G T Homes Pty Ltd v Shire of York

[2010] WASC 312

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   G T HOMES PTY LTD -v- SHIRE OF YORK [2010] WASC 312

CORAM:   HALL J

HEARD:   22 OCTOBER 2010

DELIVERED          :   3 NOVEMBER 2010

FILE NO/S:   SJA 1150 of 2009

BETWEEN:   G T HOMES PTY LTD

Appellant

AND

SHIRE OF YORK
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE J G MUSK

File No  :NO 1116 of 2009, NO 1117 of 2009

Catchwords:

Criminal law - Appeal against conviction where pleas of guilty entered - Whether defence to charges raised in plea in mitigation - Turns on own facts - Appeal against sentence - Breach of planning law - Unlawful use of land to store waste - Whether fines manifestly excessive

Legislation:

Criminal Code (WA), s 24
Criminal Procedure Act 2004 (WA), s 55, s 71(2)
Planning and Development Act 2005 (WA), s 214, s 218(a)
Sentencing Act 1995 (WA), s 53
Town Planning and Development Act 1928 (Repealed) (WA), s 10

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr W S Alman (Agent for the Company)

Respondent:     Mr D P Gillett

Solicitors:

Appellant:     In person

Respondent:     McLeods Barristers & Solicitors

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

Basso‑Brusa v City of Wanneroo [2003] WASCA 103

Callan v City of Fremantle [2008] WASC 197

Chan v The Queen (1989) 38 A Crim R 337

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

Kwa v City of Stirling [2001] WASCA 370

Lim v Bateman [2001] WASCA 307

Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501

Peat Resources of Australia Pty Ltd v Rodney William Brown Chief Executive Officer City of Cockburn [2002] WASCA 342

R v Liberti (1991) 55 A Crim R 120

Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81

1. HALL J: On 30 November 2009 the appellant, G T Homes Pty Ltd, entered pleas of guilty to two charges of using land for the purpose of storing waste material without planning consent contrary to s 218(a) of the Planning and Development Act 2005 (WA). A fine of $25,000 was imposed in respect of each offence. The appellant now appeals against its convictions and against the sentences imposed.

2. The grounds of appeal are as follows:

   1.The Primary Court erred in law and in fact in that the convictions should not stand given that a defence was raised when the plea was presented resulting in a miscarriage of justice.

   2.The sentence imposed by the primary court was excessive such as to demonstrate an error of law.

   Particulars

   (a)the primary court failed to take into account the absence of any record of the appellant;

   (b)the primary court gave insufficient weight to all the relevant circumstances of the case including that oral advice was given by an employee of the respondent that the activity in question was permitted;

   (c)the primary court gave insufficient weight to the reason for the activity continuing and was not given an opportunity to correct the activity prior to the prosecution notice being filed given the reliance on the advice of the employee of the respondent

3. The appellant company was not legally represented at the hearing of the appeal.  Mr W S Alman appeared at the hearing and sought permission to make submissions on behalf of the company.  Mr Alman advised that he is a business associate of Mr Gregory Bell, a director of the company.  He advised that Mr Bell was at that time driving in the north west and was unable to attend the hearing.  The court made contact with Mr Bell and confirmed that Mr Alman was authorised to speak on behalf of the company.  In these circumstances I granted leave for Mr Alman to make submissions on behalf of the appellant.

Background

1. The appellant company is the owner of two blocks of land in the Shire of York.  Those blocks are a four hectare property at Lot 118 North Road, York (North Road property) and a 26 hectare property at Lot 76 Top Beverley‑York Road, Mount Hardey (Top Beverley Road property).  Both properties are subject to the Shire of York Town Planning Scheme No 2.  Pursuant to that scheme the properties cannot be used for the purpose of storage of waste without planning consent from the Shire of York.

2. On 5 September 2008 on officer of the Shire attended the North Road property following a complaint regarding the dumping of large quantities of waste material on the property. Inspection revealed a quantity of waste material had been dumped on the property, estimated to be in excess of 1,500 tonnes. The waste material consisted of bricks, rubble, pipes, vegetation, old tyres and old timber. The Shire then prepared and served a direction under s 214 of the Planning and Development Act 2005 (WA) requiring the appellant to cease the unauthorised dumping and storage of materials and to remove the materials and return the land to the condition it had been in prior to the dumping.

