismember ex tempore reasons and subject them to a vigorous analysis. It is necessary to take a broad view of them and ascertain the essential thrust of the reasoning processes applied, without being unduly critical of the precise modes of expression used or according them a degree of definitiveness which was never intended: Semple v Williams.[56]
[56] Semple v Williams (1990) 156 LSJS 40.
104.His Honour, seemingly, has abbreviated his discussion of the issues and has 'wrapped up' his discussion about aspects of this issue when addressing the question of whether or not these activities constitute development. See in particular ts 8.8 where his Honour observed that:
Mr Savage, in his email to the shire, points out that the piling up of dead wood, standing or falling, is a reduction of a fuel load. Creation of fire breaks, boundary fencing and noxious weed removal are all maintenance tasks that may involve clearing, but without any developmental ideation.
105.It is, nevertheless, apparent that his Honour considered that issues relating to statutory obligations to reduce fire risks and noxious weeds were fairly raised on the facts. As such, it was for the appellant to negative the defences which arose from the raising of those issues.
106.Section 78 of the Criminal Procedure Act 2004 does not apply in the instant situation. The appellant has not cited any authority which demonstrates that this was a case involving an 'exception'. Even if it was, the respondents assert that there was evidence, which was accepted by the learned magistrate, which prove the exception on the balance of probabilities.
107.The respondents contend that the words 'otherwise than in accordance with the provisions of the planning scheme' do not create an exception as asserted in par 50 of the appellant's submissions. Those words are an element of the offence. The obligation is on the prosecution to prove (and in this case they set out to do so) that what was done was not otherwise permitted by the scheme itself.
108.Paragraphs 51 et seq of the appellant's submissions complain about submissions made to the learned magistrate but not addressed specifically by him. It should not be overlooked that those submissions were made in the context of two charges, one of which related to a failure to comply with a directions notice. The concept of permission was relevant to that second charge, where it was asserted that the defendants below were permitted to carry out particular activities, and that permission was not dependent upon some subordinate approval by the Shire. A detailed schedule examined regulations made under the EPA which set out the numerous circumstances in which clearing is permitted.
109.Those regulations are permissive in character. Whilst the scheme under the Environmental Protection Act does allow for certain authorisations and approvals to be granted, that does not limit the operation of the regulations.
110.The reason for reference to the Environmental Protection Act was that it restricts the clearing of native vegetation. The respondents argued that this was limited to vegetation which was indigenous to the area being cleared. Had the vegetation in question satisfied that requirement in the issues in the hearing may have been different. The learned magistrate found that the clearing did not involve any naturally occurring native vegetation. The issue was, therefore, someone academic.
111.The respondents submit that the issues of authorisation and justification were fairly and squarely raised on the evidence and that, thereafter, the prosecution could only succeed if authorisation and justification were negatived. The learned magistrate was plainly aware that the obligation to 'negative any defence' only arose where the defence was 'raised fairly on the facts'; ts 2.8.
112.If the terms of the scheme are said to have any impact on this case, then it cannot be overlooked that the scheme makes provision for tree and vegetation preservation (cl 5.19) subject to other legislation. Clause 5.19 provides as follows:
5.19TREE & VEGETATION PRESERVATION
Native vegetation shall not be damaged, destroyed or removed unless it is in accordance with relevant state legislation, acts, regulations and guidelines. Such legislation includes the Environmental Protection Act 1986, the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 and other legislation as adopted from time to time.
113.It is significant to note that this particular provision is subject to other relevant state legislation, acts, regulations and guidelines. Where those relevant state legislation, acts, regulations and guidelines are complied with, then it appears that any such clearing will be lawful.
114.This is not a provision which creates an obligation to obtain an approval prior to clearing. It simply provides that clearing of native vegetation must be done in accordance with other legislation.
115.Clause 5.19 is confined to native vegetation. This must be vegetation which is indigenous to the area (rather than being introduced). This contention is supported by the definition of native vegetation which is found in the Environmental Protection Act 1986 (set out in the next section of these submissions). It cannot apply to vegetation which is native to another area of Western Australia or Australia.
116.The finding of the magistrate on this question has not been challenged.
117.Nor has the prosecution demonstrated that any damage, destruction or removal of vegetation was not done in accordance with relevant state legislation, acts, regulations and guidelines. Such legislation includes the Environmental Protection Act 1986, the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 and other legislation as adopted from time to time.
118.Two descriptions of vegetation appear in the scheme. The phrase 'natural vegetation' appears once, and the phrase 'native vegetation' appears in cl 5.19. The phrase 'natural vegetation' is a pleonasm. All vegetation is natural. The word 'natural' is otiose. The reference to natural vegetation is in the context that clearing of natural vegetation is permitted only in accordance with cl 5.19. It would therefore appear that the reference to natural vegetation was a draftsman's slip.
Analysis
Section 71 of the Criminal Procedure Act 2004 (WA) provides:
(1)In this section, unless the contrary intention appears -
exception includes a condition, excuse, exemption, proviso and qualification.
(2)An exception in respect of a simple offence need not be specified in a charge of the offence.
(3)If a written law creates a simple offence and provides an exception in respect of the offence, the exception is to be taken not to apply unless the accused proves, on the balance of probabilities, that it does.
(4)If an accused adduces evidence for the purpose of proving that an exception does apply, the court may allow the prosecutor to re-open his or her case in order to adduce evidence to rebut that evidence.
