Perry v Bolton
[2001] WASCA 423
•20 DECEMBER 2001
PERRY -v- BOLTON [2001] WASCA 423
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 423 | |
| THE FULL COURT (WA) | |||
| Case No: | SJA:1081/2001 | 3 DECEMBER 2001 | |
| Coram: | MALCOLM CJ WALLWORK J WHITE AUJ | 20/12/01 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed and the respondent's conviction reinstated | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM THOMAS PERRY ALLAN WILLIAM BOLTON |
Catchwords: | Criminal law and procedure Crown appeal against decision of a single Judge on appeal setting aside conviction in the Court of Petty Sessions on a charge of using a building as a caretaker's residence without prior approval of the local authority Evidence supported the learned Magistrate's findings that the respondent had not applied for nor obtained the necessary approval for use of the building as a residence |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : PERRY -v- BOLTON [2001] WASCA 423 CORAM : MALCOLM CJ
- WALLWORK J
WHITE AUJ
Complaint No 1280 of 2000 in the Court of Petty Sessions at Geraldton on 7 December 2000 before Mr D N Jones SM
Appeal SJA 1244 of 2000 in the Supreme Court of Western Australia in Civil on 4 May 2001 before The Honourable Justice Wheeler
BETWEEN : WILLIAM THOMAS PERRY
- Applicant
AND
ALLAN WILLIAM BOLTON
Respondent
Catchwords:
Criminal law and procedure - Crown appeal against decision of a single Judge on appeal setting aside conviction in the Court of Petty Sessions on a charge of
(Page 2)
using a building as a caretaker's residence without prior approval of the local authority - Evidence supported the learned Magistrate's findings that the respondent had not applied for nor obtained the necessary approval for use of the building as a residence
Legislation:
Nil
Result:
Appeal allowed and the respondent's conviction reinstated
Category: B
Representation:
Counsel:
Applicant : Mr R J Davies QC & Mr J M T Woodhouse
Respondent : Mr I A Morison
Solicitors:
Applicant : Watts & Woodhouse
Respondent : Hotchkin Hanly
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 MALCOLM CJ: In my opinion this appeal should be allowed and the conviction of the respondent by the learned Magistrate reinstated. I have reached this conclusion for the reasons to be published by White AUJ with which I am in complete agreement.
2 WALLWORK J: I agree with the reasons for judgment of White AUJ and to the orders proposed by his Honour.
3 WHITE AUJ: On 7 December 2000, the respondent was convicted in the Court of Petty Sessions at Geraldton, before Mr D N Jones SM, on a charge that on 23 November 1999 and thereafter at Lot 100 Foskew Way, Narngulyu within the Shire of Greenough the respondent:
"Did use a building on land at Lot 100 Foskew Way, Narngulu aforesaid as a caretaker's residence without prior application in writing and without the prior approval in writing of the Council of the Shire of Greenough and thereby contravened or failed to comply with the provisions of the Shire of Greenough Town Planning Scheme No 4 contrary to Section 10(4) of the Town Planning Development Act 1928 and amendments."
4 The words in italics above were added by way of an amendment to the charge made at the commencement of the trial. That amendment was opposed at the time but allowed by the learned Magistrate.
5 The respondent appealed against his conviction and the appeal was heard by Wheeler J who made the following orders on 4 May 2001:
1. The appeal be allowed.
2. The conviction imposed on the Appellant (sic the respondent in the present appeal) by the abovementioned Court of Petty Sessions be quashed.
3. There be liberty to apply for further orders within 7 days.
4. The respondent (sic the appellant in the present appeal) pay the appellant's (sic the respondent's in the present appeal) costs of the appeal and of the hearing in the Court of Petty Sessions.
6 On 27 July 2001, her Honour made a further order that:
5. The complaint be remitted for hearing in the Court of Petty Sessions at Geraldton before a different Magistrate.
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7 The matter now comes before this Court as an appeal by the appellant against her Honour's decision to quash the respondent's conviction. There was on file a cross-appeal by the respondent against Her Honour's decision that the complaint be remitted to the Court of Petty Sessions at Geraldton, for hearing before a different Magistrate, but we were informed that that was not being pursued.
8 The appellant's grounds of appeal are as follows:
"The Learned Judge erred in fact and/or law:-
(a) in finding that the Learned Magistrate erred in law in considering the question whether a caretaker's residence was a permitted use under the Town Planning Scheme.
Particulars
(i) It was the Applicant's (Prosecution's) case at trial against the Respondent (Defendant) that the respondent never applied in writing to the Council of the Shire of Greenough ('Shire') to use his land Lot 100 Foskew Way, Narngulu for living quarters, a caretaker's home or a residence.