3. Subsequently, a semitrailer driver attended at the Shire offices and advised that approximately 50 semitrailer loads of waste material had been dumped on the land and it had been brought up from a recycling business in Perth.  The driver advised that he had taken some of the loads on behalf of Mr Bell, one of the directors of the appellant company.

4. The direction relating to the North Road property was said to have been served on the company on 8 September 2008.  On 15 September 2008 Shire officers were advised that a semitrailer loaded with waste had been observed in Mundaring headed towards York.  Later that day the semitrailer was seen passing through York and was followed by Shire officers.  The driver of the truck was Mr Bell.  When the truck stopped Mr Bell was advised by a Shire officer that he should not dump any of the material on land within the Shire as he did not have the necessary planning approvals.  Mr Bell stated that the material was from a recycling firm in Welshpool and that the Shire was obstructing his business activities by not allowing him to dump and store the waste on his company's properties.  Mr Bell then turned the truck around and headed back towards York.  The truck was then observed to turn onto the Top Beverley Road property.

5. The Shire officer did not follow the truck onto the property but returned to the office and prepared a further direction under s 214 of the Act relating to the waste material. The following day an inspection was carried out of the Top Beverley Road property and a large quantity of waste material was observed to have been dumped on the eastern side of the property. The material was similar to the material that had been seen on the North Road property and to that which had been seen on the semi‑trailer the previous day. It was estimated that there was approximately 500 tonnes of waste on the Top Beverley Road property. In view of the discovery of the additional waste material the second s 214 direction was served on the appellant company on 16 September 2008.

6. The North Road property is a vacant four hectare property situated in a rural residential area surrounded by rural residential properties of approximately the same size.  Many of these properties have dwellings on them.  The Top Beverley Road property is a rural property however that land is earmarked for rezoning which could lead to residential type uses.  Rural residential lots are being developed in that area.  Both the properties are within 400 m of the Avon River.  The nature of the materials dumped on the land was such that it could lead to leaching of contaminants into the Avon River system.  Had application been made under the Shire's planning scheme, the Shire would not have given approval to this type of waste material being deposited or stored on the land.

7. The direction notices were not complied with and on 18 May 2009 the Shire preferred charges under s 218(a) of the Planning and Development Act.  Service of the charges was effected on the registered office of the company.

Proceedings in the Magistrates Court

1. The charges were listed in the Magistrates Court in Northam on 22 June 2009. On that day there was no appearance by the company and the magistrate proceeded under s 55 of the Criminal Procedure Act 2004 (WA) to hear and determine the charge in the absence of the company. The magistrate on that occasion found the charges proven and on each charge imposed a fine of $50,000 together with a daily penalty of $50 for 246 days. As at the date the matter was dealt with the court was advised that the material had not been moved as required by the direction notices. This represented a total penalty of $124,600.

2. On 30 November 2009 the matter came back before a different magistrate on an application to set aside the conviction and sentence. That application appears to have been made pursuant to s 71(2) of the Criminal Procedure Act.  On that day the appellant was represented by counsel.  Counsel produced signed affidavits by the directors of the company to the effect that they had no knowledge of the prosecution notices.  He said that the directors only became aware of the proceedings after seeing an article in a local newspaper following the imposition of the fines on 22 June 2009.  The information provided to the court was that the prosecution notices had been sent by registered post to the registered office of the appellant but had been returned marked 'return to sender'.  Her Honour granted the application to set aside the convictions and proceeded to rehear the matter.

3. Counsel who appeared before the magistrate on 30 November 2009 on behalf of the appellant company then confirmed pleas of guilty by the company to both charges.  The magistrate then proceeded to hear the alleged facts and submissions on penalty.

