Forrest v City of Busselton
[2024] WASC 478
•13 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: FORREST -v- CITY OF BUSSELTON [2024] WASC 478
CORAM: MUSIKANTH J
HEARD: 26 JULY 2024
DELIVERED : 13 DECEMBER 2024
FILE NO/S: SJA 1098 of 2023
BETWEEN: JOHN ANTHONY FORREST
Appellant
AND
CITY OF BUSSELTON
Respondent
ON APPEAL FROM:
For File No: SJA 1098 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: BS 1191 of 2022
File Number : MAGISTRATE J ANDRETICH
Catchwords:
Criminal Law - Single Judge Appeal - Development approval - Proper construction of development approval condition - Relevant principles
Criminal Law - Single Judge Appeal - Development approval - Whether breach of condition established - Whether developer caused or permitted excavation below minimum level - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Planning and Development Act 2005 (WA)
Result:
Leave to appeal granted on grounds 1, 2 and 3
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Mr P G McGowan & Mr T Houweling |
| Respondent | : | Mr T L Beckett & Ms M Madvad |
Solicitors:
| Appellant | : | Cornerstone Legal |
| Respondent | : | McLeods Lawyers |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182
Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [No 2] [2024] WASC 250
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) [2017] NSWCA 263
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) [2017] NSWCA 263; (2017) 96 NSWLR 434
Drake v City of South Perth & Anor [2005] WASAT 271
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76
Mohammadi v Bethune [2018] WASCA 98
Pearson v Connor [2024] WASCA 49
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16
Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; (2021) 274 CLR 325
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
University of Western Australia v City of Subiaco [1980] WASC 28; (1980) 52 LGRA 360
Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245
Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17; (2001) LGERA 508
MUSIKANTH J:
Following a trial, the appellant was convicted of having carried out development otherwise than in accordance with a condition imposed under a local planning scheme with respect to the development contrary to s 218(c) of the Planning and Development Act 2005 (WA) (Act).
According to the prosecution notice, the appellant breached the condition between 22 and 26 November 2021.
The condition (condition 5.8) formed part of a (modified) development approval issued to the appellant by the respondent on 12 June 2018 (instrument) under the respondent's local planning scheme number 21 in relation to a site in Ludlow, Western Australia.[1]
[1] Neither the original development approval issued by the respondent nor any application by the appellant for its modification was in evidence below.
According to the instrument, the development approved was 'limited to' the 'extraction of limestone from the site; screening of material; crushing; associated drainage works; and rehabilitation works'.[2]
[2] Clause 5.1. Emphasis added.
Relevantly, condition 5.8 required 'the lowest level of excavation' to be 'a minimum of 1.25 [Australian Height Datum (AHD)] …'.
At trial, there was unchallenged evidence of observations made by witnesses in August, September, and November 2021, and of conversations between one witness and the appellant in September 2021,[3] supportive of an inference that some excavation works had recently occurred on site, and were in fact occurring on 26 November 2021.[4]
[3] ts dated 5 July 2023 pages 71 - 77 (De Vries).
[4] ts dated 5 July 2023 page 39 (Skippings) and exhibit 6.
The prosecution also adduced evidence from an engineering surveyor, Mr Paul Skippings, that on 26 November 2021 the ground levels in at least three areas of the site were below 1.25 AHD.[5]
[5] ts dated 5 July 2023 page 38 (Skippings).
The reception of Mr Skippings's evidence by the learned trial magistrate was contentious.
However, the prosecution did not seek to establish the appellant had caused or permitted excavation work at any of those parts of the site where Mr Skippings found the ground levels to be below that minimum.[6]
[6] Cf. ts dated 5 July 2023 pages 27 - 28. See also respondent's written submissions on appeal filed 10 May 2024 [2.4].
Instead, the prosecution case was to the effect that it had been proved the appellant was in breach of condition 5.8 in circumstances where:
(1)after development approval was granted, the appellant began using the site for the approved purpose of limestone extraction and crushing;
(2)on a proper construction of condition 5.8:
(a)the condition imposed an obligation requiring ongoing compliance by the appellant for the duration of the 5‑year grant;
(b)the appellant would be in breach of that condition if the level of excavation on site was (and for so long as it remained) in fact below 1.25 AHD; and
(3)on 26 November 2021, being a date within the relevant limitation period for commencement of the prosecution, ground levels on parts of the site were in fact below that minimum level.[7]
[7] ts dated 5 July 2023 pages 79 - 80, 83 - 84. See also respondent's written submissions on appeal filed 10 May 2024 [2.4].
