Shire of York v Rosmill Pty Ltd - [2010] WASC 189

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SHIRE OF YORK -v- ROSMILL PTY LTD [2010] WASC 189

CORAM: HALL J

HEARD: 21 JUNE 2010

DELIVERED : 28 JULY 2010

FILE NO/S: SJA 1136 of 2009

BETWEEN: SHIRE OF YORK
Appellant
AND
ROSMILL PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J G MUSK
File No  :PN 1444 of 2008

Catchwords:

Health Act offence - Interpretation of 'construction' and 'installation' - Section 24 Criminal Code - Honest and reasonable mistake of fact - Whether mistake of fact or law

Legislation:

Criminal Appeals Act 2004 (WA), s 9
Criminal Code Act Compilation Act 1913 (WA), s 24
Health (Treatment of Sewage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA), reg 4, reg 5, reg 6, reg 10
Health Act 1911 (WA), s 3, s 107, s 361
Interpretation Act 1984 (WA), s 18

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D P Gillett
Respondent: Mr M S Barrett-Lennard

Solicitors:

Appellant: McLeods
Respondent: M S BarrettLennard & Co

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

Brayson Motors Pty Ltd (in liq) v The Commissioner of Taxation for the Commonwealth of Australia (1985) 156 CLR 651
Crampton v The Queen (2000) 206 CLR 161
Customs v Woodlands (1995) 83 A Crim R 579
David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416
Dodd & Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37
Geraldton Fishermen's Co‑operative Ltd v Munro [1963] WAR 129
Giannarelli v The Queen (1983) 154 CLR 212
John Burke Ltd v Insurance Commissioner [1963] Qd R 587
Ostrowski v Palmer (2004) 218 CLR 493
Ottobrino v Espinoza (1995) 14 WAR 373
Proudman v Dayman (1941) 67 CLR 536
R v Gee (2003) 212 CLR 230
Thomas v The King (1937) 59 CLR 279
Wroblewski v Starling [1987] WAR 233

HALL J:

Introduction

This is an appeal against the decision of a magistrate in the Northam Magistrates Court on 5 November 2009. On that day a charge against the respondent, Rosmill Pty Ltd (Rosmill), was dismissed following a hearing. The appellant, the Shire of York, appeals against that dismissal.
The charge was that Rosmill as the owner of land at York had permitted the installation of an apparatus for the treatment of sewage without the Shire of York having approved the installation contrary to s 107(2) and s 361 of the Health Act 1911 (WA) (the Health Act). The charge was dismissed by the magistrate on two bases. First, that Rosmill had raised in evidence that it had an honest and reasonable belief that it had approval from the Shire of York to install the apparatus and that the prosecution had not disproved that belief beyond reasonable doubt. Second, that in any event no offence had been committed because approval was only required when the work was completed and the evidence was that the work in question had not been completed.
The appellant submits that both of those findings are wrong. Each of the findings would be sufficient in itself to result in dismissal of the charge and accordingly the appellant accepts that it has to succeed in respect of both findings for the order dismissing the charge to be set aside.
The original appeal notice was filed on 1 December 2009. On 23 March 2010 a minute of proposed amended appeal notice was filed. The original two grounds were deleted and replaced and an additional third ground was added. The new proposed grounds 1 and 2 are substantially the same as the grounds that they replaced and relate to the two conclusions of the magistrate that I have referred to earlier. The new ground 3 raised a different issue; that the claimed mistake was not one that related to the work that was in fact done on the property.
Leave to appeal is required in respect of each of the new grounds: s 9(1) Criminal Appeals Act 2004 (WA). Rosmill did not oppose a grant of leave in respect of new grounds 1 and 2. However, it did oppose leave in respect of new ground 3. I will address that issue when I come to deal with that ground.

Grounds of appeal

The grounds as contained in the minute of proposed amended appeal notice are as follows:
1.The learned Magistrate erred in law in finding approval under section 107(2)(a) of the Health Act 1911 is not required until the installation of an apparatus for the treatment of sewage is complete whereas the learned Magistrate should have found approval under section 107(2)(a) was required prior to the commencement of any works in relation to the installation of an apparatus for the treatment of sewage.
2.The learned Magistrate erred in law in finding the Respondent's belief that it had approval to install an apparatus for the treatment of sewage raised the defence of honest and reasonable but mistaken belief in the existence of any state of things pursuant to section 24 of the Criminal Code whereas the learned Magistrate should have found that the Respondent's belief constituted an ignorance of the law in that:
(a)the Respondent believed it had verbal approval to install the apparatus whereas as [sic] an approval under section 107(2)(a) of the Health Act 1911 must be in writing; and
(b)the learned Magistrate found an approval under section 107(2)(a) of the Health Act 1911 must be in writing.
3.The learned Magistrate erred in law in finding that the Respondent's belief that it had approval to install an apparatus for the treatment of sewage was an honest and reasonable but mistaken belief in the existence of any state of things for the purposes of section 24 of the Criminal Code whereas the learned Magistrate should have found the Respondent's belief was not reasonable on the basis that the apparatus for the treatment of sewage actually installed by the Respondent was different to the apparatus shown on the application for approval submitted by the Respondent and which the Respondent believed had been approved.