4. In mitigation, counsel for the company told the magistrate that neither the company nor Mr Bell had any prior convictions.  Mr Bell was described as being a handyman farmer by occupation who builds or renovates homes but was not a qualified builder.  It was said that Mr Bell had a 'countrified' attitude to planning laws and had never paid appropriate attention to the regulatory legislation.

5. It was submitted that Mr Bell entered into an arrangement in 2008 with a Perth recycling company to dispose of building waste.  It was his intention to use the waste for salt rectification work on other land in Quairading.  This involved dumping the waste on salt‑affected land and growing trees on it.  It was said that he did not have approval to take the waste to Quairading and therefore intended to keep it temporarily on the York land.  It was submitted that he had sought approval for the temporary storage of the waste in York.  The following exchange then occurred:

   He knew that he had this building materials that he needed to put somewhere, in early 2008.  He in fact went down the council ‑ ‑ ‑

   HER HONOUR:  The 50 truck loads?

   BERG, MR:  Yes.  This quantity.  He knew that it was part of his ‑ the reason he was going to use it on another block of land he has in order for salt rectification work.  He went down the council and he said to someone down there, and he indicated the name, but I won't say it, who said to him, 'Look, it shouldn't be a problem.'  It was a comment that he ‑ he took it as meaning it was, you know, sort of, I guess, a lax understanding that it was okay for now.  That he could do it.  This was early 2008, before the prosecution ‑ before the directive notice was sent to him.

   So that, I guess, explains that it wasn't a sort of fragrant [sic] sort of ignorance to what he was doing, but ‑ ‑ ‑

   HER HONOUR:  He needed to get rid of waste, so he is saying he went to the council, spoke to somebody and they said 'It shouldn't be a problem.'

   BERG, MR:  Well the waste was actually ‑ he was going to use it on another block in Quairading for salt rectification, and he would need to go through red tape in order to use it for some salt works on that block.  In that meantime it was a matter of putting it on these blocks before he got it to the next one.  It was almost like it was going to a final point, but he hadn't gone through the red tape to get that completely by the books, as he puts it.

   HER HONOUR:  Staging.  He was going to move this twice all this stuff.  Is that what you are saying?  Put it here and then Quairading?

   BERG, MR:  Yes.  It was almost in storage until it got to its final resting place, which was on a block in Quairading.  Now, this was his intention.  It wasn't to stay on this block.  So, okay, he has ignored the planning regulations.  He admits that, and that in terms of the impact, he says to me that there was, and I am not privy to the information personally, but he said that the asbestos was analysed and it wasn't found to be of a serious nature or detrimental.  That might be a question that my friend can assist with me.  I think it was analysed at some point.

   As I say, he has been in the shire ‑ he is a ratepaying person for 10 years.

   HER HONOUR:  For 10 years, two properties.

   BERG, MR:  Essentially, a fine of the magnitude that my friend is asking would not only impact on a small business it would wipe him out.  It would be of such a serious consequence financially that he would, you know ‑ he tells me he'll struggle to survive.

   HER HONOUR:  If he is intending move it to Quairading why hasn't he?  It's over a year ago.

   BERG, MR:  Yes.  This has actually stalled - he is instructing me that this has stalled his plans in Quairading.  He has gone through, he instructs me, the necessary regulatory application processes.  That hasn't been finalised so he hasn't got a clear answer on it, so the materials are still on the blocks at this time.

   He is not a Multiplex.  He is not a multinational.  He's a ‑ ‑ ‑

   HER HONOUR:  Getting back to the facts before we get onto the penalty.  You are telling his intention is eventually to take this fill to Quairading, but he knew there was all sorts of red tape about that, so why did he think there wasn't here in these blocks in York?

   BERG, MR:  Well, he went down the council, he instructs ‑ ‑ ‑

   HER HONOUR:  They said it shouldn't be a problem.

   BERG, MR:  They said it shouldn't be a problem.  That goes back to about ‑ ‑ ‑

   HER HONOUR:  So it shouldn't be a problem to the temporary dumping.

   BERG, MR:  Temporary.  Yes.  I think that is important.  I think it's important to take into consideration in setting a fine.

   HER HONOUR:  Okay.