In La Rosa v City of Waneroo,[57] Johnson J held:
On behalf of the respondent it was submitted that the burden of establishing a continuing, pre-existing, lawful but nonconforming use lies on the party that asserts the right to continue the use of the land. That proposition is said to have statutory support as well as support at common law. Section 78 of the Criminal Procedure Act 2004 (WA) relevantly provides that if a written law creates a simple offence and provides an exception in respect of the offence, the exception is to be taken not to apply unless the accused proves, on the balance of probabilities, that it does: s 78(3). The term "exception" is defined in s 78(1) to include a condition, excuse, exemption, proviso and qualification. Of course, the offence with which the appellant was charged is not in precisely the form described in s 78(1) of the Criminal Procedure Act. The offence is created by a general provision, s 10AB(1)(a) of the TPAD Act, which makes it an offence to contravene another enactment, in this case cl 4.23.2 of DPS2.
Counsel for the appellant submitted that the concept of an exception, be it a condition, excuse, exemption, proviso or qualification, does not emerge from a reading of s 10AB of the TPAD Act. The basis of the submission is that conduct either is or is not in contravention of the section, depending on whether there is or is not a breach of the scheme. It is said that a nonconforming use right involves a recognition that there is not a breach of the scheme and hence no concept of a proviso arises. I am not persuaded that this is an accurate description of the effect of cl 7.1 of DPS2. In fact, the terms of the clause are that "no provision of the Scheme shall be deemed to prevent the continued use of any land ... or the carrying on of any development ...". In my view, cl 7.1 identifies circumstances in which a person may be excused or exempt from the operation of any provision of the scheme, and hence the operation of s 10AB of the TPAD Act; that is, where it is established that the land is being used for a nonconforming use. I do not consider the terms of the section involve an acceptance or recognition that there is no breach of the scheme, merely that no consequences flow to the person carrying on a nonconforming use, provided the relevant criteria are met.
In my opinion, the character and effect of the combination of s 10AB(1)(a) of the TPAD Act, cl 4.23.2 and cl 7.1 of DPS2 is the same as a provision referred to in s 78 of the Criminal Procedure Act which is one which creates a simple offence and then provides an exception in respect of the offence. The TPAD Act creates the simple offence of breaching the requirement of DPS2 set out in cl 4.23.2 not to park more than one commercial vehicle on land zoned Special Rural and cl 7 creates an excuse or an exemption from compliance with cl 4.23.2 where an existing, lawful nonconforming use is established. In my view, cl 7 can also be said to operate as a proviso to cl 4.23.2. Irrespective of the more precise description, I consider cl 7 constitutes an exception which shifts the burden of proof to, in this case, the appellant.
The proposition contained in s 78(1) reflects the position at common law as stated by the High Court in Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 and applied in Nominal Defendant v Dunstan [1963] HCA 5; (1963) 109 CLR 143 (at 150 - 151). In Vines v Djordjevitch the High Court dealt with a provision creating a cause of action against a nominal defendant which contained a proviso requiring notice to be given of the intention to make the claim "as soon possible after he knew that the identity of the motor car could not be established". The Court held that the proviso imposed a condition precedent to the cause of action, the burden of proving compliance with which lies on the plaintiff. In response to the proposition that there is a technical distinction between a proviso and an exception such that an exception must be negatived but a proviso need not, the High Court stated (at 519 - 520):
'But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.'
[57] La Rosa v City of Wanneroo [2006] WASC 304 [29] ‑ [32].
Section 31 of the Criminal Procedure Act is not an 'exception' within the meaning of the Criminal Code. Section 31 is within Chapter V - Criminal responsibility. Chapter V includes, for example, s 22 Honest claim of right, s 23B Accident and s 25 Emergency. The burden of proof in each of these instances is on the prosecution, e.g. NPK v The State of Western Australia.[58] Chapter V of the Criminal Code contains a series of exculpatory provisions. If there is evidence in a trial upon which any of these provisions can properly be based, they must be disproved by the prosecution - Criminal Code (WA), s 31.
[58] NPK v The State of Western Australia[2020] WASCA 50 [22].
The Notice had two requirements relating to firebreaks; the first relating to firebreaks on the boundary, the second to other bushfire prevention measures on the Property:
[Firebreaks on the boundary]
Construct bare earth firebreaks three (3) metres wide inside and along all boundaries of land in a continuous form, including on boundaries adjacent to roads, rail and drain reserves and all public open space reserves, with all overhanging branches, trees, limbs etc. to be trimmed back from over the firebreak area to a minimum height of four (4) metres;
…
[Other Firebreaks]
Clear firebreaks three (3) metres wide and minimum height of four (4) metres immediately surrounding any place where wood or timber piles, haystacks, tyres, vehicles, flammable liquids, chemicals and gas products are kept on the land buildings situated on the land;
Have all flammable material except living trees, shrubs, plants under cultivation and lawns slashed, mowed or trimmed down by other means to a height no greater than 50mm across the entire property; …
Any finding of fact by His Honour based to any substantial degree on his assessment of the credibility of Mr Savage should stand unless it can be shown that His Honour failed to use, or palpably misused, his advantage or had acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.
His Honour had two days to observe Mr Savage giving his evidence. He accepted that evidence. It follows that he accepted Mr Savage's evidence concerning the email. Once that finding was made the email was entirely consistent with Mr Savage's evidence.