Relevant legislation

The Health Act provides for the maintenance and regulation of sewerage and drainage schemes. Local government authorities are charged with the responsibility for providing that drains, sanitary conveniences and apparatus for the treatment of sewage within their districts are constructed and kept in such a way as not to constitute a nuisance or to be dangerous or injurious to health: s 107(1).
Construction or installation of apparatus for the treatment of sewage requires the approval of the relevant local government authority where it is intended to serve a building that is a single dwelling or produces no more than 540 litres of sewage per day. Where the building in question is not a single dwelling or will produce more than 540 litres of sewage per day the approval of the Executive Director of Public Health is required. In the present case, the building in question was a single dwelling and there is no issue that the approval of the Shire of York was required.
Section 107(2) provides that:
A person who constructs or installs, or permits or authorises the construction or installation of, any apparatus for the treatment of sewage commits an offence unless ‑
(a)the local government has approved of that construction or installation, where it is prescribed by regulation that the apparatus is to be approved for the purpose of this paragraph by the local government; or
(b)the Executive Director, Public Health has approved of that construction or installation, where it is prescribed by regulation that the apparatus is to be approved for the purposes of this paragraph by the Executive Director, Public Health.
Section 107(3) provides that applications for approval under s 107(2) are to be made as prescribed by regulation. That subsection also provides that approval may be granted subject to conditions that are to be specified in writing and given to the applicant.
Once the installation or construction of an apparatus is complete it cannot be used until the local government authority has granted permission: s 107(4). Such permission can only be granted after an inspection conducted by or on behalf of the local government authority to ensure that the apparatus conforms to all relevant requirements prescribed by regulation and of any condition imposed on an approval granted under s 107(3): s 107(5).
Some of the terms used in s 107 are defined in s 3. In particular the phrase 'apparatus for the treatment of sewage' is defined to mean any apparatus for the bacteriolytic or aerobic treatment of sewage or any other apparatus for the treatment of sewerage approved by the Executive Director, Public Health and includes any buildings, fittings, works or appliances used or required in connection with the bacteriolytic or aerobic treatment of sewage and the disposal of effluent or any residue of such treatment. This definition is clearly intended to include not only septic tanks and leach drains but the pipes and sanitary hardware used to convey sewage to and from such receptacles.
The relevant regulations are the Health (Treatment of Sewage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA). Regulation 4 provides for the approval of the construction or installation of an apparatus by local government. It states as follows:
4. Approval of the construction or installation of an apparatus by local government
(1)For the purposes of section 107(2)(a) of the Act, an apparatus is to be approved by a local government if it is intended to serve -
(a)a single dwelling; or
(b)any other building that produces not more than 540 litres of sewage per day.
(2)A person may apply for an approval under this regulation by ‑
(a)completing an application in a form approved by the Executive Director, Public Health; and
(b)forwarding the application to the relevant local government together with ‑
(i)any documents required under regulation 5; and
(ii)the fee specified in item 1 of Schedule 1.
(3)Upon an application under subregulation (2), a local government shall, as soon as practicable after receiving the application ‑
(a)subject to these regulations, grant the approval ‑
(i)in a form approved by the local government; and
(ii)subject to such conditions as the local government thinks fit;
or
(b)refuse to grant the approval.
(3a)Any conditions imposed on the grant of an approval that relate to drainage plumbing work must not be inconsistent with the plumbing standards.
(4)A local government may grant an approval under this regulation only if, under the application, the apparatus is to be constructed or installed in accordance with these regulations.
(5)Where a local government refuses to grant an approval under this regulation, it shall, as soon as practicable, provide to the person applying for the approval a written notice -
(a)advising the person of the refusal; and
(b)setting out the reasons for the refusal.
Regulation 5 stipulates the documents that are required to accompany an application for approval. They include a copy of a plan and specification of the proposed apparatus and two copies of a site plan of the premises showing the position of all buildings, the proposed apparatus and all drains, pipes and inspection openings. Regulation 5(2) provides that where an application for approval is made, the approving body must retain a copy of the application, every document that accompanied it and the approval for the duration of the life of the apparatus. The approving body is obliged to make such documents available for inspection by members of the public: reg 5(3). Every approval is subject to a condition that construction or installation of the apparatus must be completed within a period of two years or any lesser period specified in the approval: reg 6(1).