   BERG, MR:  I don't think there's, you know - ‑ ‑

   HER HONOUR:  Then the first notice was issued ‑ the first complaint came through on 5 September.  The first notice to cease and return the land to ‑ what was the date of that first notice?

   BERG, MR:  It was 15 September.

   BAKER, MR:  First served, yes, 15th.

   HER HONOUR: 15 September?

   BERG, MR:  Yes.  He says that he went down the council before.  Early 2008.  Months before that.  My submission is that he is not a multinational, he's a handyman/farmer and he's admitted that this is something that is not ‑ he wouldn't be dumping on his property.  It's his property.

   HER HONOUR:  Well why hasn't he taken it away, whether it's to Quairading or somewhere else, given the notices that were given to him?

   BERG, MR:  His mindful of the fact that the Quairading property that he needs to put it on, he hasn't had the green light to do it there.  So he's almost between a rock and a hard place, in a sense.  He can't take it there it would be a breach.  I think he's been paralysed in terms of his ‑ his inaction is certainly ‑ he wants to get this dealt with but he's mindful of the fact that he'll need to remove it at some point.  He basically didn't know he needed a building approval (ts 16‑ 18). 

6. Mr Bell was present at the hearing on 30 November 2009 and spoke of his state of mind in respect of the dumping of the waste.  He told the magistrate that he did not believe that he needed to have a building permit to put rubble on his own farm.  He was told that what was required was a planning approval.  He then said that the incident in respect of the charges was 'just a one off until we get the system working'.  The system he was referring to was to take building waste to Quairading to dump in the salt lake and then to backload gravel to Perth.

7. The magistrate asked Mr Bell why he had not removed the waste within 60 days as required by the direction notices.  Mr Bell said he did not receive the notices.  The following exchange then occurred:

   HER HONOUR:  Didn't those notices you get say you can't do it any more and please remove it ASAP, and you had 60 day, maximum to remove the stuff?

   BELL, MR:  No.

   HER HONOUR:  I mean, I haven't seen the notices.

   BELL, MR:  No.  I didn't get them.

   HER HONOUR:  You didn't get them?

   BELL, MR:  No, no.

   BAKER, MR:  Your Honour, the notices are posted, among other things, on the property.

   HER HONOUR:  Are they?  Not to the West Perth address?

   BAKER, MR:  No, no.

   BELL, MR:  Those ones.  I'm sorry, I did get them.  Yes, sorry.  They put them on the gate.

   BAKER, MR:  Yes, well ‑ ‑ ‑

   BELL, MR:  Then this came up and I ‑ ‑ ‑

   HER HONOUR:  Well, when you saw them on the gate saying 'Remove that within 60 days', or whatever it said, something along those lines.

   BELL, MR:  Yes.  Yes.

   HER HONOUR:  Didn't you contact the shire or say, you know ‑ try and negotiate something, or did you just ignore it?

   BELL, MR:  No, I didn't ignore it.  I went into the shire, but you can never see the CEO, and he's the one that makes all the rules.

   HER HONOUR:  I don't think he makes all the rules.

   BELL, MR:  Well he is running the show over there.

   HER HONOUR:  I mean, if you had a notice saying you've got to get rid of all this within 60 days, I would think that would be a bit of a ‑ a big headache.  You would be doing whatever you can to try and sort something out.

   BELL, MR:  Yes, yes.

   HER HONOUR:  But you didn't.

   BELL, MR:  Well maybe I just talked to the wrong people in the shire.  The trouble is you go there and there's all different departments.  I said 'I've still got to get the red tape, before I can get rid of it, fixed in Quairading' (ts 23 ‑ 24).

   Her Honour then made some enquiries regarding the financial situation of the company:

   HER HONOUR:  Now, if you had to pay ‑ if your company had to pay $120,000 in fines, I want to know what your financial situation is?

   BELL, MR:  I'd go broke.

   HER HONOUR:  What has the company got?

   BELL, MR:  I would just fall over.  I can't ‑ we don't have that sort of money.

   HER HONOUR:  Does the company own those two properties does it?

