Swan Bay Holdings Pty Ltd v City of Cockburn - [2010] WASC 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SWAN BAY HOLDINGS PTY LTD -v- CITY OF COCKBURN [2010] WASC 81

CORAM: HASLUCK J

HEARD: 15 MARCH 2010

DELIVERED : 30 APRIL 2010

FILE NO/S: SJA 1123 of 2009

BETWEEN: SWAN BAY HOLDINGS PTY LTD
Appellant
AND
CITY OF COCKBURN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G W BAYLY
File No  :FR 11094 of 2009

Catchwords:

Criminal law - Appeal against sentence from Magistrates Court - Contravention of planning controls under the Planning and Development Act 2005 (WA) - Whether magistrate erred in imposing a fine said to be manifestly excessive - Principles and standard of proof concerning disputed matters in sentencing - Flagrant breach of relevant planning controls for commercial gain without explanation for failure to seek appropriate planning approval - Relevance of retrospective planning approval for the subject development - Finding that magistrate did not err in imposing a substantial fine - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 8
Criminal Procedure Act 2004 (WA), s 129(4)
Planning & Development Act 2005 (WA), s 218(a), s 223
Sentencing Act 1995 (WA), s 6, s 40(5), s 53

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr A W Buchan
Respondent: Mr D P Gillett

Solicitors:

Appellant: Hotchkin Hanly
Respondent: McLeods

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

Basso Brusa v City of Wanneroo [2003] WASCA 103
Callan v City of Fremantle [2008] WASC 197
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37
Goddard v City of Stirling [2009] WASC 28
Hondema v Carroll [2008] WASC 155
Kwa v City of Stirling [2001] WASCA 370
Lowndes v The Queen (1999) 195 CLR 665
Pas v The State of Western Australia [2009] WASCA 210
Peat Resources of Australia Pty Ltd v Peat Resources of Australia Pty Ltd v Rodney William Brown Chief Executive Officer City of Cockburn [2002] WASCA 342

HASLUCK J:

Application for leave to appeal

The appellant, Swan Bay Holdings Pty Ltd, applied for leave to appeal against a conviction for carrying out development without first having applied for and obtained planning approval. The conviction arose out of a hearing at the Magistrates Court at Fremantle on Monday, 19 October 2009 on which occasion the appellant entered a plea of guilty to the offence in question.
The issues raised by the appeal include the question of whether the learned magistrate erred in imposing a fine that is said to be manifestly excessive and outside the range open in the proper exercise of the court's sentencing discretion.
The contentions of the appellant are opposed by the respondent, the City of Cockburn.

The hearing

By a prosecution notice dated 29 June 2009 the appellant was charged with an offence under s 218(a) of the Planning and Development Act 2005 (WA) in that, between 1 July 2008 and 29 June 2009, the appellant carried out a development at Lot 446 Barrington Street, Bibra Lake, without first having applied for and obtained planning approval from the City of Cockburn in contravention of cl 8.1.1 of the City of Cockburn Town Planning Scheme 3.
Prior to the hearing the respondent's solicitors provided the appellant with a written statement of facts to be presented at the hearing.
At the commencement of the hearing the appellant, by its counsel, pleaded guilty to the charge. Counsel for the respondent then proceeded to set out the facts of the matter by reference to the statement of facts previously provided to the appellant.
I note in passing that there was no objection to this process by counsel for the appellant. It seems that the statement of facts presented to the court was generally agreed by the appellant save as to certain particulars that I will come to later.
The learned magistrate was told that the appellant company was the owner of the property in question, being approximately 6.5 hectares in area. It was zoned Light and Service Industry under the City of Cockburn Town Planning Scheme No 3. Approval was required prior to using or developing any land.
In May 2008 the City became aware that the appellant had constructed hard stand areas on the eastern half of the property by filling, levelling and sealing the eastern half of the property. The appellant company had also erected fences to create five separate lots or yards and constructed a central roadway to provide access to the individual lots. All but one of the yards were occupied by transport companies and toilet and office facilities had also been erected on one of the yards without approval.
Further inspection of the property by officers of the City in February 2009 revealed that the appellant company had filled and levelled the western half of the property and had commenced sealing that half of the property to create further hard stand storage areas. The company had brought in significant amounts of fill and raised the ground level along the western half of the southern boundary of the property by between five and six metres. Along the western half of the northern boundary of the property, the company had excavated up to two metres of soil up against the property boundary in a manner which could have undermined the foundations of buildings on adjoining properties.
On 3 March 2009 the City gave the company a formal direction under the Planning and Development Act requiring the company to stop all development at the property, including the filling and excavating of the property, the levelling, compacting and sealing of the property and the use of the property for storage yards and transport depots.
Despite being given the formal stop direction, further inspection of the property in March 2009 revealed that the company had continued to develop the property by constructing retaining walls along the western half of the northern boundary, sealing the hard stand areas with road base and constructing an open drainage sump on the southern boundary of the property.
Further inspection of the property in April and May 2009, revealed the company had commenced storing machinery and materials on the western half of the property and constructed a ramp to connect the internal road to the Wellard Street road reserve which abuts the northern boundary of the property. That ramp also provided access to a number of properties along the northern boundary of the property which the company also owned.
Throughout the period the company was developing the hard stand area on the western half of the property, the storage and transport depot uses continued on the eastern half of the property.
The statement of facts asserted that when the director of the appellant company, Renzo Della Bona, was asked why the company had developed the property without approval, he said that it was 'too easy' to carry out development without approval and that 'it would take too long' to get approval. When asked why the company allowed the unlawful storage and transport depot use to continue after the formal direction was served, Mr Della Bona replied 'I admit I broke the law, take it to court'.
Because the company continued to carry out development at the property without approval, despite being aware approval was required, the City commenced proceedings.
Counsel for the respondent City went on to inform the court that to some extent the situation had been overtaken by events in that a retrospective approval was obtained. It appears to be common ground that on 27 March 2009 the appellant applied for a retrospective development approval and on 4 September 2009 the respondent granted the appellant retrospective planning approval for the development. It follows that the retrospective approval had been obtained prior to the hearing before the magistrate.
In the course of his address, counsel for the respondent submitted that, on his instructions, the City would not have approved a number of elements of the development 'had it been applied for prospectively' (t/s 7). It was said that, in particular, the extent of fill along the southern boundary would not have been approved. Rather, the City would have required that to have been stepped up in stages. Further, counsel's instructions were that the City would have required retention of the existing vegetation (which was effectively cleared from the whole lot) and significantly more landscaping. This would be to try and reduce amenity impacts on the residential development to the south of the site.
Counsel submitted that after taking into account the factors emphasised in his address a specific and general deterrent penalty was required to reflect the seriousness and premeditated nature of the offence and to 'send a message' to developers and landowners within the community that unlawful development of this scale would not be tolerated.

