Dodd and Dodd Pty Ltd v Shire of Mundaring
[2011] WASCA 37
•17 FEBRUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DODD & DODD PTY LTD -v- SHIRE OF MUNDARING [2011] WASCA 37
CORAM: PULLIN JA
NEWNES JA
MAZZA J
HEARD: 15 DECEMBER 2010
DELIVERED : 17 FEBRUARY 2011
FILE NO/S: CACR 37 of 2010
BETWEEN: DODD & DODD PTY LTD
Appellant
AND
SHIRE OF MUNDARING
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE M D WHEELER
File No :MI 3264 of 2008
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HALL J
Citation :DODD AND DODD PTY LTD -v- SHIRE OF MUNDARING [2010] WASC 37
File No :SJA 1090 of 2009
Catchwords:
Criminal law - Offence of unlawfully using land contrary to a town planning scheme - Whether defences under s 22 or s 24 of Criminal Code (WA) made out
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 22, s 24
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr D P Gillett
Solicitors:
Appellant: Taylor Smart
Respondent: McLeods
Case(s) referred to in judgment(s):
Basso‑Brusa v City of Wanneroo [2003] WASCA 103
Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562
Pearce v Paskov [1968] WAR 66
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
PULLIN JA: This is an appeal pursuant to s 16 of the Criminal Appeals Act 2004 (WA) against the judgment of Hall J, who dismissed an appeal against the decision of his Honour Magistrate M D Wheeler, who found the appellant guilty of an offence that it:
Used Lot 5 Helena Valley Road, Helena Valley as a wreckers yard contrary to clause 3.2 (incorporating table 1 - zoning table) of the Shire of Mundaring Town Planning Scheme No 3 ('TPS 3') pursuant to which the use 'wreckers yard' is a use that is not permitted in the Rural Landscape Living Zone within which Lot 5 is situated and thereby committed an offence pursuant to TPS 3 and the Planning and Development Act 2005 sections 218(a) and 223.
At the hearing before the magistrate the appellant raised defences under s 22 and s 24 of the Criminal Code. The magistrate held that s 22 had no application to the charge and held that the respondent had rebutted the defence under s 24 of the Criminal Code.
The appellant appealed pursuant to s 7 of the Criminal Appeals Act 2004 (WA) and the appeal was heard by Hall J. There were two grounds of appeal. The first ground of appeal alleged that the magistrate erred in law in holding that s 22 of the Criminal Code had no application to the charge. The second ground alleged that the magistrate erred in his finding concerning the s 24 defence, which was based on the appellant's contention that it had an honest and reasonable, but mistaken, belief that it enjoyed a lawful non‑conforming use right to operate a wreckers yard on its land.
Hall J granted leave in respect of ground 1, holding that the magistrate erred in law in holding that s 22 had no application to the charge. However, his Honour concluded that there was no substantial miscarriage of justice because:
(a)the claimed mistake was a mistake of law and not of fact;
(b)alternatively, in effect the defence under s 22 could not succeed because the appellant did not honestly believe that it had the right to use the land pursuant to a lawful non-conforming use right.
Ground 1 was therefore dismissed.
Ground 2 was dismissed by Hall J on the basis that the magistrate had not erred in finding that the respondent had rebutted the defence under s 24. Hall J's reasons are referred to in more detail below. The appellant appeals against Hall J's judgment on grounds which are set out below.
The background was stated by Hall J in his reasons as follows [6] ‑ [10]:
The appellant has owned the land in Helena Valley since 6 October 1988. The land was originally designated as Lot 202 Helena Valley Road but in 1991 it was bisected by a public road and divided into two lots which were renumbered Lots 5 and 6. Lot 5 is the larger portion and it is on that part of the land that the appellant has operated its salvage yard business.
At the time the appellant acquired the land it was zoned 'rural' under the Shire of Mundaring Town Planning Scheme No 1 (TPS1). TPS1 came into effect on 6 April 1973. Part 3 of TPS1 provided that light industry was not permitted in land zoned rural. Rural industry was permitted. A salvage yard was not permitted unless approval was granted by the council. The term 'salvage yard' was defined in cl 1.8 to mean 'land used primarily or partially for collecting, storage and/or sale of discarded goods, scrap metal and used building materials'. TPS1 continued in operation until it was replaced by TPS3 which came into effect on 18 March 1994. The council did not grant approval for a salvage yard during the currency of TPS1.
