Gamble v Kingborough Council
[2020] TASSC 12
•30 April 2020
[2020] TASSC 12
COURT: SUPREME COURT OF TASMANIA
CITATION: Gamble v Kingborough Council [2020] TASSC 12
PARTIES: GAMBLE, Anthony Paul
GAMBLE (nee WATSON), Deborah Anne
SLAGHUIS, Shelley Adriana
PAINE, Ritchie
v
KINGBOROUGH COUNCIL
FILE NO: 74/2019
DELIVERED ON: 30 April 2020
DELIVERED AT: Hobart
HEARING DATE: 4, 12 April and 13 May 2019
JUDGMENT OF: Wood J
CATCHWORDS:
Criminal law – General matters – Criminal liability and capacity – Defence matters – Ignorance and mistake of law – Offences contrary to Land Use Planning and Approvals Act 1993 – Belief that use of land was permitted – Where Council issued Certificate of Registration of a Food Business and approved a Development Application in relation to the land – Honest and reasonable mistake not available – Mistake of law.
He Kaw Teh v The Queen (1985) 157 CLR 523, applied.
CTM v The Queen [2008] HCA 25, 236 CLR 440; Ostrowski v Palmer [2004] HCA 30, 218 CLR 493, referred to.
Aust Dig Criminal Law [2062]
Environment and Planning – Environmental Planning – Planning and development prosecutions – Generally – Whether "use of land" extends to an activity on land involving a mobile coffee cart – "Use" has its ordinary and natural meaning.
Land Use Planning and Approvals Act 1993 ss 3, 63(2) and (3), 65E.
Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8; LGERA 221; Beydoun v City of Sterling [2015] WASC 25, referred to.
Aust Dig Environment and Planning [265]
Environment and Planning – Environmental Planning – Planning and development prosecutions – Contrary to planning scheme – Kingborough Interim Planning Scheme 2015 – Use of land for the purpose of selling coffee from a mobile coffee cart – Categorisation of use class – Whether use should be categorised as same class as existing use – Whether use of land directly associated with and a subservient part of another use on the same site – Permit required regardless of how use is categorised – Whether permit in relation to development application to build café covered use of selling coffee from coffee cart – Use had to be "substantially in accordance with" development application to comply with permit – Permit required unless a permit granted in respect of that use.
Land Use Planning and Approvals Act 1993, s 51(1).
K Butorac and R & R Pearshouse v Kingborough Council and Australia Travel & Culture Group Pty Ltd [2018] TASRMPAT 24; Kempster v Manning [2006] TASSC 31, 148 LGERA 1; Australian Postal Corporation v Jane Anne Shoobridge [1997] TASSC 68, referred to.
Aust Dig Environment and Planning [266]
REPRESENTATION:
Counsel:
Appellant: N Davidson
Respondent: F Cangelosi
Solicitors:
Respondent: Simmons Wolfhagen
Judgment Number: [2020] TASSC 12
Number of paragraphs: 92
Serial No 12/2020
File No 74/2019
ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON), SHELLEY ADRIANA SLAGHUIS AND RITCHIE PAINE v KINGBOROUGH COUNCIL
REASONS FOR JUDGMENT WOOD J
30 April 2020
This motion to review concerns a prosecution brought against four individuals and a company for breaching the Land Use Planning and Approvals Act 1993 (LUPA) by using or allowing the use of land at 31 Osborne Esplanade, Kingston Beach for a purpose that required a planning permit when a permit had not been obtained. The use involved sales of coffee and a limited range of food items to the public from a mobile coffee cart parked on the property.
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 van 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.
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.
She set up in time for Australia Day, 26 January 2018.
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 van 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.
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.
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."
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.
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.
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.
The charges
Anthony Gamble and Deborah Watson were charged with two offences:
"COUNT 1
Date of alleged 8 March 2018 and continuing
offence(s):Charge:Allowing use of land in a way that is contrary to a planning scheme
Breach of:Land Use Planning and Approvals Act 1993, s 63(3)
Particulars: In that you did on 8 March 2018, and continue to, allow use of the land at 31 Osbourne Esplanade, Kingston Beach in Tasmania, of which you are the owner in fee simple, for the purposes of Food Services as defined in the Kingborough Interim Planning Scheme 2015 ("KIPS 2015"). Such use of the said land requires a planning permit under the KIPS 2015 and you did not obtain a planning permit for that use of the said land.
