Gamble v Kingborough Council
[2020] TASFC 7
•20 October 2020
[2020] TASFC 7
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Gamble v Kingborough Council [2020] TASFC 7
PARTIES: GAMBLE, Anthony Paul
GAMBLE (nee Watson), Deborah Anne
SLAGHUIS, Shelley Adriana
PAINE, Ritchie
v
KINGBOROUGH COUNCIL
FILE NOS: 1114/2020
JUDGMENT
APPEALED FROM: Gamble v Kingborough Council [2020] TASSC 12
DELIVERED ON: 20 October 2020
DELIVERED AT: Hobart
HEARING DATE: 1 October 2020
JUDGMENT OF: Blow CJ, Brett J, Geason J
CATCHWORDS:
Criminal Law – Evidence – Confessions and admissions – Statements – Admissions by accused or counsel at trial and after conviction – Prosecution for use of land without planning permit – Issue whether use of land for operation of mobile coffee cart was incidental to permitted use for motel – Concession by defence counsel that planning permission was necessary for use for coffee cart operation.
Evidence Act 2001 (Tas), s 184.
Stubley v Western Australia [2011] HCA 7, 242 CLR 374, referred to.
Aust Dig Criminal Law [2758]
Environment and Planning – Environmental planning – Planning offences – Use of land contrary to planning scheme – Mobile coffee cart operated without permit – Whether a use of land – Whether incidental to use of land for motel.
Land Use Planning and Approvals Act 1993 (Tas), s 51(1).
Aust Dig Environment and Planning [266]
REPRESENTATION:
Counsel:
Appellants: N Davidson, J Bloomfield
Respondent: S B McElwaine SC
Solicitors:
Respondent: Simmons Wolfhagen
Judgment Number: [2020] TASFC 7
Number of paragraphs: 51
Serial No 7/2020
File No 1114/2020
ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),
SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE
v KINGBOROUGH COUNCIL
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
BRETT J
GEASON J
20 October 2020
Order of the Court
Appeal dismissed.
Serial No 7/2020
File No 1114/2020
ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),
SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE
v KINGBOROUGH COUNCIL
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
20 October 2020
I agree with Brett J.
File No 1114/2020
ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),
SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE
v KINGBOROUGH COUNCIL
REASONS FOR JUDGMENT FULL COURT
BRETT J
20 October 2020
In 2018, the appellants, Anthony and Deborah Gamble, who are the owners of the Kingston Motel, allowed the appellants, Shelley Slaghuis and Ritchie Paine, to set up and operate their mobile coffee cart on the motel property. They received no payment for doing so, but gained the advantage of customers of the motel being able to utilise and access the coffee cart. The cart was located near the boundary of the property and was accessible to members of the public. The owners of the motel provided some chairs, an awning and artificial turf to be used in conjunction with the coffee cart.
Before commencing operations, Ms Slaghuis, on the advice of representatives of the respondent, obtained a certificate of registration under the Food Act 2003. However, neither the owners of the motel nor the operators of the business applied for planning approval in respect of the coffee cart operation. The respondent is the relevant planning authority. It formed the opinion that under the provisions of the Kingborough Interim Planning Scheme 2015, and in accordance with s 51 of the Land Use Planning and Approvals Act 1993 (the LUPA Act), a permit was necessary in order to use the land for the said activity. The appellants disagreed, and continued to operate the coffee cart without making application for a planning permit. The respondent took a number of enforcement measures under the LUPA Act, including service of an infringement notice, and then an enforcement notice, but the appellants refused to stop the operation, and did not apply for a permit. The respondent then commenced a prosecution against each of them under relevant offence provisions of the LUPA Act. Each of the appellants pleaded not guilty, but after a hearing conducted by Magistrate C Webster, they were all found guilty of the charges, and were convicted and fined. The appellants sought a review of the magistrate's finding of guilt, but the review in respect of the appellants, Anthony Gamble, Deborah Gamble and Shelley Slaghuis, was dismissed by Wood J: Gamble v Kingborough Council [2020] TASSC 12. The review in respect of Mr Paine was upheld on the basis that it was not open to the magistrate on the evidence to find him guilty of the charges, and the decision and sentence relating to him were quashed.
The appellants have now appealed from her Honour's decision, other than that related to Mr Paine. The notice asserts three grounds but the primary issue underpinning each is whether a permit was required under the planning scheme for the operation of the coffee cart on the motel land.