In 1983 the previous owner of the land made an application to establish an animal feed milling plant. On 24 June 1983 the Shire granted approval for a hay cubing industry to be carried out on the land. That industry involved the storage and processing of sheep fodder. The approval was subject to a number of conditions including the lodgement of a landscaping plan and the payment of a landscaping bond to the Shire. Those conditions had not been met by January 1984 and it is not apparent whether they were subsequently complied with. In any event, it was an agreed fact that an approved hay cubing industry was carried out on the land between 1983 and 1988.
The appellant commenced using Lot 5 as a salvage yard soon after acquiring it in October 1988. As previously noted, TPS3 came into operation on 18 March 1994. Under TPS3 the land was zoned 'rural landscape living'. Pursuant to cl 3.2 it was not permitted to use land with that zoning for light industry, rural industry or a wrecker's yard. The phrase 'wreckers yard' was defined in cl 1.13 to mean:
any land or buildings used for the collection, storage, abandonment or sale of scrap metals, second hand timber and building materials, waste paper, bottles, or other scrap materials or goods or used for the collection, dismantling, storage, salvaging or abandonment of automobiles or other vehicles or machinery whether or not parts thereof are also for sale.
The definitions of light industry and rural industry excluded a salvage yard such as that run by the appellant.
Clause 7.1 of TPS3 provided for non-conforming use rights. That clause provided that if at the time of the coming into force of TPS3 land was being used for a purpose which was lawful under the provisions of the earlier scheme it could continue to be so used even though it would be contrary to the provisions of TPS3. Clause 7.8 of TPS3 provides that the council may keep and maintain a register of non-conforming uses. A person who wishes to establish a non-conforming use right is obliged either within six months of the gazettal date of TPS3 or within 21 days of a demand in writing by the council to give to the council full information as to the nature and extent of the non-conforming use.
The chronology of those and other relevant events which are not in dispute, is as follows:
| 6 April 1973 | TPS1 commenced |
| 6 October 1988 | Appellant acquired the land and commenced using the land as a salvage yard and made no application for approval for that use |
| 18 March 1994 | TPS3 commenced |
| 7 September 1994 | The appellant wrote to the shire 'noting that it was using the land for the storage and sale of new and salvaged materials and recycling of scrap metal and other materials, that this use was not permitted under TPS3 and seeking to register the current use as a non-conforming use'. |
| 14 September 1994 | The shire wrote in response to the appellant's letter of 7 September 1994 stating it would consider the appellant's application. |
| 16 August 1995 | The shire wrote to the appellant responding to the appellant's letter of 7 September 1994, stating that non‑conforming use rights could only be established if a particular use was lawful under the provisions of an earlier scheme; that council's records showed no application for a commercial/industrial development on [the land]: 'the description you have given would most closely be described as a wreckers yard … this is a use that is not permitted in an RLL zone. Neither was it lawful under TPS1. Unless you have information to the contrary to demonstrate that you have approval … for the said usages … it is illegal to continue these activities'. |
| 11 September 1995 | The appellant applied for rezoning of the land, which application failed. |
| 2000 | Mr Croy, an employee of the appellant, attended a meeting with an officer of the shire in 2000 when the officer explained that the appellant had a non‑conforming use right to operate as a salvage yard. The officer showed a register of non-conforming uses and he believed it showed the appellant's land was on the register. |
| 12 October 2000 | A note on the shire's file of this date stated that there was a meeting between Mr Gleeson of the shire and Mr Bain of SJB Town Planners on 5 October 2000 to discuss the plans for development of the land, and which stated that it was 'noted it was a site with a registered non‑conforming use'. (Next to the 'note' was an arrow stating 'see next page' and dated 26 November 2002.) The next page was a copy of an extract of the non‑conforming use register relating to land other than the appellant's land. |
| 2000 | Communications between officers of the shire and Mr Dodd, a director of the appellant. Mr Dodd could not recall what the officers said. |
| 28 November 2002 | The shire wrote to the appellant stating that the use as a wreckers yard was contrary to the zoning and that the use was to cease. |
| 18 February 2003 | The appellant wrote to the shire stating that it was 'our long understanding that we enjoyed non-conforming use rights'. |