Evidence at the hearing

It was not in dispute that Rosmill was the owner of the land in question, namely Lot 3 Great Southern Highway, York. Nor was it disputed that the land fell within the area for which the Shire of York has responsibility under the Act.
It was also common ground that an application to construct or install an apparatus for the treatment of sewage had been lodged with the Shire of York on behalf of Rosmill on 30 April 2007. The person who completed the application form and was named as the applicant, was Mr Carl Bell. Mr Bell was a director of Rosmill at the relevant time and gave evidence on its behalf at the hearing.
The application specified that the type of apparatus to be installed was a septic tank and the disposal system was a leach drain. Attached to the application was a declaration by a plumber stating that he would be responsible for the installation of the disposal system and would take responsibility for ensuring that the apparatus was installed in accordance with the regulations. Also attached was a plan depicting the proposed works. The plan showed two septic tanks and two leach drains and their connections to each other and to the residence. The plan did not show the boundaries of the property or the distances of the proposed works from those boundaries.
The Shire of York called one witness, Mr Peter Stevens, an environmental health officer and building surveyor for the Shire of York. Mr Stevens gave evidence that the application to install the apparatus was received by the Shire on 30 April 2007 together with a building licence application. He said that fees were paid for the building licence but not for the effluent disposal application. The fee at that time for an effluent disposal application was $184.
On 26 June 2007 Mr Stevens wrote to Rosmill regarding the applications that had been lodged on 30 April 2007. The letter stated:
Please be advised that Council's building surveyor has examined the plans and the following additional information is required prior to the issuance of a building licence:
Application for effluent disposal system.
An application to construct an effluent disposal system will need to be completed along with two sets of plans and a plumber's statutory declaration. The fee for this application is $184.
The letter also referred to a requirement to provide two copies of a site plan that would detail setback distances, the location of any existing structures or drainage lines and the location and layout of the effluent disposal system.
The dwelling that was proposed to be constructed on the land was a transportable dwelling. On 13 July 2007 a further letter was written by the Shire of York to Rosmill. Included in that letter was the following statement:
The Council advise the applicant that the proposed re‑sited dwelling to be located at the property at Lot 3 Great Southern Highway is approved subject to the following: A building licence and septic system licence being issued prior to relocation.
A further letter was written by the Shire of York to Rosmill on 2 October 2007. That letter stated that, amongst other things, payment of a septic system application fee was required prior to the Shire of York proceeding further with the building licence application.
Mr Stevens said that he had had a number of discussions with Mr Bell regarding the deficiencies in the application and the fees that were payable. He recalled one occasion when Mr Bell attended with an associate at the Shire of York's office when it was pointed out that the application fee for the septic system had not been paid. It would appear that the meeting Mr Stevens was referring to occurred on 18 January 2008 because he produced a letter from the Shire of York to Rosmill of that date which refers to a meeting on that day and which confirms that a number of matters needed to be attended to in order for the building licence to progress. In particular the second paragraph of that letter states:
A search of Council's records has been undertaken and no evidence of payment of the effluent disposal application fee can be found, a copy of the receipt paid on 30 April is included for your convenience, if you have a receipt or evidence that you have paid this fee please supply a copy to Council otherwise this fee ($202) will need to be paid.
Mr Stevens gave evidence that by the date of this letter the fee had increased from $184 to $202. The receipt attached to the letter included four items totalling $5,289. It was not disputed that two of these items related to the building licence, however the remaining two items were described in the receipt as 'miscellaneous' and were for $100 and $99 respectively.
Mr Stevens had a further meeting with Mr Bell on 30 April 2008. Mr Stevens said that the non‑payment of the sewage disposal system licence was again raised. He said that Mr Bell told him that the system had already been installed by a local plumber and that this had been done in October 2007. Mr Stevens said that at the end of the meeting Mr Bell had gone to the front counter and paid the $202 application fee.
Mr Stevens said no approval had ever been issued for the effluent disposal system. When asked why this was so he said:
… we won't issue the effluent application in isolation. It's issued in accordance ‑ in association with the building licence. The system had already been installed and when I actually went to see ‑ after Mr Bell told me it had been installed, I went on site and had a look and the system was not in accordance with the plans he had submitted, in any case. So the plans were deficient. The submitted plans were deficient, not accurately depicting what was installed. We ‑ so we haven't issued the licence as yet. (ts 11 ‑ 12).
Mr Stevens said that he inspected the site on 9 May 2008 and took a number of photographs. Those photographs were produced in evidence. The photographs showed that four septic tanks had been placed into excavated holes on the land (as contrasted with the two shown on the plans submitted on 30 April 2007). The work appeared to be incomplete in that whilst there were pipes connecting the tanks to each other and to the house, both the tanks and the pipes were exposed and apparently not operational.
In cross‑examination it was put to Mr Stevens that the $199 of miscellaneous fees paid on 30 April could have been for the sewage disposal application. Mr Stevens did not accept that this was the case but he did accept that a person reading the receipt might not have been able to determine what those amounts related to.
It was put to Mr Stevens that he had a meeting with Mr Bell in late September or early October of 2007. Mr Stevens accepted that this was a possibility but could not recall specifically any such meeting or what might have been said. It was put to him that he had told Mr Bell that the sewerage system had been 'verbally approved'. Mr Stevens did not agree that he could have said such a thing. He said that he would never give an indication that something was approved unless it was in writing. It was put to Mr Stevens that he had reiterated that there was verbal approval on 30 April 2008, but Mr Stevens did not accept that. He said that he never gave verbal approvals. He also rejected that there was any uncertainty about whether the fee had been paid. He said that it was clear that the fee had not been paid and that was reflected in the correspondence.
Mr Bell was called on behalf of Rosmill. He stated that his understanding in regard to the fees was that on 30 April 2007 he had paid for everything, including the application in respect of the sewage disposal system. He said that his dealings with the counter staff on that day did not lead him to believe that any fees were outstanding.
Mr Bell said that he had a meeting with Mr Stevens in late September to mid‑October 2007. He said this occurred at the counter of the Shire of York's offices and that he had asked Mr Stevens about the progress of his licence applications. Mr Bell's evidence in this regard was as follows:
Would you relay that particular conversation that you had?‑‑‑I saw Mr Stevens come out from one of the offices. I asked if I could talk to him. He came across to the counter, which is a wide bench in the shire, and I asked him as to the progress of the ‑ everything being in order and when I was going to get my licences and was everything approved and he said to me that it was approved verbally and there was written stuff to follow ‑ - -
OWEN, MR: Your Honour, I can't ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ written approvals.
Sorry, I can't recall this being put to my witness in cross‑examination, September. Sorry, my notes may well be ‑ ‑ ‑
HER HONOUR: I don't know about the dates being part of the question.
BARRETT‑LENNARD, MR: The dates that were put to the prior witness were late October ‑ late September‑early October for this meeting.
HER HONOUR: Yes, around late September‑early October.
OWEN, MR: Well, okay. Thank you, ma'am. Yes.
HER HONOUR: He agreed that you spoke to him at that time frame to inquire about the progress of various applications.
BARRETT‑LENNARD, MR: Yes. Now, was anything said at that time about fees?‑‑‑Yes.
Yes. What and by whom?‑‑‑It was mentioned by Mr Stevens that things were still progressing and that I would be receiving written approval shortly and they were just clarifying on some fees.
Clarifying what?‑‑‑They were clarifying on some fees.
Yes, and did he tell you what those fees related to ‑ ‑ ‑?‑‑‑I believe at that ‑ ‑ ‑
‑ ‑ ‑ or the amount?‑‑‑I believe one of the fees at that time that was mentioned, because there was many fees involved, was to do with the apparatus (s 41 ‑ 42).