COUNT 2
Date of alleged 9 April 2018 and continuing
offence(s):
Charge:Fail to comply with an enforcement notice
Breach of:Land Use Planning and Approvals Act 1993, s 65E(1)
Particulars: In that you were served with an enforcement notice under the Land Use Planning and Approvals Act 1993 on or around 8 March 2018, which required you to:
(a)On service of this notice, immediately cease to allow the offence against section 63(3) of the Land Use Planning and Approvals Act 1993 to be committed. You are required to refrain from allowing this act until a permit is granted and in effect for the permitted use class, in accordance with the Land Use Planning and Approvals Act 1993;
(b)On service of this notice, immediately stop allowing use of land by selling food or drink for consumption on or off your premises (use class food services) located at 31 Esplanade, Kingston Beach. You are required to refrain from allowing this act until a permit is granted and in effect for the permitted use class, in accordance with the Land Use Planning and Approvals Act 1993.
And in that by 9 April 2018 you did fail at all to comply with the said enforcement notice."
RitchShelley Pty Ltd, Ritchie Paine, and Shelley Slaghuis were jointly charged with one offence of use land in a way that is contrary to a planning scheme :
"COUNT 1
Date of alleged 8 March 2018 and continuing
offence(s):Charge:Use land in a way that is contrary to a planning scheme
Breach of:Land Use Planning and Approvals Act 1993, s 63(3)
Particulars: In that you did on 8 March 2018, and continue to, use the land at 31 Osbourne Esplanade, Kingston Beach in Tasmania, for the purposes of Food Services as defined in the Kingborough Interim Planning Scheme 2015 ("KIPS 2015"). Such use of the said land requires a planning permit under the KIPS 2015 and you did not obtain a planning permit for that use of the said land."
Shelley Slaghuis was also charged with one offence of failing to comply with an enforcement notice, date of alleged offence said to be 9 April 2018:
"COUNT 2
Date of alleged 9 April 2018 and continuing
offence(s):
Charge:Fail to comply with an enforcement notice
Breach of:Land Use Planning and Approvals Act 1993, s 65E(1)
Particulars: In that you were served with an enforcement notice under the Land Use Planning and Approvals Act 1993 on or around 8 March 2018, which required you to:
(a)On service of this notice, immediately cease to allow the offence against section 63(3) of the Land Use Planning and Approvals Act 1993 to be committed. You are required to refrain from allowing this act until a permit is granted and in effect for the permitted use class, in accordance with the Land Use Planning and Approvals Act 1993;
(b)On service of this notice, immediately stop allowing use of land by selling food or drink for consumption on or off your premises (use class food services) located at 31 Esplanade, Kingston Beach. You are required to refrain from allowing this act until a permit is granted and in effect for the permitted use class, in accordance with the Land Use Planning and Approvals Act 1993.
And in that by 9 April 2018 you did fail at all to comply with the said enforcement notice."
The prosecution evidence of the chronology of events and conduct of the applicants, summarised above, was largely not disputed.
It is noted that the evidence against Ritchie Paine linking him to the use of the land at Osborne Esplanade and the activity involving the coffee van, other than as a director of RitchShelley Pty Ltd, was almost non-existent. The only evidence of his actual involvement is that on 25 January 2018, Mr Paine, Ms Slaghuis, and her mother moved the coffee van onto the property at 31 Osborne Esplanade. Mr Basham mentioned in his evidence that he did not identify Mr Paine to be selling coffee.
The defence case
Shelley Slaghuis gave evidence. After she received the Certificate of Registration of a Food Business, she was told by Council officers that she had to display it on her van. She had it neatly framed and placed on the van door. She believed that she was compliant with the law. There was no mention by Council officials of any other steps that were required. There was no reference to any planning permits or planning legislation.
When she received the notice of intention to issue an enforcement notice she responded by email on 27 February 2018. In this email, she told the Council that she did not believe she needed a planning permit for a mobile coffee van. She did not hear anything in reply until the infringement notice.
In cross-examination, she was asked whether she agreed that the Certificate of Registration that she received provided:
"The grant of this certificate of registration is subject to and conditional upon the proprietor obtaining and keeping all approvals under this Act and/or any other Act which are required for the lawful operation of the food business and the use and development of the premises including but without limitations any and all approvals under the Land Use Planning & Approvals Act 1993, the Building Act 2016 and the Licencing Act 1994."
Ms Slaghuis said that was what prompted her enquiry, which led to the email she received from the Council to the effect that all she needed was the land owner's consent.
She conceded that after she received the enforcement notice and infringement notice, she knew that there was still a problem. She said "we got legal advice", and tried to resolve it over the next 10 months by making representations to the Council and meeting with the Council. The Council consistently said that that they were not allowed to use the van on that site without a planning permit. In the meantime, she was still trading. She explained that she took a risk because people's livelihoods were at stake, referring to the people she employed to work in the van selling coffee.