Background
The background circumstances are succinctly and accurately summarised by the learned primary judge as follows:
"2 In early 2018, Shelley Adrian Slaghuis and Ritchie Paine were the new owners of a mobile coffee cart. The owners of the Kingston Motel and the property at 31 Osborne Esplanade, Anthony Paul Gamble and Deborah Anne Watson (now Ms Gamble), knew Ms Slaghuis and offered her a narrow space at the front of their motel and adjacent to the footpath, free of charge, to park the cart and sell coffee for a temporary period. It suited them as their customers would be able to enjoy the convenience of a coffee on the premises. The owners of the motel provided some chairs, an awning and artificial turf.
3 Shelley Slaghuis had obtained the necessary Certificate of Registration of a Food Business under the Food Act 2003. The business was known as Tamp and Grind and was owned by a company RitchShelley Pty Ltd. The directors of the company were Shelley Slaghuis and Ritchie Paine. Shelley Slaghuis was informed by personnel from the Kingborough Council that she was able to operate her business anywhere in Tasmania providing she had the consent of the property owner.
4 She set up in time for Australia Day, 26 January 2018.
5 The Compliance Co-ordinator for the Kingborough Council Mr Scott Basham, attended the site on 30 January 2018. He noted the coffee cart, the set up, the seating, the artificial turf and awning. He spoke to the applicants, Mr Anthony Gamble and Ms Watson about what was occurring, told them that a permit was required and that he was not aware of any permits having been issued. There was a long conversation about historic issues with the Council. Mr Gamble maintained that the use was allowed without a permit. Mr Basham issued a verbal direction under the Council's by-laws to Mr Gamble to remove any items such as seating from Council land by 4pm. This seems to be a reference to the footpath, adjacent to the motel frontage where the cart was set up. In any event, the prosecution which has resulted in this appeal was not concerned with use of Council land but rather the use of land at 31 Osborne Esplanade.
6 Mr Basham returned to the address within several days, perhaps as late as 9 February. The set up was similar but had 'intensified'. There were now shade sails as well. A photograph was tendered by Mr Basham of what he saw that day. The photograph shows the mobile coffee cart. It is rather like a trailer with sides and a high hood and an open side for serving that presumably can be towed behind a vehicle. This time, Mr Basham spoke to Ms Watson and he asked if she had obtained a permit for the 'street dining'. She said she had not. He told her that the tables and chairs needed to be removed from Council land back onto their property.
7 A notice of intention to issue an enforcement notice was sent out to Mr Gamble and Ms Watson on 13 February 2018. Then an enforcement notice under s 65C of the LUPA was issued to them dated 7 March 2018 and served on Mr Gamble and Ms Watson. It provided that Mr Gamble and Ms Watson had breached s 63(3) of the LUPA. The particulars were:
"• Your property is zoned Local Business in accordance with the Kingborough Interim Planning Scheme 2015;
• On the 25th January 2018 and continuing you have allowed permitted use of land by selling food or drink for consumption on or off the premises (use class food services) located at 31 Osbourne Esplanade, Kingston Beach. Pursuant to the Kingborough Interim Planning Scheme 2015, Part D, Clause 20.2, use class 'food services' is a permitted use class within the Local Business zone and use of land must not be commenced or carried out without a permit granted and in effect, in accordance with the Land Use Planning and Approvals Act 1993.'
8 A notice of intention to issue an enforcement notice, and an enforcement notice were also issued to Ms Slaghuis, on the same dates as those sent to Mr Gamble and Mr Watson. The offence and particulars were described in like terms. The notices required that on service of the notice the recipient was to immediately cease committing the offence. Infringement notices were issued to Mr Gamble, Ms Watson, and Ms Slaghuis on 7 March 2018. The infringement notices were issued under s 65A of the LUPA, indicating an offence under s 63(3) of the LUPA, particularised as 'Use land in a way that is contrary to state policy or a planning scheme', attracting 15 penalty units, namely $2385.
9 The infringement notices provide that: 'If you wish to have the offence(s) to which this infringement notice relates, heard and determined by a court, you must lodge a written notice to elect a court hearing with the General Manager. The form in which a notice of election is to be made can be obtained from the Kingborough Civic Centre'. Correspondence was received from Mr Gamble, Ms Watson and Ms Slaghuis objecting to the course taken and the fines imposed. This correspondence was evidently not treated as an election for a court hearing. Ultimately, charges were laid that related to a period of offending subsequent to the period of offending specified in the infringement notices.
