Peat Resources of Australia Pty Ltd v City of Cockburn - [2002] WASCA 342

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PEAT RESOURCES OF AUSTRALIA PTY LTD -v- RODNEY WILLIAM BROWN CHIEF EXECUTIVE OFFICER CITY OF COCKBURN [2002] WASCA 342

CORAM: PULLIN J

HEARD: 26 AUGUST 2002

DELIVERED : 26 AUGUST 2002

FILE NO/S: SJA 1069 of 2002

MATTER :the Justices Act 1902

BETWEEN: PEAT RESOURCES OF AUSTRALIA PTY LTD (ACN 008 798 025)
Appellant
AND
RODNEY WILLIAM BROWN CHIEF EXECUTIVE OFFICER CITY OF COCKBURN
Respondent

Catchwords:

Criminal law - Town planning - Penalty - Turns on own facts

Legislation:

Town Planning and Development Act, s 10(4)(a)(i)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M T Ritter
Respondent: Mr J C W Skinner

Solicitors:

Appellant: Alteruthemeyer
Respondent: McLeods

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

Dinsdale v R (2000) 202 CLR 321
Harvey v Robertson [1999] WASCA 120
House v R (1936) 55 CLR 499
Joint Property Ownership Pty Ltd v City of Subiaco (1998) 97 LGERA 269
Kwa v City of Stirling [2001] WASCA 370

Case(s) also cited:

Nil

PULLIN J: This is an appeal under s 184 of the Justices Act 1902 against the sentence imposed by his Worship, Mr Tarr SM, on 24 April 2002. On that date, the appellant pleaded guilty to a complaint that between 1 December 2000 and the date of the complaint, being 26 November 2001, the appellant at Lot 186 Acourt Road, Jandakot, being land within the scheme area of the City of Cockburn district zoning scheme number 2, used the land for a purpose, without the planning consent required by the said scheme having been granted, contrary to cl 7.2.1(b) of the said scheme and s 10(4)(a)(i) of the Town Planning and Development Act 1928.
The sentence imposed was a fine of $50,000, with a daily penalty of $200 per day for a period of 362 days, which totalled $72,400. Thus the total fine imposed was $122,400, and the appellant was ordered to pay costs of $3,225.
The ground of appeal is that the fine and daily penalty imposed were excessive in all the circumstances and in particular, having regard to the background to the offences being committed, having regard to the intention of the appellant as to its future conduct, and having regard to previous penalties imposed on the appellant.
The maximum penalty which could have been imposed by his Worship if regard were had only to the provisions of the Town Planning and Development Act, was $50,000 and $5,000 per day. However, s 40(5) of the Sentencing Act (1995) provides that in the case of the conviction of a body corporate, the maximum fine is increased by five times. Therefore, the maximum penalty was $250,000 and $25,000 per day.
The facts read out to the Court revealed that the land at Lot 186 Acourt Road, Jandakot, is a large area of just over 40 hectares. In 1986, the owner of the land made application to use a small area to the south‑east side of this lot for stockpiling, blending and packaging garden compost and garden soils into bags.
In 1995, the respondent ("City of Cockburn") discovered that outside of this small area, a large‑scale operation was being conducted by the appellant, trading under the name Soils Ain't Soils. It involved the storage and stockpiling of soils and other materials, including manures and organic material, together with activities involving screening and mixing to form blended soils and manures and the loading of this product onto trucks to be taken from the site. It involved the substantial movement of trucks.
In November 1995, the City of Cockburn commenced correspondence with the proprietors of Soils Ain't Soils in relation to what was the unlawful use of the land. The City of Cockburn advised in a letter that the unapproved use was a breach of its Town Planning Scheme, which required approval for any development, and that a breach of the scheme constituted an offence against s 10 of the Town Planning and Development Act.
The letter sent by the City of Cockburn, and which was made available to his Worship, stated that the penalty involved was $50,000 and $5,000 per day, which is the incorrect penalty given that the appellant was a body corporate. There was then correspondence between the appellant and the City of Cockburn in which the appellant claimed that there were relevant approvals in place which would authorise their activities. This was the subject of further correspondence, in the course of which the City of Cockburn informed the appellant that the approvals did not authorise the operation of this activity on the lot and that none of the activities being complained about had any approvals under the scheme. Notwithstanding that letter, the appellant continued its use of the land, and as a result the City of Cockburn then brought prosecutions in the Court of Petty Sessions against the company in 1996. There were two charges brought. They were the same as the charges which are the subject of this appeal.
There were not guilty pleas entered to the 1996 charges. The appellant claimed that there was a nonconforming use and claimed that it had an honest and reasonable and mistaken belief that the appellant had the necessary approvals to conduct the operation. These defence arguments failed, and the appellant was convicted. That was on 12 March 1997, and in each case a fine of $1,000 was imposed with a costs order.
The transcript of those proceedings reveals that the Magistrate was informed that the maximum penalty was $50,000 rather than the maximum penalty of $250,000, which applied because of the provision in the Sentencing Act to which I have already referred.
After those convictions, the use continued. Two more charges were then brought. They came before the Court in August of 1997. Once again, a not guilty plea was entered, but there was later a change of plea. On 12 February 1998, convictions were recorded and a fine of $2,000 was imposed in relation to each of the charges. The appellant then paid the fine and costs involved.
The unlawful use continued, notwithstanding further requests by the City of Cockburn to cease the use, and then three more charges were brought. They were eventually brought together and they were adjourned to 22 September 1999 for hearing. Two convictions were entered and a fine of $7,500 with respect to each offence was imposed, and I was informed that the third charge was adjourned until February 2000 because of submissions which were made indicating that the operations on the site were being reduced.
By February 2000, it appears that the amount of soil on the site had been reduced. Apparently, at the time of the September 1999 convictions, there were between 300,000 and 400,000 tonnes of soil on the site, and by the February 2000 date this had been reduced by two‑thirds, so that there would have been then approximately 100,000 tonnes on site. This reduction had taken place within about a 5 to 6‑month period.
After those convictions, the unlawful land use continued. The City of Cockburn considered various ways of proceeding. It instructed its solicitors to send a final letter to the appellant, advising that the use should be discontinued and if not there would be further prosecutions brought and daily penalties would be sought. The use did not cease, and as a result the charge which is the subject of this appeal was brought.