The Shire relies on one e-mail sent by Mr Savage. There is nothing in that email that is inconsistent with facts incontrovertibly established by the facts or which was glaringly improbable.
Ground 5 fails.
Proviso
The Savages made submissions relating to the proviso [139] - [145] but since the appeal has not succeeded I have not dealt with those.
Conclusion
The Shire has failed in demonstrating relevant error and the appeal should be dismissed.
Orders
1.Leave to appeal on ground 1.
2.Leave to appeal on grounds 3, 4 and 5 refused.
3.The appeal is dismissed.
4.The appellant is to pay the respondents' costs of the appeal to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MDM
Associate to the Honourable Justice Curthoys
1 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CITY OF KALAMUNDA -v- A.C.N. 605 729 995 PTY LTD [2020] WASC 341 (S)
CORAM: CURTHOYS J
HEARD: 23 SEPTEMBER 2019
DELIVERED : 2 OCTOBER 2020
FILE NO/S: SJA 1005 of 2019
MATTER: Criminal Appeals Act 2004 (WA)
BETWEEN: CITY OF KALAMUNDA
Appellant
AND
A.C.N. 605 729 995 PTY LTD
First Respondent
JUDITH LINDA SAVAGE
Second Respondent
FREDERICK THOMAS SAVAGE
Third Respondent
FILE NO/S: SJA 1024 of 2019
BETWEEN: A.C.N 605 729 995 PTY LTD
JUDITH LINDA SAVAGE
FREDERICK THOMAS SAVAGE
Appellants
AND
CITY OF KALAMUNDA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S P SHARRATT
File Number : ACN 605 729 995 PTY LTD: MI 8667-8668 of 2016
JUDITH LINDA SAVAGE: MI 8669-8870 of 2016
FREDERICK THOMAS SAVAGE: MI 8871-8872 of 2016
Catchwords:
Costs - Discretion - Complexity
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
SJA 1005 of 2019
Counsel:
| Appellant | : | J L W Henderson |
| First Respondent | : | A G Elliott |
| Second Respondent | : | A G Elliott |
| Third Respondent | : | A G Elliott |
Solicitors:
| Appellant | : | Kott Gunning |
| First Respondent | : | Edwards Mac Scovell Legal |
| Second Respondent | : | Edwards Mac Scovell Legal |
| Third Respondent | : | Edwards Mac Scovell Legal |
SJA 1024 of 2019
Counsel:
| Appellants | : | A G Elliott |
| Respondent | : | J L W Henderson |
Solicitors:
| Appellants | : | Edwards Mac Scovell Legal |
| Respondent | : | Kott Gunning |
Case(s) referred to in decision(s):
Washbourne v State Energy Commission (WA) (1992) 8 WAR 188
CURTHOYS J:
In the principal appeal City of Kalamunda v ACN 605 729 995 Pty Ltd ([2020] WASC 341]) the City's appeal was dismissed.
In the Magistrates Court the Savages were acquitted. Costs followed the event. The Savages appeal against the quantum of costs awarded to them by his Honour. It is therefore necessary to consider the appeal against the quantum of costs.
The ground of appeal
On 18 February 2019 the Savages filed a notice of appeal against the quantum of costs awarded to them. That ground was:
In fixing the amount of costs to be awarded following the acquittal of the appellants, the learned magistrate erred in law in fixing the costs payable to each in the sum of $6922.66 (making a total award of $20,767.98) that in the circumstances was so manifestly in adequate as to disclose error.
The Savages' submissions
In relation to the costs appeal the Savages submitted:
[1]The prosecution alleged that the three appellants commenced or carried out development without the necessary prior approval of the Shire, on a property of which the first accused was registered owner, and that they failed to stop that unauthorised development after being given a notice under s 214 of Planning and Development Act 2005 (the Act).
[2]Each accused faced two charges: first contrary to s 218 of the Act, and, secondly against s 214(7) of the Act.
[3]The maximum penalty applicable to each offence is prescribed by s 223 of the Act which provides that:
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.
[4]Pursuant to s 40(5) of the Sentencing Act 1995 this penalty was increased for the first appellant to maximum of $1,000,000 because the first appellant is a corporation. The daily penalty is increased to a maximum of $125,000 for each day or part of a day during which the offence has continued.
[5]In the statement of material facts served upon the appellants, the prosecution asserted that:
(a)with respect to charge 1 daily penalties there were 172 days from the date of the offence (28 January 2016) to the date of signing of the prosecution notice (on 18 July 2016);
(b)with respect to charge 2 daily penalties there were 154 days from the date of the offence (15 February 2016) to the date of signing of the prosecution notice on 18 July 2016; and 130 days from the date of the offence (15 February 2016) to 24 June 2016 which represents the date of last photographic evidence of the operation of earth moving equipment on the property.
[6]The following table sets out the maximum penalties that could be imposed on each accused had daily penalties been imposed as set out in par 5 above:
First Appellant
Second Appellant
Third Appellant
Count 1 Base penalty
$1,000,000
$200,000
$200,000
Count 1 Daily penalty
172 x $125,000
= $21,500,000
172 x $25,000
= $4,300,000
172 x $25,000
= $4,300,000
Count 2 Base penalty
$1,000,000
$200,000
$200,000
Count 2 Daily penalty
Based on 130 days
130 x $125,000
= $16,250,000
130 x $25,000
= $3,250,000
130 x $25,000
= $3,250,000
Based on 154 days
154 x $125,000
= $19,250,000
154 x $25,000
= $3,850,000
154 x $25,000
= $3,850,000
Highest penalty available
$42,750,000
$8,550,000
$8,550,000
[7]Whilst it is inconceivable, at least in the circumstances of this case, that those maximum penalties would be imposed, each of the three appellants faced substantial financial penalties if convicted.
