Dodd and Dodd Pty Ltd v Shire of Mundaring - [2010] WASC 37

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DODD AND DODD PTY LTD -v- SHIRE OF MUNDARING [2010] WASC 37

CORAM: HALL J

HEARD: 1 DECEMBER 2009

DELIVERED : 25 FEBRUARY 2010

FILE NO/S: SJA 1090 of 2009

BETWEEN: DODD AND 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

Catchwords:

Criminal law - Ignorance of the law - Honest and reasonable mistake of fact - Honest claim of right - Whether fine manifestly excessive

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D P A Moen
Respondent: Mr D P Gillett

Solicitors:

Appellant: Taylor Smart
Respondent: McLeods

Case(s) referred to in judgment(s):

Australian Fisheries Management Authority v Mei Ying Su [2009] FCA 56; (2009) 255 ALR 454
Basso‑Brusa v City of Wanneroo [2003] WASCA 103
Callan v City of Fremantle [2008] WASC 197
Cambridgeshire v Isle of Ely County Council and Rust (1972) 2 QB 426
Harvey v Robertson [1999] WASCA 120
Kwa v City of Stirling [2001] WASCA 370
Loch v Hunter (Unreported, QSCA, 1 May 1957)
Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Pearce v Paskov (1906) WAR 66
Pearce v Stanton (1984) WAR 359
Peat Resources Australia Ltd v City of Cockburn [2002] WASCA 342
Popelier v Haeren [2004] WASCA 13
R v Pollard (1962) QWN 13
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Walden v Hensler (1987) 163 CLR 561

HALL J: The appellant, Dodd and Dodd Pty Ltd, is the owner of land in Helena Valley. It has used the land for many years as a salvage or wreckers yard. Such use is not permitted under the relevant town planning scheme.
On 24 June 2009 the appellant was found guilty in the Magistrates Court of one charge of using the land in a manner that was not permitted contrary to s 218(a) and s 223 of the Planning and Development Act 2005 (WA). The offence was alleged to have continued over a 288 day period. A fine of $120,000 and an additional penalty of $100 per day were imposed. The total penalty, therefore, was $148,800. The appellant appeals against both conviction and sentence.
At the hearing of the appeal the appellant sought to substitute two new grounds of appeal against conviction to replace those for which leave had originally been granted. Leave can only be granted if the court is satisfied that a ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA) s 9. This means that the ground should have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. In the circumstances it was appropriate to hear argument on the grounds before determining the question of leave.
As regards conviction the appellants submits that at all relevant times it believed that it was lawfully permitted to operate its salvage yard business on the basis that it had a non‑conforming use right to do so. That belief was relied upon as raising both an honest claim of right (Criminal Code (WA) s 22) and an honest and reasonable mistake of fact (Criminal Code s 24). The appellant says that the magistrate erred by holding that s 22 had no application and by finding that s 24 had been rebutted beyond reasonable doubt.
The issues for determination are:
1.Was there a non‑conforming use right to operate a salvage yard?
2.Did the defendant believe that it had such a right?
3.Was the belief a mistake of fact or law?
4.Was the belief honest and reasonable?
5.Was an honest claim of right raised?
6.If so, was there any substantial miscarriage of justice in ruling that s 22 had no application?