10 Mr Bahsam returned to the site on 21 March 2018. The set up at 31 Osborne Esplanade remained, and coffee was still being sold from the cart. He checked the property eight times in the period up until 13 April, and the use was ongoing. A planning officer, a parking control officer, a compliance officer and a planning and building compliance officer employed at the Kingborough Council made observations of the same coffee cart operating on dates in April and May 2018. The manager of development services observed the coffee cart operating on 3 June 2018."
There were two charges brought against each appellant. One alleged a breach of s 63(3) of the Act by carrying on or permitting, as the case may be, the use of the land in a way contrary to the planning scheme. The other charge alleged a breach of s 65E(1) by failing to comply with the enforcement notice. It was critical to both charges that it be proved that the planning scheme required a permit for the coffee cart operation, and that there was no such permit in place during the relevant period. With one reservation, these matters were conceded by the lawyer representing all the appellants. I will say more about these concessions later in these reasons.
Each of the appellants, apart from Mr Paine, gave evidence at the hearing before the magistrate. The effect of their testimony was that each of them believed, in part based on what they had been told by employees of the respondent, and further pursuant to legal advice, that it was not necessary to obtain planning approval. Their belief was that the food registration certificate was all that was required for the operation of the mobile cart. Mr Gamble also gave evidence that, in any event, a planning permit had been issued by the respondent in 2003 for a redevelopment of the motel, which included the construction and use of a café. Although the café to which the permit related had not been constructed as at the date of the operation of the coffee cart, his evidence was that he believed that the authorisation provided by that permit was adequate to cover its operation on his land.
During final submissions, the magistrate engaged in a discussion with defence counsel obviously aimed at narrowing the issues. Counsel reiterated concessions already made in opening submissions during a similar discussion. The effect of the latter discussion was to leave as the only live issue, the question of whether the appellants were not guilty of the offences because they had proceeded under an honest and reasonable mistake of fact. At the conclusion of the discussion, the magistrate said that he was not satisfied that there was an honest and reasonable belief held by any of the parties, and that, therefore, he found them guilty. He did not then offer any reasons for this conclusion, but did elaborate briefly a little later, when it became obvious to him that there was considerable consternation among the appellants. Those brief reasons were that although he accepted that each appellant held an honest belief that the certificate under the Food Act was all that was required to lawfully operate the coffee cart, he did not accept that this belief was reasonable because "they didn't read the document properly". As Wood J noted, in requiring the appellants to satisfy him that they had committed the offence under an honest and reasonable mistake of fact, the magistrate reversed the onus of proof. If the possible existence of a relevant mistake of fact was raised on the evidence, the onus was on the prosecution to negative the existence of such a mistake beyond reasonable doubt. The magistrate seems to have treated the onus as having been on the defence. However, her Honour determined that the error was not determinative because, on any view, the asserted mistakes were of law not fact, and, accordingly, could not exculpate the appellants. The appellants do not challenge her Honour's determination about that question in this appeal.
As already noted, and despite the concessions made at the hearing, the critical issue on the appeal before the primary judge, and before this Court, was whether a permit was required under the relevant provisions of the planning scheme for the operation of the coffee cart on the motel land.
The need for a permit
Section 51(1) of the LUPA Act provides that a person must not commence any use or development which, under the provisions of a planning scheme requires a permit, unless the planning authority has granted a permit in respect of that use or development, and the permit is in effect. The requirement under the planning scheme for a permit in respect of a particular use or development is governed by the provisions in cl 8.4.1, which provides that, with certain exceptions, which are not relevant to this case, a use or development of land must not be commenced or carried out without a permit granted and in effect, in accordance with the Act and the provisions of the scheme. The exceptions include a use or development which is exempt from a permit, or falls within the definition of those in respect of which no permit is required. The scheme provides for the categorisation of a proposed use or development into one of a limited number of defined use classes. The relevant use class will then determine how the proposed use or development is dealt with under other provisions of the scheme. In particular, it is a critical factor in the determination of whether the use or development falls within one of the exceptions referred to in cl 8.4.1 and, if it does not, then whether a permit must be granted, albeit with conditions (cl 8.7 – permitted), the grant of a permit is in the discretion of the planning authority (cl 8.8 – discretionary), or the permit must not be granted (cl 8.9 – prohibited). One of the circumstances which will determine which of these provisions apply to the proposed use or development is how the relevant use class is dealt with under a use table contained in the provisions applicable to each zone.