| 17 December 2003 | The shire sent a letter to the appellant stating that the use as a salvage yard was illegal and that the appellant should make 'no mistake' that if the appellant failed to remove all scrap and salvage material there would be a recommendation that formal legal action be taken. |
| 2005 | The appellant was charged and pleaded guilty to an offence similar to the offence the subject of the current proceedings and was fined $5,000. |
| 2006 | The appellant was again charged with a similar offence, pleaded guilty and was fined $10,000. |
| 13 September 2007 to 25 January 2008 | Period of offending in this case. |
The provisions of TPS1 and TPS3 and the application of those provisions
The provisions of both schemes are referred to in the passage of Hall J's reasons set out above. It is not necessary to quote the relevant provisions of TPS1. It is only necessary to describe their effect. The land that was purchased by the appellant was located in the rural zone in TPS1. Use of land in that zone as a salvage yard was a use that was permitted only with the approval of council. The land was not used as a salvage yard by the appellant's predecessor in title. There is no dispute that soon after the appellant purchased the land, it commenced using the land as a salvage yard. The appellant made no application for approval of that use. Approval of council was not given for such use. As a result, the use of the land as a salvage yard was an unlawful non‑conforming use under TPS1.
As the chronology above shows, on 18 March 1994, TPS3 commenced. The subject land was zoned 'rural landscape living' in TPS3. Land in that zone could not be used as a 'wreckers yard' and there is no dispute that the operations carried on by the appellant satisfied the description of a 'wreckers yard'. By reason of the combined effect of the provisions of TPS3, the now repealed Town Planning and Development Act 1928 (WA) and the Planning and Development Act 2005 (WA), a person who uses land for a purpose not conforming to TPS3 contravenes the scheme and a person who contravenes TPS3 commits an offence. If the land had been used pursuant to a 'lawful' non‑conforming use right under TPS1, then cl 7.1 of TPS3 provided that no provision of the scheme prevented such continued use. Clause 7.1 did not apply because the appellant had no 'lawful' non‑conforming use right under TPS1.
Although there was no lawful non-conforming use in relation to the land, it is necessary to mention cl 7.8 of TPS3 because of the claimed defences under s 22 and s 24 of the Criminal Code. Clause 7.8 read:
(1)The Council may keep and maintain a register of non‑conforming uses.
(2)A person carrying on a non‑conforming use who wishes to establish that person's non‑conforming use right shall within six calendar months of the gazettal date, or within 21 days after demand in writing by the Council, give to the Council in writing, full information of the nature and extent of the non‑conforming use.
(3)The Council shall note in the register any change to or discontinuance of a non‑conforming use.
(4)For the purpose of the registration of a non‑conforming use in the register, the Council shall determine the nature of the use and the appropriate use class based upon the Council's assessment of the evidence before it at the time of making the determination.
This clause makes clear that the council had the option of keeping and maintaining a register of non‑conforming uses. If it did keep and maintain such a register, then a person carrying on a (lawful) non‑conforming use 'who wishes to establish that person's non‑conforming use right' shall, within the specified times, give to the council in writing full information of the nature and extent of the non‑conforming use. For the purpose of registration, the council was to determine the nature of the use, and the appropriate use class, based upon the council's assessment of the evidence before it at the time of making the determination. The clause provided for the registration of an existing lawful non‑conforming use, not for the creation of a lawful non‑conforming use by registration.
Section 22 and s 24 of the Criminal Code
Section 22 reads:
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
and s 24 reads:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
The appellant's claim and belief
The appellant submitted that it was using the property in the exercise of an honest claim of right, thereby providing a defence under s 22. It claimed that it had a lawful non‑conforming use right. Alternatively, pursuant to s 24 of the Criminal Code, the appellant claimed that it believed in the existence of a state of things, which meant it was not criminally responsible. The belief was that the land was the subject of a lawful non‑conforming use right. The claim of honest claim of right or honest and reasonable but mistaken belief in the existence of a state of things, was advanced by Mr Dodd, a director of the appellant.