Background

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.
On 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. On 16 August 1995 the Shire responded stating:
Non‑conforming use rights can only be established if a particular use was lawful under the provisions of an earlier Scheme. Council's records show no application for a commercial/industrial development on this property. The description you have given would most closely be described as a wrecker's yard in the zoning table for TPS 3. A copy of both the zoning table brochure and the interpretation is attached. As you will see, this is a use that is not permitted in an RLL zone. Neither was it lawful under TPS 1.
Unless you have information to the contrary to demonstrate that you have approval from this local authority for the said usages on the property, it is illegal to continue these activities.
On 11 September 1995 a firm of planning consultants wrote to the Shire on behalf of the appellant seeking to have the land rezoned. That application was not granted and on 28 November 2002 the Shire wrote to the appellant and advised that following an investigation it had been established that the land was being used as a wrecker's yard contrary to zoning. The letter noted that it was an offence to use the land for a prohibited use without the necessary approval and stated that the appellant must cease using the land for the purpose of a wreckers yard and remove all materials and equipment associated with that use by Friday 11 January 2003, failing which the Shire would consider prosecution action.
On 18 February 2003 the appellant wrote to the Shire stating:
It has also been our long understanding that we have enjoyed a non‑conforming use right over lot 5 Helena Valley Rd, this understanding was re‑enforced to myself when I approached your Planning Department in person many months ago and was verbally informed that we were on the non‑conforming use register, and that accordingly we could undertake a redevelopment of the site providing all Shire stipulations were met.
The letter went on to state:
It is our understanding that Mr Simon Bain of SJB Town planning & urban design was given verbal advice that the Shire's Planning Department will look at a re‑zoning proposal for this property.
At the trial the defence produced a handwritten note of a meeting between a Mr Gleeson of the Shire and Mr Bain of SJB Town Planners. This note was said to come from the Shire's files. Neither Mr Gleeson nor Mr Bain were called as witnesses. The note is dated 12 October 2000 and indicates that the meeting occurred on 5 October 2000. It states that the meeting was to discuss plans for the development of Lots 5 and 6 and stated, 'noted it was a site with a registered non‑conforming use'. Next to this note was an arrow with a handwritten note 'see next page' and a date, 26 November 2002. The next page was a copy of an extract from the non‑conforming use register relating to Lot 240, 2, 3 and 6 Helena Valley Road, Helena Valley, street number 100, zoned rural under TPS1 and RLL under TPS3 and that the non‑conforming use was salvage yard, construction for sale and removal of transportable buildings, repair and renovation of buildings transported to the site from elsewhere and hay processing depot. A handwritten note then states that this entry relates to the adjoining property owned by another person and does not relate to Lot 5.
At the hearing evidence was given by council officers that this entry relates to an entirely separate property owned by another rate payer. This is reflected by the lot and street numbers. The appellant's land was previously Lot 202 and then became, relevantly, Lot 5. There is no reference in the entry to either of those lot numbers. Furthermore, the street address for the appellant's land is number 145 whereas the street address in the extract is number 100. Nonetheless, this entry was relied upon by the appellant as being the basis for a mistaken belief that it had a registered non‑conforming use right in respect of the land. That belief was said to have been confirmed in discussions between officers of the appellant and Shire officers. I will refer to that evidence further, later in this judgment.
The defence also produced a file note said to be from the file of the Shire to the effect that two officers of the Shire attended at the land on 20 October 2000 and conducted a 'site inspection to ensure compliance with non‑conforming use rights'. Neither of the two officers was called as a witness. It was suggested that this confirms that the Shire was acting as if non‑conforming use rights existed and this reinforced the defendant's belief that it had such a right. Of course both that note and the file note of 12 October 2000 precede the letter from the Shire of 28 November 2002.
On 27 October 2003 an officer of the Shire sent an email to the appellant noting that whilst some material had been removed from the land a detailed schedule for the removal of all items from the property was required. On 17 December 2003 the Shire wrote to the appellant noting that a detailed schedule had not been received and that regular inspections of the property by Shire staff indicated that scrap metal was still being brought onto the property. The letter then stated:
This is unacceptable given that Council's resolution from 25 March 2003 clearly required you to cease conducting your business operations from the premises and to remove all salvaged material from the property, or risk being prosecuted. I have also reminded you of this on various occasions that we have met on site.
The facts of the matter are really quite simple, and are set out below ‑
•the business has been operating illegally from the property since 1994.
•In March 2003 Council compassionately decided to give your company the opportunity to remove all the scrap and salvaged material it had illegally accumulated on the property over the past nine years, and provided you with 6 months to do so.
•Despite the fact that some work has been done to remove accumulated salvaged material from site, that work is continually being undone by the collection of new, additional material on the site;
•Council has directed the Chief Executive Officer to commence legal action against your company if you do not substantively comply with the required schedule and remove all material from the property within 6 months. On this point you have not submitted an appropriate schedule for removal of all material from the property, nor have you made any substantial impact in removing all of the material from the property. Clearly therefore the circumstances are right for the Shire to act on Council's direction to commence prosecution action.
The letter then concluded with the following paragraph:
Therefore, let there be no mistake whatsoever that if you fail to remove all scrap and salvaged material from the property by the end of February 2004 (being 11 months from the date of Council's decision), I will recommend to the Chief Executive Officer that we commence formal legal action against you and instruct our solicitors to seek maximum fines and full reimbursement of all our costs. You are reminded that the maximum penalty under the Town Planning and Development Act 1928 (as amended) for a company committing an offence under a Town Planning Scheme is $250,000 and a daily penalty of $25,000.

Was there a non‑conforming use right?