The appellant's submissions

At the hearing before the magistrate counsel for the appellant conveyed to the court that his client was currently specialising in the manufacture and distribution of limestone products. Counsel went on to make these observations:
The facts are admitted save for the following matters, which I have taken instructions on. It's alleged that along the western half of the northern boundary of the property the company excavated up to two metres of soil up against the property boundary in a manner which would have undermined the foundations of buildings on adjoining properties. That is disputed. The instructions are that this was not an accurate summary of the situation because the excavation occurred outside, approximately a two metre distance from the boundary.
Counsel for the appellant then made these further observations:
In relation to the stop work notice provided on 3 March 2009, it's alleged that the company continued to develop the property by constructing retaining walls along the western half of the northern boundary, sealing the hardstand areas with roadbase and constructing an open drainage sump on the southern boundary of the property.
My instructions are that when this came to light, when this work was noted by the city, an approval was obtained by the defendant to continue with that work. So, insofar as the retaining wall was constructed on an ongoing basis, that didn't constitute work in contravention of the stop work order. (t/s 9)
When his Honour intervened to describe this (by implication) as a contentious issue of fact, counsel for the respondent City said that he would be prepared to concede that there may have been some engineering requirements that were the subject of some agreement but not all the work was agreed to. He said that 'indeed, the continued use of the property for storage of materials and ongoing use of the property was not permitted, sir'.
There were certain other exchanges as the learned magistrate endeavoured to clarify the factual situation by discussion with counsel. However, it is apparent from the transcript that no evidence was given by any witness for the parties with a view to resolving contested factual issues.
I pause here to note that in its written submissions on the hearing of the appeal the position adopted by counsel for the appellant was that the statement of facts was generally agreed save as to the following matters which were drawn to the attention of the learned magistrate:
(a)Contrary to the allegation of page 1 paragraph 5 of the statement of facts, excavation near the property boundary (necessary for the construction of retaining walls) was unlikely to and had not undermined foundations of buildings on adjoining properties.
(b)Contrary to the allegation at page 2 paragraph 2 of the statement of facts, the Respondent provided the Appellant with approval to complete the fences and the retaining walls and this work should not be considered by the Court as part of the continuing development in contravention of the stop work order of 3 March 2009.
(c)After the Appellant received the stop work notice, further development to the land by the Appellant was minimal and partly comprised placement of sea containers on the land.
(d)Contrary to the allegation at page 2 paragraph 5 of the statement of facts, the Appellant denies Mr Della Bona stated it was 'too easy' to carry out development without approval.
In the course of his submissions to the learned magistrate counsel for the respondent noted that the maximum penalty under the relevant statutory provisions was $250,000 for a company. There was also daily penalties of $25,000 per day. This brings me to the relevant provisions of the Planning and Development Act 2005.