[8]The charges proceeded to hearing before Magistrate Sharrett in the Midland Magistrates Court.
[9]The matter was heard over the following dates:
(a)24 April 2017 (full day hearing).
(b)29 January 2018 (full day hearing.)
(c)20 September 2018 (full day hearing).
(d)21 September 2018 (full day hearing).
[10]On 3 December 2018 the learned magistrate acquitted each accused on both counts.
[11]There had been detailed written submissions by the appellants on the following issues:
(a)Provision of particulars - 24 April 2017 (9 pages).
(b)No case submission - 29 January 2018 (11 pages).
[12]To save sitting time, and to assist the magistrate in considering the case, the parties agreed to present written closing arguments, which were presented as follows:
(a)Prosecution initial submissions - 16 October 2018 (8 pages).
(b)Defence closing submissions - 18 October 2018 (49 pages).
(c)Prosecution reply - undated but received around 23 October 2018 (18 pages).
(d)Defence reply - 23 October 2018 (14 pages).
[13]The prosecution sought, in its reply, to change its case, which prompted the defence to file a further set of submissions on 26 October 2018 (13 pages). The magistrate dealt with that issue in his reasons, but refused to receive the submissions.
[14]The work involved in reducing the arguments to written submissions was, in retrospect, a task which involved more time for the parties (but less for the court) than had the argument been presented orally. There is a strong likelihood, however, that it resulted in an earlier resumption date being granted.
[15]Following the dismissal of the charges, each party presented a schedule of costs.
[16]The presiding magistrate awarded costs of $6,922.66 to each appellant, resulting in a total costs award in their favour of $20,767.98.
[17]The appellants appeal against the quantum of the discretionary award of costs on the basis that the award was inadequate, and was so to such an extent that, upon no proper exercise of the discretion would the award have been as low as it was.
[18]It is accepted that in order to succeed on an appeal against the exercise of the discretion and appellants must demonstrate not merely that the appellate court would have exercised the discretion differently, but that any judicial officer, acting in accordance with the appropriate principles, would have exercised the discretion otherwise than in the manner in which was exercise.
[19]The learned magistrate did not explain or articulate the basis of his costs order, or how his figure was arrived it.
[20]Needless to say, the amount is less than the amount which the prosecution acknowledged was the maximum claimable under the scale: see ts 10.2 (3 December 2018).
The materials before the learned magistrate
[21]The fact that the matter occupied four days of evidence, and written closing submissions running to 89 pages were provided to the court indicates something about the complexity of the factual and legal issues in the case. A total of 34 exhibits were tendered, including two booklets, one of which had an extensive number of photographs of the property in question.
[22]The points which are canvassed in the appeal against acquittal (SJA 1005 of 2018) are testament to the issues which arose in the hearing. The third respondent testified over the course of almost two full days.
[23]The learned magistrate was supplied with detailed schedules of costs by both parties. Those schedules set out (in very general terms) the work undertaken in preparing the matters for the trial, appearing at trial and preparing the detailed written submissions (which obviated the need for further sitting days).
…
[25]It is acknowledged that the schedules do not descend into a minute articulation of every item. The learned magistrate was assured that the items, as calculated, reflected the scale amounts (see ts 9.9) and that the items were calculated 'on the work actually done' (see ts 11.8 - 11.12 on 3 December 2018).
[26]It is acknowledged that the amounts claimed under some items exceed the scale amount. Clause 8 of the relevant costs determination allows the court to allow more than the rates or scale set out in the Tables where a matter is complex, and doing so is determined to be reasonable in the circumstances. The precise terms of clause 8 are set out following:
8.Complex matters, and matters involving a high degree of skill or urgency or require Senior Counsel
(a)Where a matter is complex, or involves a high degree of skill or urgency or requires Senior Counsel, notwithstanding the rates or scale set out in the Tables to this Determination, the accused is entitled to recover a fee that is greater than the one that is set out in this Determination, if it is reasonable in the circumstances.
[27]It is contended that the matter was of sufficient complexity as to warrant a departure from the scale.
[28]There was an artificial element to the conduct of this hearing which added to the complexity of the matter. The hearing was adjourned part‑heard on two occasions, being 24 April 2017 and 29 January 2018. Each was a full day hearing, meaning that preparation for the appearance which followed required refreshers. Refreshers are not something which is specifically addressed in the relevant costs determinations.
[29]The prosecution calculations reflect a pure statement of the maximum amount in the scale, and have no regard to the time actually spent. It is submitted that higher allowances (reflecting the time spent) is properly claimed as the matter was complex. The second point of difference is that the prosecution calculation is for a solicitor advocate appearing without instructing solicitor. That the prosecution chose to do so is unremarkable insofar as the prosecution had the advantage of having the professional investigating witnesses 'to instruct them'.
[30]The element of the appellants' claim that relates to counsel fees (copy invoices attached) is as follows:
(a)24 April 2017 (full day hearing and preparation
$9,200(b)29 January 2017 (full day hearing and preparation
$7,600(c)20 - 21 September 2018 (refresher, two full days
$20,000of hearing and written submissions comprising 63 pages; preparation for sentencing and reserved decision)
Complexity
[31]The appellants repeat paragraphs [21] - [22] above.