As I have previously noted a non‑conforming use right under TPS3 would have arisen if at the time of the coming into force of TPS3 the land was being used for a purpose which was previously lawful. As at the date of commencement of TPS3, 18 March 1994, the land was being used as a salvage yard. Prior to that date TPS1 had applied and the land could only be used as a salvage yard if such use had been approved by the council or it was a non‑conforming use under TPS1.
The evidence was that there had never been an application for use of the land as a salvage yard and, accordingly, there had never been any approval by the council for such use. In order for a salvage yard to have been a non‑conforming use under TPS1 the land would need to have been lawfully been used for that purpose at the time TPS1 became effective, namely 6 April 1973. The evidence was that the appellant purchased the land in 1988 and only commenced using it for a salvage yard after that point.
When TPS3 became effective the permitted uses of the land changed in that use of the land for a salvage yard was not permitted in any circumstances. The possibility of the council approving use of the land for such a purpose was no longer open. Accordingly, on the evidence it was clear that use of the land for a salvage yard had never been lawfully permitted and that a non‑conforming use right in that regard had never existed.
There had been an approval for a hay baling business in 1987. This was not an approval of an existing non‑conforming use but a specific approval by the Shire of a new use for the land whilst TPS1 was current. Such approval was confined to the hay baling business and was only granted on conditions. There is nothing in the documents relating to that approval to suggest that the Shire had granted permission for any industrial use of the land, in fact to the contrary.

Magistrate's reasons

The magistrate reviewed the history in relation to use of the land and concluded that the appellant's use as a salvage yard was not lawful at any point in time. He noted that approval for the hay baling operation had been granted in 1987 and that the appellant had subsequently:
started a totally different, unrelated and ‑ a different and disparate business, without checking anything, without inquiring, without getting advice, without doing anything and it was foolish, unwise and it has led to the company being in this position today.
His Honour then went on:
The company purchased the property and became a registered proprietor on 6 October 1988. It had no desire or intention whatsoever of running a hay cubing business or upgrading a rural property of any kind. It wanted to be an industrial concern, principally a scrap metal yard. It had no permission to be so. It sought no permission to be so; that is. it did not apply for development approval as required. It simply set up its business and ran it as it pleased at some unspecified time after settlement, although it seems on all accounts to have been fairly soon thereafter.
The company could have and should have made formal application for development of the site as a salvage yard on rural land which was an AA use under TPS1. AA use is not permitted unless approval is granted by the council. It would then have been for the council to have approved or not the application. They say no such application was made. The company operated its business unlawfully from the time it commenced until ‑ it still is, it seems. Certainly it was unlawfully being operated at the time that TPS1 ceased and TSP3 came into effect.
There was as a matter of law no lawful nonconforming use in existence when TPS3 commenced and hence nothing could be put in a nonconforming use register ‑ nothing could be properly put; perhaps I should include the word ‑ any documentation or correspondence notwithstanding (ts 25, 24 June 2009).
His Honour then summarised the evidence relating to communications between the appellant and the Shire and noted that the period covered by the charges was 13 April 2007 to 25 January 2008. He noted that the director of the company, Mr Dodd, had given evidence that at all material times he honestly believed that the company had a registered non‑conforming use right, notwithstanding the demands from the Shire to cease using the land as a salvage yard. His Honour rejected that evidence stating that he found it specious and bordering on ridiculous. His Honour stated that whilst at the time of commencing the business Mr Dodd may have had an honest but mistaken belief that he could use the land for a salvage yard, any such belief was not reasonable because no enquiries were made in regard to such use.
His Honour then said:
At that point it was probably a mistake of law most likely, in any event, because it was a mistake of law he could ‑ what he could do with his land when he didn't have the approvals. However, in any event, it becomes academic in the end whether it becomes a mistake of law about whether or not he thought he had a nonconforming use rights. Later I find he did not hold that belief, in any event, honestly or reasonably. He could not possibly have (ts 35, 24 June 2009).

His Honour specifically referred to the provisions of s 24 of the Criminal Code as to honest and reasonable mistake of fact and concluded that by the time of the commission of the offence in 2007 the appellant did not have an honest and reasonable mistaken belief. He said:
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. It was a mistake of fact, because there was no checking done. He simply bought a failed business and changed the very nature of it, without reference to anything. So I am satisfied beyond 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).
His Honour then turned to consideration of whether s 22 arose in the context of this case. He said:
Section 22 defence, the case of Pearce v Pascoe (1968) WAR 68 confirms that for an offence relating to property: 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).

Was there evidence that the appellant believed that it had a right to run a salvage yard?