Mr Bell said that there was a further meeting on 18 January 2009 where he was accompanied by an associate, Mr David Watts. He said that by that date he had had excavation works done but plumbing work was not done until after 30 April 2008. Mr Bell said that he asked about the progress of his applications and there was some discussion about a fee that related to the building licence (which is not relevant to these proceedings), and also a discussion about the sewage disposal system. In this regard Mr Bell stated:
What relevant to the sewerage matter did you inquire about?‑‑‑I simply asked where it was all up to and why hadn't I received my approvals and it was said that ‑ ‑ ‑
And what reply did you get from him?‑‑‑Well, I've tried to tell the court, but one of the items was about the BTCF, which I'll leave at that.
We will leave that out, yes. What else?‑‑‑And basically it was just in the process and still on fees.
Yes. Did you ask whether it had been approved, whether the sewerage apparatus had been approved?‑‑‑On that occasion, I was told that it was approved.
Right. Well, describe what was said?‑‑‑It was the paperwork had been presented, which was including everything that's been presented to the court.
Yes?‑‑‑An application for the apparatus.
Yes?‑‑‑The building licence and everything.
Yes, but what was said?‑‑‑That it's still being processed and everything appeared that was in order, other than the BTCF situation and the fee.
Did he ‑ ‑ ‑?‑‑‑Or the fees.
Did Mr Stevens indicate to you whether any form of approval had been given at that stage?‑‑‑I had my planning approval and only verbally, which he did say that it still had to come in writing.
OWEN, MR: Could I ‑ sorry, I ‑ ‑ ‑
HER HONOUR: So what was that? You were told, you said, first of all that the sewerage apparatus was approved and it was still being processed?‑‑‑Yeah, the paperwork, your Honour.
The paperwork was being processed?‑‑‑Yeah, the process.
Right. Well, it's a question of what you were told; not what happened, what you were told when you went ‑ ‑ ‑?
And what you understood, I take from that. Okay.
BARRETT‑LENNARD, MR: After that meeting, you did in fact arrange for such works as you have had done at least to be done by the plumber. Is that right?‑‑‑By the chap that digs the holes and which is - that document was presented to the court (ts 43 ‑ 44).
Mr Bell said that there was a subsequent meeting on 30 April 2008 at which Mr Watts was again present. Mr Bell said that he asked Mr Stevens why he still had not received any paperwork. Mr Bell said:
… Mr Stevens was asked by me point blank in plain Queen's English was there anything else outstanding and have I got approval and Mr Stevens, his answer was, 'You have verbal approval. We've still got a point of contention about the apparatus fee,' being $184, which we then found became ‑ which had increased somewhat to 202 and that was the end of the conversation there (ts 45).
Mr Bell said that following this meeting he instructed the plumber to 'go ahead and do the basic stuff and not have it fully installed'.
Following the evidence of Mr Bell, the prosecution sought to amend the charge such that the date of the offence was amended from October 2007 to between January and April 2008. This appears to have been done to reflect the evidence that was given by Mr Bell regarding when the excavation work was done. Mr Bell had produced an invoice dated 14 January 2008 from a contractor which he said related to this work. That invoice referred to eight hours work having been done on 11 January for 'installation of septic and leach drain system at Lot 3 Great Southern Highway as directed'. There was no objection to the amendment to the charge.
In cross‑examination Mr Bell was asked why in light of the correspondence which referred to the fee for the sewage disposal system not having been paid had he not asserted his belief that it had been paid on 30 April 2007. Mr Bell said that he had little time for Mr Stevens but reiterated his belief that he had paid all appropriate fees on 30 April 2007. Mr Bell accepted that notwithstanding he had had other dealings with the Shire of York he could give no other examples of verbal approvals having been given. He said that he treated the three letters as being, effectively, mistakes on the part of the Shire of York which did not shake his belief that he had paid all the relevant fees. He said that he did not know that the fee was initially $184 or later $202, so the absence of a specific amount in that regard on the receipt of 30 April 2007 had no significance to him. He accepted that he had done nothing to recover any duplicated fees.
The respondent also called Mr David Watts who agreed that he had been present at meetings between Mr Bell and Mr Stevens in January and April of 2008. Mr Watts had no clear recollection of the January meeting. In respect of the meeting of 30 April 2008, Mr Watts said that Mr Bell had asked what else was needed for the sewerage system and Mr Stevens had said it was necessary to pay the application fee. Mr Watts said that there appeared to be some uncertainty about whether that fee had been paid or not. He said that when Mr Bell referred to having already installed the system, Mr Stevens said he could not believe that that had been done and that Mr Bell might be prosecuted. He also testified that Mr Stevens said 'you've got verbal approval but you haven't got written approval'.

