Taylor v City of Kwinana
[2015] WASC 252
•20 JULY 2015
TAYLOR -v- CITY OF KWINANA [2015] WASC 252
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 252 | |
| Case No: | SJA:1062/2014 | 18 MAY 2015 | |
| Coram: | LE MIERE J | 20/07/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on ground 2 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | TREVOR TAYLOR CITY OF KWINANA |
Catchwords: | Town planning schemes Violation of planning schemes Manifestly excessive planning penalties Magistrate's errors of fact Magistrate's errors of law Granting appeal from Magistrates Court |
Legislation: | Criminal Procedure Act 2004 (WA) |
Case References: | Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 Callan v City of Fremantle [2008] WASC 197 Dodd & Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37 Harvey v Robertson [1999] WASCA 120 Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388 Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA 1 Uxcel Pty Ltd v City of Bayswater [2013] WASC 5 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF KWINANA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S WILSON
File No : RO 2644 of 2014
Catchwords:
Town planning schemes - Violation of planning schemes - Manifestly excessive planning penalties - Magistrate's errors of fact - Magistrate's errors of law - Granting appeal from Magistrates Court
Legislation:
Criminal Procedure Act 2004 (WA)
Result:
Leave to appeal granted on ground 2
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D Bedenham
Respondent : Mr D P Gillett
Solicitors:
Appellant : Birman & Ride
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431
Callan v City of Fremantle [2008] WASC 197
Dodd & Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37
Harvey v Robertson [1999] WASCA 120
Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA 1
Uxcel Pty Ltd v City of Bayswater [2013] WASC 5
1 LE MIERE J: The appellant was convicted on his own plea of guilty of an offence that between 26 September 2013 and 6 March 2014 at 14 Butcher Street, Kwinana Beach, he used without all consents required by Town of Kwinana Town Planning Scheme No 2 having been granted and issued thereby contravening clause 8.2.1(d) of the Scheme contrary to s 218(a) of the Planning and Development Act 2005 (the Act). The Magistrate imposed a fine of $30,000 and a daily penalty at $50 per day for 162 days totalling $8,100. The appellant seeks leave to appeal against the decision of the magistrate.
Leave to appeal
2 Criminal Appeals Act2004 (WA) s 9 provides that leave of the Supreme Court is required for each ground of appeal and that leave to appeal must not be given unless the Court is satisfied that the ground has a reasonable prospect of succeeding. The judge in charge of the criminal list ordered that the application for leave to appeal be heard at the same time as the appeal.
Facts
3 The facts were outlined to the Magistrate by counsel for the City of Kwinana as follows.
4 The appellant, Mr Taylor, is the owner of a property at 14 Butcher Street. It has an area of 2,000 sqm. It is zoned general industrial under the Town Planning Scheme. The property was originally vacant land. Mr Taylor is also a director of TC Drainage WA Pty Ltd which is a civil construction company specialising in large sewerage and storm water drainage systems. The company's principal place of business is on the adjoining property on 12 Butcher Street.
5 In December 2012, inspections revealed that the property had been cleared and levelled and was being used to store heavy machinery such as trucks and mining equipment. No approval had been granted by the City under its Town Planning Scheme to either clear and level the property or to use the property for the storage of plant and machinery. An officer at the City contacted Mr Taylor and advised him that the works carried out at the property and the use of the property for the storage of heavy machinery required planning approval under the City's Town Planning Scheme. That information was confirmed in an email to Mr Taylor dated 11 December 2012. Mr Taylor responded to the City by advising that the vehicles and machinery were being only stored temporarily and that he would ensure they were removed.
6 Subsequent inspection of the property in early 2013 revealed the property continued to be used to store trucks and heavy machinery. Officers of the City contacted TC Drainage and advised that the use of the property for the storage of that plant and machinery required approval under the Town Planning Scheme and no approval had been granted. The City was advised that the trucks and machinery would be removed.
7 On 26 September 2013, officers of the City attended the property. Large mining vehicles, trucks and machinery were being stored on the property. A large mining dump truck was also being serviced on the property. On 27 September 2013 the City wrote to Mr Taylor advising him that the use of the property for the storage of heavy plant and machinery and the servicing of plant was unlawful.