Mr Dodd was asked in cross‑examination whether he was still of the view that he had a non‑conforming use right after receiving the letter from the shire dated 28 November 2002. It was put to him that the council was 'quite blunt' in telling him to cease using the land and buildings for the purpose of a wreckers yard and he was asked what part of the letter did he not understand. His answer was:
Well just through previous conversations with the council and previous correspondence, I believed we had a non‑conforming use right to be on that property.
However, he admitted:
I understand what their letter is saying (ts 23 ‑ 24, 23 June 2009).
Mr Croy also gave evidence. He was an employee of the appellant. Mr Croy said that Mr Gleeson, an officer of the shire, showed him the register of non‑conforming uses (ts 55, 23 June 2009). This appeared to be the copy of the extract referred to in the note relating to the meeting between Mr Bain and the shire officer. Hall J observed that it was not clear how any mistaken belief on the part of Mr Croy could have been attributed to the appellant company. His Honour said:
In 2000 Mr Croy had only recently resumed employment with the company and might understandably have been unaware that the appellant had never pursued an application for inclusion on the register. This ignorance could not, however, be shared by the appellant itself [38].
The note on the respondent's file stated that at the meeting between a shire officer and the appellant's town planner on 5 October 2000, it was noted that the land was the subject of a registered non‑conforming use. In fact this was not correct. Mr Bain was not called as a witness. However, even if Mr Bain told Mr Dodd what was noted at the meeting, namely that the shire register showed that the land was the subject of a lawful non‑conforming use right, it did not prove the existence of such a right. Furthermore, the information could only have led Mr Dodd, and therefore the appellant, to believe that the shire register showed incorrectly that the appellant had a lawful non‑conforming use right. This is because the appellant knew that it did not have any approval for the use under TPS1 and knew that its application for registration of a non‑conforming use had been refused. The evidence of Mr Dodd as a director of the appellant was the evidence of the appellant's belief or claim of right.
The magistrate's reasons
The magistrate concluded that the appellant was in breach of TPS3 during the dates specified in the charge. His Honour considered that the only way the use 'could have been made lawful' was if there was a lawful non‑conforming use (ts 36, 24 June 2009). He held that there was no lawful non‑conforming use. His Honour then found the facts in the chronology set out above and then considered whether the prosecutor had negatived the claimed defences under s 22 and s 24 of the Criminal Code (ts 36 ‑ 38).
The magistrate first considered the appellant's claimed defence under s 24. The magistrate said 'I emphatically reject that the accused had an honest and reasonable mistaken belief of fact or law, for that matter'. His reasons read:
He could not have had an honest belief because of all that he had been told about the issues, how he knew years before in 1995, tried to get a rezoning - or the company had tried to get a rezoning - fully appreciating the only reasonable inference that they knew the problem that had been created, and as I say, has been trying to back-track ever since, keep the business going for as long as possible. So even if there was an honest belief at the start, it ceased to be honest along the way.
It was hardly reasonable at any stage. … He simply bought a failed business and changed the very nature of it, without reference to anything. So I am satisfied beyond a reasonable doubt, for all the reasons I have stated, particularly correspondence in the events that occurred, that the prosecution have negatived that defence beyond a reasonable doubt (ts 36 24 June 2009).
The magistrate then turned to consider whether s 22 arose, and as to that he said:
Section 22 defence, the case of Pearce v Pascoe (1968) WAR 68, confirms that for an offence relating to property: was held by Virtue J and it has been held ever since - to apply exclusively to offences relating to wrongful interference with the property of others. That is offences relating to Part VI of the Code which are the stealing offences, frauds etc. So in other words, it does not apply to this type of case at all, s 22. The only part that does is the part that says ignorance of the law does not afford a defence (ts 36 ‑ 37).
The magistrate convicted the appellant. The appellant then appealed.
Hall J's reasons
Hall J considered the s 24 defence and reached the conclusion that the mistake made by the appellant about whether it had a right to operate a salvage yard on the land was based on a 'misunderstanding' of the zoning laws. In other words, it was based on ignorance of the law. However, his Honour considered the possibility that the mistake was a mistaken belief that the land was shown on the register as a non‑conforming use and therefore a mistake of fact. His Honour said:
However, even if the claim regarding the register was sufficient to raise a mistake of fact, which I doubt, any such claim was found to have been neither honest nor reasonable. The magistrate considered the evidence given in this regard on behalf of the appellant and found that any belief in regards to the existence of a non-conforming use right was at no point reasonable and nor, by the time of the commission of the offence, could it have been honestly held [47].