In convicting the appellant, the magistrate accepted the appellant breached condition 5.8 largely for the reasons relied upon by the prosecution, her Honour finding the appellant was in 'control' of the site during the particularised period and that the planning approval had imposed 'ongoing obligations'.[8]
[8] ts dated 28 September 2023 page 6.
The appellant now seeks leave to appeal against his conviction and advances four grounds of appeal.
Leave must not be granted on a ground of appeal unless the court is satisfied the ground has a reasonable prospect of succeeding.
For the reasons which follow, I would grant leave with respect to the first three grounds and uphold the appeal itself.
The issues
The issues I must decide emerge from the appellant's grounds as clarified by his oral and written submissions.
They are:
(1)Whether condition 5.8, on its proper construction, required that the appellant not cause or permit excavation below a level of 1.25 AHD (Issue 1).
(2)Whether, assuming the answer to (1) above is yes, the prosecution proved the appellant did so (Issue 2).
(3)Whether the learned magistrate erred in receiving the opinion evidence of Mr Skippings relating to his measurement of the ground levels at parts of the site on 26 November 2021 (Issue 3).
Before addressing the issues, it is convenient to make some observations about aspects of the statutory context.
Statutory context
By section 4 of the Act, 'development' is defined to mean:
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 protection order made under the Heritage Act 2018 Part 4 Division 1 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;
The chapeau of the above definition corresponds substantially with the formulation of the opening words of the definition of 'development' in the Town Planning and Development Act 1928 (WA), being one of the three pieces of legislation which were later consolidated to become the Act in a rewritten form.[9]
[9] Act, s 3(1)(a).
In that earlier Act 'development' was, as at 11 March 1980, defined as in s 52:
the use or development of any land and includes the erection, construction, alteration or carrying out, as the case may be, of any building, excavation or other works on any land. (emphasis added)
In University of Western Australia v City of Subiaco,[10] Burt CJ drew the following distinction between two ideas embodied in the above definition:
In my opinion the definition of "development" in the Town Planning and Development Act 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".[11]
[10] University of Western Australia v City of Subiaco [1980] WASC 28; (1980) 52 LGRA 360.
[11] 363 - 364.
Thus, as has long been and continues to be the case in this State, 'development' encompasses both 'use' of land for particular purposes and development in the sense of the physical alteration of land such as the construction of works.[12]
[12] Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16 [21] (Quinlan CJ).
Relevantly by s 218(c) of the Act, a person commits an offence if the person:
(1)commences, continues, or carries out any development, in any part of an area the subject of a local planning scheme, which is required to comply with such a scheme; and
(2)does so otherwise than in accordance with any condition imposed under the scheme with respect to the development; or
(3)otherwise fails to comply with any such condition.
It was uncontroversial that the City of Busselton Local Planning Scheme No. 21 is a scheme of the kind contemplated by s 218(c) of the Act, and the applicable scheme.
By cl 11.3(a) of the scheme, the respondent was empowered to approve an application for planning approval 'with or without conditions'.
Condition 5.8 is such a condition.
Did prosecution need to prove excavation by (or permitted by) appellant below 1.25 AHD? (Issue 1)
By ground 1 the appellant contends the learned magistrate erred in finding the appellant carried on development by the 'use' of land within the meaning of the Act by being in 'control' of the property but should instead have found it was necessary to find what in fact the appellant had 'done'.
By the first part of ground 2 the appellant contends her Honour erred by failing to find that the nature of the development was 'works', within the definition of 'development' contained within the Act.
Ultimately, the fate of both contentions depends on a proper construction of condition 5.8 in the context of the instrument read as a whole.
The parties' arguments
On appeal, the appellant effectively submitted that:
(1)the instrument granted permission to the appellant to do that which could only be effected by physically undertaking the activities the subject of the approval;
(2)accordingly, condition 5.8 could only manifest itself if such activities were in fact carried out; and
(3)such a construction was supported by the introductory words of cl 5 which referred back to conditions 1 to 4, and which in turn contemplated works actually being undertaken of the kind approved.