Magistrate's reasons

Her Honour summarised the evidence noting that the photographs that had been submitted in evidence indicated that substantial work had been done but had not been finished. Her Honour said that following the 18 January 2008 meeting Mr Bell had told the plumber not to fully install the system because in his mind, he still needed the formal approvals to come through. Mr Bell did not say in evidence that this was what he was thinking when he instructed the plumber. Her Honour's conclusion appears to be based upon the following submission made by counsel for Rosmill:
The accused effectively says, 'Look, I wasn't prepared to complete the system, because I thought that might get me into trouble and I deliberately left it unconnected. It's never been used. The tops are off. The actual plumbing system isn't completed yet either. Everything needs cementing up and only then, after I get the piece of paper, am I going to go on and complete it.' Up until then, it's just a matter ‑ it's work. It's not yet a construction. It's not installed.' Perhaps the juxtaposition of the words 'install or permit construction' ‑ no, I will rephrase that. The word 'install' assists the probably meaning of 'construct', but you haven't really installed something until it is installed (ts 91).
Her Honour then said:
So basically, the accused is saying that he had an honest and reasonable belief about a number of things in relation to this whole matter; first of all, that he had paid the fees for this particular application along with all the others, when he first lodged the application and paid that $5000 worth of fees all up, without looking at the fine detail in the invoice; that he honestly and reasonably believed that at the time he instructed the plumber to start installing the system in the trenches that had been dug, if I can call them that, that he had a form of approval sufficient to start that work and that writing wasn't necessary.
He had left it incomplete, that is not completely installed, because as time went on, he was becoming more and more aware that he needed all these things and at the end of meeting in April, he at least rushed out paid the fees, and was now of the view that he believed he had the approval to go that far, but in any event, even if he didn't, he hasn't fully installed it, so in the terms of legislation, he hasn't constructed or installed or permitted or authorised the construction, et cetera, et cetera, without approval (ts 98 ‑ 99).
Her Honour then concluded:
Now, on the evidence before me, given primarily by Mr Stevens and Mr Bell, I am not satisfied beyond reasonable doubt that Mr Stevens did not indicate to Mr Bell on January 18 something to the effect that verbal or unofficial approval had been given and that formal approval would come later and then there was the issue of the outstanding fee to be dealt with as well. That means that the prosecution haven't negatived the defence of honest and reasonable, but mistaken belief in that sense or in that part of the defence, but in any event, I accept that the company hasn't completed the installation of the system.
If I look at those photos in the context of the evidence I have heard, there is no way that is a complete system. So that is consistent with Mr Bell's evidence that he says to the plumber, 'Leave it that way. Don't complete it,' and then he went and had his meeting on 30 April, paid the fee and nothing has been done since. I accept from the evidence before me, including that photographic evidence, that the stage of installation of that system is not complete.
So it cannot be said to be an installation that is complete and therefore it doesn't fall within the provision of section 107(2)(a), in my view, because the legislation doesn't specify that the approval ‑ sorry, doesn't specify it has to be writing, although really it's difficult to interpret it in any other way, and so I accept that for approval to be finalised, it must be in writing. I accept on the wording of that and the regulations that any such approval in these circumstances would have to be written approval.
Mr Bell honestly and reasonably believed that he had some indication that he could go ahead until it was getting towards the end and then he said, 'No, we won't finish this job until I've got that formal bit,' and I accept that is what he did. So it is not a complete installation. He honestly and reasonably believed that something was said along the way, leading him to believe that he didn't need to wait for the final approval, and that was mixed up with this whole issue of the fee. If he had thought it out much earlier, as he well could have, maybe there would have been less problems along the way, but that was another issue involved there, although it doesn't seem to have resolved anything, because finally it was paid on 30 April.
The installation still isn't complete, for whatever reason. So although Mr Bell should have looked at that issue before he got to a certain point in the work, before he paid for it, for the reasons I have already referred to, I am not satisfied that the charge has been proven to the required standard, which is beyond reasonable doubt, primarily for those two reasons. I am not satisfied that Mr Bell (sic) did not indicate some form of approval and I am also not satisfied that this is a complete installation (ts 100 ‑ 101).

Ground 1 ‑ does construction or installation have to be complete?