As has been noted, a director of the company, Mr Christopher Dodd, gave evidence on behalf of the appellant. His evidence was that at all material times he had believed that the appellant was entitled to run a salvage yard because it had a non‑conforming use right in relation to such use. This was said to have been based upon conversations and discussions with officers of the Shire. The evidence in this regard was, however, quite unspecific:
Can I ask you this: in relation to your communications with the shire, what did they advise you was the non‑conforming use there in relation to lot 5 and lot 6? What did they tell you?‑‑‑I'm not ‑ I can't recall what they actually said but they had seen the site and knew that we were doing on the site, and we had never had any objection from what we were doing, and I was firmly under the belief that we had a non‑conforming use right. They knew what we were doing and there was no ‑ and there was never any problem up to this point (ts 21, 23 June 2009).
Mr Dodd was asked about communications with an officer of the Shire in 1994 regarding the registration of non‑conforming uses. He said:
… what did he say to you in relation to lot 5? Was there a non‑conforming use and, if so, what did it relate to?‑‑‑Really, I can't recall the conversations well but, as I said, the conversations were around what we were doing on the site and that we had a non‑conforming use right to carry on business as we were, and that's always been our discussions with the shire previous to this and it's always been my belief, and my understanding is the shire knew we had one and I knew we one (ts 22, 23 June 2009).
The difficulty in Mr Dodd maintaining such a belief was the very clear letters sent by the Shire in 2002 and 2003. In that regard Mr Dodd was asked:
… I just want to understand your evidence. Are you saying that following receiving this letter on 28 November 2002 you still were of the view you had a non‑conforming use?‑‑‑Yes. Yeah, I ‑ ‑ ‑
Council is quite blunt in telling you to cease using the land and buildings for the purpose of a wrecker's yard and removal of all materials and equipment associated with that use. What part of that didn't you understand?‑‑‑Well, just that the previous conversations with the council and previous correspondence, I believed we had a non‑conforming use right to be on that property.
Did you realise they were telling you, 'Well, whatever we said before, well, we're saying you don't'?‑‑‑Yes, but previous officers had ‑ ‑ ‑
Okay, so you did appreciate that they were saying ‑ ‑ ‑?‑‑‑ I understand what their letter is saying (ts 23, 23 June 2009).
An employee of the appellant, Mr Stephen Croy, also gave evidence on its behalf. Mr Croy said that he had attended a meeting with Mr Gleeson, an officer of the Shire, sometime in 2000 and that Mr Gleeson had explained that the appellant had a non‑conforming use right to operate as a salvage yard. He said that Mr Gleeson showed him the register of non‑conforming uses and that he believed it showed that the appellant's land was on the register. Mr Croy was shown the extract produced at the hearing and confirmed that it appeared to be a copy of the extract he was shown by Mr Gleeson.
Assuming the correctness of Mr Croy's evidence, it supports an inference that at the meeting in question, Mr Gleeson erroneously thought that the appellant had a non‑conforming use right to operate a salvage yard and that this was reflected on the register. However, as I previously noted, on proper examination it is clear that the entry on the register does not relate to the appellant's land. If there was an error by the Shire in this regard it appears to have been appreciated by 2002 when the handwritten note was included on the register apparently to avoid any further confusion and letters were then sent by the Shire in 2002 and 2003 stating in the clearest possible terms that no non‑conforming use right existed.
In any event, it is not clear how a mistaken belief on the part of Mr Croy could have been attributed to the appellant company. 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.