On the other hand, according to the respondent:
(1)development approvals are intended to regulate land 'use' and manage the types of impacts contemplated by the conditions of approval[13] including environmental management;[14]
[13] ts dated 26 July 2024 page 42.
[14] ts dated 26 July 2024 page 45.
(2)on a proper construction of the instrument, the relevant 'development' was 'use' of the site for 'Extractive Industry (Limestone) and Crushing Facility';[15]
[15] Respondent's written submissions on appeal filed 10 May 2024 [2.3(a)].
(3)for so long as the site was being used for that purpose, the lowest level of excavation could not 'be' below 1.25 AHD;[16]
[16] Respondent's written submissions on appeal filed 10 May 2024 [2.3(b)].
(4)it followed that 'if at any point in time during the life of the development the level of excavation was measured to be below [that] prescribed minimum, the person carrying out the development would be in breach of [condition 5.8]';[17]
[17] Respondent's written submissions on appeal filed 10 May 2024 [2.9] (the first one).
(5)once the appellant began the development, relevantly by using the site for extractive industry, the appellant was under an obligation to ensure that the 'level' of excavation was not lower than 1.25 AHD;[18]
(6)put another way, the obligation was triggered the moment the appellant carried out any excavation at all on site;[19]
(7)a construction to the above effect is supported by the fact that the development approval related to an 'ongoing' development of up to five years, and by provisions within the approval itself including cl 3 which:
(a)states that 'the development hereby approved or any works required to implement the development' (emphasis added);[20]
(b)therefore 'clearly delineates' the concept of 'development' (being 'extractive industry land use'), on the one hand, and ancillary, additional or incidental 'works' on the other;[21] and
(8)such a construction is also supported by the fact that condition 5.8 itself specifically refers to the 'lowest level' of excavation rather than 'carrying out' excavation works.[22]
Relevant principles
[18] ts dated 26 July 2024 page 26.
[19] ts dated 26 July 2024 page 28.
[20] Respondent's written submissions on appeal filed 10 May 2024 [2.5].
[21] ts dated 26 July 2024 page 30.
[22] Respondent's written submissions on appeal filed 10 May 2024 [2.6].
Like all conditions in the instrument, condition 5.8 is to be construed in accordance with the rules of construction governing the interpretation of Acts of Parliament and subordinate instruments.[23]
[23] Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; (2021) 274 CLR 325, 348 [58] (Kiefel CJ, Keane and Gleeson JJ).
Those principles are well-known and have been restated on numerous occasions.[24]
[24] Pearson v Connor [2024] WASCA 49 [50] and the High Court authorities there cited.
In undertaking the construction exercise, it must also be kept in mind that planning or development approvals constitute unilateral acts 'expressed in a formal manner, required and intended to operate in accordance with [their] own terms'.[25]
[25] Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17; (2001) LGERA 508 [4] (Spigelman CJ).
Such approvals:
(1)have 'an inherent quality that it will be used to the benefit of subsequent owners and occupiers … [and] … must be construed in accordance with [their] enduring functions';[26] and
(2)are 'not the result of a bargaining process between two or more parties'. Their meaning 'must be determined objectively, having regard to those matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority'.[27]
[26] Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17 [4] (Spigelman CJ).
[27] Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 [37] (Meagher JA). See also Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [No 2] [2024] WASC 250[152] (Archer J).
The enduring nature of such approvals encourages 'a fair but liberal reading' of the rights they confer.[28]
[28] House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 [41]; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) [2017] NSWCA 263 [158(2)].
They are to be construed not as documents drafted with legal expertise but to achieve practical results.[29]
[29] Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 [105]; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) [2017] NSWCA 263; (2017) 96 NSWLR 434, [158(3)].
Moreover, condition 5.8 is to be construed according to its terms, not according to any mistaken understanding as to the basis upon which it was apparently imposed.[30]
Condition 5.8 and its immediate context
[30] Drake v City of South Perth & Anor [2005] WASAT 271 [86] (Senior Member Parry as his Honour then was).
To attribute an objective meaning to condition 5.8 it is necessary, consistent with authority,[31] to have regard to considerations of text, context, and purpose[32] with the instrument being read as a whole.[33]
[31] Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; (2021) 274 CLR 325, 348 [58] (Kiefel CJ, Keane and Gleeson JJ).