Statutory provisions

Section 218(a) of the Planning and Development Act provides that a person who contravenes the provisions of a planning scheme commits an offence. Section 223 of the Act states that unless otherwise provided, a person who commits an offence under this Act is liable to a penalty of $50,000 and in the case of a continuing offence, a further fine of $5,000 for each day during which the offence continues.
Importantly, for present purposes, s 40(5) of the Sentencing Act 1995 (WA) provides that, except where a statutory penalty is expressly provided for a body corporate, a body corporate that is convicted of an offence, the statutory penalty for which is or includes a fine, is liable to a fine of five times the maximum fine that could be imposed on a natural person convicted of the same offence.
It follows from these provisions that when the penalties specified in s 223 of the Planning and Development Act are multiplied by five the maximum penalty for a body corporate, such as the appellant in the present case, was indeed (as submitted by counsel for the respondent) $250,000 with a daily penalty of $25,000.

The magistrate's reasons for decision

Having heard from counsel on both sides his Honour proceeded to make his ruling. He noted that the appellant had pleaded guilty to undertaking a development without approval. He observed that it was 'a very large development indeed'.
His Honour went on to say that the company excavated parts of the land and put in bitumen pads which apparently had been used by trucking companies for the purpose of parking trucks and whatever, and presumably they had been leased out by the company. He referred also to 'considerable earthworks' and photos establishing that this was 'a development on a large scale'.
Further, his Honour noted also that it was not suggested that the company did not know that what it was doing without council approval was wrong. He said that though the words of the appellant's director to the respondent were denied, it was clear, putting the denial aside, that this was a commercial decision made by the company to undertake this work without approval.
His Honour then proceeded to make these observations:
Even though approval may have been granted retrospectively, it is the case that had the council had the opportunity before the approval of making certain orders as to how the development should take place - it may well be the development would have taken place, but perhaps in a different way in which it has. So this is a very serious matter.
The penalties available are a maximum penalty of $250,000 and a daily rate. In coming to my conclusion I have decided that due to the difficulties relating to what was developed - what developments took place after the date of the notice, 3 March of this year, that I should look at a global penalty, but take into account the fact that the work continued in one form or another, even after the notice was given.
In my view, before taking into account the plea of guilty, the appropriate penalty would have been $200,000. I would allow a deduction of $50,000 because there has been a plea of guilty, although it's almost impossible to see how it could have been defended in any event. So, in my view the appropriate penalty is $150,000 and there will be an order for costs in the sum of $1,200 to the City of Cockburn. (t/s 13)

Appeal notice

By an appeal notice dated 4 November 2009 the appellant company applied to the Supreme Court for leave to appeal against the sentence upon the grounds of appeal forming part of the appeal notice. I will look at these grounds in more detail shortly.
In essence, the appellant contends, first, that the fine of $150,000 was manifestly excessive, second, that his Honour erred in apparently relying upon the proposition that retrospective planning approval was not a relevant factor to take into account in the exercise of his discretion as to sentence and, third, that he erred in law by taking account of facts raised by the respondent which were not contained in the written statement of material facts served by the respondent contrary to s 129(4) of the Criminal Procedure Act 2004 (WA).
On 4 December 2009 Jenkins J granted the appellant leave to appeal in respect of the grounds specified in the appeal notice and gave certain other directions concerning the hearing of the appeal.
It will now be useful to look at the statutory provisions and principles bearing upon the matters in issue.

Legal principles

Appeals of this kind are now covered by the Criminal Appeals Act 2004 (WA). By s 8 of the Criminal Appeals Act an appeal may be made on the grounds that the court of summary jurisdiction made an error of law or fact, imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice. By s 14 the Supreme Court may dismiss or allow the appeal or set aside or vary the decision or remit the case for rehearing. It is open to the court to set aside the sentencing magistrate's decision and exercise a power to vary the sentence. Section 14(2) provides that even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
It is not enough in a sentencing matter that an appellate court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to effect the decision made: Lowndes v The Queen (1999) 195 CLR 665.
Sentencing principles and options are reflected in various provisions of the Sentencing Act. Section 6 of that Act recognises that a sentence must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty, the relevant circumstances, and any aggravating and mitigating factors.
Section 53 of the Sentencing Act describes the considerations to be taken into account when imposing a fine but notes that a court may fine an offender even though it has not been able to ascertain the means of the offender or the extent to which a fine will burden the offender.
A claim that a sentence is manifestly excessive depends on an inference of error arising from the sentence imposed. It does not depend on express error in a sentencing judge's reasons: Dinsdale v The Queen (2000) 202 CLR 321 at 324 ‑ 325. The fact that a sentencing judge expressly had regard to all relevant considerations does not answer the question whether a sentence is manifestly excessive. To determine that question it is necessary to view the sentence in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342.
Thus, as E M Heenan J observed in Goddard v City of Stirling [2009] WASC 28 at [12], it is well‑established that if there is such a manifest disproportion between a penalty imposed and any penalty which might reasonably be regarded as being imposed in the circumstances, then that disproportion of itself constitutes error and may also connote some undisclosed or unmentioned error in the course of reasoning.