Mistake of fact or law

It was submitted on behalf of the appellant that the mistake it made was as to a fact, namely whether it had a non‑conforming use right to operate a salvage yard on the land. More specifically it was said that there was a mistake as to whether the appellant's land had been included on the register of non‑conforming uses.
Determining whether a mistake is a mistake of fact or law can be notoriously difficult and the answer may be affected by how the mistake is described. In this case whether the appellant had a non‑conforming use right in respect of the land would appear to be clearly a question of law. However, whether or not the land was included on the register may be characterised as a factual issue upon which a legal consequence depends.
In Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493, the case turned on the respondent's belief that he was legally entitled to fish for rock lobster in the area in which he was fishing. Prohibited areas in regard to fishing were defined by regulation. The respondent made enquiries of the state government authority responsible and asked for a copy of the regulations applying in the then current fishing season in regards to rock lobsters. Photocopies of various documents were provided to him but none which showed that fishing was prohibited in a specified area within the zone covered by the regulations. The respondent placed his pots without knowing that they were in a prohibited area and when charged claimed that he was acting under a mistaken belief that he was permitted to fish in that area. Gleeson CJ and Kirby J held that:
The only mistake that the respondent made was a mistake that resulted from his ignorance of the law. The acts of the respondent would have constituted a breach of regulation 34 even if he had been given complete and accurate information by the department. What the respondent's argument amounts to is that in that event he would not have done the acts. That is not the issue raised by s 24. It is beside the point (504).
McHugh J referred to a number of cases where a mistake as to the lawfulness of activity has been induced by erroneous advice. His Honour said:
It is irrelevant that [the respondent's] mistake was induced by the conduct of an employee of Fisheries WA. That conduct cannot convert a mistake as to the applicable law into a mistake of fact. If a defendant knows all the relevant facts that constitute the offence and acts on erroneous advice as to the legal effect of those facts the defendant like the advisor has been mistaken as to the law, not the facts.
One of the cases referred to by his Honour was Loch v Hunter (Unreported, QSCA, 1 May 1957). In that case s 24 of the Criminal Code (Qld) was raised by a licensee of a hotel who was prosecuted for keeping a hotel open for the sale of liquor outside legal trading hours. The licensee contended that she was entitled to rely on s 24 because she believed that the legal trading hours were longer than they in fact were, based upon advice given to her by a licensing inspector. The Supreme Court of Queensland in that case held that even if such advice had been given it was a statement of the law and could only result in a mistaken belief in a state of law and not a similar belief in a state of fact.
In Cambridgeshire v Isle of Ely County Council and Rust (1972) 2 QB 426 the Court of Appeal dismissed the appeal of a highway trader who had illegally operated a stall on a highway for several years. Before setting up the stall the trader had consulted officials, none of whom had told him he could not set up the stall. The court held that his belief that he had lawful authority to operate the stall did not constitute a defence because none of the officials who he approached had the legal right to license him to operate the stall. Even if the facts were as the trader believed them to be he would not have been acting lawfully because as a matter of law the officials could not permit him to do so.
A different result occurred in Pearce v Stanton (1984) WAR 359. In that case the respondent claimed that he had an honest and reasonable belief that the lobsters he was selling were not undersized. That belief was held not to be one of law but a mistaken belief as to the existence of a fact which constituted one of the elements of the offence namely the size of the lobsters that he had in fact caught. It was not a mistaken belief as to the permitted minimum size of rock lobsters which would have been a mistake of law.
In the recent case of Australian Fisheries Management Authority v Mei Ying Su [2009] FCA 56; (2009) 255 ALR 454 the Full Court of the Federal Court held that a foreign fisherman who honestly and reasonably believed that a red line marked on his GPS navigation unit represented the border of the Australian Fishing Zone made a mistake of fact and not law. The Full Court distinguished Ostrowski v Palmer saying that the mistake was as to the character of the line on the GPS which gave rise to a mistake as to the position of the vessel in relation to the fishing zone. This was a mistake as to a fact relevant to one of the elements of the offence namely whether or not the vessel was within the fishing zone. In some respects it is difficult to reconcile this decision with Ostrowski v Palmer since the border of the fishing zone would appear on its face to be a matter of law and a mistake as to the location of that border would be a mistake of law. However, the Full Federal Court characterised the mistake in that case as one of a mistake as to the location of the vessel in relation to the border.
In the present case, for the appellant to claim that it believed that it had a non‑conforming use right in respect of the land would clearly be a mistake of law. A non‑conforming use right can only arise in respect of the land in the manner provided for by TPS1 and, subsequently, TPS3. The mistake claimed was not that the factual basis for a lawful claim of a non‑conforming use right existed. Rather the mistake claimed was that a salvage yard business commenced in 1988 for which approval was never sought could qualify as a non‑conforming use because the appellant believed it was similar to the previous approved use, being a hay baling business. This is simply a misunderstanding of the zoning laws that applied to the land.
There was never any non‑conforming use right in respect of the land nor any factual basis for such a non‑conforming use right to exist. Even if, as Mr Dodd claimed, he had discussions with officers of the Shire which led him to believe that the appellant had a non‑conforming use right in respect of the land that would not constitute an error of fact because none of the officers of the Shire could grant approval for the use of the land as a salvage yard. Any such approval could only come from a resolution of the council.
However, arguably, a distinction could be made in regards to a mistake as to whether the land was entered on the register of non‑conforming uses. Whether at the time specified in the charge, there was a non‑conforming use right in respect of the land, depended on there having been a pre‑existing lawful right to use the land as a salvage yard prior to the commencement of TPS3 and to there being an entry in the register acknowledging that non‑conforming use. As to the first, there appears to be very little upon which the appellant could base a belief that it had had a non‑conforming use right to operate a salvage yard in 1994. There had been some correspondence regarding the register at this stage but it would appear that registration was not pursued and an alternative approach was taken, namely to seek rezoning. However, as I have noted, there is some evidence that could support a conclusion that Mr Croy was shown the register in 2000 and formed a belief that the appellant had a registered non‑conforming use. Since registration alone is not sufficient to establish a non‑conforming use right it might be doubted that a mistake as to registration would be sufficient in the context of s 24. Furthermore, I have already referred to the difficulty in attributing Mr Croy's belief to the appellant.
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.
Proposed ground 2 of appeal against conviction asserts that the learned magistrate erred in law in finding that the respondent had rebutted beyond reasonable doubt the appellant's honest and reasonable but mistaken belief that it enjoyed a non‑conforming use right to operate a wreckers/salvage yard on its property. That ground is supported by particulars that refer to the belief held by Mr Dodd and Mr Croy, that such belief is said to be reasonable and that the learned magistrate failed to give adequate reasons as to why any such belief was not honest or reasonable.
In fact, as I have pointed out earlier, the magistrate specifically rejected the evidence of Mr Dodd. He held that a belief of the type claimed was never reasonable and supported this conclusion by referring to the fact that no enquiry was ever made to confirm the existence of such a right. In my view this is clearly a reference to the comment made by the magistrate earlier in his reasons that Mr Dodd 'took no advice from lawyers, planners or indeed made a polite phone call to the Shire of Mundaring before commencing'. It is also relevant to note that in the course of summarising the evidence relating to the correspondence between the appellant and the Shire the magistrate refers a number of times to the inconsistency of any belief with the unequivocal correspondence coming from the Shire, particularly in 2002 and 2003.
Having found that any such belief was not at any point reasonable it was unnecessary for the magistrate to go on to find that such a belief was not honestly held. However, he did so and concluded that if there had initially been an honest belief in regards to a non‑conforming use it could not have persisted until 2007. He supported this conclusion by referring to the fact that the appellant had sought rezoning in 1995. The clear implication is that such rezoning would have been unnecessary if the appellant honestly believed that it had a lawful and continuing right to operate a salvage yard from the land. Again, it is also relevant to note that the magistrate refers to the claim of an honest belief when summarising the communications with the council and of the inconsistency of such a belief with that correspondence.