(ii) The Respondent did not contest this evidence.
(iii) The Learned Magistrate found that at no time did the (Respondent) make application to the Shire to use the building on the land as a residence.
(iv) It was not the Applicant's case that the Respondent was guilty of the charge because he had breached the zoning requirements of the Shire of Greenough Town Planning Scheme No 4 ('Town Planning Scheme').
(v) It was the Respondent's case at trial (inter alia) that:-
A. The respondent had expressed or implied approval of the Shire to utilise the building on his land as a caretaker's residence.
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- B. The Respondent did not need to make application in writing to the Shire under clause 6.1.1 of the Town Planning Scheme to change the use of the land.
C. Lot 100 Foskew Way, Narngulu was zoned general industrial and a caretaker's residence was permitted under the town Planning Scheme on the land where it was incidental to a predominant use.
D. The Respondent's use of the land as a caretaker's residence was incidental to the predominant use which was concrete manufacturing for which the Respondent had Town Planning approval.
E. Under the zoning and non-conforming use provisions of the Town Planning Scheme the Respondent did not need to apply to the Shire for approval to use the building on the land as a caretaker's residence.
- (vi) The Learned Magistrate was obliged to make a finding on the issues raised by the Respondent including the issue of zoning.
- (b) In finding that the Learned Magistrate appeared to have assumed the absence of an application in that:-
(i) The case for the Applicant was that there was no application in writing by the Respondent to use the land for residential purposes.
(ii) This was not contested by the Respondent.
(iii) The Learned Magistrate made a finding that at no time did the (Respondent) make application to sue the building as a residence.
(c) In finding that she was unable to find that there has not been a substantial miscarriage of justice
Particulars
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- (i) It was the Respondent's case at trial (inter alia) that under the zoning and non-conforming use provisions of the Town Planning Scheme the Respondent did not need to apply to the Shire of Greenough for approval to use the building on the land as a caretaker's residence.
(ii) It was a legal issue not an issue relating to credibility.
(iii) The issue having been raised the Learned Magistrate was required to determine the issue.
(iv) It was not the Respondent's case at trial that the Respondent had applied to the Council of the Shire of Greenough in writing for approval to use his land as a residence.
- (d) In that she ought to have been found under Section 199(3) of the Justices Act that if the Learned Magistrate failed to make a necessary finding on the facts or evidence in substance the facts or evidence supported the decision or justified the finding."
9 In her Honour's written reasons for decision, Wheeler J set out the relevant provisions of the Shire of Greenough Town Planning Scheme No 4, including cl 1.8 and 6.1.1 of the Scheme, which were referred to by her Honour in the following terms:
"Clause 1.8, which is headed 'Interpretation' provides that, unless the context otherwise requires, the words in the Scheme have the meanings given to them in Appendix VII. In that appendix, the word 'development' is defined as:
'Has the meaning assigned to it by the [Town Planning and Development] Act which is as follows:
"Development" means the use or development of any land and includes the erection, construction, alteration or carrying out, as the case may be, of any building, excavation or other works on any land.'
Those words do not in fact appear to be identical to the words used in the Act, but the differences are immaterial for present
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- purposes. The definitions in the Act are also prefaced by the words 'Unless the context otherwise requires'.
Part II of the Scheme is headed 'Control of development and use of land' (which appears to suggest that, in that context at least, development and use are separate concepts). This part is concerned with zoning. It sets up a variety of different zonings and sets out the uses permitted in each zone, as is usual in such schemes. Evidence as to the zoning of this property was given at trial and was conceded by counsel for the respondent to be given merely by way of "background" although, as will be seen, it appears that his Worship regarded that evidence as having somewhat more significance.
Part VI is headed 'Administration' although it is apparent that, as the appellant suggests, it draws together a number of different concepts. It contains the following provisions:
'6.1 APPLICATION FOR PLANNING CONSENT TO COMMENCE DEVELOPMENT
6.1.1 A person who desires to commence development for land for any purpose shall make application to the Council for planning consent to commence development before applying for a building licence. The application shall be in the form and contain the particulars referred to in the form in Appendix VI'."
"13. The next three grounds of appeal deal with a letter of 21 December 1995 to the appellant and its consequences. There is among the exhibits only an office copy of the letter. The relevant officer for the purposes of inquiries or reference appears to be a Mr Nagel, but the letter purports to be signed by the Shire Clerk. It reads as follows:
'FINAL INSPECTION – LOT 100 FOSKEW WAY, NARNGULU
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- Please be advised that a final inspection of the living quarters constructed on the abovementioned property was carried out on Tuesday 19 December 1995.