The manner and process by which a proposed use is categorised into a use class is provided for by cl 8.2. Clause 8.2.1 provides that each proposed use or development must be categorised into one of the use classes set out in Table 8.2. The method of categorisation provided by the balance of the clause can be summarised as a "best fit" approach. Clause 8.2.3 provides that if the use or development fits the description of more than one use class, the use class most specifically describing the use applies, and cl 8.2.4 provides that if a use or development does not readily fit any use class, it must be categorised under the most similar use class. Clause 8.2.2, which has significance to this case, provides as follows:
"8.2.2A use or development that is directly associated with and a subservient part of another use on the same site must be categorised into the same use class as that other use."
In the hearing before the magistrate, the prosecution case was that appropriate categorisation of the coffee cart operation under cl 8.2 was into the use class "Food services". Under the use table for the relevant zone (Local Business), "Food services", with one irrelevant exception, is permitted. Therefore, on the basis of that categorisation, a permit was required for the operation of the coffee cart, but on application, the respondent was bound to grant the permit, with or without conditions.
The appellants did not take issue with this analysis in the hearing before the magistrate. However, before the primary judge, the appellants raised the following arguments, which are re-agitated on this appeal:
· The LUPA Act generally does not apply to mobile coffee carts. The Act is limited in its operation to the approval of "fixtures on the land (developments) and activation of fixtures on the land (uses)". It will therefore not apply in respect of the location or use on the land of a movable object, such as the mobile coffee cart (ground 1).
· In any event, having regard to cl 8.2.2, the appropriate categorisation of the mobile coffee cart on the motel site is not "Food services", but rather "Visitor accommodation", which is the use class appropriate for the motel. Although that use class in the Local Business zone is discretionary, the appellants submit that the effect of this categorisation is to bring the coffee cart within the same basis of authorisation as that which applies to the motel use. It was not suggested at the hearing that the use of the land as a motel was not appropriately authorised, although it was not spelt out in the evidence as to whether this was pursuant to a permit, or as a result of the existing use provisions of the LUPA Act (ground 2).
· The appellants argue that, in any event, the use of the land for the coffee cart operation is authorised by the permit which had been granted for the redevelopment of the motel in 2003 (ground 3).
Ground 1 – The LUPA Act does not apply to mobile coffee carts
This argument is based on the proposition that the LUPA Act "is about bricks and mortar". The argument, in essence, is that the Act is confined to regulating what people can build on land and how they use those buildings. Therefore, because a mobile coffee cart is not affixed to the land, it is not a building and its use consequently falls outside the ambit of the Act and is not regulated by it. This is asserted to be a matter of statutory construction.
The argument draws upon the definitions of "development" and "land" in the Act. It is asserted that these definitions place a clear emphasis on the regulation of development, and that this discloses a legislative intention that the Act should be confined in its operation to the undertaking and subsequent use of developments. It is further submitted that the placement of the coffee cart on the land did not constitute development, and accordingly, its use is not regulated by the Act.
This argument ignores the plain meaning and terms of the relevant legislative provisions, including definitions contained in s 3. In Raff Angus Pty Ltd v Resource Management and Planning AppealTribunal [2018] TASSC 60, I observed at [20]:
"The starting point of any process of statutory construction is the plain and ordinary meaning of the text, read in the context of the surrounding provisions and the legislative scheme. The aim of the process is to derive from the statutory words read in context, the meaning 'that the legislature is taken to have intended them to have': Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ."
As the learned primary judge noted, the ambit of the application of the regulatory and operative provisions of the LUPA Act, is circumscribed by relevant definitions. In particular, the prohibition in s 51 relates to the commencement of a use or development without the required permit. "Use" and "development" are both defined by s 3, as follows:
"use, in relation to land, includes the manner of utilising land but does not include the undertaking of development.
development includes —
(a) the construction, exterior alteration or exterior decoration of a building; and
(b) the demolition or removal of a building or works; and
(c) the construction or carrying out of works; and
(d) the subdivision or consolidation of land, including buildings or airspace; and
(e) the placing or relocation of a building or works on land; and
(f) the construction or putting up for display of signs or hoardings —
but does not include any development of a class or description, including a class or description mentioned in paragraphs (a) to (f), prescribed by the regulations for the purposes of this definition."