[32]There were a multiplicity of issues in the hearing including:
(a)whether the actions undertaken by the appellants amounted to development per se;
(b)the state of the property following the fire;
(c)whether the trees and vegetation which had been pushed up were healthy or otherwise;
(d)whether the appellants had an obligation to clear the vegetation;
(e)whether the appellants had a reasonable excuse for dealing with vegetation after the date of alleged service of the directions notice;
(f)whether the appellants had an obligation to clear the vegetation;
(g)whether there was sufficient evidence of what had been served by Ms Hudson;
(h)whether the service was effective in any event; and
(i)whether the clearing was, in fact, consistent with the town planning scheme.
[33]The third appellant's evidence was substantial and his credibility was subjected to serious challenge. Taking instructions to address the many facets of the activities on the land, and the state of all of the vegetation, was a substantial task. An examination of Exhibit 34 gives some indication of the extent of the preparation needed.
[34]Ultimately, the appellants succeeded in respect of count 2 on the issue of service. Even so, it was essential that they also deal with the question of whether their actions were a breach of the determination notice in case the service issue was decided against them.
[35]In respect of count 2, the prosecution identified approximately 20 different established trees which were alleged to have been cleared contrary to the directions notice. Had any one of those trees been proven to have been are cleared in contravention of the directions notice then the appellants may have been liable to a conviction.
[36]As a corollary to that, proof of more than one tree having been unlawfully removed that would have justified a greater penalty. This was relevant to the substantial daily penalties to which each of the appellants were potentially liable.
[37]Many of the issues which the appellants had to address arose because of the way that the prosecution framed its case. For example, the case was opened so as to suggest that the area which was cleared was adjacent to an area damaged by fire (although evidence tendered by the defence showed that it was covered by the area damaged by fire). It was also put that the trees were Marri (native) and that there was no visible fire damage on many of the trees. This was in circumstances where the shire officers agreed that they had not conducted a close hand inspection of the trees.
[38]The penalties which each of the appellants were, potentially, liable to, were enormous. This, in and of itself, does not equate to or demonstrate complexity. However, this is a matter which justifies the application of greater skill and care, which is sufficient to activate cl 8.
[39]The issues for each accused, although they were generally alike, were not exactly the same. This added to the complexity of the matter.
[40]It is acknowledged that a proper award of costs would recognise the presence of substantial overlap between the three appellants.
[41]Given the complexity of the matter, the fact that there were three accused (and the corporate accused had to be legally represented) it was not inappropriate for counsel to be instructed by a solicitor who was present for the entire hearing.
The relevant items under the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2016
| Scale Item No | Description | Date | Maximum under scale | Amount Claimed | Prosecution Calculation |
| 3 | Attendance at Directions hearing, including preparation | 13/3/17 | $1,628 | $1,672 | $1,628 |
| 9 | Copies | $247 | $247 | $352.50 | |
| Preparation for trial | 14/03/17 - 24/04/17 | $1,254 | $1,254 | ||
| 4(a) & (b) | Preparation for and attendance at full day trial | 07/03/17 -24/04/17 | $8,327 | $13,200 | $8,327 |
| 5 | Preparation for and attendance at full day trial | 09/01/18 -29/01/18 | $3,300 | $6,300 | $3,300 |
| Scale Item No | Description | Date | Maximum under scale | Amount Claimed | Prosecution Calculation |
| 5 | Preparation for and attendance at two day trial | 10/09/18 -21/09/18 | $3,410 | $9,600 | $3,410 |
| 7 | Preparation of closing submissions and attendance at verdict | 22/09/18 - 3/12/18 | $1,023 | $1,800 | $1,023 |
| 8 | Counsel fees for preparation and attendance at full day trial | 24/04/17 | $9,200 | ||
| 8 | Counsel fees for preparation and attendance at full day trial | 20/01/18 - 29/01/18 | $7,600 | ||
| 5 | Counsel fees for preparation and attendance at full day trial | 08/03/18 -21/09/18 | $17,000 | $3,410 | |
| 8 | Counsel fees for drafting closing submissions and attendance at verdict | 22/09/18 - 3/12/18 | $6,820 |
Conclusion
[42]It is submitted that on a proper exercise of the discretion, taking into account the briefing of counsel, the need for refreshers, the other factors bearing upon the complexity of the matter, and the serious nature of the matters and potential penalties which could be imposed, a more generous allowance ought have been made in favour of the appellants.
[43]There are no factors which justify a reduction from what would otherwise be a proper award of costs to the appellants who were wholly successful in defending the charges brought against them by the respondent.
Shire's submissions
In relation to the quantum of costs the Shire submitted:
1.Did the prosecution seek to change its case in its reply to the defendants' closing submissions?
1.1It is asserted at par 13 of the appellant submissions that the prosecution 'sought, in its reply, to change its case'. That proposition is disputed.
1.2In its written closing submissions dated 16 October 2018 (prosecution closing submissions) the prosecution closed on the basis that:
(a)clearing is development under the Planning and Development Act and requires approval under the Shire of Kalamunda Local Planning Scheme No 3 (Scheme);[78]
[78] Prosecution closing submissions [4].
(b)it is not relevant whether the vegetation cleared was native or not;[79]
[79] Prosecution closing submissions [5].