The legal advice she had received was that there was no need for a planning permit for a mobile coffee van on somebody else's land. She said "I honestly believed that the Council was massively confused". She was concerned also that if she applied for a permit it may affect a planning permit obtained by Mr Gamble and Ms Watson for a proposed development regarding their motel. She felt that she was covered by that planning permit.
In cross-examination, Ms Slaghuis agreed that RitchShelley Pty Ltd operated the coffee van from 31 Osborne Esplanade from 9 March 2018 until approximately 5 June 2018. She was asked whether it operated roughly five days a week and she said that she could not put a number on it.
Mr Gamble gave evidence. He also sent a response to the notice to issue an enforcement notice and did not receive a reply before receiving an infringement notice. After that, he sought legal advice. He understood that, because he had a planning permit for building development including a café, that he was covered. That building work had yet commenced in the relevant period of January to June 2018. He agreed though, that this development was totally different to a coffee van.
Ms Watson gave evidence. Ms Watson and Mr Gamble have been operating the motel for over 20 years. They did not comply with the enforcement notice because "it's our private land and as landowners we felt they could put it [the van] on our land, no problem". She said that Ms Slaghuis showed her the Council documentation, she saw the Certificate of Registration of a Food Business. She agreed she did not read the part that said that the grant of a certificate was subject to and conditional upon obtaining other approvals such as under the LUPA. She said "I firmly believed that what we were doing was quite legitimate". Her evidence was, "we firmly believed what we were doing was right … even though we got the enforcement notice". She explained, "we're just the landowners, we only invited Shelley and Ritchie to bring the van onto our property". Essentially, her evidence was she relied on what she was shown by Ms Slaghuis and that it was all in order. The defendant, Mr Paine, did not give evidence.
In closing, counsel for the defendants, Mr Munro, argued that honest and reasonable mistake of fact was available. Ms Slaghuis honestly believed that she could operate this van, and they all believed she had the correct permits and that she was doing everything in accordance with law. The question was whether it was a reasonable belief.
The learned magistrate, Mr C P Webster then questioned Mr Munro about his defence and what was "agreed". There was the following exchange:
"HIS HONOUR: Well – wait, wait, let's go back to basics? Do you agree that the use wasn't allowed?
MR MUNRO: Yes, I – well, I agree that the planning scheme provides that if you're going to operate a coffee business, whether it be a mobile business or not a mobile business, on that site then you need a – planning approval.
HIS HONOUR: So the Shelley and what's needed planning permission.
MR MUNRO: Yes, they did.
HIS HONOUR: Okay. And do you agree that Gambles and Watsons couldn't – needed one too and they couldn't allow someone else to –
MR MUNRO: They couldn't allow someone on the basis of their DA in 2003 as amended –
HIS HONOUR: Yeah.
MR MUNRO: - to operate a coffee business on their land due to that DA, no.
HIS HONOUR: Okay. And that the Kingborough Counsel Planning provisions prevented them from doing so without permission.
MR MUNRO: That's correct.
HIS HONOUR: And the same with the – with the coffee van operators, that they need permission?
MR MUNRO: Well I think that's where we start to get into more of a grey area because it's a coffee van, but – which – which they see as different and it is –
HIS HONOUR: Well, wait, wait – don't worry about what they see we're talking about the law.
MR MUNRO: Well the law is on the basis of the sections that my learned friend brought to your attention, that it's a food business and as a food business on that commercial land it requires a development application.
HIS HONOUR: Okay. So, you don't dispute the law.
MR MUNRO: No."
The learned magistrate then asked "so what's the defence?" and then, without waiting for an answer, considered the defence of honest and reasonable mistake of fact and the case involving the applicants individually.
In relation to Mr Paine, his Honour noted that he had not given evidence and then asked:
"HIS HONOUR: You don't agree that it's up to a defendant to establish on the balance of probabilities a reasonable belief, honest and reasonable belief?"
Mr Munro replied, "generally yes".
Mr Munro indicated that as for the owners of the land, they were relying on the indication that they got from Ms Slaghuis, that is, the Certificate of Registration of the business and the email from the council to say she could operate Statewide. They have interpreted that as council approval to operate the business in effect. It was submitted that this state of mind, combined with the fact that Mr Gamble has a development application that allows the operation of a café, amounts to genuine and reasonable mistake.
The magistrate replied, expressing the view with some incredulity that no reasonable person would have held the view that you can put your caravan wherever you like, and the council does not have a say over it. Mr Munro pointed out that that the defendants certainly believed they were right and referred to evidence that they sought legal advice and made representations to the Council.