Honest claim of right

As I have noted, the learned magistrate held that s 22 of the Criminal Code dealing with an honest claim of right did not apply to an offence of this nature. His Honour referred to Pearce v Paskov (1906) WAR 66.
The decision in Pearce v Paskov has been subsequently considered by the High Court in Walden v Hensler (1987) 163 CLR 561 and by the Full Court of this court in Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562. In Walden v Hensler the High Court considered s 22 of the Queensland Code which is in similar terms. In that case Deane J and Toohey J disapproved of Pearce v Paskov and Gaudron J did so by implication. In Molina, McKechnie J with whom Templeman J agreed said:
… consistently with Walden v Hensler, a broad, not a restricted approach should be adopted. The time has come to say that the passage quoted in Pearce v Paskov no longer represents the law in Western Australia and should not be followed.
In my opinion, it is at least consistent with three judgments in Walden v Hensler to say that s 22 should be given its literal and broad effect. It follows that it can have application to offences such as the Police Act s 82B [100] ‑ [101].
In Basso‑Brusa v City of Wanneroo [2003] WASCA 103 Pullin J referred to Molina v Zaknich and Walden v Hensler and concluded that s 22 of the Criminal Code may have application to charges under the Town Planning and Development Act 1928 (WA). In that case the appellants appealed against their conviction for using land in a way that was contrary to an approval that had been granted by the Shire. The appellant claimed that he had an honest claim to be able to use the land in the way that was alleged and this raised s 22, because that use related to property. Pullin J said:
So what right did the appellants claim in this case? They claimed they were entitled to saw timber on the area of their land which was designated for storage of timber. Counsel for the appellants submitted that they claimed they had the right to do so because they had approval from the respondent. It was submitted that if the belief were honestly held, then it would afford a defence to a charge of using land contrary to the approval granted by the respondent.
However, this submission by counsel for the appellants is not evidence. It is legal argument from counsel about what he said was the correct interpretation of the terms of the approval. The evidence about what the appellants claimed about the use of the chainsaw appears from a document written by a person on behalf of the appellants and from evidence from one of the appellants [21] ‑ [22].
At [26] his Honour continues:
This evidence does not reveal any claim by the appellants that they sought the approval and its conditions authorised them to use a chainsaw in the timber storage area. It is a quite different claim, namely a claim that as far as the appellants knew they were free to use a chainsaw, there being no prohibition against the use of a chainsaw by them or by anybody else within the City of Wanneroo. That is a claim which, upon analysis, amounts to a claim that they did not know that there was a law which restricts the use of land unless approval of council is given. …

His Honour concluded, therefore, that what the appellants were claiming was that they were ignorant of the law and s 22 of the Criminal Code made it plain that any such claim could not succeed.
Insofar as the magistrate concluded that s 22 of the Criminal Code had no application to a charge of this nature it is clear that on the authority of Molina's case he was wrong. However, s 14(2) of the Criminal Appeals Act 2004 (WA) 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. It is therefore necessary to consider whether the failure by the magistrate to consider the application of s 22 to the facts of this case was a material error.
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.
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.