(c) it is not relevant why the clearing occurred;[80]
[80] Prosecution closing submissions [6].
(d)there was relevant confessional material with respect to the involvement of the third accused[81].
[81] Prosecution closing submissions [7].
1.3The prosecution closing submissions were filed and served on the defendants on 16 October 2018.
1.4On 18 October 2018 the defendants filed and served their own closing submissions (defence closing submissions).
1.5In the defence closing submissions the defendants expressed the view that the 'prosecution submissions appear to be posited on the principle that clearing, per se, is the offence, and proof of clearing is sufficient to prove the charges'.[82]
[82] Defence closing submissions [4].
1.6It is not clear why the defendants formed that view, given the clear language in which the primary legal submission of the prosecution had been set out in the prosecution closing submissions at [4], to the effect that clearing is development under the Planning and Development Act, and required approval under the Scheme. The relevant legislation was quoted in the prosecution closing submissions. The prosecution adequately explained the legal basis for the charge, and it is not correct to suggest that the prosecution proceeded on the basis that ‘clearing’ was the offence per se.
1.7The defence correctly identified, however, that '[I]f the activity of clearing does not amount to development, then the charge cannot be proven'.[83]
[83] Defence closing submissions [5].
1.8It appears from the defence closing submissions that the defendants understood that the primary legal issue was whether or not the activity of clearing amounted to development. If it was found to be development, it follows that the primary factual issue must be whether or not clearing had occurred.
1.9On 22 October 2018 the prosecution filed and served supplementary submissions discretely dealing with matters raised in the defence closing submissions (prosecution reply). In the prosecution reply the prosecution enlarged upon the definition of development in the Planning and Development Act 2005. That enlargement was a proper response to the submissions on the law made in the defence closing submissions, which were correctly said by the prosecution to be an incomplete analysis of the entirety of the definition of 'development'.
1.10The defence reply asserted that the prosecution had raised a new argument under the heading 'Is clearing development'. It was said to be a 'new formulation of the prosecution case' to assert that the clearing of the land results in a 'use' of the land which was different from the existing use, and so required planning approval. With all due respect, that was not a correct characterisation of the position adopted in the prosecution reply.
1.11The prosecution case was consistently that clearing was development per se regardless of whether the vegetation was native or non-native. That was the position adopted by the prosecution in the statement of charge (which referred only to 'clearing' as the relevant development), and it was the position adopted by the prosecution in opening and closing submissions. In particular, the court may note the exchange on pages 5 to 7 of the transcript of 24 April 2017 during which the prosecution was asked to particularise the charges. During that exchange Ms Wood for the prosecution specifically interrupted Mr Elliot for the defence with the following clarification:
WOOD, MS: Sorry, your Honour, I do need to rise to my feet. My friend has said that I said native vegetation. I didn't actually say that. It's simply the clearing of vegetation.
1.12The submissions made in the prosecution reply were to the effect that the non-exhaustive definition of development was 'about the development by use of land' in addition to 'development by physical alteration' and the point was made that the defence had focussed only on physical work or built development. For cogent reasons, that was argued by the prosecution to be not a correct analysis of the law.
1.13The prosecution case remained that the clearing of land fell within the definition of development, and that clearing on native or non-native trees was equally the clearing of land. The significant additional submission was the explicit rejection by the prosecution of the proposition put at [58] of the defence closing submissions to the effect that the nature of the development must be similar to the list of illustrations given in the definition.[84]
[84] Prosecution reply [22].
2.Does the length of a hearing and the length of closing submissions necessarily indicate the complexity of the factual and legal issues in a case?
2.1It is accepted that higher limits than the scale may be justified where there is special difficulty, complexity or importance, although in such circumstances the scale items remain the basic guideline for determining the amount of costs.[85] Even when the matter is complex, the court is not obliged to entirely remove scale limits.
[85] Washbourne v State Energy Commission (WA) (1992) 8 WAR 188.
2.2The appellant asserts that the length of the hearing and the length of closing submissions are a relevant factor in determining whether a matter is of special difficulty, complexity or importance. The respondent accepts that those are considerations that are taken into account by the court, but says that in this instance they are misleading.
2.3As of the commencement of that day, it appears that the parties still anticipated that it might conclude that day. His Honour asked 'is this trial going to take all day?' and Ms Wood replied 'We have three witnesses. One of our witnesses will be quite quick'. No comment to the contrary was made by Mr Elliot.[86]
[86] ts 10.
2.4It does not appear that at prior to the commencement of the hearing on 24 April 2017 either party had prepared on the basis that the matter was of such complexity as to require a lengthy hearing.
2.5When the court was asked to list more time, the parties indicated that a full day would be sufficient additional listing, with perhaps a further half day for closing submissions.[87] Although at that stage Ms Wood was anticipating that her next witness might take four to five based on the experience of the previous witness, Mr Elliot noted his view that 'I would have thought we've got an hour in chief and probably an hour in cross'. He added that 'I've got a couple of witnesses but that might take us through a full day and then I would have thought that we might swing over into the next day for addresses'.[88] The matter was adjourned to 29 January 2018.
[87] ts 67.
[88] ts 67.
2.6It does not appear that at the conclusion of the hearing on 24 April 2017 either party anticipated further preparations on the basis that the matter was of such complexity as to require several more days.