Please be advised that the building (Class 1) has been approved for occupation as it has been constructed in accordance with the Building Code of Australia 1990.
The above reference should be quoted regarding any queries or correspondence relating to this matter.'
- 14. In relation to this letter, it is submitted either that it demonstrates that approval was given for the use of the building as a residence, and that it follows that, in the absence of evidence to the contrary, it should be inferred that approval must have been applied for; or alternatively, it was submitted that his Worship failed to appreciate that the onus of proving lack of approval lay upon the complainant and that in this context the letter, tending as it did to rebut any inference which might be drawn from the respondent's failure to find an application for approval amongst its files, was not properly considered by his Worship.
15. I think the first limb of this submission pays insufficient attention to the fact that it is 'Council' that approves the application. The Council of a local government authority is a deliberative body which arrives at its decisions by the passing of appropriate resolutions. Those resolutions are formally recorded in the minutes of Council proceedings. The 'approval' to which the Scheme refers is the approval given by Council, not by any officer on Council's behalf. However, I accept that the existence of a letter under the hand of the Shire Clerk advising that approval had been given would generally be evidence which, standing alone, might reasonably lead to the inference that such approval had been given. I have noted that cl 6.11 of the Scheme permits the Town Planner to grant planning consent to commence development in certain circumstances; in that case, the relevant approval would be one given by the Town Planner but, again, a letter under the hand of the Shire Clerk might well be evidence from which one could infer the existence of such an approval.
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- 16. In this case, it appears that his Worship concluded that the letter had been 'written in error'. That appears to involve the conclusion that the letter did not record any approval regularly given either by Council or by the Town Planner. However, it is important to note that this finding is one which was made towards the end of his Worship's reasons, and was made almost incidentally, in relation to what his Worship referred to as a 'defence' pursuant to s 24 of the Criminal Code."
11 Her Honour then indicated the reasons for her view that the appeal before her must succeed:
"17. It is my view that this appeal must succeed for the reason that his Worship appears not to have directed his attention to the essential elements of the complaint against the appellant, but rather to have been distracted by a possible illegality with which the appellant was not charged. I should add that his Worship is not to be criticised for taking this course; both the counsel for the respondent and for the appellant, during the course of the trial, spent a great deal of time exploring in detail issues which are now conceded to be relevant, if at all, only by way of 'background'. It is understandable if his Worship thought, as he apparently did, that he had before him a prosecution relating to use contrary to the zoning table, rather than a use without having made proper application pursuant to cl 6.1.1.
18. If one turns to his Worship's reasons, he commences by setting out the complaint and then noting that the evidence established that the appellant did use the building as a residence. His Worship goes on to hold, 'The evidence also established that a caretaker's residence was not a permitted use under the Scheme on 23 November 1999 or thereafter ...' His Worship then proceeds to consider three 'defences' raised by the appellant. That consideration would, of course, only have been relevant if the evidence to which his Worship referred would otherwise have established that the appellant was guilty of the offence with which he was charged. It did not, since it did not entail any finding about whether an application had been made or approval granted; indeed, if the use was not a permitted one, then it is difficult to see how approval could have been granted or what relevance approval might have had.
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- 19. His Worship then considered the question of whether 'development' as defined in the Act included use 'in this case'. In my view, the proper question was, what was the meaning of development for the purposes of cl 6.1.1, and I have dealt with that question. The two further defences referred to were honest and reasonable but mistaken belief that the appellant was entitled to use the building as a residence (pursuant to s 24 of the Criminal Code) or, alternatively, an honest claim of right to use the building as a residence (pursuant to s 22). In considering those questions, his Worship canvassed a quantity of evidence which suggested that the original application for development did not include and did not then intend to include an application in respect of a residence. He also canvassed evidence which was directed to the question of whether, in instructing that a plan be prepared for an "amenities room and office", the appellant had intended, and whether he had told anyone, that he proposed that the plan be for a residence. It is not entirely clear what part this evidence plays in his Worship's decision, but it appears that it is directed to the question of whether the appellant had engaged in conscious deception, and thus goes to the question of the honesty of any belief which he may have held. His Worship then referred to some other correspondence between the appellant and the respondent, including the letter of 21 December 1995 which I have already mentioned. He then held briefly, and in my view correctly, that s 22 of the Criminal Code could have no application.