Appeal against conviction - Conclusion

Whilst the magistrate was wrong to conclude that s 22 could not have application in a case of this type, any such claim could not have succeeded in any event given that the error was one of law and would also have necessarily failed on the basis of the findings made. Accordingly, despite this error, there was no miscarriage of justice. Because error has been identified but found not to be material, it is appropriate to grant leave in respect of ground 1, though that ground does not succeed.
The magistrate considered and rejected the claim that the appellant had a honest and reasonable but mistaken belief that it had a non‑conforming use right to operate a salvage yard on the land. That conclusion was based upon a rejection of evidence given on behalf of the appellant and the inconsistency of any such belief in light of communications sent by the Shire and the actions of the appellant in seeking rezoning in 1994. The evidence was clearly capable of supporting such a conclusion and the magistrate's reasons were not inadequate in this regard. In any event the mistake was, in my view, one of law not fact. Accordingly, ground 2 also fails. In respect of that ground, leave is refused.
The appeal against conviction is, therefore, dismissed.

Sentence

The magistrate, having heard sentencing submissions, imposed a fine of $120,000 and an additional daily penalty of $100 a day. The offence had continued over a period of 288 days, so the additional penalty was $28,800. Accordingly, the total penalty was $148,800.
The appellant appeals against this sentence on the following grounds:
1.The sentence of $120,000.00 with a daily penalty totalling $28,800.00 was manifestly excessive in all the circumstances of the case.
2.The learned Magistrate failed to give adequate or any weight to the fact that the respondent had permitted the Appellant to continue using Lot 5 in line with its policy at all material times.
3.The learned Magistrate failed to give any weight to the fact that the Appellant was providing employment to members of the community and was a positive business in the community.
4.Having regard to the previous convictions of similar nature and the penalty imposed for those offences, the imposition of the penalty in the present case was far in excess of what should have been imposed having regard to cases of a similar kind.
5.The learned Magistrate failed to give any weight to mitigating factors in favour of the Appellant.
6.The learned Magistrate purported to impose a penalty reflecting the commercial gain derived by the Appellant when there was no evidence of such gain or the value thereof.
The maximum penalty for an offence of this nature is a fine of $50,000 for an individual and $250,000 for a corporation and a daily penalty to a maximum of $5,000 a day for an individual and $25,000 a day for a corporation. As is apparent, whilst the penalty in this case was large it was significantly less than the maximum that could have been imposed.
In determining a penalty the magistrate took into account that the appellant was conducting a substantial commercial business, that the appellant had been twice prosecuted before and that, in his view, the appellant had advanced an untenable defence and had done so for the purpose of delaying the inevitable as long as possible.
The appellant had been previously prosecuted in 2005 for an offence of an identical nature following a failure to meet an assurance to the Shire that the salvage yard business would be moved from the land. The appellant pleaded guilty on that occasion on the basis it would be given a further 12 months to move its business. The appellant was convicted and fined $5,000.
The Shire agreed not to take further prosecution action for 12 months during which time the appellant was to move its business. However, this had not occurred by March 2006. At that time the Shire wrote to the appellant and advised that unless operations were ceased by 28 April 2006 a further prosecution would be commenced. That deadline also passed and in 2006 the appellant was prosecuted again, pleaded guilty and was fined $10,000.
It is difficult to understand how, in light of these previous convictions, the appellant could have maintained that in 2007 it had an honest and reasonable but mistaken belief that it had a non‑conforming use right in respect of the land. Possibly it was for this reason that the magistrate referred to the defence raised as being untenable. A wide range of factual circumstances can arise in offences of this nature, however there have been a number of cases which are similar.
In Basso‑Brusa v City of Wanneroo, the appellants were convicted following a trial for using a chainsaw to cut timber on premises that had been approved only for the storage of the timber. In that case both individuals responsible for the management of the company and the company itself were prosecuted. The fines imposed on the three individuals were $10,000 each and the corporate appellant was fined $20,000. The total fines amounted to $50,000 in circumstances where the maximum fines that could have been imposed for the five offences was $250,000 for the individuals and $1,250,000 for the company. His Honour noted that the use of the chainsaw was a continuing method of operation rather than an isolated instance and that the purpose of town planning restrictions was to control the impact on surrounding neighbours or businesses. He also noted that the sawmill was part of a large integrated business and that the appellants were warned about the illegal use before they were prosecuted. In that case the corporate appellant had two previous convictions in relation to the land. His Honour held that there was nothing to indicate that the fines in that case were manifestly excessive.