As a result, ground 2 failed and leave to appeal on that ground was refused.
As to the s 22 defence, his Honour observed that Pearce v Paskov [1968] WAR 66 had been disapproved of in Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561. His Honour also referred to the decision of the Full Court of the Supreme Court in Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562, where McKechnie J (with whom Templeman J agreed) stated that Pearce v Paskov no longer represents the law in Western Australia and should not be followed [13]. His Honour also referred to Basso‑Brusa v City of Wanneroo [2003] WASCA 103. As a result, his Honour decided that the magistrate erred in finding that s 22 did not apply to the offence with which the appellant was charged (ts 36 ‑ 37, 24 June 2009). This aspect of the decision is not challenged by either party.
His Honour then referred to s 14(2) of the Criminal Appeals Act 2004, which provides that even if a ground of appeal might be decided in favour of an appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. His Honour then said:
The first issue to consider in this regard is whether there was evidence which could be a proper foundation for a claim of an honest claim of right. A person acts in the exercise of an honest claim of right if he honestly believes himself to be entitled to do what he is doing. It is not necessary that the right be one recognised by law, it may be founded on law or fact: Walden v Hensler (Brennan J) (569) (Toohey J) (600) (Gaudron J) (606); R v Pollard (1962) QWN 13.
Nonetheless the phrase 'honest claim of right' must be considered in the context of the opening words of s 22 of the Criminal Code that ignorance of the law does not itself afford any excuse for an act or omission that would otherwise constitute an offence. It is no excuse for a person to say that he thought he was entitled to do an act because he was unaware that it was prescribed by the criminal law. Accordingly, a mistaken belief that the appellant was entitled to conduct a salvage yard on the property was an error of law and not an honest claim of right [57] ‑ [58].
His Honour then considered what the outcome should be if the appellant had a claim of right which, if honestly held, would afford a defence. His Honour said:
However, even if the evidence was sufficient to raise an honest claim of right any such claim would necessarily have been rejected in light of the findings made by the magistrate in regards to s 24. As is apparent s 24 contains both objective and subjective elements. That is, a mistake of fact will only excuse conduct under s 24 if it is both honest and reasonable. Section 22 does not contain the objective element of reasonableness. Accordingly, where it is open on the evidence to raise either s 22 or s 24, an honest claim of right may succeed where a claim for an honest and reasonable mistake would not. In some circumstances, therefore, the failure to consider a s 22 claim would be significant even where a s 24 claim had been considered and found to have no merit. However, in the present case the learned magistrate found that the belief claimed by the appellant was, by the time of the commencement of the period covered by the charge, not merely unreasonable but not honestly held.
Since the claim of an honest claim of right was predicated on precisely the same evidence as that which was said to support the s 24 claim the finding that the appellant did not have an honest belief that it was entitled to conduct a salvage yard was necessarily fatal to any claim that it had an honest right to do so pursuant to s 22 of the Criminal Code [59] ‑ [60].
His Honour therefore granted leave to appeal on ground 1 but dismissed that ground. As a result, the appeal against conviction was dismissed.
Grounds of appeal
The appellant now appeals to this court on the following grounds:
Ground 1
1.The learned Judge erred when, having found error on the part of the primary Magistrate concerning the application of Section 22 of the Criminal Code, he held there was no substantial miscarriage of justice;
Particulars:
1.1)His Honour found there was no substantial miscarriage of justice because there had been a mistake of law, when there had actually been a mistake of fact concerning Section 22 of the Criminal Code;
1.2)His Honour erroneously conflated his findings regarding Sections 22 & 24 of the Criminal Code;
1.3)The Magistrate's error represented a positive misdirection and the proviso therefore had no application;
1.4)His Honour failed to adequately/or at all make his own independent assessment of the evidence.