The magistrate then asked, "if there wasn't an argument that it was an honest and reasonable belief would they be guilty?" Mr Munro replied "yes".
The learned magistrate confirmed the issue: "So the whole question comes down to whether or not there's an honest and reasonable belief – is that it?"
Mr Munro: "Yes"
The learned magistrate then proceeded to give his decision.
The decision
The decision was delivered orally by the learned magistrate in the following terms:
"Well I'm not satisfied there was an honest and reasonable belief by any of the parties and I therefore find them guilty."
After hearing submissions on penalty and pleas in mitigation, the learned magistrate convicted the defendants and imposed the following penalties:
· RitchShelley Pty Ltd, a fine of $500, for the daily penalty of $20 per day for fifty days for the "ongoing penalty", total, $1500.
· Anthony Gamble and Deborah Watson each received a fine of $500 and a daily penalty of $20 for the "ongoing offending", total $1500.
· Ms Slaghuis a fine of $500 and a daily penalty of $20 per day for fifty days for "ongoing offending", total $1500.
· Ritchie Paine, a fine of $500 and a daily penalty of $20 per day for fifty days for the "ongoing offence", total $1500.
The grounds of appeal
The defendants, apart from RitchShelley Pty Ltd, have appealed this decision, on five grounds:
"1The magistrate erred in law when he found that the provisions of the Land Use Planning and Approvals Act 1993 (Tas) apply to mobile coffee carts;
2Even if the Land Use Planning and Approvals Act 1993 (Tas) applied to mobile coffee carts, Kingborough Counsel had given full permission for the sale of coffee with its issue of the 'Certificate of Registration of a Food Business' on 26 September 2017.
3Furthermore, the Kingborough Council had given permission for the sale of coffee when it approved the Development Application to build a café at the Kingston Beach Motel 31 Osborne Esplanade on 22 October 2003;
4Even if the defendants were not properly authorised by law to operate the mobile coffee cart business, they made an honest and reasonable mistake in believing they had been properly authorised.
5That the Magistrate erred by failing to make a finding of not guilty due to the operation of cl 8.2.2 of the Kingborough Planning Scheme."
In the course of considering the grounds of review and the evidence, it became clear that in relation to the case against Ritchie Paine, there is no evidence at all that he used the land to sell coffee or food, at any time, let alone "on 8 March 2018 and continuing". It seems that this charge against Mr Paine should fail for lack of evidence and that it was not open to a magistrate to find him guilty on the evidence presented. The evidence in support of this charge against this defendant was not canvassed at the hearing or at the appeal. I shall give the respondent an opportunity to be heard.
Ground 1 – the application of the LUPA to mobile coffee carts
The argument for the applicants is that the learned magistrate erred in law when he found that the provisions of the LUPA applied to mobile coffee carts. The submission was made that LUPA is "bricks and mortar legislation". It regulates the way people are permitted to use the land in terms of what they build on the land and regulates fixtures on the land. It was contended that LUPA does not relate to mobile vehicles. It was noted that the definition of "land" provided for in the LUPA includes buildings and structures permanently fixed to the land but that it does not cover a mobile cart which is not fixed to the land.
Counsel for the respondent pointed out that it is the use of land which is central to the charge pursuant to s 63(3) of the LUPA, and a mobile coffee cart was not contended to fall within the definition of land. Rather, the LUPA regulates the land that the mobile coffee cart sits upon and has application to the way in which land is used, including use that involves moveable objects like motor vehicles, not just "bricks and mortar". The essence of the contention is that LUPA is plainly capable of applying to a vehicle on the land, because the vehicle may relate to the way in which the land is being used. The focus of s 63(2) of the Act is the use of the land, and whether the use is prohibited by the Planning Scheme and not whether it involves a moveable object such as a vehicle.
The question of whether mobile coffee carts fall outside the LUPA is a matter of statutory construction.
The respondent relied on an argument in relation to this ground as well as other grounds of review that, at the hearing, counsel for the applicants conceded the LUPA applied to the use in this case, even though it was a mobile business. Certainly, during a hearing, counsel may make concessions about the application of the law to a particular case. This may be helpful to the court in terms of narrowing the issues and in terms of the efficient management of a trial. However, concessions of law may be contrasted with formal agreed facts that may be made which obviate the need for proof of that fact and are binding, unless the court gives leave: s 191 of the Evidence Act 2000. The law is a matter for judicial determination, and a concession about the law does not dispense with the duty of the judicial officer to apply the law correctly. Ultimately, if it is revealed that the concession does not accurately reflect the law, the concession cannot stand in the path of a correct determination. Realistically, whether concessions of law are helpful may turn on the circumstances in which they are given. A judicial officer is unlikely to find it very helpful to rely on concessions made by counsel about the law when they are made "on the run", under pressure from the Bench, and without revealing the legal reasoning that supports the concession. I set this aspect of the respondent's argument aside for the purpose of considering this appeal.