   BELL, MR:  I am paying them off.  I've got a bank loan and I am battling to make the payments.  They are not worth what they were when I bought them because everything has gone down.  I am just hanging on to them by the skin of my teeth (ts 25).

   Her Honour then came back to the subject of means to pay a fine before sentencing the appellant:

   HER HONOUR:  So, the company, GT Homes, are their assets greater than these two blocks of land at York?

   BELL, MR:  There's no assets there.

   BERG, MR:  I don't believe there's any assets.  Mr Bell is living on savings at the moment.  He doesn't have a ‑ year 07, 08 tax return he doesn't have.  He is living on savings at the moment.  He doesn't draw an income from this business.  He is hoping that this business with the gravel carting will actually provide for an increase in income for him, for living for the foreseeable future.  That's my understanding from what he's discussed with me today.

   HER HONOUR:  All right, Mr Bell.  Accepting what you say about the company's financial position and its lack of record and your lack of record, and accepting what you say about your intention to now move this waste on, in the knowledge that if you don't you can be prosecuted again, and for those reasons in particular, I am going to reassess the penalties in this way, 10 per cent of the maximum on each of these offences means it's a $25,000 fine on each.  That's $50,000 total, plus costs of $1299 on each.  I am not going to order a daily penalty this time.  Thank you (ts 29).

8. Accordingly, the fine imposed was $25,000 on each charge being a total of $50,000.  No daily penalty was imposed.  This was less than half the fine that had originally been imposed on 22 June 2009.

Ground 1

1. A plea of guilty is usually taken as an admission of all necessary ingredients of the offence charged.  In Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 Dawson and McHugh JJ said:

   The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt.  Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage.  The plea may be accompanied by a qualification indicating that the accused is unaware of its significance.  If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered (511).

2. Where during the course of a plea in mitigation an accused, either personally or through counsel, asserts facts which in effect deny one of the elements of the charge or assert a defence, there may be doubt as to whether the plea is an unequivocal acceptance of guilt.  An appellant who seeks to appeal against a conviction recorded after a plea of guilty bears the onus of showing that circumstances exist which are sufficient to justify setting aside the guilty plea.  In the present case no affidavits have been filed so the question of whether a defence was raised in submissions such that there is doubt whether the plea of guilty was unequivocal depends upon an examination of the transcript.

3. It is important to bear in mind that on 30 November 2009 the appellant company was represented by counsel.  In Lim v Bateman [2001] WASCA 307 McKechnie J said:

   In the normal course, where a person is represented by counsel, the court is generally entitled to rely upon counsel having explained to a defendant the legal and factual matters necessary to allow a defendant to make an unequivocal plea of guilty.  Absent a statutory provision such as the Aboriginal Affairs Planning Authority Act s 49, a court is not obliged to separately explore the nature of a plea of guilty with the defendant unless, in the course of the plea in mitigation, something arises which might indicate that the plea is less than equivocal. In those circumstances, the court then has the duty, referred to by Dawson and McHugh JJ in Maxwell (supra), to obtain an unequivocal plea of guilty or enter a plea of not guilty [41].

4. In R v Liberti (1991) 55 A Crim R 120 (Kirby P, Grove & Newman JJ concurring) said:

   For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection.  This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence (122).

5. In the present case the appellant claims that the submissions made on its behalf by counsel that prior to the dumping Mr Bell had attended the Shire offices and been told that it was permissible for him to temporarily store the waste on his property was an indication that the appellant had an arguable defence to the charges.  Whilst not specifically stated, it would appear that the defence that is asserted is one of mistake of fact that is, that the appellant company dumped the waste under an honest and reasonable mistaken belief that it had consent from the Shire of York to do so:  Criminal Code (WA) s 24.

6. As will be apparent from the excerpts of the transcript, there was considerable vagueness about who Mr Bell had approached, when this had occurred, what it was he had asked the person and whether the response that it 'shouldn't be a problem' related to the dumping of the waste that had in fact occurred.  However, vagueness alone would not necessarily prevent a claim that a defence had been raised.  The real question is, assuming that Mr Bell did receive some form of oral permission that he at least believed related to the dumping that occurred, whether that could be the basis of a defence to the charges.  It is noteworthy that it does not appear to have been advanced as a defence but rather as something that was thought to mitigate penalty.