Ground 2
2.The learned Judge erred when, in dismissing Ground two of the Grounds of Appeal (concerning s 24 of the Criminal Code), he misconstrued as a mistake of law on the part of the Appellant what was a mistake of fact;
Particulars:
2.1)There was evidence the Appellant believed his business had been placed by the Respondent on a register of those businesses with approval to pursue a non‑conforming use ('the register');
2.2)As a matter of law, historically, the business could have been placed on the register;
2.3)His Honour found the belief stated at 2.1 above was a mistake of law because it was based on information provided to the Appellant by persons who had no authority to actually place the business on the register ('the information');
2.4)But the belief on the part of the Appellant was that, effectively, those who did have authority to place the business on the register had done so and the information was merely confirming that;
2.5)The belief stated at 2.1 above represented a mistake of fact, to which Section 24 of the Criminal Code applied.
Ground 1
Having decided that the magistrate erred in concluding that s 22 did not apply, Hall J then decided that there was no substantial miscarriage of justice because the finding of lack of honest belief in relation to the s 24 defence was a finding which could also be applied to defeat the honest claim of right under s 22 [60] ‑ [61].
The first particular to this ground asserts that this decision was in error because Hall J decided that there had been a mistake of law when there had been a mistake of fact. This particular would not result in the appeal being upheld, even if the judge's conclusion was in error, because Hall J also considered what the position would be if the claim was based on a mistake of fact and held that the appellant did not have an honest claim of right to a lawful non‑conforming use [59].
Particular 1.2 of the first ground of appeal asserts that Hall J 'erroneously conflated his findings regarding sections 22 and 24 of the Criminal Code'. His Honour did not do so. His Honour merely pointed out that the appellant's claim under s 22 and the appellant's belief under s 24 amounted to one and the same thing in the circumstances of this case. Hall J said, in effect, that if there was no honest belief that there was a lawful non‑conforming use, then there could be no honest claim to such a right under s 22 [60]. This was correct.
Particular 1.3 to ground 1 asserts that the magistrate's error concerning the application of s 22 'represented a positive misdirection and the proviso therefore had no application'. That is not correct for the reasons already mentioned. The findings of lack of honesty in relation to the asserted belief under s 24 was a finding which applied equally to establish that there was no honest claim of right under s 22.
Particular 1.4 to ground 1 asserts that Hall J erred when considering whether a substantial miscarriage of justice occurred. The appellant's submission was that Hall J deferred to the findings made by the magistrate, rather than making his own independent assessment of the evidence, as required by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41]. A fair reading of his Honour's reasons is that he reached his own conclusion, but adopted the reasoning of the magistrate.
However, even if Hall J erred as the appellant contends, s 14(2) of the Criminal Appeals Act 2004 should be applied (as to which see s 18) and this appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred. This is because my own assessment of the evidence accords with the finding made by the magistrate.
My own assessment of the evidence is as follows. The appellant knew that he had no lawful right to use the land as a salvage yard or wreckers yard. The appellant commenced using the land unlawfully soon after he bought it. It did not apply for permission to use the land as required under TPS1 and it knew that no permission had been granted. It wrote to the respondent acknowledging that such use of the land was not permitted under TPS3. Even if it believed for a time, based on incorrect information about the state of the register, that it had a lawful
non‑conforming right to use the land as a wreckers yard, the council dispelled that belief in several letters long before the time referred to in the prosecution notice. Further, the chronology submitted in this appeal showed that the appellant twice pleaded guilty to using the land in contravention of the scheme. As a result, by 13 September 2007 (the first date referred to in the prosecution notice), the appellant had no basis for honestly claiming that it had a lawful non‑conforming right to use the land as a wreckers yard. Ground 1 has no merit.
Ground 2
This ground asserts that Hall J erred in dismissing the appeal ground concerning s 24 of the Criminal Code because he held there was a mistake of law when there was a mistake of fact.
This ground must be dismissed because although Hall J held that there was a mistake of law, and no mistake of fact, he went on to consider what the position was if the mistake could be said to be one of fact [46] ‑ [47]. The mistake of fact was said by the appellant to be the appellant's belief that it was on the shire's register. The appellant could not honestly have believed that it had a lawful non‑conforming use which could be registered. Although Mr Dodd gave evidence that he believed he had a lawful non‑conforming use (ts 20, 23 June 2009), the magistrate held that this was not an honest belief (ts 35, 24 June 2009). That finding of fact has not been challenged. Ground 2 has no merit.
As a result, both grounds of appeal should be dismissed.
NEWNES JA: I agree with Pullin JA.
MAZZA J: I agree with Pullin JA.
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