Once again, when the matter came before the Court for the first time, a plea of not guilty was entered. That was in December of 2001. It was adjourned until April 2002, and then shortly before the hearing date a change of plea was advised and a plea of guilty was entered, leading to the conviction and the penalty which is the subject of the appeal.
Before his Worship this history was related, and it was submitted by counsel appearing for the City of Cockburn that the nature of the operation had not changed markedly over the seven years, that it consisted of stockpiling of various mixed soil constituents, mixing, screening and blending of those materials on site to form blended soils, manures and composts, and that there was a procession of trucks in and out of the property all day, the soil itself being mixed and moved and blended by large equipment which is on site all the time.
His Worship was also told that from an amenity point of view, the City of Cockburn had received many complaints from residents in the locality over a period of time, both in relation to odours which arise from the use of the various manure products in the soil blending and also in relation to noise and general disruption caused by machinery operations on the site, and more particularly in relation to the numerous truck movements in and out of the property. The trucks use the roads which adjoin residential areas.
In mitigation, a number of factors were mentioned and are relied upon again in this appeal. The points made were as follows.
First, it is said that the appellant had advised the City of Cockburn that the unlawful land use would cease in about six months and be transferred to a new site in Gnangara, for which approval had been given by the City of Cockburn; and that in 1994, when the appellant purchased the business on site, it thought that relevant permits were in place for the land use which had already been going on for 10 years.
The second point was that there is some dispute between the parties about whether there was any approval. I have noted that the earlier proceedings before another Magistrate led to a finding that the defences which were run in that earlier case, did not succeed. I do not think I have to decide whether or not the Magistrate accepted that there were approvals in place or not, because what is relevant is that by 1995 the appellant knew that the City of Cockburn was contending that there was no approval in place. If there were an approval in place, that would form a defence to the charge, and yet the appellant has pleaded guilty. So for those reasons, I do not think it is necessary to resolve any issue that might appear between the parties in that respect.
The third point that was made during submissions and before his Worship was that after setting up this business, the business of the appellant grew beyond anyone's expectations, meaning, as I understand it, that it became an economic success story.
The fourth point was that by 1997, there were enormous stockpiles of material at the site which made the current volume of material "look like mole hills." It was submitted there were difficulties in reducing the volume of material on the site which had accumulated over 10 years.
The fifth point was that since the first conviction, the appellant had been endeavouring to move the location of the materials, and although the City of Cockburn was insisting the materials be moved from the site, they were not offering any solutions as to where the materials could go to.
The sixth point was that the area of the site involved in the unlawful land use was now one-quarter of what it had been previously and the volume on the site was about one-tenth of what it had been in the past. Accordingly, the appellant had been taking steps to clear the land.
As to the fourth, fifth and sixth points, there is a hint in them that it was not possible for the appellant to be able to reduce the operation to a standstill in the time that was covered by this period of prosecutions, but it appears that that is not so because between the sentencing in September 1989 and February 2000, the appellant had demonstrated to the Court that there had been a reduction of two-thirds of the volume of material which had been on the property. I have already mentioned the volumes involved, which also indicates that it was possible for the soil to be physically removed and the operations brought to a halt if the appellant had chosen to do so and to move the material to another site.
The seventh point made was that the business conducted on the site had community benefits of removing and recycling waste and providing soils for increasingly‑used soil centres. In my view, there is not much to be made of that point because the loss of amenity is probably more important in relation to a charge of this kind.
The ninth point was that within 6 months the appellant claimed the unauthorised land use would stop, a situation which was said to be accepted by the City of Cockburn, and the tenth point, the size of materials on site was now much less than in February 2000. These are points which are really covered by earlier points, but I should mention that the promises of reduction in operation have not brought the unlawful use of the site to a halt at any stage before.
Now, the Magistrate's reasons for decision are relatively short. It seems that he started to indicate his reasons during the course of the closing of submissions, but eventually, when he summarised and concluded, he said that the City of Cockburn had the responsibility of determining land use within the community. He referred to the fact that it was in 1995 that the City of Cockburn had advised the appellant that the use of the land was unlawful and that it should cease the use of the land. He mentioned, to use his words, "here we are, 7 years later almost, and the company is still operating its business on the land". He said, "Although I accept that it is winding down and has now found another location which it intends to move to if it gets approval".