The charges which are the subject of this appeal assert that it was the use of the land which, without a permit, constituted the relevant breach of the planning scheme. It was not asserted that the appellants had undertaken development by placing the coffee cart on the land. As is self-evident from the relevant definitions, "use" and "development" are mutually exclusive terms. In this respect, the statutory definitions reflect the general approach of planning law to the concepts of use and development. See, for example, Calvary Health Care Tasmania Inc v Hobart City Council [2006] TASSC 10, 15 Tas R 271 referring to Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448.
An activity on land will fall within the statutory definition of "use" if it constitutes "the manner of utilising land". "Land" is defined in s 3 as follows:
"land includes —
(a) buildings and other structures permanently fixed to land; and
(b) land covered with water; and
(c) water covering land; and
(d) any estate, interest, easement, servitude, privilege or right in or over land."
The argument advanced by the appellants might be on stronger ground if this definition could properly be regarded as exhaustive. In that event, it could be argued that “use” relates only to the utilisation of land as defined. In the circumstances of this case, that would clearly be confined to buildings and other structures permanently fixed to the land, which would not include a coffee cart.
However, contrary to this argument, the definition is expressed to be inclusive. There are circumstances in which courts have determined that, notwithstanding the use of the word "includes" in a statutory definition, the definition should be construed as exhaustive. Those circumstances are relatively limited, and the definition of land in the LUPA Act is not an example of them. As the lengthy discussion of this subject in Pearce and Geddes, Statutory Interpretation in Australia, 9th ed, at 265-270 points out, the use of the word "includes" in a definition, usually indicates that the definition is intended to expand, and not confine, the ordinary and usual meaning of a word. This point was also made by the plurality of the High Court in Corporate Affairs Commission SA v Australian Central Credit Union (1985) 157 CLR 201 at 206-207:
"The function of such an inclusive 'definition' is commonly both to extend the ordinary meaning of the particular word or phrase to include matters which otherwise would not be encompassed by it and to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases."
Inclusive definitions of the word "land", are relatively common in legislation. This may be a consequence of the considerable diversity in the physical nature and the legal identity of land. In West Coast Council v Coverdale [2014] TASSC 42, Blow CJ considered the definition of "land" in s 46 of the Acts Interpretation Act 1931. That definition is as follows:
"land shall include messuages, tenements, and hereditaments, houses, and buildings of any tenure and any estate or interest therein."
His Honour also considered an apparently inclusive definition of "land" in the Valuation of Land Act 2001. In both cases, his Honour concluded that the definitions were intended to operate inclusively, and were not exhaustive. In respect of the latter, he observed:
"It is an inclusive definition. It does not supersede the definition of land in s46 of the Acts Interpretation Act. It adds to that definition."
See also the discussion by Pearce J on the question of inclusive definition of "land" in West Coast Council v Coverdale (No 2) [2015] TASFC 1.
There are contextual aspects of the LUPA Act which confirm that the definition is intended to be expansionary, and hence inclusive. Firstly, there is a clear pattern of usage in the definitions contained in s 3, which suggests that the drafter has carefully chosen the word "means", and the word "includes" differentially to specify an exhaustive or inclusive definition, as the case may be. This pattern of usage is an important indicator of an intention that the word "includes" is used on a non-exclusive basis: Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 37 FLR 508. Further, s 12, which deals with the exclusion of uses existing at the commencement of a planning scheme, from the application of that scheme, includes within the ambit of its operation, "the continuance of the use of any land, in the municipal area, on which buildings or works are not erected". The section also applies to existing use of buildings and works, which are dealt with in other subsections. The inescapable inference is that the provision assumes that the planning scheme will otherwise apply to uses so categorised, which include the use of land upon which buildings or works are not erected. It follows that the definition of "land" in s 3 is intended to expand, and not confine, the ordinary meaning of that word. Accordingly, the Act applies to land as ordinarily understood, which includes that upon which buildings and works are not erected, and will therefore regulate the use of such land.
Further, as the learned primary judge noted, the mutually exclusive nature of the definitions of "use" and "development" contained in s 3, emphasise the intention of the legislation to regulate those different aspects of activity on land. As already noted, it has not been suggested that placing a mobile coffee cart on the land, even with the erection of shading and the utilisation of outdoor furniture and artificial grass matting, constituted development. The definition of "development" includes the construction of a building or the carrying out of works. Each of these terms is defined as follows:
"building includes —
(a)a structure and part of a building or structure; and
(b)fences, walls, out-buildings, service installations and other appurtenances of a building; and
(c)a boat or a pontoon which is permanently moored or fixed to land;
works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil, but does not include forest practices, as defined in the Forest Practices Act 1985, carried out in State forests."