The word 'construct' means to make by fitting parts together to build or erect: Shorter Oxford English Dictionary. The word 'install' means to place in position for service or use: Shorter Oxford English Dictionary. Both words are verbs and connote a process. A person who constructs or installs something is doing so from the commencement of that work until its completion.
The interpretation placed upon s 107(2) by the magistrate is that the words 'constructs or installs or permits or authorises the construction or installation' refer to a completed construction or installation. On that basis, approval would not be required until the work was finished. In my view, that interpretation is wrong.
The subsection creates an offence of doing something without approval. If the words 'constructs' and 'installs' were to be interpreted in such a way as to only require approval after the construction or installation was complete it is difficult to understand how an offence could ever be committed. The clear grammar of the subsection requires that the approval precede the act which will constitute an offence if such approval is not given. The words are used in a sense that more readily lends itself to a reference to a process rather than to completed work. If approval was only required after the work was completed one would expect that the section would be framed so as to refer to a person who had constructed or installed. That is, to refer to the work in the past tense.
Furthermore, it is important to construe the section in its context. When this is done it is apparent that the approval required by s 107(2) precedes the completion of any work which then requires inspection and permission from the local government authority before it can be used: s 107(4). If approval to construct or install was only required after the work was completed, then permission to use the apparatus would serve no obvious additional purpose. In addition, s 107(3) refers to conditions being specified on a grant of approval. It would seem meaningless to impose conditions in respect of construction or installation that has already been done.
Whilst as a general rule, regulations cannot dictate the interpretation of an Act (John Burke Ltd v Insurance Commissioner [1963] Qd R 587; Pearce D C & Geddes R S, Statutory Interpretation in Australia (6th ed) [3.41]), it can be useful to refer to regulations where they, together with the Act, form part of a legislative scheme and would assist in resolving any ambiguity (Brayson Motors Pty Ltd (in liq) v The Commissioner of Taxation for the Commonwealth of Australia (1985) 156 CLR 651, 652 (Mason J)). It is relevant therefore that an interpretation of s 107(2) that refers to a process of construction rather than a completed work is consistent with the regulations. For example, reg 4(4) provides that a local government may grant an approval under that regulation only if under the application, the apparatus is to be constructed or installed in accordance with the regulations. That clearly suggests that the approval must come prior to the commencement of the construction or installation. Regulation 6(1) provides that all approvals are subject to a condition that the construction or installation is to be completed within two years or such lesser period as is specified. That is also consistent with approval being required prior to commencement of the work.
In my view, an interpretation of s 107(2) that requires approval to be sought and granted prior to the commencement of any installation or construction is also consistent with the evident purpose of the section: s 18 Interpretation Act 1984 (WA). Subsection 107(1) suggests that the purpose of the section is to ensure that any construction of apparatus for the treatment of sewerage is undertaken in a way that is consistent with regulated standards. These standards relate not only to health but also nuisance and danger. Those features can relate not only to how the system is used but the way in which it is constructed. It would make nonsense of s 107(2) if approval was only required after construction work was completed or almost completed. This would leave local governments in a position where work would be unregulated until it was finished and about to be used. If the work was then found to be of a substandard or in contravention of the regulations, the Shire of York would be obliged to either order remedial work or refuse to give its approval. It is neither in the public interest nor the interest of applicants that construction work proceed in such uncertainty until completed.
The respondent contended that s 107(2) formed part of the Health Act when it was first enacted in 1911. It was suggested that the circumstances that pertained in 1911 should be taken into account. In particular, it was submitted that at that time it would have been impossible to determine whether necessary excavation work could be done in the proposed location without first digging in the area. It was suggested that modern machinery and explosives now made it possible to excavate in a desired location notwithstanding what may be found under the ground but that this was not so in the past. For this reason, it was submitted, the words of the section should be interpreted so as to permit preliminary work such as excavation without requiring approval.
I do not accept the validity of this argument. First, it is not apparent that the differences between modern technology and that which existed in 1911 in regards the excavation of land is so significantly different as to require the interpretation that is suggested. Second, there is nothing in the Act itself to suggest that the words 'construct or installs' were being used in a way that was assumed by the legislators to be limited to the circumstances that were then existing. Legislation may be deliberately drafted with the intention that the text is to be regarded as ambulatory and embrace future changes in the subject matter: R v Gee (2003) 212 CLR 230, 241. The words 'construction' and 'installation' are of very wide ambit. They were clearly intended in my view to extend to any methods or techniques that would be developed in the future. Third, the Interpretation Act s 8 provides that a written law should be considered as always speaking and whenever a matter or thing is expressed in the present tense it shall be applied to the circumstances as they arise so that effect may be given to every part of the law according to its true spirit, intent and meaning.
The respondent also contended that if s 107(2) requires that approval be given before commencement there would be difficulty in determining at what point such approval was required. It was suggested that commencement may be difficult to determine and could be said to arise when fittings were ordered, purchased or stored on site. I do not accept this argument. The examples given are preparatory matters and could not on any sensible view be considered as components of construction or installation. There is no practical difficulty in determining when commencement of construction or installation commences; it is when work relating to the building or fitting of the apparatus starts on the land.
It was also suggested by the respondent that some of the regulations, in particular reg 10, are more consistent with an interpretation that approval is only required after completion of the construction. I do not agree. Regulation 10 provides that where after inspection it is found that an apparatus conforms with the regulations, and an approval granted in respect of it, a permit may be granted for use of the apparatus. If inspection reveals that the apparatus does not conform with the regulations then the relevant officer can advise the owner as to the necessary corrective works and arrange for a further inspection. The fact that the regulations contemplate the possibility that remedial work may be required does not mean that approval cannot logically precede the commencement of the work. To the contrary, the wording of this regulation clearly suggests that the inspection is to determine whether the work that has been done is in compliance with the approval that was given prior to its commencement.
In my view, the learned magistrate was wrong to come to the conclusion that the charge was not proven because the work was not complete. In any event, it should be noted that Rosmill was not charged with installing or constructing the apparatus but with permitting the installation of it. As a matter of logic, a permission must precede the commencement of the work, although it would no doubt continue for the duration of it.
Since the charge related to the period between January and April 2008, it is necessary to determine the work that was done in that period. The only evidence in this regard came from Mr Bell. He said that the excavation work was done prior to 18 January 2008 and the invoice that he produced would suggest that it was done on 11 January 2008. He said that no further work was then done until he instructed the plumber to proceed following the meeting on 30 April. This latter work by the plumber would appear to be outside the charge period. Accordingly, the only work that could be covered by the charge is the excavation work done in January. In my view, there can be no doubt that such work was part of the process of installation of the apparatus for which approval was required. Nor can there be any doubt that that work was permitted by Rosmill. Ground 1 must, therefore, succeed.