8 Inspections of the property in October and December 2013 revealed the property continued to be used for the storage of heavy machinery and trucks. Mr Taylor's company advised the City that it was planning on redeveloping the properties at 12 and 14 Butcher Street and would be submitting an application for development approval before the end of 2013.
9 Inspections of the property in February 2014 and on 6 March 2014 revealed the property continued to be used for the storage of plant and machinery.
10 On 15 April 2014 the City caused a prosecution notice to be issued to Mr Taylor for the offence for which he was subsequently convicted.
11 After the City had commenced the prosecution proceedings a company associated with Mr Taylor, Forte Equipment Pty Ltd, made an application for planning approval to construct a hardstand on the property. The application was signed by Mr Taylor as owner of the property. The application was approved by the City on 26 June 2014 subject to conditions.
Magistrate imposes sentence
12 In imposing sentence, the Magistrate stated his reasons which included the following. The purposes of planning and development is that there be orderly approvals to ensure compliance with requirements including requirements of town planning schemes. For more than a year before the council brought this prosecution the council requested that Mr Taylor cease the use of the land for which it was being used. That request was ignored for some 12 to 15 months. The land was developed in the sense that it was cleared. Advantage was had from the land in the sense that it was cleared and developed and used with Mr Taylor's approval. It was said on behalf of Mr Taylor that it was not a commercial development, it was not a business matter for Mr Taylor and it did not affect him commercially. It may not have been for Mr Taylor's benefit but for the benefit of others and Mr Taylor allowed that to occur.
Grounds of appeal
13 There are three grounds of appeal, each of which is accompanied by particulars.
Ground 1
14 Ground 1 is that the Magistrate erred in fact and law in finding that Mr Taylor was motivated by commercial considerations and in treating this as an aggravating factor. The particulars to the ground include that Mr Taylor leased the land to Forte Equipment which company used the land. The value of the rent did not depend on usage of the land and there was no allegation of commercial motivation contained in the statement of material facts last served on Mr Taylor under s 129(4) of the Criminal Procedure Act 2004 (WA).
15 The Criminal Procedure Act s 129(4) provides that if 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. The statement of facts served upon Mr Taylor referred to the facts which I have set out above and did not expressly refer to 'commercial considerations'. Counsel for the City, after stating the facts to the Magistrate, made submissions in relation to penalty. Counsel referred to observations of Hasluck J in Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA 1 about where an offender is motivated by commercial considerations, and observations in Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 where it was stated that substantial deterrent penalties are appropriate where the development involves a commercial aspect to avoid the possibility that the risk of being prosecuted will be treated as merely a business cost. Counsel stated that '... the prosecution position is that is the position here. It's a commercial breach to properly develop this property for the purpose it was being used for'. Counsel went on to state that obtaining approval for the use of the land would have involved incurring substantial infrastructure costs for things such as levelling, sealing, drainage and landscaping.
16 Counsel for Mr Taylor submitted to the Magistrate:
This is not a commercial development. It's not a business matter for Mr Taylor. It does not affect him commercially, not of the type that has been suggested by my learned friend.
17 As I have said, in his sentencing observations the Magistrate observed that the land had been developed in the sense that it was cleared and then used for the purposes it had been used. The Magistrate said:
It's said it wasn't for commercial considerations. It may not have been for your benefit but certainly for the benefits of others and you simply allowed that to occur. I note that there has been no request for approval received and it has been granted and it was received at or about the time that this prosecution was commenced.
18 In my opinion, Mr Taylor used the land for a commercial purpose. He derived revenue from leasing it and allowed it to be used for storage. In that sense there was a commercial aspect or commercial purpose. This is not, for example, a case of a residential property being used for domestic purposes. I am not satisfied that this ground of appeal has a reasonable prospect of succeeding. Leave to appeal will be refused.
Ground 2
19 Ground 2 is that the Magistrate erred in fact in finding that the contravention included clearing and levelling of the land. The particulars say that the statement of material facts alleged that the land was used for storage during the period to which the charge related - 26 September 2013 to 6 March 2014. It was not alleged that clearing or levelling took place during that period. The statement of facts referred to the land having been cleared and levelled prior to, but not during, the period to which the charge related. Therefore, the appellant says that the clearing and levelling of the land ought not to have been taken into account in determining the level of penalty in relation to the unauthorised storage.