It will be useful also to look at the rules concerning the effect of a plea of guilty. I reviewed the law on that subject at some length in Hondema v Carroll [2008] WASC 155. In doing so, I referred to certain provisions of the Criminal Procedure Act 2004 (WA), such as s 3(2)(a) and s 147(1), which provide that a person is convicted of a charge if a court enters a judgment of conviction. I summarised the position in this way:
To my mind, the effect of these provisions is that it is open to a court to enter a judgment of conviction in response to a plea of guilty. However, prior to, or in the absence of a conviction being formally recorded, the position is governed by the common law principles. It follows, having regard to the decided cases, that whilst a plea of guilty is a confession of guilt, and can be taken as an admission of all the facts essential to the offence, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. This is usually evidenced by a disposition of the matter in hand by a sentence but can be evidenced also by a formal entry of the plea upon the record. [51]
It follows from this that in the circumstances of the present case the appellant by its plea of guilty can be taken to have admitted all the facts essential to the offence, including the unlawfulness of the conduct complained of. However, any aggravating or mitigating factors would have to form part of the material facts presented to the magistrate.
The principles concerning disputed matters in sentencing were set out by Buss JA in Pas v The State of Western Australia [2009] WASCA 210.
The principles can be summarised as follows:
1.The facts implicit in a verdict of guilty cannot be controverted.
2.The distinction between aggravating and mitigating circumstances may sometimes be unclear which means that the test is not what tag should be applied to any particular fact but what use the judge proposes to make of the fact in relation to an offender.
3.It will be for the prosecution to bring an aggravating circumstance to the court's attention and, if necessary, call evidence about it.
4.It will be for the offender to raise a mitigating circumstance and, if necessary, call evidence about it.
5.Evidence will only be necessary if the asserted matter is controverted by the other party.
6.The judge is obliged to give notice to the offender if the judge is not prepared to act on an alleged mitigating circumstance which is not controverted by the prosecution (so that the offender can adduce evidence).
7.The prosecution must establish an aggravating circumstance beyond reasonable doubt but the offender is only required to prove a mitigating circumstance on the balance of probabilities.
8.Where the trial judge is not persuaded of the existence of a fact the fact does not exist for the purpose of sentencing.
Let me now turn to the various grounds of appeal.