[32] Pearson v Connor [2024] WASCA 49 [50]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14]; Mohammadi v Bethune [2018] WASCA 98 [31] -[36].
[33] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] ‑ [23]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [176].
Turning, first, to cl 5 of which condition 5.8 forms part I make the following observations:
(1)Clause 5 is headed 'On-Going Conditions'.
(2)The heading is then followed by the chapeau of cl 5 which reads:
The works undertaken to satisfy Conditions 1 - 4 (inclusive) shall be subsequently maintained for the life of the development including, and in addition to, the following conditions:
(Evidently, the reference in the chapeau to 'Conditions 1 - 4' is intended as a reference to the conditions contained within cl 1 to cl 4 of the instrument.)
(3)18 sub-clauses to cl 5 follow the chapeau, commencing with cl 5.1. As noted earlier, cl 5.1 expressly provides that the approved development was to be 'limited to':
the extraction of limestone from the site; screening of material; crushing; associated drainage works; and rehabilitation works.
(4)Condition 5.8 is reflected in cl 5.8 which relevantly reads:
The lowest level of excavation be a minimum of 1.25 AHD …. (emphasis added)
(5)Clause 5.8 is immediately followed by cl 5.9 which reads:
Further to condition 5.8, the final land surface (after rehabilitation for horticulture) shall be at 1.95 AHD or 1.0m above the water table, whichever is the higher. The pit is to be rehabilitated with clean free draining fill overlain by topsoil.
(6)The remaining sub-clauses forming part of cl 5 address a variety of further matters.
(7)Those further matters include working hours in the pit area; designated haulage routes and hours of operation for certain vehicles; maximum number of truck movements and hectares to be worked at any one time; minimum setbacks for trees from 'the extractive activities'; implementation of approved dust management and noise management plans; timing of extractions within a particular distance from a coastal land system; restrictions on storage of hydrocarbons, restrictions on removal of vegetation as part of 'extractive activities'; and restriction on dewatering of 'the extraction area'.[34]
[34] Clauses 5.2 - 5.7 and 5.10 - 5.16.
(8)They also include the imposition of a reporting requirement among other things requiring the appellant:
(a)annually and within three months of the anniversary of the approval granted by the instrument, to submit to the respondent a survey conducted by a licensed surveyor certifying '[t]he extent/size and location of the area which has been extracted' (cl 5.17(a)); and
(b)in addition, and prior to the appellant commencing construction 'on a new cell', to submit a report to the respondent detailing the finished ground level in AHD of the cell 'post extractive activities' (cl 5.18(a)) and the finished ground level in AHD of the cell 'post rehabilitation' (cl 5.18(b)).
(emphasis added)
(9)The requirement reflected in cl 5.18(a) is immediately followed by the words '(Refer to condition 5.8)', and the requirement in cl 5.18(b) by the words '(Refer to condition 5.9)'.
Clauses 1 - 4
Turning next to cl 1 to cl 4, referenced in the chapeau of cl 5, I note the following:
(1)By cl 1, the development was:
permitted to operate for five years from the date of this Decision Notice or until 220,000 cubic metres with a maximum 44,000 cubic metres per annum volume of material has been extracted. The site shall be rehabilitated in accordance with an approved Rehabilitation Plan by the expiry date of this development approval'. (emphasis added)
(2)By cl 2, approved development was required to be:
undertaken in accordance with the Revised Plan and Section and the following conditions. (emphasis added)
(3)Clauses 3 and 4 appear under the heading 'Prior to the Commencement of Any Works Conditions' (emphasis added).
(4)According to cl 3:
The development hereby approved, or any works required to implement the development, shall not commence until …the owner/applicant has … obtained …a [p]ermit to [c]ommence…' (emphasis added)
(5)A number of documents are then listed in cl 3 to be submitted to the respondent for its approval including an agreement (to the respondent's satisfaction) for the creation and use of an access route, staging, noise management and haulage route plans and a site operational protocol.
(6)According to cl 4, '[t]he development hereby approved, or any works required to implement the development' are subject to the provision of dust, rehabilitation and road maintenance bonds accompanied by an 'executed legal agreement' with the respondent at the full cost of the owner.