20 In his sentencing remarks the Magistrate said:
The land was also developed in the sense that it was cleared. It was - and then used for the reasons and purposes required. The Council, I think, have been in relation to this matter fair - if I can use that - in that they made numerous requests for you to be compliant and that simply didn't happen but the advantage was had from the land in the sense that it was then cleared and developed and used with your approval and it's as simple as that.
21 It must be remembered that the Magistrate's sentencing remarks were delivered ex-tempore. They must be read in context and as a whole, not with an eye finely tuned for error. In my opinion, the Magistrate's comments in relation to the land being cleared were references to the history of the matter and the fact that the land had been 'cleared and developed' and then used with the appellant's approval. The Magistrate did not make a finding that the contravention included the clearing and levelling of the land. The Magistrate was doing no more than describing the nature of the land that was being used for the unlawful purpose of storage. The observations by the Magistrate that the land was cleared was made in the course of the Magistrate's observations that the City had made numerous requests for Mr Taylor to comply with the town planning scheme which had been ignored. That was the gravamen of the Magistrate's observations. The Magistrate did not treat the fact that the land had been cleared as an aggravating factor increasing the culpability of Mr Taylor.
22 Ground 2 is not entirely without merit in that the Magistrate did refer in the course of his sentencing remarks to the land having been cleared. For that reason I would grant leave to appeal in respect of ground 2. However, for the reasons I have stated the ground is not made out.
Ground 3
23 Ground 3 is that the Magistrate erred in law by imposing a sentence that was manifestly excessive in that it was outside the range of penalties normally imposed for offences of this nature, having regard to the circumstances of the offence and the appellant. The particulars refer to three matters. First, this was the appellant's first offence. Secondly, the contravention, being usage of the land for storage, was low impact and easily reversible, was not in a residential area and was something for which planning permission was retrospectively given. Thirdly, it is said that the sentencing authorities referred to evidence that the fine imposed was disproportionate to the level of offending. The authorities referred to are: Uxcel Pty Ltd v City of Bayswater [2013] WASC 5; Swan Bay Holdings Pty Ltd v City of Cockburn; Callan v City of Fremantle [2008] WASC 197 and Dodd & Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37.
24 The principles in relation to a ground of appeal on the ground that a sentence was manifestly excessive are well known. They were set out by the respondent in its outline of submissions and it is not necessary to repeat them here.
25 The respondent submits that the penalty imposed was not manifestly excessive having regard to the following considerations. First, the offence was flagrant in that Mr Taylor allowed the unlawful use to continue despite being aware the use was unlawful and having been requested by the respondent on numerous occasions to cease the use. Secondly, the offence occurred without any credible explanation in that the only explanation offered by the appellant was that it was the appellant's 'intention all along that a planning approval would be lodged' and that had not occurred because 'there had been some delays with finalising business plans'. Thirdly, the appellant was motivated by commercial considerations in the sense that he obtained a rental income from the property. Fourthly, the appellant had been given numerous opportunities to cease the breach.
26 The respondent submits that in view of those matters and the sentencing principles for planning offences referred to in authorities such as Swan Bay Holdings Pty Ltd v City of Cockburn; Able Lott Holdings Pty Ltd v City of Fremantle and Harvey v Robertson [1999] WASCA 120 a substantial deterrent penalty was required. In my view that is correct.
27 The range of penalties imposed for planning offences were discussed and considered in detail by Edelman J in Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388. Edelman J observed that it is difficult to ascertain a clear range of penalty for 'planning offences'. Nevertheless, previous decisions offer some guidance in determining an appropriate penalty, providing regard is had to the facts and circumstances of each case. In this case a substantial penalty was called for. The penalty imposed by the Magistrate constituted 15% of the maximum head penalty and 0.2% of the maximum daily penalty. The offence continued over a long period of time. The land was being used for a commercial purpose. The appellant allowed the land to continue to be used for an unlawful purpose notwithstanding repeated requests from the City to comply with the provisions of the town planning scheme. There was no adequate explanation for that conduct. In those circumstances, a penalty which is 15% of the maximum head penalty and 0.2% of the maximum daily penalty is not outside the range of a reasonable sentence. The sentence is not manifestly excessive. I refuse leave to appeal.
Conclusion
28 Leave to appeal will be granted in respect of ground 2 and refused in respect of grounds 1 and 3. The appeal will be dismissed.
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