The charges contained in the complaints, the subject of these proceedings, involve the use of land which is alleged to be contrary to s 63(3), or, in the case of Mr Gamble and Ms Watson allowing such a use of land, and failing to comply with an enforcement notice requiring the immediately ceasing of an offence against s 63(3). In each case "use of land" is central to the offence.
Section 63(3) provides that a person who contravenes subs (2) is guilty of an offence. Subsection (2) provides that a person must not use land in a way, or undertake development or do any other act, that:
"(a) Is contrary to a State policy or a planning scheme; or…"
The definition of "use" in s 3 of the LUPA is in the following terms:
"'use' in relation to land, includes the manner of utilising land but does not include the undertaking of development."
Significantly, this definition draws a distinction between use and development. "Development" is defined in s 3 of the Act and includes:
"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."
Evidently, "use" has a meaning other than development. The definition of "use" is inclusive and incorporates its natural and ordinary meaning. When used as a verb its meaning includes "employ something for purpose; to put something into action or service for some purpose": Macquarie International English Dictionary, 2nd ed (2004). The word has been treated as one of wide import: Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 at 515 per Taylor J; APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8; LGERA 221. In other statutory planning contexts, the word has been given its ordinary meaning as comprising "activities which are done in … or on the land but do not interfere with the actual physical characteristics of the land.": Beydoun v City of Sterling [2015] WASC 25 at [63]-[64]; Mocilac v City of Fremantle [2014] WASC 56 at [36].
The word "land" is defined as including:
"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."
A mobile coffee cart is not a building or structure permanently fixed to land and does not fall within the definition of land. The definition of land obviously includes the land at 31 Osborne Esplanade owned by Mr Gamble and Ms Watson, where the coffee cart was set up.
There is nothing in the LUPA which precludes the Act from applying to an activity on the land involving a coffee cart or moveable object such as a vehicle where the moveable object or vehicle is part of the way the land is being used. The notion that the Act is confined to "bricks and mortar" is unsupported by a consideration of the Act. The section in question is concerned with the use of the land and whether the use is of a kind that requires a permit under the Planning Scheme.
The applicable planning scheme is the Kingborough Interim Planning Scheme 2015 (Planning Scheme). It is not suggested that there is any express indication in the Planning Scheme itself that vehicles or mobile coffee carts fall outside the permit regime. In order to ascertain whether a permit is required, it is necessary to categorise the use or development into one of the use classes in Table 8.2 of the Planning Scheme. Clause 8.2 provides some guidance on how to categorise the use or development:
"8.2.1Each proposed use or development must be categorised into one of the use classes in Table 8.2.
8.2.2A use or development that is directly associated with and a subservient part of another use on the same sire must be categorised into the same use class as that other use.
8.2.3If a use or development fits a description of more than one use class, the use class most specifically describing the use applies.
8.2.4If a use or development does not readily fit any use class, it must be categorised into the most similar use class."
The "use class" of "Food Services" is alleged to be the best fit for what was occurring here. It is alleged in the particulars of the charges that the use of land at 31 Osborne Esplanade was for the purposes of "Food Services as defined in the Kingborough Planning Scheme 2015 requiring a planning permit". This classification of the use class was not challenged at the hearing.
The description of this class in the Table provides:
"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 premises."
Clause 8.4. provides that "except as provided in subcls 8.5 and 8.6, 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 planning scheme, or in a manner contrary to the conditions and restrictions of a permit". Exceptions in cls 8.5 and 8.6 do not apply. The clause goes on to address the consequences of a use or development within a use class which is permitted, discretionary or prohibited. In the case of a permitted use or development, a permit must be granted. A discretionary use means that the planning authority has a discretion to refuse the application for a permit and if the use is prohibited, a permit must not be granted.
To ascertain the category here, it is necessary to consider the zone in question. The land at 31 Osborne Esplanade is zoned "local business zone".
The Scheme, cl 20, provides for the "local business zone". The use class Food Services is set out in the Use Table at cl 20.2 and falls within the permitted use class "except if a take away premises with a drive through facility". That exception does not apply.
Assuming that the relevant use class is "Food Services", then a permit is required and, subject to exceptions which do not apply here, will be provided by the planning authority if sought.
Thus, a permit was required for the use of the land involving the activity of selling coffee and some food items from the cart.