Ground 2 - mistake of fact

In essence the appellant contends that a mistake by Rosmill that it had verbal approval to install the sewerage disposal apparatus could not be the foundation of a defence of honest and reasonable mistake under s 24 of the Criminal Code (WA) (Code) because a verbal approval would not provide a lawful basis for proceeding with such an installation. Whilst the magistrate did find that written approval was required under s 107(2) of the Health Act it would seem that she did not consider this fatal to the claim of honest and reasonable mistake under s 24 of the Code.
There is no doubt that s 24 has broad application and it was not in dispute that it could apply to an offence of the type charged: Geraldton Fishermen's Co‑operative Ltd v Munro [1963] WAR 129. The real issue is whether the 'state of things' claimed to be believed by the respondent was such that, had it been true, it would have excused the conduct engaged in.
The question of whether approval can be verbal was in dispute at the hearing of this appeal. Notwithstanding the finding of the magistrate in this regard, the respondent contended that the legislation did not exclude the possibility of verbal approval. Thus, the respondent argued that the magistrate was correct in concluding that the defence had not been excluded but for a reason different to that which her Honour expressed. Where an argument of such a nature is raised on appeal there should be a notice of contention filed by the respondent. The purpose is to ensure fairness in the appeal proceedings: David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416, 420 ‑ 421. A notice of contention was not filed, but the issue was raised in written submissions filed by the respondent. The appellant made no objection to the raising of the issue and, accordingly, I will deal with it.
The only provision relating to the form of approval is in reg 4(3). It refers to approval being 'in a form approved by the local government'. The respondent argues that this does not necessarily suggest a document and may be a use of the word 'form' in its broader sense of a method, way or type. On this basis the local government authority could approve an approval in verbal form.
The only reference to anything produced by the local government authority needing to be in writing is in s 107(3) of the Health Act which stipulates that if approval is subject to conditions, the conditions are to be specified in writing and given to the applicant. There are obvious reasons why it would be necessary for conditions to be in writing, not least to ensure that they are certain and any breach of them can be readily determined. This requirement might suggest that where there are no conditions, it is open to the local government authority to give an approval in verbal form. However, a difficulty with this interpretation is that reg 5(2) provides that the local government authority is obliged to retain a copy of all approvals. The use of the word 'copy' is only consistent with such approvals being in writing. For this reason, the preferable view is that approvals must be in writing, though this is not entirely free from doubt.
However, it seems to me that to focus on whether an approval must be in writing is a diversion from the nature of the mistake claimed. When considering whether s 24 has application, it is important to clearly identify the 'state of things' about which the defendant claims to have a belief. In the present case it would appear that Mr Bell was not claiming that verbal, as opposed to written, approvals were lawful and effective as such. That is to say he was not saying anything specifically about the form of the approval. That was simply the circumstance. Rather, what he was saying was that he had approval, which as a matter of description, not an assertion of validity, happened to have been given verbally.
The essential issue was whether Mr Bell was claiming to have approval from the Shire of York. The conclusion of the magistrate was that he was making such a claim. Whether or not the form in which the approval was made was authorised, was not something that Mr Bell was claiming to know. This, I think, explains why her Honour was able to conclude that Mr Bell could have had an honest and reasonable but mistaken belief that approval had been given even though the regulations require an approval to be in writing.
There is ample authority for the proposition that a mistaken belief that a person has a licence or approval can be a mistake of fact where the licence or approval depends upon the exercise of a discretionary power: Ottobrino v Espinoza (1995) 14 WAR 373, 385 ‑ 386; Wroblewski v Starling [1987] WAR 233; Proudman v Dayman (1941) 67 CLR 536, 540 (Dixon J). However, where the licence or approval is one that depends upon the application of the law to accepted facts, a mistake as to the application of the law is a mistake of law: Ostrowski v Palmer (2004) 218 CLR 493; Dodd & Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37. It is important in the circumstances of this case to precisely define the mistake that was claimed by Mr Bell. It was, in general terms, that he believed approval had been granted in circumstances where he also believed he had submitted the application and paid the relevant fees. His mistake can thus be characterised as one of fact.
Since the essential mistake found by the magistrate was whether there was approval, the significance of whether an approval can be verbal falls away. An honest and reasonable belief that there was approval by the Shire of York goes directly to one of the essential elements of the charge. In any event, an error which is as to a mixed issue of fact and law is usually considered to be a mistake of fact for the purposes of s 24: Thomas v The King (1937) 59 CLR 279, 306 (Dixon J); Customs v Woodlands (1995) 83 A Crim R 579, 585. Ground 2 is confined specifically to the issue of whether a verbal approval can be lawful. In my view, because this ground misstates the essential nature of the mistake claimed, it cannot succeed. In submissions, however, another issue was argued that is not strictly raised by ground 2.
Her Honour found that a mistaken belief regarding a verbal approval could not be excluded following the meeting of 18 January 2008. Her Honour concluded that she was not satisfied beyond reasonable doubt that a verbal approval had not been given by Mr Stevens on that date. She then concluded that because of that finding the prosecution had not negatived the defence of honest and reasonable mistaken belief 'in that part of the defence'. Notwithstanding that there was some evidence from Mr Bell to suggest that verbal approval had been given at an earlier stage it was submitted that by reference to the words 'in that part of the defence' her Honour was concluding that it was only from 18 January 2008 that a mistake had not been excluded.
The appellant submits that if the mistaken belief was only formed on 18 January 2008 then it could not have excused the work that was done prior to that date. The excavation work was done prior to that date, on or about 11 January 2008. Accordingly, it is argued that that work was undertaken without either approval or a reasonable belief in such approval. Findings in this regard should necessarily have resulted in convictions. However, this argument is predicated on the exclusion of the possibility that an honest and reasonable mistake had been formed by Mr Bell at an earlier stage such that it would have excused the excavation work done in January 2008.
In my view, whilst her Honour did refer to the respondent's state of mind as at 18 January 2008, it is far from clear that in doing so she was excluding any mistaken belief at an earlier time. In fact other parts of her Honour's reasons imply that she accepted that such a belief was formed earlier. In particular, her Honour referred to Mr Bell having a belief that he could proceed with the installation until it was 'getting towards the end'. Her Honour referred to Mr Bell having a belief that something was said about approval 'along the way' and that he believed he had paid the relevant fee. She also said that Mr Bell's decision to stop any work as at 18 January 2008, notwithstanding his claim that a verbal approval was reiterated on that day, arose out of an increasing uncertainty as to whether or not he had authority. This appears to clearly suggest that her Honour accepted the possibility of a positive belief in approval prior to 18 January 2008.
Whilst it would have been greatly preferable if her Honour had clearly stated that a mistaken belief was open as at the date that the alleged unapproved work was done, that is the excavation work on or about 11 January 2008, I cannot accept that her Honour had excluded that possibility. Accordingly, the argument raised in submissions in this regard cannot succeed.