7. Importantly, in this case the charges were not for dumping waste but for using land for the purpose of storage of waste between specified dates.  Those dates commenced from the time the two direction notices were served.  The alleged discussion was said to have predated this. Whatever belief may have been held regarding the dumping of the waste on the basis of the alleged discussion by Mr Bell and the Shire officer, that belief could not explain or excuse the continued storage of the waste after the service of the two direction notices in respect of the two lots of land.  Those notices clearly required that no further dumping occur and that the waste be removed within 60 days.

8. Whilst there was some equivocation on the part of Mr Bell as to whether he had received the notices, he ultimately accepted that he had when the prosecutor advised the court that copies of the notices had been placed on the property.  His initial denial appears to have been due to confusion about whether the magistrate was referring to the prosecution notices or the direction notices.

9. This, I think, explains why the alleged discussion with the Shire officer was advanced in mitigation and not as a defence.  It was an explanation for why the waste had been dumped in the first place.  It was not, however, an explanation for why the storage of the waste continued after service of the notices.  In these circumstances the matters raised whilst relevant to penalty did not traverse the plea of guilty or amount to a denial of any element or the raising of a defence.  Accordingly, ground 1 cannot succeed.

Ground 2

1. The appeal notice states that the total fines were $100,000.  This is obviously incorrect; the total fines were in fact $50,000.  Assuming, however, that this is simply a mistake, the question is whether the fines actually imposed by the magistrate are excessive for the reasons particularised in the ground.

2. Each of the matters particularised was in fact specifically referred to by her Honour in imposing sentence.  It is clear from the remarks on sentence that her Honour reduced the penalty that she considered would otherwise have been appropriate after taking these matters into account.

3. Another issue was raised on the hearing of the appeal. That was whether the fine was excessive having regard to the means of the appellant company to pay. Section 53 of the Sentencing Act 1995 (WA) provides that in imposing a fine, a court must as far as practicable take into account the means of the offender and the extent to which payment of the fine will burden the offender. It is clear from the transcript that the magistrate did make efforts to determine what assets the company had. Whilst conceding that the company owned the two blocks of land in question Mr Bell said that he was paying those blocks of land off and that the company had no other assets. What the net assets of the company actually were was not stated, only that a fine of the magnitude of that originally imposed would break the company. At the end of the day there was no clear statement as to the means of the company to pay any reasonable fine.

4. Section 53(2) of the Sentencing Act provides that a court may impose a fine even though it has been unable to find out the means of the offender or the effect that a fine will have.  In the absence of adequate information in this regard the magistrate had to impose a fine that was otherwise appropriate in all the circumstances.  The only remaining consideration is whether the fine was manifestly excessive; that is, was it of a size as to be inappropriate taking into account all of the relevant circumstances such that it can be concluded that the sentencing discretion must have miscarried.  To determine whether a sentence is excessive it is necessary to take into account the maximum penalty prescribed by law for the crime, the standards of sentencing customarily observed for the type of crime, the seriousness of the particular offending and the personal circumstances of the offender:  Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).

5. The maximum penalty for a corporation in respect of offences of this nature is $250,000 and a daily penalty to a maximum of $25,000 a day.  The fine imposed in this case was 10% of the maximum principal penalty and no daily penalty was imposed.

6. It is also important to take into account the purpose of the offence provision.  In Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 at [74] Hasluck J said:

   Planning controls exist for the benefit of the community as a whole.  Their efficacy depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose.  This requires that breaches of the law be underpinned by significant penalties in order to deter infringements.

7. In Swan Bay Holdings the offending company undertook development of land without planning approval.  The work involved construction of hardstand areas by filling, levelling and sealing part of the property.  The company had also erected fences to create five separate lots or yards and constructed a central roadway to provide access to the individual lots.  A formal stop direction had been given which was not complied with.  The company pleaded guilty and applied for retrospective development approval which was subsequently granted.  That case involved one charge and an offender with no prior record.  A fine of $150,000 was imposed.  An appeal against that fine was dismissed.