The argument that a use of land that involves a mobile cart, rather than a building, falls outside the planning scheme is misconceived. This ground of review must fail. It is convenient to consider ground five next, as it concerns the Planning Scheme.
Ground 5 – the application of cl 8.2.2
As mentioned, there was no argument at the hearing that the use class "Food services" was not the correct classification of the use of the land being undertaken or allowed by the applicants. However, at the hearing of the appeal, the argument was advanced challenging this classification. This argument gave rise to a late application to amend the grounds of review to add ground five.
The contention is that cl 8.2.2 applies in this case and should have given rise to a finding that the applicants were not guilty. As noted above, cl 8.2.2 is concerned with categorising use or development and provides:
"Clause 8.2.2: A 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."
The plain meaning of the words, "directly associated with" requires a genuine and direct link between the relevant uses: K Butorac and R & R Pearshouse v Kingborough Council and Australia Travel & Culture Group Pty Ltd [2018] TASRMPAT 24 at [87]. "Subservient" requires that the use must "serve" the other use on the same site: Kempster v Manning [2006] TASSC 31, 148 LGERA 1 at [24].
Here, the existing use on the site falls within the use class of "visitor accommodation". The Use Classes table provides the following description of visitor accommodation:
"Use of land for providing short or medium term accommodation for persons away from their normal place of residence. Examples include a backpackers hostel, bed and breakfast establishment, camping and caravan park, holiday cabin, holiday unit, motel, overnight camping area, residential hotel and serviced apartment."
The argument for the applicant is that the use of the land for the sale of coffee and a few limited food items is directly associated with and a subservient part of the use of the site for visitor accommodation and therefore, the use should be categorised into the same use class of visitor accommodation.
Whether or not the use of the land involving the coffee cart is directly associated with and is a subservient part of the use of the site involving visitor accommodation is a question of fact. 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, 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. However, even if it could be shown that the use of the land involving the selling of coffee was subservient to the use of land as a motel, there seems to be an absence of a "direct" link between those relevant uses.
Putting to one side this question of fact, there is a pertinent legal question as to the consequences of categorising the use here as "visitor accommodation". Clause 20.2, the use table, provides that "visitor accommodation" is in the discretionary use class, rather than the permitted use class. The argument for the applicants was that if the use of the site fell within the visitor accommodation category, it fell within the ambit of a use which had already been approved, and a permit was not required. There was no authority or provision in the LUPA or the Planning Scheme cited for this critical proposition. It was argued that it was for the prosecution to prove beyond reasonable doubt that the correct categorisation was not visitor accommodation and that it was "food services".
It is argued for the respondents that if cl 8.2.2 is applicable, it does not exempt the applicants from the requirement to obtain a permit for the operation of the mobile coffee cart on the land. It is not an exemption provision. The operation of the mobile coffee cart was a new use and any use which, under the provisions of a planning scheme, requires a permit unless a permit has been granted "in respect of that use" and the permit is in effect: s 51(1) of the LUPA; cl 8.4 of the Planning Scheme. As a new use, it could not be contained with the existing permit.
I accept the argument of the respondent. Clause 8.2.2 speaks to identifying the category of use. It cannot be read as providing an exemption from s 51(1) of the LUPA, reflected in cl 8.4, and the statutory requirement for a permit for a use of land that is not permitted by an existing permit.
The terms of the existing 2003 permit for redevelopment of the existing motel include demolition of two units to make way for a café, including a reception for the motel, dry goods and cool store, kitchen and servery and building a new apartment penthouse. As mentioned above, at the relevant time in the first half of 2018, the building works had not yet commenced. It is plain that the activity of selling coffee from a coffee cart is not an activity mentioned in the development application and is not an aspect of the permission granted. The permit for the operation of a motel requires that "use or development is to be substantially in accordance with DA 2003-332 submitted on 2 September 2003". This phrase "substantially in accordance with" requires substantial adherence to the content of the development application": Australian Postal Corporation v Jane Anne Shoobridge [1997] TASSC 68 at [10] and [15] per Wright J.
Thus, a permit is required for a use of land which involves a new activity, not mentioned in the development application and the existing permit, even if the new use or activity is linked to, or related to the activity permitted by the existing permit and is categorised in the same use class.
I can see no advantage to the applicants in categorising the use of land for the purpose of selling coffee from a mobile coffee cart as "visitor accommodation". They would still need a permit, and did not have one. The ground of review must fail.
Ground 2 – Council gave full permission by issuing a Certificate of Registration of a Food Business
The ground of review is an alternative ground expressed in terms that even if the LUPA applied to mobile coffee carts, Kingborough Council had given full permission for the sale of coffee with its issue of the Certificate of Registration of a Food Business.