The first ground of appeal

The appellant's first ground of appeal was as follows:
The learned Magistrate erred in law when fining the appellant $150,000 as the fine was manifestly excessive and outside the range open in the proper exercise of the Court's sentencing discretion.
Particulars
(a)the maximum penalty available under section 223 of the Planning and Development Act 2005 (WA), in conjunction with section 40(5) of the Sentencing Act 1995 (WA) was a fine of $250,000 with a daily penalty of $25,000 per day;
(b)the appellant was a first offender having operated its business for approximately 35 years;
(c)when imposing sentence the learned Magistrate failed to give any or any adequate weight to the fact that:
(i)the development (a storage yard) was a permitted use under the applicable City of Cockburn Town Planning Scheme;
(ii)since the date of the offence the respondent had granted the appellant retrospective planning approval for the development;
(iii)the development was a low impact passive development situated in a light industrial area and there was no evidence of noise or inconvenience caused to other neighbouring land owners;
(d)the fine imposed was disproportionate when viewed against the types of fines imposed on first offenders for like offences particularly having regard to the authorities of:
Peat Resources of Australia Pty Ltd v Rodney William Brown CEO of City of Cockburn [2002] WASC 342;
Kwa v City of Stirling [2001] WASCA 370;
Basso‑Brusa v City of Wanneroo [2003] WASCA 103;
It follows from my review of the legal principles, which include reference to Dinsdale and Chan, that in dealing with the ground of appeal it will be useful to begin by looking at some of the previously decided cases concerning planning infringements including the cases mentioned above in the first ground of appeal. These cases may arguably be thought to have a bearing upon the standards of sentencing customarily observed for an offence of this kind, although one has to keep steadily in mind that each case must be judged by its particular circumstances.
The appellant in Peat Resources of Australia Pty Ltd v Peat Resources of Australia Pty Ltd v Rodney William Brown Chief Executive Officer City of Cockburn [2002] WASCA 342 appealed against a penalty of $122,400.00 ($50,000.00 fine and a daily penalty of $200.00 for 362 days) for a breach of s 10(4)(a)(i) of the Town Planning and Development Act 1928, a provision analogous to s 218(a) of the Planning and Development Act. The penalty appealed against was 20% of the maximum for a corporate offender. In that case Peat Resources operated a large commercial soil operation involving the screening, mixing, stockpiling and storage of 300,000 to 400,000 tonnes of manure, soil and organic material on a 40 hectare site. These activities involved the substantial movement of trucks to and from the site. In dismissing Peat Resources appeal and holding the penalty was not excessive, his Honour noted that there had been six previous convictions of unlawful land use for the same site over a five year period.
In Kwa v City of Stirling [2001] WASCA 370 the appellant was charged with three offences of using land contrary to the provisions of a town planning scheme by conducting a backpackers hostel on three lots. There had been previous convictions and a long history of unlawful use of the land over several years. Fines amounting in total to $135,555 were imposed being a penalty of $10,000.00 in respect of each matter together with a daily penalty of $100.00 for the period of 343 days in breach. This was upheld on appeal.
Development approval in Basso Brusa v City of Wanneroo [2003] WASCA 103 was given to the appellant to build a shed for a saw mill machine and to use the site for storage of timber and logs. The appellant used a chainsaw to cut timber in the storage area rather than within the shed where the saw mill operation was approved, thereby committing offences under s 10(4)(a)(ii) of the Town Planning and Development Act 1928 (WA). Individual appellants were each fined $10,000.00 and the corporate appellant (who had two previous convictions in relation to the land) was fined $20,000.00.
In dealing with that part of the appeal concerning penalty, Pullin JA noted that the appellants were warned about the illegal use before they were prosecuted. The corporate appellant had two previous convictions in relation to the land. Other factors relevant to penalty were that the sawmill was part of a large integrated business and the purpose of the town planning restrictions was to control the impact of its method of operation on surrounding neighbours or businesses. His Honour referred to the Peat Resources case and held that there was nothing to indicate that the fines in the case now before him were manifestly excessive.
In Callan v City of Fremantle [2008] WASC 197 the appellants were each convicted after trial of contravening s 218(a) of the Planning and Development Act by using land for the purpose of storage of materials without development approval. On appeal McKechnie J considered that fines of $18,000.00 imposed on each individual were manifestly excessive and set each fine aside.
Following a plea of guilty in Perth Magistrates Court, the appellant in Goddard v City of Stirling [2009] WASC 28 was fined $30,000.00 constituting 60% of the maximum penalty, for contravening s 218(a) of the Planning and Development Act, by causing a building extension to be undertaken on the subject property without prior approval from the local authority. On appeal E M Heenan J accepted that the penalty was unusually high however not so disproportionate as to constitute an error justifying alteration of the penalty.
While dealing with Goddard's case, I note in passing that the work complained of ceased after detection of the non‑compliance work, but discussions then ensued with officers of the City of Stirling which in E M Heenan J's view at [7] led eventually 'to approval being granted for a construction not in all terms identical with the construction which had then been partially erected and in some respects materially different'. His Honour was therefore not satisfied that the learned magistrate erred in saying that the City had been left with a 'fait accompli' or in supposedly failing to give sufficient weight to the fact that the work complained of was the subject of a retrospective approval of sorts.
I digress to say that this aspect of Goddard's case bears upon the appellant's second ground of appeal in the present case. I will return to this issue later. For the moment, suffice it to say, that the reasoning of E M Heenan J does not suggest that retrospective approval of the subject work cannot be brought to account as a mitigating factor. His reasoning indicates that on the facts of that case the approval subsequently obtained had limited value as a mitigating factor because the original work differed from the work eventually approved.
Justice E M Heenan went on to make these observations:
13The proposition advanced by the appellant on this ground is essentially that Mr Goddard was a first offender, that he did not obtain any commercial gain from this activity, that he cooperated with the authorities once the breach was discovered, and that it seems probable that some modification of his construction acceptable to the City of Stirling will in the foreseeable future be reached which will allow the structure, substantially as it is erected, to remain.
14I think it is proper to accept that all those propositions have support in the evidence and are implicit in the findings of the learned magistrate and should form the basis upon which any decision is reached to impose a penalty in this case.
15Nevertheless, it is evident that the learned magistrate took the view that this was a flagrant breach of the obligations to submit plans for approval and to comply with the planning process of the local authority; that no credible explanation had been given for the failure to do so; and that that, therefore, suggested that Mr Goddard was motivated by a sense of self-interest and personal advantage, perhaps not of direct commercial result but potentially in the long run. His Honour clearly considered that this called for a substantial deterrent penalty.
16I consider that the conclusions which his Honour reached and the fine which he imposed can only be explicable upon that basis and I treat that as the basis upon which the determination of this appeal should therefore be conducted. The question is whether any of those assumptions has been shown to be erroneous or wrong in fact or law.
17From what I have already said of a review of the circumstances of the events, I see no basis for any conclusion that there has been any error of fact in relation to this sentencing. In relation to matters of law it is necessary to bear in mind constantly that sentencing is a matter of discretion, that no case is exactly similar, but that there is a desirability that there be a general proportionality and consistency in sentencing for offences of like kind. ([13] - [17])
In the end, as I indicated in earlier discussion, Heenan J was not prepared to hold that the learned magistrate had erred or that in all the circumstances the penalty which was imposed was manifestly excessive.
Following trial, the corporate appellant in Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37 was convicted of an offence under s 218(a) of the Planning and Development Act by using land to operate a salvage/wreckers yard which was not a permitted use under the relevant town planning scheme. The offence was alleged to have continued over a 288 day period and a total fine was imposed at first instance of $148,800.00 comprising a fine of $120,000.00 and an additional penalty of $100.00 per day.
On appeal this court declined to set the penalty aside. Hall J took account of various matters including that the appellant was conducting a substantial commercial business; the appellant had advanced an untenable defence at trial and had done so to delay the inevitable; the appellant had been twice prosecuted and convicted before with fines of $5,000.00 and $10,000.00 imposed on each of those occasions; previous prosecutions and fines had not served to deter the prohibited conduct and as such, the fine of $148,800.00 was within the appropriate range and could not be described as manifestly excessive.
His Honour also gave consideration to other relevant recent authorities including Basso Brusa and Peat Resources. The latter case, in his Honour's view bore similarities to the case in hand. He held that the penalty imposed by the magistrate was within the range considered by those cases.