In my view, the coffee cart operation, as described in the evidence, did not involve either the construction of a building or the construction or carrying out of works. The definition of "building" and its reference in the definition of "land", suggests a requirement of permanency and affixation to the land. This is consistent with the general approach of the law in relation to the definition of a building. See the discussion of Green CJ in Waratah-Wynyard Council v Ralph Lindsay Fairbrother [1994] TASSC 185. On that basis, simply placing a mobile coffee cart on land, and surrounding it with other movable items, without anything else being done to affix it to the land, would not amount to constructing a building within the meaning of the LUPA Act, notwithstanding that it may be left on the land for a significant period of time. Further, there is no evidence that anything was done which would fall within the definition of "works". It follows that what the appellants did in respect of the coffee cart, did not amount to development.
However, it is clear from the above discussion that the Act also regulates the use of land, which must, by definition, be something other than development. It is obvious that by operating the coffee cart on the land, the appellants were using the land for that purpose. If the planning scheme required a permit for that use, then to use the land in that way without a permit was in breach of the prohibition contained in s 63(2), and thereby constituted an offence under s 63(3).
It follows that ground 1 is without merit.
Ground 2 – The coffee cart is part of the motel
The essence of the argument which underpins this ground is that the operation of the coffee cart fell within the existing use of the land as a motel and, accordingly, did not require a separate permit. The ground asserts that this is because of the operation of cl 8.2.2 of the scheme.
The prosecution case proceeded on the basis that the coffee cart operation was a new "proposed" use of the land, discrete from the motel, and, under cl 8.2, was properly categorised into the use class "Food services". This class is defined as "Use of land for preparing or selling food or drink for consumption on or off the premises. Examples include a café, restaurant and take-away food premises." The appellants' argument is that, on the evidence before the magistrate, it should have been found that the coffee cart "is directly associated with and a subservient part of" the motel, and hence, having regard to clause 8.2.2, it should come within the same use class as the motel. The argument assumed that it would thereby be authorised as part of the motel use.
The reliance on cl 8.2.2 by the appellant is misconceived. The argument overlooks the distinction between an individual use and the use class into which that use is categorised under cl 8.2. As already discussed, that clause deals with the categorisation of a proposed use of the land [my emphasis], into a use class, for the purposes of determining how the use is to be regulated by the relevant zone provisions. As her Honour correctly noted, the application of cl 8.2.2 does not assist the appellants. If the coffee cart was a new use, and her Honour assumed that it was, then it required categorisation under cl 8.2. Its categorisation into the same use class as the motel would result in it being categorised into the use class "Visitor accommodation". This is a discretionary use in the local business zone. Accordingly, it would require a permit which, under cl 8.8.1, may be granted or refused in the discretion of the planning authority. The appellants would, therefore, still be guilty of the offences. Her Honour's reasoning in this regard is unimpeachable.
However, it seems to me that the argument advanced in support of this ground actually raises a different issue. It can be inferred from the evidence before the magistrate that the use of the land for the purpose of the operation of the motel was lawfully authorised, either pursuant to an existing permit, or more likely as a result of existing use rights under s 12 of the LUPA Act. In either circumstance, this inference raised the question as to whether that lawful authorisation extended to the operation of the coffee cart. If it did, then there was no breach of s 62(2), and hence no offence. In this regard, it must be borne in mind, as I have already concluded, that the commencement of the coffee cart operation did not involve development, which, of course, would have required a permit, irrespective of the authorisation of the use of the land for that purpose. However, if the use of the land for the coffee cart was already within the existing motel use, then, at least from a planning perspective, nothing further was required to enable that operation to lawfully proceed. Further, cl 8.2 is not applicable because, as a part of an existing use, the coffee cart would not be a proposed use and would therefore not require categorisation under that provision.
The question of whether the coffee cart forms part of the motel use required consideration of the nature of that use. As already noted, a use is constituted by the actual manner of utilising the land. It is generally accepted that the identification of the use of land will depend upon the purpose for which the land is used and the activities by which that purpose is achieved. The importance of purpose is explained in the High Court decision of Norman v Gosford Shire Council (1975) 132 CLR 83. While the purpose will substantially define the use, the activities by which the purpose is achieved may be diverse and vary from time to time. See North Sydney Municipal Council v Boyts Radio and Electrical (1989) 16 NSWLR 50. In Shire of Perth v O'Keefe (1964) 110 CLR 529, Kitto J said, in respect of the identification of a use for the purposes of the application of a law preserving existing use rights:
"First it is required that a purpose be identified as the end for which it can be seen that the premises are being used ... This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by by-law 372, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree: cf Marshall v Nottingham Corporation (1960) 1 WLR 707, at p 717; and for that reason border-line cases will inevitably arise in which opinions will differ."