2.7The prosecution witnesses were completed on 29 January 2018. The matter was listed for the following half day, but it appears to have been adjourned due to a double booking by the court. His Honour eloquently noted that 'We won't be able to finish tomorrow because some idiot has put 89 charges so there will be - the back of the room will be filled with Midland's finest mingling outside. We would be unlikely to get through and have a half day even with me cracking the whip stronger than I generally do'.[89]
[89] ts 113, 29 January 2018.
2.8It is noteworthy, however, that at that stage Mr Elliot was anticipating a 'no case' submission in respect of count 2, and in the event of a favourable ruling is would theoretically be possible to finish the matter in half a day, subject to the length of cross examination.[90]
[90] ts 113, 29 January 2018.
2.9Given that a 'no case' submission was anticipated in respect of count 2, and that the entire evidence in chief in respect of count 1 was anticipated to be complete within two hours, it does not appear that any particular complexity was anticipated at that stage of the proceedings.
2.10The matter was adjourned to 20 September 2018. That day commenced with a no case submission, which was dismissed. The evidence-in-chief of the Mr Savage took the balance of the day, and the matter was adjourned to 21 September 2018. The cross-examination of Mr Savage was completed, and the evidence of David Mairoana was adduced, and the defence case completed.
2.11The parties appear to have agreed to written submissions, not from a shortage of time, but to avoid 'keeping us all here on a Friday afternoon'.[91]
[91] ts 95, 21 September 2018.
2.12The time proposed by defence counsel for the filing of written submissions was two weeks, notwithstanding that he had a trial in the District Court in that timeframe. The proposition was for both sets of submissions to be filed at the same time, with 24 hours allowed for a response.[92] That proposal does not suggest anticipation of any extraordinary complexity in the submissions, such as would require a complex responsive discussion of the facts and the law.
[92] ts 96, 21 September 2018.
2.13Orders were made for the filing of submissions by 16 October 2018. Orders were made for the filing of any response by 19 October 2018.
2.14The length of the parties' submissions must be seen in that unusual context, and does not indicate complexity of issues per se. The proper approach would be for the court to consider the meaningful content of the submissions in order to determine whether they reveal any special complexity such as would warrant an uplift in the usual scale. The respondent suggests that they do not.
3.Whether the large maximum fine impacts on costs that should be awarded
3.1The respondent respectfully submits that there is no proportionality requirement or consideration that renders the size of the maximum fine relevant to the amount of costs awarded.
4.The contention in par 27 of the appellant's submissions that the matter was of sufficient complexity to warrant a departure from the scale
4.1The respondent does not accept that this was a factually complicated case. The case was and is simple. Development had occurred without approval. There was photographic and oral evidence in relation to that illegal development. Oral evidence was given by the directors of one of the accused and another third party witness. No expert witnesses were called by either party.
4.2The definition of 'development' was ultimately pivotal to the case run by both parties and is the subject of an appeal. However, there is no extraordinary complexity to the arguments run by either party at first instance with regards to the definition and application of the law.
5.Appellant's claim that additional costs should be awarded for lengthy submissions submitted
5.1The document titled 'Bill of Costs' provided by letter from Edwards MacScovell to the Supreme Court on 18 February 2019 which contains a table with a total of $82,162.30 is not a complete copy of the document which was provided to the honourable magistrate at first instance. This can be seen at ts 9 from 3 December 2018 (fourth and to second last paragraphs) where the following exchange takes place:
Elliott Mr: If you Honour pleases, in light of those findings and the acquittals, we would seek costs pursuant to the Official Prosecutions (Defendants Costs) Act.
His Honour:Do you have a schedule?
Elliott Mr: I do. A copy of your Honour, a copy for my learned friend. It has been prepared by Mr Pascoe and we've made an amendment to item 10 to reflect the fact that I did 40 hours of work in relation to the submissions that were filed at the end of the day. And these were all scale amounts according to the best of my information'
5.2The actual document provided to the honourable magistrate contained an amendment to the first item 10 from $6,820 to $14,663 and an amendment to the total from $82,162.30 to $90,000.
5.3It can be seen from the transcript reference above (ts 9) that counsel for the appellant expressly stated to the court that the amendment related to the '40 hours of work in relation to the submissions which were filed at the end of the day'
5.4With respect, the appellant cannot now claim that the work producing those submissions forms part of the $82,162.30.
5.5Further, the appellant sought leave to file additional submission from the Magistrate and that leave was refused. Regardless, the appellant, produced and filed additional submissions.
5.6The appellant should not receive an award of costs for the preparation of submissions for which leave to file had been sought and refused.
6.Quantum of the costs sought by the appellant
6.1Similarly the document provided to the magistrate by the respondent, is not the document attached to letter from Edwards MacScovell to the Supreme Court on 18 February 2019.
6.2The document handed up was a single page removed from the penalty and costs submissions prepared by the prosecution with the first words above 'Submissions of Costs' struck diagonally through with a pen.
6.3This document was prepared by the prosecution and is the costs which would have been sought by the prosecution/respondent, if successful at first instance.
6.4The costs have been calculated using the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2016 which applied from 1 July 2016 to 30 June 2018. There is no additional amount for written submissions because the scale does not specifically allow for it and the case was not so complex as to justify the seeking of an additional amount.
6.5Under the Legal Profession (Official Prosecutions) (Accused Costs) Determination 2016 the maximum claimable for preparation and attendance at the first half of the first day of trial is $7491 (or 18.4 hours at senior practitioner rate of $407) and $836 for the second half (or 2.05 hours at senior practitioner rate. This is a total maximum of $7,898 for the preparation and first day of trial.