General observations

In the course of earlier discussion I noted that in the present case the maximum penalty was a fine of $250,000 with a daily penalty of $25,000 per day. It appears from the magistrate's reasons for decision that a daily penalty was not imposed due to difficulties in determining what work the respondent had permitted to continue after the stop work notice of 3 March 2009 was served on the appellant. This led to his Honour imposing a substantial portion of the maximum penalty, namely, $150,000, after allowing a deduction of $50,000 for the appellant's plea of guilty.
The appellant contended on appeal that the learned magistrate had failed to give sufficient weight to the fact that the development was a permitted use under the relevant planning controls as evidenced by the fact that in due course the appellant obtained retrospective planning approval for the development. Moreover, the fine imposed could be regarded as disproportionate having regard to the types of fines imposed in the previously decided cases mentioned in earlier discussion. It was said that the development could not be regarded as a fait accompli in the same sense as that in Goddard's case because in this case the work complained of consisted largely of earthworks which were, in any event, permitted (subject to approval) under the local planning controls.
In reviewing these submissions I proceed from the premise reflected in the decided cases that each case depends upon and must be judged having regard to the particular circumstances. In the present case, it appears that the magistrate took account of the fact that the appellant was a first offender and had pleaded guilty to the charge. He gave some weight to the fact that retrospective approval for the development had been granted. However, it is apparent from his reasoning that he felt obliged to give considerable weight to the fact that this was 'a very large development indeed' and a case in which approval for development was obviously required. In effect, the appellant's actions represented a flagrant breach of the planning approval process which occurred without any credible explanation for proceeding in that manner. This was done in circumstances where the appellant was clearly motivated by commercial considerations and a desire for personal advantage. The unlawful use of the subject premises had continued after the issuing of a stop work notice.
I am of the view that to this point it cannot be said that the magistrate had mistaken the facts or taken account of extraneous or irrelevant matters. However, I must now proceed to a number of particular matters that were brought into play by each of the three grounds of appeal. In doing so, I must keep in mind the Pas principles mentioned earlier concerning disputed matters which show that in such a case the prosecution must prove aggravating circumstances, the defence must prove mitigating circumstances, and where the judicial officer is not persuaded of the existence of a fact, the fact does not exist for the purpose of sentencing.
Mention was made of Goddard's case by counsel in the course of the hearing, although it was not referred to expressly by the learned magistrate. Nonetheless, it is clear from his Honour's reasons for decision that he took account of the fact that there had been a retrospective approval and felt obliged to determine what weight should be given to this as a mitigating factor. To my mind, having regard to my earlier analysis of Goddard's case, it cannot be said that he proceeded from the premise that retrospective approval could not be taken into account, because, quite clearly, he embarked upon an assessment as to what weight should be given to this factor in the circumstances of the case before him. It emerges from my earlier analysis that it was open to His Honour to conclude that in certain circumstances retrospective approval might be of limited value as a mitigating factor, especially in the case of a flagrant breach which could result in the local authority being deprived of the opportunity to impose suitable protective conditions.
To my mind, in circumstances where there was a dispute as to what conditions might have been imposed (if an application for approval had been made prospectively) it was for the respondent to adduce evidence in support of the contentions made by the respondent's counsel that the City would not have approved a number of elements of this development. It failed to do so, but this simply meant, according to the Pas principles, that the magistrate was obliged to proceed as though this and related assertions (for example, that the extent of fill along the southern boundary would not have been approved) did not exist for the purpose of sentencing. To my mind, that is how the magistrate, quite properly, did proceed. In the absence of evidence, he put to one side particulars of the assertion and confined himself to a general, perhaps trite, observation (of a kind that could be regarded as a matter of reasonable inference in the circumstances) that 'it may well be the development would have taken place, but perhaps in a different way in which it has'.
Likewise, in dealing with the words allegedly uttered by the company's director to the effect that he knew he was breaking the law, his Honour recognised that in circumstances where the words were denied and not backed up by evidence it was a matter of 'putting those aside'.
Let me now turn to the particulars in support of the first ground of appeal. In circumstances where the respondent contended that the development was detrimental because the local authority had been deprived of the opportunity to impose preferred conditions, it was for the appellant to adduce evidence of mitigating factors such as that the development was a permitted case, that it was a low impact passive development, and that there was no evidence of noise or inconvenience caused to other neighbouring landowners. Likewise, in a context of disputation, it was for the appellant to prove that certain aspects of the work undertaken after the 3 March stop work notice was approved by the respondent. It failed to do so. Thus, in my view, the magistrate acted properly in putting matters of this kind to one side, although it was open to him to take account of the apparently uncontested fact (as he did) that the appellant's work in sense of its general commercial activities on the land 'continued in one form or another', even after the notice was given.