Proper construction of condition 5.8
In my view once the instrument is read in a manner consistent with the principles referred to earlier, condition 5.8 can be taken to mean only one thing; namely, that the appellant not cause or permit excavation below a level of 1.25 AHD at any part(s) of the site.
I hold this view for the following reasons.
First, the ordinary meaning of 'excavation', being the central word forming part of condition 5.8, describes 'the act of excavating'[35] (emphasis added) or 'the action or process of excavating'[36] (emphasis added).
[35] Macquarie Dictionary Online.
[36] Mariam-Webster Dictionary Online.
That is, the ordinary meaning of the word itself embraces the notion of 'activity'.
Secondly, as is made plain by cl 5.1 the 'development' approved by the instrument is 'limited' to the carrying out of the matters there stated.
Each of those matters is an 'activity'. The fact that the instrument, by its terms, limits the meaning of 'development' in this way is supportive of the expression bearing a meaning consistent with its second sense as described by Burt CJ in University of Western Australia v City of Subiaco.[37]
[37] University of Western Australia v City of Subiaco [1980] WASC 28; (1980) 52 LGRA 360.
Critically, for present purposes, the works contemplated by cl 5.1 included excavation or extraction of limestone being work of a kind which, by its very nature, interferes with the actual physical characteristics of land.
Thirdly, such a construction is also consistent with the overwhelming majority of conditions in the instrument being apparently premised on the appellant using the site for the purpose of carrying out 'works' involving limestone extraction or associated with that activity ie. screening of material, crushing, associated drainage works, and rehabilitation works.[38]
[38] Clause 5.1.
Notably, those further conditions include the condition reflected in cl 5.9 which imposes an obligation to 'rehabilitate' the site to a level of 1.95 AHD; no doubt after excavation.
Fourthly, as has been observed, one of the conditions, reflected in cl 5.18(a), imposes an obligation on the appellant to submit a report to the respondent detailing the finished ground level 'in AHD' of a new cell 'post extractive activities'.
Tellingly, cl 5.18(a) refers, expressly, to condition 5.8 itself. Thus, a clear link is drawn between the obligation to maintain a lowest excavation level in AHD (condition 5.8) and the obligation to report AHD levels with respect to a new cell which is the subject of extractive activities (cl 5.18(a)).
In my view, the only reasonable construction open in the circumstances is that the concept of 'excavation' in condition 5.8 was intended to mean 'extractive activities' of the kind contemplated by cl 5.18(a) being excavation works undertaken in accordance with the permission granted by the instrument.
In the above circumstances, and in circumstances where cl 5.1 in any event expressly sets out the metes and bounds of the approved 'development', I do not consider that the words 'or any works required to implement the development', in cl 3, assists in construing condition 5.8 in the manner proposed by the respondent.
Finally, I consider a construction in accordance with what is set out in par 42 above encourages 'a fair but liberal reading' of the rights conferred by the instrument as distinct from one which, at least theoretically, may have potential to work an injustice on a person in the position of the appellant.
In my view a construction of the kind promoted by the respondent, and evidently accepted by the learned magistrate, would have that potential in circumstances where a person in the position of the appellant, having taken possession of the site and commenced extractive work under the grant, subsequently discovers ground levels at one or more parts of the site to have been below 1.25 AHD due to earlier excavation activities by others.
Thus, were the respondent's proposed construction to be accepted, a person in the position of the appellant would be in breach, and at risk of criminal prosecution, from the moment they started using the site for a purpose approved by the relevant grant even if those ground levels had been below 1.25 AHD through no fault of their own.
Given my conclusion on the proper construction of condition 5.8, I consider that the learned magistrate misdirected herself as to the appropriate legal test and erred in:
(1)effectively finding that the appellant carried on development merely by being in 'control' of the site; and
(2)failing to find, instead, that it was necessary to determine what, if anything, the appellant had in fact 'done'.
In the circumstances, I would grant leave to appeal with respect to, and uphold, ground 1 and the first part of ground 2.
Did prosecution prove appellant caused or permitted excavation below 1.25 AHD? (Issue 2)
Given my conclusion with respect to Issue 1, I consider the prosecution was required to prove that, during any relevant limitation period, the appellant caused or permitted excavation below a level of 1.25 AHD at the site.