The argument for the applicant relied heavily on the communications between Kingborough Council officers and Ms Slaghuis to demonstrate that the Council considered that once the Certificate of Registration of a Food Business had been issued the only other requirement was permission of the land owner. It was submitted, having regard to these communications and also that there was no advice from the respondent that permission was required under the LUPA, that evidently Council officers did not believe that the LUPA applied to mobile coffee carts. Rather, the discussions confirmed that, so far as the respondent was concerned, approval given under the Certificate of Registration of a Food Business was sufficient, and no other Council approval was required.
The argument is misconceived. Whether or not a Certificate of Registration of a Food Business was all the permission that was required, and whether or not the LUPA applied to the activity of selling coffee from a mobile coffee cart, are questions of law. The respondent's opinion and what the respondent communicated via its officers cannot be determinative of the legal requirements of the Planning Scheme, the LUPA and the effect of the grant of the Certificate of Registration of a Food Business.
The Certificate of Registration of a Food Business was granted pursuant to ss 87 and 88 of the Food Act. The premises known as "Tamp and Grind" were registered as a food business for the handling of food for sale and the sale of food subject to conditions. Pursuant to s 88, the certificate is sufficient to satisfy the requirement of registration in respect of that food business throughout the State. As highlighted by the respondent at the hearing and on the appeal, one of the conditions is that the grant of the certificate is subject to and conditional upon the proprietor obtaining all approvals under any other Act which are required for the lawful operation of the food business including any approvals under the LUPA. In any event, the terms of the Food Act do not suggest that it covers the field and that the requirements of other legislation, such as the LUPA, do not have application.
There is no merit in the argument that the food permit could amount to a grant of full permission for the activity involving the coffee cart on the land at 31 Osborne Esplanade, exempting the applicants from the provisions of the LUPA.
Ground 3 – approval of the development application
The error asserted in ground 3 is that the respondent had given permission for the sale of coffee when it approved a Development Application to build a café at 31 Osborne Esplanade on 22 October 2003. It is contended that the permit which was then issued covered the current use involving the selling of coffee from a coffee cart and that a new permit was not required. It was argued that the essence of the approval is that coffee can be brewed and sold on the premises. A mobile coffee cart is merely a different way of fulfilling this basic objective. It was also contended that any motel may make tea and coffee for its guests, and providing tea and coffee for guests was covered by the permit with respect to the original development application for the motel.
The respondent's submissions rely on the fact that the permit regarding the development works including the cafe gives permission in the terms of the development application (DA -2003-332). A condition of the development application is that: "use or development is to be substantially in accordance with DA 2003-332 submitted on 2 September 2003". The development application includes plans for a café, with a kitchen, dry goods/cool store, and servery. It is contended that the use of the land at 31 Osborne Esplanade involving a mobile coffee cart could not be considered to be "substantially in accordance with DA 2003-332".
I accept the respondent's submissions. The use could not be said to be "substantially in accordance" with the existing permit. Furthermore, the statutory regime requires a permit unless a permit has been granted "in respect of that use": s 51(1) of the LUPA. The simple and fatal point is that a permit has not been granted in respect of the use engaged in here, involving selling coffee from a mobile coffee cart.
This ground is not made out.
Ground 4 – honest and reasonable mistake
The applicants contend that regardless of the success of the other grounds of review and even if the activity involving the coffee cart and use of the land for that purpose was illegal, the applicants had a defence because they made an honest and reasonable mistake in believing they had been properly authorised. The implicit contention is that in light of this defence, the learned magistrate erred in failing to find the applicants not guilty of the charges. It was submitted that having regard to the history of interactions between the applicants and the respondent, there was a reasonable basis for a belief that they had the necessary authorisation. It was submitted for the applicants as follows:
"They had approached the Council in good faith to ask about what legal requirements had to be met and duly applied and were issued with the Certificate of Registration of a Food Business. The nature of that certificate facilitated them to believe they had met all the requirements and were free to carry on business throughout Tasmania, on the proviso that they obtained the permission of the landowners first. Even when the Council approached them later asking them to put in a development application in relation to the mobile coffee cart, given the fact that this had not been flagged during their initial discussions, they treated this approach with justifiable scepticism. After consulting a number of lawyers they reached a view that the Council was acting beyond the scope of powers. This was an honest and reasonable mistake."