Finally, in order to complete my review of certain particular matters bearing upon the grounds of appeal, I have to say that it is difficult to discern a clear pattern as to the imposition of fines in the decided cases mentioned in earlier discussion. Each case depends upon its particular circumstances. Further, I am of the view that in the context of a commercial development the cases concerning unauthorised residential developments have to be viewed with caution.
I am conscious that the appellant, unlike the parties in Peat Resources and Dodd, was a first offender. Nonetheless, there are certain features of the cases in which large penalties were imposed that are replicated in the circumstances of the present case, namely, the party in default conducted a substantial commercial operation on the subject land, it did so in flagrant breach of the relevant planning controls in the course of pursuing commercial gain, it gave no credible explanation for its failure to seek approval. I am therefore not persuaded that the penalty imposed by the magistrate was disproportionate to the penalty imposed in other, comparable cases.
To my mind, it was open to the magistrate to focus upon the global penalty rather than the daily penalty in the particular circumstances of this case. However, having regard to the possibilities that were open to the magistrate in regard to imposing a daily penalty for a continuing offence, it becomes apparent that the penalty actually imposed was a comparatively small percentage of the overall penalty that could have been imposed.
Finally, I am of the view that the presence of the retrospective approval and the fact (as evidenced by the approval) that the development could be regarded as a permitted use within the light industrial area cannot be treated as a mitigating factor weighing so decisively in favour of the appellant that it displaced the need for a significant penalty. Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose. This requires that breaches of the law be underpinned by significant penalties in order to deter infringements.
That being so, it would be misguided to allow certain unauthorised developments to proceed with scarcely any censure simply because they were thought to be compatible with the zoning because this would reduce planning approvals to the level of a mere formality. Moreover, in such a case the tendency to non‑observance can be insidious because, as indicated by the circumstances of the present case, the unauthorised work may pass unnoticed.

Conclusion as to the first ground of appeal

My general observations bear upon and underpin my conclusion concerning the first ground of appeal.
His Honour imposed a sizeable penalty which must be taken to have included provision for a significant element of general and particular deterrence with a view to ensuring that planning controls would not be disregarded.
I am of the view that the magistrate put to one side, and thus did not take account of, certain matters in dispute, such as, an issue as to whether a director of the company had said that it was 'too easy' to carry out development without approval and as to whether some of the work carried on after issue of the stop work notice was approved. Likewise, the magistrate's reference to the form the development might have taken, if the approval had been applied for and obtained prospectively, can be regarded as simply an observation upon the need to comply with the requirements of the planning process so as not to limit the City's entitlement to assess the merits of the proposal.
Having regard to the legal principles mentioned earlier, I am of the view that, in the absence of evidence about these matters, the magistrate recognised quite properly that these 'facts' did not exist for the purposes of sentencing and he did not act upon them.
It follows from this that he did not err by taking into account extraneous or irrelevant considerations. It follows from my general observations that the penalty imposed cannot be regarded as disproportionate to penalties imposed in cases of this kind, bearing in mind the need for enforcement of planning controls.
In my view, having regard to these considerations, the learned magistrate did not err in law when imposing a fine of $150,000 for the offence, and the penalty cannot be characterised as manifestly excessive. Accordingly, I am not satisfied that the appeal should be allowed upon the first ground.

The second ground of appeal

The appellant's second ground of appeal was as follows:
The learned Magistrate erred in law insofar as [he] may be taken to have relied on the authority of Goddard v City of Stirling [2009] WASC 28, as authority for the proposition that retrospective planning approval was not a relevant factor to take into account in the exercise of his discretion as to sentence:
Particulars
(a)Counsel for the respondent submitted that the cited case was authority for the proposition pleaded above;
(b)the learned Magistrate in his reasons stated he could not have regard to the retrospective approval in sentencing the appellant; and
(c)Goddard v City of Stirling [2009] WASC 28, is not authority for the proposition that retrospective town planning approval cannot be taken into account as a mitigating factor for an offence of this type.
As to this ground I must begin by noting that in his reasons for decision the magistrate did refer to the retrospective approval but he did not go so far as to say he could not have regard to it. Accordingly, at the hearing of the appeal particular (b) was not relied upon by the appellant. I will treat it as deleted.
It follows from general observations that, in my view, his Honour did not err as alleged in this ground. Having regard to my earlier analysis, his reasoning was consistent with the reasoning in Goddard. He recognised that it was open to him to take account of the retrospective approval as a mitigating factor, but the weight to be given to it depended upon the particular circumstances. In this case it was of limited value because the failure to apply prospectively subverted the council's authority to control the approval process. In my view, having regard to the state of the evidence before him, he gave appropriate weight to the retrospective approval as a mitigating factor.