He referred to the penalty provisions that I have mentioned, the $250,000 maximum with a daily penalty of $25,000. He noted that he had been asked to impose a daily penalty. He said that the earlier penalties had not had any impact on the company and that fines imposed in the past had not been a deterrent, and he then imposed the fine that I have mentioned.
The principles in relation to an appeal of this kind are not in dispute. It is necessary, if the appeal is to succeed, for the appellant to demonstrate that the Magistrate had made an error in exercising the discretion by acting upon wrong principle or taking into account irrelevant matters or failing to take into account some relevant consideration misstating the facts or reaching a result which, upon the facts, was unreasonable or plainly unjust, and in those latter circumstances the Appellate Court may itself infer that in some way there has been a failure to properly exercise the sentencing discretion and set aside the sentence: Dinsdale v R(2000) 202 CLR 321 and House v R (1936) 55 CLR 499 at 505 in particular.
The appellant submits that the total fines imposed were manifestly excessive and points in the first place to what are said to be errors apparent in the reasons themselves, suggesting that his Worship erred when he said that the earlier penalties had not made any impact on the company and that the fines imposed in the past had not been a deterrent.
With respect, I do not consider that there is any error revealed by those comments of his Worship. The argument on behalf of the appellant was that there was every sign that the appellant was seeking to wind down its operations, but in my view that is not the relevant consideration in a charge of this kind.
As was said in Kwa v City of Stirling [2001] WASCA 370 at par 30, in the judgment of the Chief Justice in a case where there was a prosecution under the same section of the Town Planning and Development Act:
"The position was that from the time the appellant was first convicted the proper course for him to adopt was to stop using the land …"
"Stop using the land" in that case was to stop using it as a backpacker hostel. That was the action that the appellant was obliged to take. It was obliged to stop using the land in the unlawful way that it was, and the efforts to reduce the scale of its operations, in my view, is not a proper appreciation of what it was that the appellant had to do.
References were made to the penalty in the Kwa case, and another illustration was given by counsel for the appellant to the case of Joint Property Ownership Pty Ltd v City of Subiaco (1998) 97 LGERA 269. Counsel pointed to the penalty that was imposed in the latter case with respect to an offence under the same section. In my view, references to other cases where other penalties have been imposed in relation to different circumstances do not really assist the Court. It is necessary for the Court to look at the particular circumstances of this case and to decide whether or not an error has been made by the Magistrate.
It is also well known that it is not a matter for me to say what I think I may have done if this had been a matter of sentencing on the first occasion, so that if I thought that the fixed penalty was too high or I thought that the daily penalty was too low or too high, is not to the point. What has to be demonstrated is some error in the Magistrate's reasoning, and if no error can be demonstrated, the decision must stand.
The fixed penalty in this case was 20 per cent of the maximum penalty, that being after seven convictions over 5 years. The daily penalty was 0.8 per cent of the maximum penalty. The maximum penalty I mention because it is the first of the four factors that the Court is required to take into account when sentencing, as required by s 6 of the Sentencing Act.
The original fine, which may have coloured what happened subsequently, and which certainly set the scene for what followed, was probably on the low side, because the Magistrate was most clearly under the impression that the maximum penalty was $50,000 when, in fact, it was $250,000.
Whether he was told about the correct position in relation to the subsequent set of convictions is not apparent from any of the material before me, but certainly the first fine that was imposed is a starting point when the Magistrate has looked at what to do in the subsequent cases.
In my opinion, overall the penalty is not excessive. The $50,000, as I have mentioned, is 20 per cent of the maximum after clear and continued flouting of the law. The daily penalty of 0.8 per cent of the maximum daily penalty seems, in my opinion, modest. The total penalty of $122,400 is not, in my opinion, an excessive overall penalty for 362 days of continuing offence with the history that I have related.
The need for general and particular deterrence in this case calls for such a penalty and, because the offence arises out of commercial operations, there is a need to ensure that the fine is not treated merely as an operating expense; as to which, see Harvey v Robertson [1999] WASCA 120 at par 7.
I do not consider that there must be some linear progression through a regime of steadily increasing fines in a series of offences of a similar kind. What tends to happen is that courts do progress from a relatively lenient penalty in the case of a first offender through to progressively more severe penalties if an offender is a recidivist. The appellant in this case was warned, prosecuted, fined, prosecuted and fined again, prosecuted, convicted, given a concession by the Magistrate (who first granted an adjournment and imposed a reduced penalty on signs of future compliance), warned again and then prosecuted again.
In my view, the Magistrate was entitled to conclude that the previous penalties were having no impact in relation to the issue at hand, namely, whether the appellant would stop using the land in the unlawful way that it was. For all of those reasons, there is, in my opinion, no error demonstrated in the Magistrate's reasons or in the penalty imposed. I consider that the fine was not manifestly excessive, and for those reasons I would dismiss the appeal.