It is well-established that a primary use of land can include and encompass incidental and subservient uses. In Lizzio v Ryde Municipal Council (1983) 155 CLR 211, Gibbs CJ said at 216:
"[6] The first argument, that the land was used for the purposes of a dwelling-house and nothing more, takes as its starting point the judgment of the Court of Appeal in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, at p 161 , where Glass JA said:
'It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.'
Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree."
In the case of a motel, the activities comprising the use could be expected to be many and varied, including providing accommodation services and serving food and beverages to guests. If the evidence established that the coffee cart was directly associated with and a subservient part of the motel, then the issue which would arise is whether it is simply an activity within the ambit of the existing use, and authorised thereby, or whether it has changed the use of the land to such an extent that it is, in fact, a new use. If it is the latter, then it must be categorised into a use class and, depending on the zone provisions, may require a permit. This analysis is consistent with the provisions of cl 8.4.2, which provides:
"A change from an individual use to another individual use whether within the same use class or not requires a permit unless the planning scheme specifies otherwise."
Accordingly, in order to establish that the coffee cart operation was a new use which required a permit, it was necessary for the prosecution to establish that the use was not already authorised on the basis that it was incidental to the existing lawful use of the land. It is clear from the cases discussed above that this is a question of fact and degree, and hence must be decided on the basis of evidence. However, the learned primary judge's comments with respect to the dearth of evidence concerning the issue arising under cl 8.2.2, applies also to this issue. As her Honour noted in the context of cl 8.2.2, at [66]:
"This question was not explored in the evidence at the hearing. Matters such as whether the coffee cart was promoted within the motel, access to the location of the coffee cart from the motel, the percentage of guests of the motel purchasing coffee and enjoying the facilities, as opposed to members of the public, whether the coffee cart was operating at hours to suit motel guests, or to capitalise on times when the area would be busy with members of the public were not explored in the evidence. It can be accepted that it was convenient for guests of the motel to be able to purchase a coffee on the premises and enjoy it sitting outside on the property fronting the Esplanade. To some extent, the coffee cart complemented the services offered to guests of the motel. However, it is also plain that the set up was pitched at members of the public, and was an inviting and convenient location for them, with access to the cart from a footpath on a beach esplanade."
Further, there was no evidence before the magistrate as to the nature and extent of the lawful authorisation of the use of the land as a motel. Without this evidence, it was not possible for the magistrate to conclude that the use did not fall within the ambit of the existing lawful use of the land. In fact, it is clear that the magistrate did not give any consideration to this question at all.
However, the difficulty which the appellants face on this appeal, arises from the concessions made by their counsel during the hearing before the magistrate. After the prosecutor had opened the prosecution case, the magistrate invited the appellant’s lawyer, Mr Munro, to explain the issues raised by the defence or, alternatively, to advise whether the appellants were "putting the council to proof". Mr Munro responded by raising only two matters. The first was that each of the appellants had an honest and reasonable, but mistaken belief that the food permit provided adequate authorisation for the operation. Secondly, he contended that the permit issued in 2003 provided the requisite authorisation under the planning scheme for the coffee cart operation. The reliance of the appellants on those two issues was repeated during closing submissions. Under direct questioning from the magistrate, Mr Munro conceded that planning permission was necessary for the use of the land for the coffee cart operation, and agreed with the magistrate that "the whole question comes down to whether or not there is an honest and reasonable belief".
As counsel for the appellants on this appeal noted in his submissions, the learned primary judge discussed in some detail the significance and effect of concessions made by Mr Munro on behalf the appellants at the hearing. Her Honour was particularly concerned with concessions made during the course of closing submissions, which were considered to be concessions about the law made "on the run" under pressure from the bench. Her Honour correctly considered that such concessions would not bind the appellants or an appeal court in respect of matters of law.