The third ground of appeal

The appellant's third ground of appeal was as follows:
The learned Magistrate erred in law when exercising his discretion as to sentence, by taking account of facts raised by the respondent which were not contained in the written statement of material facts served by the respondent on the appellant, contrary to section 129(4) of the Criminal Procedure Act 2004 (WA).
Particulars
The respondent raised the following additional facts which were not contained in the written statement of material facts served by the respondent on the appellant:
(a)had the appellant applied for development approval prior to undertaking the development, the respondent would have imposed conditions that were not able to be imposed on the retrospective planning approval granted to the appellant;
This ground of appeal brings me to s 129 of the Criminal Procedure Act. The provision in question reads as follows:
129.Plea of guilty, procedure on
(1)This section applies if an accused pleads guilty in a court but does not apply if the plea is made in a court of summary jurisdiction to a charge that is to be dealt with on indictment.
(2)Unless the plea is a written plea given to a court of summary jurisdiction, the court must not accept the plea unless -
(a)the accused is represented by a legal practitioner; or
(b)if the accused is not so represented, the court is satisfied the accused understands the plea and its consequences.
(3)Before the court sentences the accused, the prosecutor must state aloud to the court the material facts of the offence to which the accused has pleaded guilty.
(4)If under this Act the accused has been served with one or more written statements of the material facts, the facts stated aloud must be those in the written statement that was last served.
(5)This section does not affect a court’s power to decide the material facts of an offence on the basis of such information as it thinks fit.
The appellant's position on appeal (as evidenced by the transcript and the affidavit of Patrick John Tydde sworn 9 March 2010) was that the respondent's solicitors sent a statement of facts to the appellant on 7 August 2009. This statement was put to the court (as I indicated in earlier discussion). However, on the appellant's case the effect of certain exchanges with the magistrate was arguably to place some additional facts before the court which may ultimately have had an effect upon the decision.
The crucial exchange is to be found at t/s 7 in the context of a submission by the respondent's counsel (Mr Gillett) that retrospective approval should not be regarded as a mitigating factor because the local government was presented with a 'fait accompli'. Mr Gillett for the respondent was then involved in an exchange with the magistrate as follows:
Now, in this instance, sir, my instructions are that the city would not have approved a number of elements of this development had it been applied for prospectively. And, in particular, the extent of fill along the southern boundary wouldn't have been approved. Rather, the city would have required that to have been stepped up in stages. My instructions are also, sir, that the city would have required retention of the existing vegetation, which is effectively cleared from the whole lot, and significantly more landscaping. The reason for that sir, is to try and reduce amenity impacts on the residential development to the south of the site. If you look at that overhead photograph, sir, you will see - - -
HIS HONOUR: Which way is south? That way?
GILLETT, MR: No. South is looking downwards, sir, towards the bottom of that picture.
HIS HONOUR: I'm sorry, downwards. Yes.
GILLETT, MR: You will see to the bottom right‑hand side is residential. My instructions are, sir, that there would have been requirements to try and protect the amenity of those areas, or to at least reduce the impacts on amenity for that residential development. Taking all of those factors into account, sir, the prosecution submits that a specific and general deterrent penalty is required to reflect the seriousness and premeditated nature of this offence, and to send a message, sir, to developers and landowners within the community that unlawful development of this scale will not be tolerated.
It was shortly after this that counsel for the appellant rose to say that the facts were admitted. He did not suggest that counsel for the respondent had infringed s 129(4) of the Criminal Procedure Act (or any other procedural rule) by referring to matters not mentioned in the statement of facts delivered to the appellant company prior to the hearing.
In the course of his reasons for decision the magistrate made these observations:
There were considerable earthworks, which I have photos of, and clearly this was a development on a large scale. It is not suggested that the company didn't know that what it was doing without council approval was wrong. Indeed, it's almost impossible to imagine that they didn't. It seems to me that though the words of the director to the council are denied, putting those aside, it's clear that this was a commercial decision made by the company to undertake this work without approval.
Even though approval may have been granted retrospectively, it is the case that had the council had the opportunity before the approval of making certain orders as to how the development should take place - it may well be the development would have taken place, but perhaps in a different way in which it has. So this is a very serious matter.

Conclusion as to the third ground of appeal

In dealing with this ground of appeal it is important to keep in mind that the appellant's complaint is not that matters lying outside the previously delivered statement of facts were raised by counsel for the respondent but rather that the magistrate erred 'by taking account of facts' not included in the statement.
It follows from my general observations that, in my view, the magistrate did not take account of facts raised by the respondent which were not contained in the previously served statement of material facts. He put to one side the company director's supposed assertion that it would be 'easy' to proceed without approval. His Honour spoke in general terms only in noting that a different form of development might have been proceeded with if the local authority had been afforded the opportunity to deal with an application for approval submitted prospectively. In other words, as I observed in dealing with the second ground of appeal, he focused not upon the particular matters raised by counsel for the respondent but upon the subversion of the council's power to control the planning process and thus determine 'how the development should take place'.
I am not persuaded that the learned magistrate erred or that the appeal should be allowed on this ground.

Summary

The appeal will be dismissed. I will hear from the parties as to whether any other orders or directions are required.