In Peat Resources Australia Ltd v City of Cockburn [2002] WASCA 342 the appellant conducted a large scale commercial business of storage and stockpiling of soils and other materials including manures and organic material. In that case the appellant had been prosecuted on three previous occasions for unlawful land use at the same site over a seven year period. A fine of $50,000 with a daily penalty of $200 per day for a period of 362 days which totalled $72,400 was imposed. This represented a total penalty of $122,400, which was upheld on appeal. Pullin J noted that there was a need to ensure that any fine was not treated merely as an operating expense: see also Harvey v Robertson [1999] WASCA 120 [7]. His Honour also referred to the fact that previous lenient penalties had not had an impact in stopping the unlawful use of the land. In that case the appellant had pleaded guilty, albeit shortly before the hearing.
I have also considered the cases of Kwa v City of Stirling [2001] WASCA 370, Popelier v Haeren [2004] WASCA 13 and Callan v City of Fremantle [2008] WASC 197 in which substantial fines were imposed. However, those cases involved different circumstances and did not relate to corporate defendants.
In the circumstances of this case the only reasonable conclusion was that the appellant had continued to conduct its salvage yard in deliberate and considered defiance of the Shire and in the knowledge that it was not permitted to do so. Previous prosecutions and fines had not served to deter the prohibited conduct. The fines on previous occasions had been small bearing in mind the circumstances of the offending and the nature of the business being conducted. In those circumstances, the fine imposed here was within the appropriate range and could not be described as manifestly excessive.
As regards ground 2, it is not correct to state that the respondent had permitted the appellant to continue using Lot 5 at all material times. The evidence indicated that the Shire had consistently maintained that the use was not permitted but had, on several occasions, undertaken not to proceed with prosecution action if the appellant moved its business from the land within a set period. It was only when such deadlines passed that the Shire proceeded with prosecution action. The indulgence of the Shire was abused and that abuse does not mitigate the offending conduct.
As regards ground 3 there was limited information regarding the number of people that the business employed or its positive history. What was submitted was that the two owners of the company earned their livelihoods through it and that the company operated from other locations throughout Western Australia and that it 'generates a lot of money'. In his reasons the magistrate noted that recycling is very important to the community but that it could only be done in an appropriate fashion in an appropriate area. His Honour also noted that clearly the business was being conducted for a profit. It is not necessary for a magistrate to specifically refer to every possible factor in reaching his sentence. In the circumstances of this case I do not accept that the sentence imposed reflects any failure on the part of the magistrate to properly give weight to factors favourable to the appellant.
As regards ground 4 there appears to be a mistaken assumption that the penalty imposed on this occasion needed to be in some way proportional to those imposed on the first two occasions that the appellant had been prosecuted. There is no proper basis for any such assumption. Furthermore, it would appear that on the first two occasions no daily penalty was sought whereas on this occasion it was and a warning in that regard was issued by the Shire to the appellant before it commenced prosecution proceedings. When comparison is made with cases bearing some similarity to the present such as Basso‑Brusa and Peat Resources the penalty here was clearly within the appropriate range.
As regards ground 5 I have already referred to the fact that the penalty imposed is not one which necessarily reflects any failure on the part of the magistrate to give appropriate weight to mitigating factors.
As regards ground 6 the magistrate did not make any finding as to the quantum of any commercial gain that the appellant had made by virtue of continuing to operate a salvage yard on the land. What he did say was that the appellant was conducting a substantial commercial industrial business and that any such business was clearly profitable. These were reasonable conclusions for the magistrate to draw based upon the information available. In sentencing submissions the appellant's counsel noted the maximum fine and the daily rate and the existence of a discretion but provided no information to suggest that the appellant's means to pay a substantial fine were limited. Whilst a court imposing a fine is obliged to take into account the means of the offender and the extent to which payment of a fine would burden the offender, a court may impose a fine even though it has been unable to find out such matters: Sentencing Act 1995 (WA) s 53.
The appeal against sentence is dismissed.