Ground 3

As I have earlier noted, this ground relates to a discrepancy between the application and what was in fact constructed. The plan attached to the application showed two septic tanks whereas the photographs that were produced following the inspection by Mr Stevens on 9 May 2008 showed that four such tanks had been installed. Mr Stevens said in evidence that for this reason approval could not be granted in any event. The discrepancy between the plans that were attached to the application and the work that was done meant that the submitted plans were deficient as they did not accurately depict what was installed.
The appellant submitted that any honest and reasonable mistake on the part of the respondent as to whether verbal approval had been given could only relate to the application as lodged in April 2007. For this reason, it was submitted, such a mistaken belief could not possibly excuse the installation of four septic tanks on the land. Accordingly, there was no correlation between the belief claimed and the work that was done, and the magistrate should have found that there was no basis for the claimed defence under s 24.
The respondent submits that leave should not be granted in respect of this ground because this issue was not specifically raised at the hearing and was not the subject of argument before the magistrate. The respondent also says that had the issue been raised at the hearing the respondent may have sought to adduce further evidence as to the nature of its belief. In particular it was suggested that there may have been a basis for believing that the installation of four tanks was approved because there may have been discussions regarding variations to the work. The respondent submitted that it has therefore been prejudiced by the raising of the issue at this stage.
Whilst I accept that the discrepancy between the work and the application was not specifically raised with the magistrate as an issue for declining to accept the defence of honest and reasonable mistake, it cannot be said that there was no evidence in this regard. As I have pointed out earlier, Mr Stevens specifically noted the discrepancy in his evidence and that in consequence, no approval would issue. Photographs were also produced which established that four tanks rather than two had been installed. The respondent's contention that this discrepancy should have formed part of the particulars of the charge required to be proved by the prosecution from the outset of the hearing is misconceived. The appellant seeks to rely upon this discrepancy not because it is evidence proving the elements of the charge but rather because it rebuts the evidence of mistaken belief insofar as it shows that any such belief could not have related to the work done. The obligation on the prosecution to disprove a defence (or excuse) of honest and reasonable mistake of fact only arises where the issue is sufficiently raised on the evidence. Once raised, the prosecution may rely upon any of the evidence adduced in the case to disprove that the relevant belief was held. However, the question that then arises is whether the prosecution can now seek to argue that mistake is not available on a basis not raised before the magistrate.
In my view, it would generally be unfair to raise for the first time a new issue on an appeal where there had been adequate opportunity to raise such a matter in the court below. A party is normally bound by the way in which it conducts its case at trial. However, in exceptional cases an appellant may be permitted to raise a new matter that was overlooked at trial: Giannarelli v The Queen (1983) 154 CLR 212, 221 (Gibbs CJ). In Crampton v The Queen (2000) 206 CLR 161, Gleeson CJ set out a number of reasons why new issues should not be entertained on appeal:
First, there is what was referred to by L'Heureux-Dubè J in the Supreme Court of Canada as 'the overarching societal interest in the finality of litigation in criminal matters' when she said:
'Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases.'
Secondly, it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial. This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges.
Thirdly, it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court. The material upon which a judge, either at trial or on appeal, may form an opinion as to the wisdom of a course taken by counsel can be dangerously inadequate, and, when it is, the judge may have no way of knowing that. Ordinarily, a barrister knows more about the strengths and weaknesses of his or her client's position than will appear to a judge, whose knowledge of the case is largely confined to the evidence.
Fourthly, as a general rule, litigants are bound by the conduct of their counsel. This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case. For that reason, courts have been cautious in expounding the circumstances in which an appellant will be permitted to blame trial counsel for what is said to be a miscarriage of justice.
Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice [15] - [19].
Another important consideration is one raised here by the respondent; whether the evidence at trial could have been different. In this regard Gleeson CJ said:
Statements of the limitations upon the circumstances in which the power will be exercised acknowledge its existence. For example, in Suttor v Gundowda Pty Ltd the Court said:
'The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards' [13].
In the present case it may have been open to the prosecution to have led further evidence of this alleged discrepancy and to rely upon it as a reason for suggesting that the defence should be rejected. The difficulty is that because the issue was not argued or explored in the court below the evidence was left in an unsatisfactory state of uncertainty.
The inspection and photographs related to 9 May 2008, a date after the end of the charge period. There was no evidence that the work observed on 9 May 2008 had been done between January and April 2008. Indeed, Mr Bell said that no plumbing work was done until after 30 April 2008. The photographs appeared to show some such plumbing work. It would seem to follow from this that some work was done between 1 and 9 May 2008. Whilst the evidence indicated that excavation work had been done in January, no one asked whether that work related to four as opposed to two septic tanks. It was, thus, unclear when the four tanks, as opposed to two, had been installed or when any excavation work necessary for additional tanks had been done.
Thus the evidence was not capable of proving that the work done in the charge period was inconsistent with the plan. For this reason even if exceptional circumstances existed to permit this issue to now be raised, this ground could not succeed in any event given the evidence at the trial. Accordingly, since this proposed ground is not reasonably arguable, leave is refused in respect of it.

Conclusion

Approval from a local authority is required prior to the commencement of installation pursuant to s 107(2)(a) of the Health Act. Accordingly, the excavation work done in January 2008 required approval. No such approval was given. Therefore, ground 1 is made out.
Whilst it is arguable that verbal approval is possible the better view is that written approval is required. However, that does not go to the essence of the mistaken belief claimed. It was open on the evidence to claim a mistaken belief that an approval had been given prior to any work commencing and thus ground 2 fails.
Proposed ground 3 raised an entirely new issue that was not put in argument to the magistrate. In any event, on the available evidence, that ground could not succeed. Accordingly, it is not reasonably arguable and leave in respect of it must be refused.
Since the appellant would need to succeed in respect of both grounds 1 and 2 in order for this appeal to be allowed (because they afforded alternative bases for conviction), the appeal must be dismissed.