8. In Peat Resources of Australia Pty Ltd v Rodney William Brown Chief Executive Officer City of Cockburn [2002] WASCA 342 a penalty of $122,400 ($50,000 fine and a daily penalty of $200 for 362 days) for breach of s 10(4)(a)(i) of the Town Planning and Development Act 1928 (WA) (a similar provision to 18(a) of the Planning and Development Act) was upheld.  In that case the company in question operated a large commercial soil operation involving the screening, mixing, stockpiling and storage of 300,000 to 400,000 tonnes of manure, soil and organic material on a 40 ha site.  These activities involved the substantial movement of trucks to and from the site.  The offending company had six previous convictions for unlawful land use in respect of the same site over a five year period.

9. In Kwa v City of Stirling [2001] WASCA 370 the appellant was charged with three offences of using land contrary to the provisions of a town planning scheme by conducting a backpackers' hostel on three lots. The appellant had previous convictions and a long history of unlawful use of the land. Fines amounting in total to $135,555 were imposed being a penalty of $10,000 in respect of each matter together with a daily penalty of $100 for a period of 343 days in breach. Those fines were upheld on appeal.

10. In Basso‑Brusa v City of Wanneroo [2003] WASCA 103 the appellant used a chainsaw to cut timber in a storage area without planning approval. Individual appellants were each fined $10,000 and the corporate appellant (which had two previous convictions in relation to the land) was fined $20,000.

11. In Callan v City of Fremantle [2008] WASC 197 the appellants were convicted after a trial of contravening s 218(a) of the Planning and Development Act by using land for the purpose of storage of materials without development approval.  On appeal McKechnie J considered that fines of $18,000 imposed on each individual were manifestly excessive and set each fine aside.  However, in coming to that conclusion his Honour took into account that the question was not whether a fine of $18,000 on each appellant was reasonable but whether a total fine of $36,000 levied against the joint owners of the land for breach of the bylaws was manifestly excessive.  The appellants in that case were a married couple and were each charged in relation to the same breach of the planning regulations.

12. In Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37 the appellant was convicted of an offence under s 218(a) of the Planning and Development Act by using land to operate a salvage wreckers' yard which was not a permitted use under the relevant town planning scheme.  In that case the offence had continued over a 288 day period and the total fine imposed was one of $148,800 comprising of a fine of $120,000 and additional penalty of $100 per day.  The appellant had been twice convicted of similar breaches in respect of the same land.  An appeal against the fine was dismissed.

13. In the present case the relevant factors were as follows:

    1.There were two offences relating to different pieces of land;

    2.The offences involved a large quantity of waste; 1,500 tonnes on the North Road lot and 500 tonnes on the Top Beverley Road lot;

    3.The nature of the waste was such that approval would not have been granted for it to have been stored on the land in question and it posed contamination risks bearing in mind possible future uses of the land and proximity to the Avon River;

    4.Notices had been served in respect of both lots requiring the appellant to cease storing the waste on the land and to remove it within 60 days.  Those notices were not complied with and the waste continued to be stored on the land as at the date the matter came before the learned magistrate;

    5.The appellant pleaded guilty at what might reasonably be considered to be the first reasonable opportunity;

    6.Neither the appellant nor its principal director, Mr Bell had any prior record;

    7.The appellant had not acted in deliberate disregard of planning requirements in initially dumping the waste;

    8.The appellant had the intention of only storing the waste for a temporary period before moving it to another location once permission in respect of the final destination had been received.

14. As regards the last two matters there might have been some reason to doubt that they should be accepted at face value, however the magistrate did accept these matters and expressly took them into account in determining the appropriate penalty.  Bearing in mind all of those matters and the range of penalties imposed for offences of this nature, fines of $25,000 on each charge cannot be viewed as being manifestly excessive.

15. Accordingly, ground 2 cannot succeed.  The appeal therefore is dismissed.