However, I am satisfied that the concessions made by the appellants through counsel at the hearing went well beyond those discussed by the primary judge, and included admission of relevant facts. In particular, the concession made by Mr Munro during opening submissions in response to the invitation from the magistrate to identify issues, was clearly intended by defence counsel to narrow the ambit of the issues to be considered by the court. The primary judge referred to the binding nature of agreed facts under s 191 of the Evidence Act 2001. However, the provisions of s 184 of that Act are also relevant to this question. That section provides that in a criminal proceeding, a defendant may admit such matters of fact as may be admitted by a party to a civil proceeding. In Stubley v Western Australia [2011] HCA 7, 242 CLR 374, the majority of the High Court noted that a similar, but not identical, provision under the Evidence Act 1906 (WA) did not require "any particular formality" in making an admission. Heydon J, who was in dissent as to the outcome, went into considerable detail as to the degree of formality and specificity required to give effect to an admission in a criminal case. However, his Honour's comments are in the context of admissions made in a trial by jury of a serious indictable crime. I think that it is reasonable to conclude that the degree of formality and specificity required when making admissions in a hearing before a busy and experienced magistrate concerning a simple offence, which are intended to narrow the issues, is somewhat less. The procedure provided for such hearings by the Justices Rules 2003, specifically permits a defendant to address a magistrate at the commencement of the hearing in order to identify issues: see r 35(1)(b). Of course, it is appropriate that considerable care be exercised in the determination of whether concessions made during the course of submissions amount to admissions within the meaning of s 184. However, in this case, the appellants were legally represented, and defence counsel's comments were in direct response to an invitation from the magistrate, which could only have been understood as a request to make concessions which would confine the ambit of the issues in dispute and thereby limit the matters in respect of which the prosecution would be required to present evidence. Having taken up the magistrate's invitation, the clear effect of what defence counsel said was to so confine the issues, and therefore the concessions must amount to admissions of the facts relevant to the conceded issues.
In my view, the concession by Mr Munro that the appellants required a permit under the planning scheme in order to use the land for the operation of the coffee cart, and that the only live issues about that question were honest and reasonable mistake of fact and the effect of the 2003 permit, included by necessary implication, admission of the facts necessary to establish that the appellants required a permit for the operation of the coffee cart on the land. This included that the coffee operation was not already lawfully authorised, except by the one matter expressly noted by Mr Munro concerning the grant of a permit in 2003. I will expressly deal with this reservation when considering ground 3. However, in all other respects, it was acknowledged by Mr Munro that a permit was necessary. I am satisfied that the admission obviated the need for the prosecution to adduce evidence addressing this issue, and may well explain the absence of such evidence and consideration of that matter by the magistrate.
It follows that ground 2 must fail.
Ground 3 – The 2003 permit
This ground relies upon evidence presented to the magistrate that the respondent had granted planning approval to the owners of the motel some years earlier for a redevelopment of the motel, which included the construction of a café. This was, of course, the matter raised by defence counsel at the outset of the hearing.
The relevant permit was issued on 22 October 2003. The approval contained in it is in the following terms:
"This permit is granted, subject to the conditions set out below, for the development and/or use or redevelopment of a motel at the land situated and described as 31 Osborne Esplanade, Kingston Beach."
It is not disputed that the proposed redevelopment included the construction of a café. The use of the cafe, which is inherent in the approval set out above, obviously permits the preparation and sale of coffee and food. There is no restriction in the permit referable to prospective customers of the café, and, accordingly, it would seem to be within the approved use that the café may trade generally with the public, consistent with the nature of the operation constituted by the coffee cart. The appellants argue, therefore, that the permit authorises the sale of coffee and food from the coffee cart, including to members of the public.
The difficulty with this argument, which was correctly identified by the learned primary judge, is that condition 1 of the permit states the following:
"1 Use or development is to be substantially in accordance with DA2003-332 submitted on 2 September 2003."
There is no challenge to the validity of this condition or the power of the respondent to include it in the permit. The development application and associated plans were in evidence. It is clear that the coffee cart operation is not something which is substantially in accordance with the development application, nor contemplated by it. While this approval might authorise the preparation and sale of coffee and food from the built café contemplated by the application, it does not authorise use of the land for the purpose of the coffee cart.
This was essentially the reasoning upon which the primary judge rejected this argument. Her Honour was correct to do so. There is no merit in this ground.
Conclusion
The appellants have not established merit in respect of any ground of appeal, nor identified error in the reasoning of the learned primary judge. Accordingly, I would dismiss the appeal.
File No 1114/2020
ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),
SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE
v KINGBOROUGH COUNCIL
REASONS FOR JUDGMENT FULL COURT
GEASON J
20 October 2020
For the reasons given by Brett J, this appeal should be dismissed. There is nothing I wish to add.
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