20. Even at the order nisi stage, a number of grounds of appeal dealt with his Worship's findings in relation to the zoning question. Grounds 7 and 8 are to the effect that his Worship should have held that the use of the land as a caretaker's residence was authorised as at December 1995 (that being the date of what is said to have been the 'approval'), it being a use categorised as 'IP' under the Scheme (that is, permitted as incidental to the main use of the land). That question, the appellant conceded before me, was really irrelevant. A new ground 10 was added to the grounds of appeal, without objection on the part of the respondent, which more accurately puts the complaint which the appellant now makes about that finding. It reads:
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- 'The learned Magistrate erred in law in considering the question whether a caretaker's residence was a permitted use under the Town Planning Scheme.'
- 21. I am of the view that this ground must be upheld. Neither the complaint nor the original particulars provided to the appellant referred to any question of zoning. As opened to his Worship by counsel for the respondent, the issue involved in the trial was whether there had been a breach of cl 6.1.1 of the Scheme. Nevertheless, a great deal of irrelevant evidence was presented to his Worship and was the subject of extensive cross-examination, dealing with the question of what was the zoning of the land at different times, and whether use as a residence was permitted under the zoning in operation at the relevant time. His Worship appears to have formed the view that the issue for him to decide pursuant to the complaint was whether the relevant zoning permitted the use of the building as a caretaker's residence, rather than whether there had been application made for approval of that use and whether that application had been granted (questions which, as I have noted, assume that the use as a caretaker's residence will be permitted, at least if there is a relevant approval).
22. The real issue would have involved evidence so far as the respondent was concerned, in a relatively small compass. After tendering of the Scheme, it would have involved evidence as to the manner of keeping of the respondent's records with respect to applications and approvals, and the question of what searches and inquiries had been made to ascertain whether there was or was not an application or an approval. As it was, the course of the trial meant that, as I have noted, his Worship appears to have assumed the absence of an application, rather than to have determined it after a careful scrutiny of the evidence, and that course appears to have been taken because his Worship regarded the zoning question as the one which he was required to determine. In the result, the appellant has been convicted as a result of a determination adverse to him in respect of an issue which it was not necessary for the Court to decide, and the only determination in relation to the issue which the Court did have to decide appears to have been made almost incidentally and without any explanation of the reasons for arriving at that finding."
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12 Her Honour concluded by saying:
"24. For those reasons, I would allow this appeal. In the light of those views, it is not necessary for me to determine the question of whether his Worship should have permitted the amendment of the complaint."
13 The learned Magistrate delivered written reasons for his decision on 7 December 2000 and commenced by saying:
"The Defendant is charged that on 23 November 1999 and thereafter he did use a building on lot 100 Foskew Way as a caretaker's residence without prior application in writing and without prior approval in writing of the council of the Shire of Greenough and thereby contravened or failed to comply with the provisions of the Shire of Greenough Town Planning Scheme No 4 contrary to section 10(4) of the Town Planning Development Act 1928 ('the Act').
The evidence clearly established that the defendant used a building on lot 100 Foskew Way as a residence on 23 November 1999 and thereafter and that the land was subject to the Shire of Greenough Town Planning Scheme No 4. The evidence also established that a caretaker's residence was not a permitted use under the scheme on 23 November 1999 or thereafter, although it was a permitted use in 1995 when the building was completed and occupied by the defendant as a residence."
14 The learned Magistrate described the application for development lodged on behalf of the respondent in February 1993. Because of his literacy difficulties, the respondent had a friend fill in the details on the application envelope. It was not suggested that what was written by the friend did not accord with the respondent's instructions. In the application, the proposed development was described as "Concrete Manufacturing", along side of which had been written "shed", probably by a Shire officer. Accompanying the application was a site plan for a shed and office and a plan and specifications for a "Highline" shed. Conditional approval for the development was granted in May 1993. The structure described in the application as a "shed" was the structure subsequently built by the respondent (not in accordance with the approved plan) for use as residential quarters.
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15 As his Worship observed:
"Remarkably no one at the Shire appears to have ever bothered to see whether the construction taking place was in accordance with the development approval which had been granted and the building licence."
16 In December 1995, the respondent arranged for Mr Nagel, a building inspector employed by the Shire of Greenough to inspect the completed building, which he did and on 21 December 1995 the letter, which is described in par 13 of her Honour's reasons and is set out above, was written.
17 The respondent has maintained before us the submission that that letter manifests the approval of the Shire to the respondent's use of the premises in question as a residence. I respectfully agree with her Honour's remarks in the first four sentences of par 15 of her Honour's reasons and, subject to the qualification that in the factual circumstances of the present case the letter cannot be regarded as evidence of an actual approval to the use of the premises in question as a residence, I agree also with the other remarks made by her Honour in that paragraph.