By the second part of ground 2, the appellant contends the learned magistrate erred by failing to find that 'works' were not carried out between 22 and 26 November 2021.
By ground 3, the appellant contends that the learned magistrate erred in finding that the alleged offence had occurred within the relevant limitation period, being 12 months prior to 13 October 2022,[39] when there was no evidence as to excavation in that period.
[39] The date of commencement of the prosecution: Criminal Procedure Act 2004 (WA) s 21(2).
The respondent properly accepted on appeal that there was 'no direct evidence' to show that excavation works actually occurred beneath the requisite lowest level.[40]
[40] ts dated 26 July 2024 page 24.
The respondent also appeared to accept there was insufficient proof of any 'activity' within the relevant limitation such as would have been necessary to support a conviction if the appellant's proposed construction of condition 5.8 had been adopted.[41]
[41] Cf. ts dated 26 July 2024 page 24.
In my view, the evidence before her Honour was indeed insufficient to do so.
Even if it were to be concluded that Mr Skippings's evidence was correctly received, neither his evidence, nor that of any other witness, was to the effect that the appellant had either himself conducted excavation work, or permitted such work to be conducted, at any of the locations where Mr Skippings says he found ground levels to be below 1.25 AHD on 26 November 2021.
The furthest Mr Skippings went was to testify that when he attended the site on that day, he observed 'an excavator or something'[42] working on part of the site; being an area depicted at the 'back corner'[43] of an A1 version of a survey diagram prepared by him.[44]
[42] ts dated 5 July 2023 page 39.
[43] ts dated 5 July 2023 page 39.
[44] Exhibit 6.
However, no part of that area was suggested, by the ground height measurement numbers depicted on the diagram, to be below 1.25 AHD.[45]
[45] Exhibit 6.
Although there was in evidence a 'rehabilitation area survey' document,[46] received by one of the respondent's officers from the appellant, with a series of numbers some of which were below 1.25, the author of the document was not called and the officer had 'some difficulty' interpreting the document, it being unclear to the officer whether 'it was dated and matched the actual data'.[47]
[46] Exhibit 9.
[47] ts dated 5 July 2023 page 64 (Wallin).
Further, as counsel for the appellant pointed out below, the dates on the document were outside the relevant limitation period, 'no expert was called', and no evidence was given 'as to precisely the location of where [any extraction work] might have been undertaken'.[48]
[48] ts dated 5 July 2023 page 92.
The prosecution did not adduce evidence as to what the AHD levels were at or about the time the appellant commenced work on site following issue of the instrument.
Moreover, there was evidence of 'extraction of limestone' having 'already been carried out' on the site 'without approval', and of 'numerous breaches of the [then] current development approvals for extraction of sand from the site',[49] more than nine months before the instrument was issued, and more than 13 months before the appellant himself became its registered proprietor.[50]
[49] Exhibit 11.
[50] Exhibit 12.
In my view, the above circumstances alone would in any event have afforded a sufficient basis for reasonable doubt as to whether the appellant played any role in any excavation levels on the site being below 1.25 AHD.
Accordingly, I consider the prosecution failed to prove, beyond reasonable doubt, that the appellant caused or permitted excavation below a level of 1.25 AHD at the site; whether during the relevant limitation period or at all.
In the circumstances, I would also grant leave to appeal with respect to, and uphold, the second part of ground 2 and ground 3.
Should Mr Skippings's opinion evidence have been received? (Issue 3)
By ground 4, the appellant contends the magistrate erred by receiving opinion evidence from Mr Skippings in finding that he had acquired the status of being an expert through study and experience within a field of expertise when he was not a licensed surveyor, was self-trained and had undertaken drone photography which was then converted using GPS mapping and computer analysis.
Given I have concluded that grounds 1, 2 and 3 should be upheld, the appeal itself must succeed unless I am satisfied no substantial miscarriage of justice has occurred.[51]
[51] Criminal Appeals Act 2004 (WA), s 15(2).
I am not so satisfied.
Accordingly, it is unnecessary for me to determine Issue 3 or ground 4.
Conclusion and orders
For the foregoing reasons, there will be a grant of leave with respect to grounds 1, 2 and 3, and the appeal will be upheld.
I will hear from the parties as to the final form of orders and on the question of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LI
Associate to the Hon Justice Musikanth
13 DECEMBER 2024
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