6.6If the hours are combined for the preparation and attendance at the first day of trial they would equal 20.45 (18.4 plus 2.05). Assuming 7.5 hours a day this is 2.7 days.
6.7The maximum claimable for 2.7 days - as a senior counsel is $14,696 (2.7 by $5,390).
6.8The appellant is claiming $13,200 for their junior practitioner for the preparation and first day of trial (29 January 2018). In addition they are claiming $9,200 for their senior practitioner for the same work.
6.9.This is a total of $22,400 in legal fees for the accused for the preparation and attendance at the first day of trial.
6.10When senior counsel could only claim $14,696 in the same circumstances. We say that this is excessive and the claim for costs continues in a similar fashion, where;
6.11The appellant is claiming a total of $17,200 for preparation and attendance at trial on 21 September 2018 ($9,600 (junior practitioner) plus $7,600 (senior practitioner)) when the total claimable under Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2016 was $3,300.
6.12It will be seen that the actual time spent by the prosecution/respondent, when calculated at scale rate under the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2016 is $47,656.20.
6.13We respectfully suggest that the quantum of costs sought by the appellant are excessive.
7.Lack of justification by the appellant at first instance for departing from scale
7.1The only other comment made by Mr Elliott in relation to costs at first instance commences at ts 11 of 3 December 2018 (second last paragraph) where the following exchange appears:
Elliott Mr: No, I understand that there's a gross difference between what my learned friend says is payable and what we say is payable. Can I just make the observation that has been calculated on the work actually done and there are significant charges, as your Honour will recall. At the beginning, my learned friend indicated that there was the prospect of a fine of - for daily breaches continuing of - I've forgotten what the amount was.
Yes. $25,000 a day, I think. I might be wrong. So this is a matter that my clients have had to take particularly seriously. We have put an enormous amount of work in and the amount that we've claimed reflects the time spent at hourly scale fees or hourly scale rates. We will await your Honour' ruling on costs.
His Honour: All right. Thank you. I think the Act allows me - I don't want to come back and get even more costs going.
Elliott Mr: No.
His Honour: I will just send you some decision as to an amount later, rather than getting you to hang around. I will probably sit down and have a look at the Act and go through each of these.
…
7.2We respectfully suggest that there is a lack of sufficient justification at first instance was to why costs should be awarded to the appellant in excess of the maximum allowable under Scale by approximately four times the maximum allowable under Scale.
7.3.The appellant should not now be allowed to make submissions attempting to justify the magnitude of costs sought that they did not make at first instance.
8.Conclusion
8.1The costs awarded were done so by the magistrate who heard the matter and read the submissions. He was in the best position to assess the complexity or otherwise of the trial as it had progressed.
8.2 The respondent submits that the costs sought are excessive and, if the accused (respondent) is successful in SJA 1005 of 2019, the appellants in SJA 1024 of 2019 should be limited to the costs awarded by the honourable magistrate.
Analysis
This was a relatively simple case involving a factual question as to the extent of clearing, whether that clearing was done with lawful authority and whether the extent of the clearing was sufficient to amount to development in any event. The onus lay on the Shire to prove the charges.
Although there were extensive submissions about whether clearing could constitute development the authorities make it clear that clearing can constitute development depending on all the circumstances. Much of the analysis by both parties was irrelevant having regard to the authorities.
I accept that the Savages faced the possibility of significant fines but as the Savages submitted it was inconceivable that the maximum penalties would be imposed even if they had been convicted.
Although in the event, the hearing took four days, it was not anticipated that it would take that long. The major time appears to have been a result of the Shire's extensive cross-examination of Mr Savage. Given the time that both parties expected the trial to last 1½ to 2 days I do not accept that it can be said to be complex on the basis that it took 4 days.
I also note that many of the objections raised by the Savages seem to have been matters of form rather than substance.
The Savages have noted that the no case submission extended to 11 pages of written submissions, however, the Savages were not successful in that application.
Although the Savages filed a set of submissions in reply dated 26 October, the magistrate did not receive the submissions.
I am not persuaded that the two charges were complex matters involving a high degree of skill or urgency or that they required senior counsel.
Although refreshers were required that was a result of the failure by the parties to properly estimate the length of the hearing. It is crucial to the efficient use of court time that the parties accurately estimate the length of hearings.
The fact that counsel fees amounted to $36,800 is not evidence of the complexity of the matter. Clients may pay counsel what they agree. It does not follow from that that fees should be allowed at the rate charged by counsel.
As stated above I do not regard the case as complex in the relevant sense. Multiple factual issues are a common factor of many matters in the Magistrates Court and other courts.
The issues each of the Savages and the Company faced were substantially the same. I do not accept the Savages' submissions to the contrary. Although there were potentially particular issues of criminal responsibility the vast majority of the factual issues were identical.
Many of the submissions made by both parties were misconceived for the reasons set out above.
The Savages have failed to establish that the magistrate's exercise of discretion miscarried. The magistrate had the advantage of listening to the case over four days. The exercise of Her Honour's discretion has not been shown to be in error.
Accordingly leave to appeal should be refused and the appeal dismissed.
Orders
1.Leave to appeal refused.
2.Accordingly the appeal is dismissed.
3.The appellant is to pay the respondents' costs of the application to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MDM
Associate to the Honourable Justice Curthoys
1 OCTOBER 2020
7
5