18 The evidence of the building inspector, Mr Nagel, (AB166-168) in relation to the final inspection of the premises on 19 December 1995 showed that the procedure was that the client would ring up and request an inspection. He did not recall receiving such a telephone call at the time. The final inspection was concerned with the completion of installation of sanitary utensils, any structural or obvious structural defects. He was not concerned with whether or not an approval had been obtained for what he was inspecting. He was employed as a building inspector and was not concerned with the planning aspects. Under cross-examination, he suggested (AB172) that: "Somewhere in the pipeline an error has occurred". He added:
"The error may have been my error inasmuch as I didn't take the building envelope with me and didn't actually check that the building complied with the plans that were approved."
19 The letter was not, as a matter of fact, an expression of any real approval by the Shire to the use of the premises as a residence. In the light of the evidence, it is not open to deduce from the existence and terms of the letter that the respondent must have made an application for approval of the use of the premises as a residence. The evidence showed
(Page 14)
- that the relevant application which had been submitted to the Shire was for approval to erect a shed adjoining the main building and there was no application for approval to use the premises as a residence.
20 The respondent sought at the trial to rely upon that letter as being the basis for a defence, pursuant to s 24 of the Criminal Code, of an honest and reasonable mistake on his part in relation to his occupation of the premises. The learned Magistrate said, in relation to this:
"A defence under section 24 of the Criminal Code may have been open to the defendant had he been charged after receiving the letter of 21 December 1995 and before it was drawn to his attention that the letter had been written in error. But having regard to the fact that at no time did the defendant make application to the Shire to use the building on the land as a residence, bearing in mind even the Teakle plan was for a proposed amenities room and office and not a residence, and the correspondence which passed between the defendant and the Shire there is simply no basis for the defence of honest and reasonable mistake in relation to his continued occupation of the premises after the expiration of time specified in the letter of 26 August 1999.
In my view section 22 of the Criminal Code has no application. Where, as in this case, the defendant has not done what is required under the law to obtain development approval an honest claim of right does not arise."
21 His Worship's reference to "the Teakle plan" was a reference to a plan for a proposed amenities room and office on Lot 100 Foskew Way which Mr Teakle, an architectural draftsman had prepared on the respondent's instructions but which was not submitted to the Shire. The letter of 26 August 1999 was a letter written to the respondent by the Shire giving notice that the unlawful use of the premises as a caretaker's residence must cease within 30 days.
22 Although, as her Honour pointed out, considerable time was devoted to matters of zoning, which were irrelevant to the matters in issue at the trial, it is clear that the learned Magistrate correctly identified the nature of the charge against the respondent and made the significant findings, recorded in the passages cited above, that at no time did the respondent make application to the Shire for approval to the use of the premises in
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- question as a residence and that the respondent had not done what is required under the law to obtain development approval.
23 The respondent submitted that his Worship's finding that: "But having regard to the fact that at no time did the defendant make application to the Shire to use the building on the land as a residence, bearing in mind even the Teakle plan was for a proposed amenities room and office and not a residence" was "an assumption, not even a conclusion let alone a reasoned finding". I would not uphold that submission. There was clear evidence from the Shire that there was no record of the receipt of any application for the use of the premises in question as a residence; there was no evidence from the respondent that he had indeed made any such application; and the evidence indicated, as the learned Magistrate found, that the respondent deliberately sought to conceal the fact that he intended to use the premises as a residence. The development application which was submitted, and the plan by Mr Teakle drawn on the respondent's instructions, (albeit never submitted to the Shire) both falsely described the premises in question in such a way as to conceal the intention to use the premises as a residence.
24 Her Honour upheld the ground of appeal reading:
"The learned Magistrate erred in law in considering the question whether a caretaker's residence was a permitted use under the Town Planning Scheme."
25 However, with respect to her Honour, the upholding of that ground could not have been decisive of the appeal. The specific findings of the learned Magistrate, to which I have referred above, that the respondent had at no time made an application to the Shire for approval to the use of the building as a residence and had not done what was required to obtain development approval (which latter finding necessarily carries with it the implicit finding that no approval had been given to the use of the building as a residence) was, in my opinion, sufficient to justify the respondent's conviction on the charges against him. That should, in my opinion, have resulted in the dismissal of the appeal before her Honour.
26 For the foregoing reasons, I would allow the appeal and reinstate the conviction recorded by the learned Magistrate at first instance.
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