At the hearing of the appeal, the respondent did not argue that the belief was not genuinely held. It was argued that it was not reasonable to hold that belief. The respondents highlighted the date of the offences which was the subject of the prosecution and that the notice of intention to issue enforcement notices was issued on 7 March in relation to the continued operation of the mobile coffee cart. Infringement notices were issued on the same date for breaching s 63 of the LUPA between 25 January and 7 March 2018. It was submitted for the respondent that the applicants' belief that the van was operating legally between 8 March 2018 and 3 June 2018 cannot have been reasonable, as the respondent disabused the applicants of any such belief through direct interaction, the issuing of enforcement notices and infringement notices.
In relation to regulatory offences which do not involve an element of guilty knowledge or intention, there is a strong presumption that a defence is available of honest and reasonable belief in a state of affairs which, if true, would have made the act innocent: Proudman v Dayman (1941) 67 CLR 536. An honest and reasonable mistake of fact is a ground of exculpation in the case of all statutory offences unless Parliament has clearly indicated to the contrary: He Kaw Teh v The Queen (1985) 157 CLR 523 at 574-577 per Brennan J. The task is one of statutory interpretation involving consideration of the language of the statute and various indicia concerning the subject matter of the legislation: He Kaw Teh at 574-578.
The ground of exculpation involves an honest and reasonable mistake of fact which, if true, would have made the act innocent. A mistake of law is not a ground of exculpation. Ignorance of the law is no excuse: CTM v The Queen [2008] HCA 25, 236 CLR 440 at [7] and [8]. In Ostrowski v Palmer [2004] HCA 30, 218 CLR 493, the respondent had wanted to fish for rock lobster. He checked with the authorities on where to fish, and he took their advice. The advice was wrong. The regulations prohibited him from fishing where he did. The mistake was held to be one of law and he had no defence to the charge.
A defendant has an evidentiary onus of raising the ground of exculpation as an issue. Once it is raised, the ultimate legal onus of disproving the ground lies on the prosecution: He Kaw Teh at 534- 535 and 574-575; CTM at 447, [8]; Hindrum v Lane [2014] TASFC 5, 24 Tas R 290. The standard of proof for the prosecution is beyond reasonable doubt: He Kaw Teh at 534-535 and 592-593; CTM at [8] and [199].
In order to discharge an evidentiary onus, a defendant does not have to give evidence, it may be raised in cross-examination of a prosecution witness or in evidence led on his behalf: He Kaw Teh at 592-593. Contrary to the comments made by the learned magistrate in this case, there is no onus upon an accused to prove honest and reasonable mistake upon the balance of probabilities.
It was not disputed that the applicants laboured under a genuine mistake that the use of the land involving the coffee cart was legal and they held a genuine belief that the Council was mistaken in its requirement for a permit under the Planning Scheme. However, accepting that such a belief was genuinely held, the defence is only available if the mistake is one of fact. The applicants' mistake related to the law: the effect of legislation, the legal effect of existing permits and a Certificate of Registration of Food Business. In essence, the applicants' mistake related to the legality of their conduct. The applicants did not raise mistake of fact. The ground of exculpation of honest and reasonable mistake of fact was not available. In light of this conclusion, the learned magistrate's error regarding the onus and burden of proof was immaterial. Even if his Honour had correctly applied the law, the determination that the ground of exculpation of honest and reasonable mistake was not available was correct.
Conclusion
For the reasons stated, the grounds of review have failed. There is the question of the evidentiary basis for a finding of guilt with respect to the applicant, Mr Ritchie Paine, and as indicated, counsel will be provided with an opportunity to be heard and I will invite written submissions. I shall proceed to dismiss the motion to review with respect to the other applicants.
Relisting – 2 June 2020
The foregoing was published to the parties on 30 April and an order was made dismissing the motion to review in relation to the applicants, except Mr Ritchie Paine. The parties were given time to provide written submissions regarding the evidence against Mr Paine.
The respondent indicated in a letter to the Court that it made no submissions as to the evidentiary basis for a finding of guilt with respect to Mr Paine. Counsel for Mr Paine indicated that he also made no submissions. The motion to review with respect to Mr Paine was relisted on 2 June 2020.
It is uncontentious that the learned magistrate made an error of law and the motion to review with respect to Mr Paine should succeed. There was insufficient evidence upon which a magistrate acting reasonably could have found the charge against Mr Paine proved beyond reasonable doubt. It is conceded that the motion to review should be amended by adding a new ground to reflect this error. Accordingly, I make an order amending the motion to review by adding a new ground: "That the learned magistrate erred in law by finding the charge against Mr Ritchie Paine proved beyond reasonable doubt when the evidence was so lacking that it was not reasonably open to the magistrate to reach that conclusion." I make an order that the conviction and penalty imposed against Mr Paine by the learned magistrate on 19 December 2018 are quashed.
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