ABLE LOTT HOLDINGS PTY LTD -v- CITY OF FREMANTLE [2012] WASC 431 (31 October 2012)

2 Those four offences were alleged to have been committed between 16 February 2010 and 13 July 2010. They relate to work undertaken on land owned by the appellant in Fremantle. The four charges were joined in the same prosecution notice and arose out of the same factual circumstances. Accordingly, they were dealt with together at a single hearing in the Magistrates Court.

3 The trial took place on 7 and 8 July 2011 and 13 October 2011. After finding the appellant guilty on all charges the magistrate imposed the following sentences:

1. Charge 1 - a fine of $75,000 plus a daily penalty of $250 per day for 148 days ($37,000) being a total of $112,000;
2. Charge 2 - a fine of $5,000 (no daily penalty was imposed);
3. Charge 3 - a fine of $5,000 (no daily penalty is provided for for this offence);
4. Charge 4 - a fine of $75,000 plus a daily penalty of $250 per day for 148 days ($37,000) being a total of $112,000.

Accordingly the penalties totalled $234,000. The appellant was also ordered to pay the respondent's costs.

4 The appellant seeks leave to appeal against both conviction and sentence in respect of each charge. Four notices of appeal were filed, one in respect of each charge. The grounds were substantially the same and I ordered that the appeals be consolidated and heard together.

5 The appellant is the entity responsible for a development on land that it owns at 5 Beach Street in Fremantle. The development involved erecting three buildings containing a number of units intended for use as short term accommodation and also a unit for a caretaker.

6 There was an existing warehouse building on the land and the proposal was to incorporate parts of this, in particular the facade and some roofing timbers, into the development. Planning approval was obtained from the City of Fremantle (the City)

7 on 24 June 2003. That approval expired three years later. There was subsequently an extension of the planning approval but it is not material for present purposes.

8 On 19 June 2004 a building licence issued, approving construction work in accordance with lodged plans. The building licence expired on 19 July 2005. Construction was not completed by the expiry date. Work nonetheless continued. An application was made in February 2007 to extend the licence, but this was refused and the respondent served a stop work notice on the appellant.

9 Work continued on the site despite the stop work notice. On 16 August 2007 City officers conducted an inspection of the site and a decision was made shortly after to commence a prosecution. Not only had work continued without authority, the building was not in accordance with the approved plans. That work was alleged to have occurred between 13 February 2007 and 16 August 2007.

10 The appellant pleaded guilty to the charges that arose from those facts. It was fined and the sentence was the subject of an appeal to a single judge: Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87. That appeal was unsuccessful and the appellant then appealed to the Court of Appeal: Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39. The appeal to the Court of Appeal was also unsuccessful. The total fines imposed in respect of these offences were $230,750.

11 The appellant then undertook further work at the site between 16 February 2010 and 13 July 2010. That work was alleged to include the pouring of a concrete slab, the construction of walls, the erection of timber frames and parapet walls to the front of some of the units. There was no issue that this work had been done. Nor was there an issue that there was any planning approval that specifically covered this work. The real issue was whether the appellant required approval for this work.

12 The appellant's contention at the trial was that the work was urgently necessary for public safety. The defence case was that planning approval was not required because such work was exempted by cl 8.2 of the City of Fremantle Local Planning Scheme No 4 (the Planning Scheme) and s 374B of the Local Government Act.

13 The grounds of appeal in respect of SJA 1114 of 2011 are as follows:

1. A fair-minded lay observer might reasonably have apprehended that the primary court did not bring an impartial mind to the determination of the matter.
2. The primary court erred in law, further or alternatively in fact, in holding that planning approval was required under the City of Fremantle Local Planning Scheme No. 4 (the 'Scheme'), in circumstances where the primary court should have held that planning approval was not required by reason of clause 8.2(a), further or alternatively (h), further or alternatively (j), of the Scheme.
3. Alternatively, the primary court erred in law, further or alternatively in fact, in finding that the appellant was not acting under an honest and reasonable belief that the works were urgently necessary for public safety or safety or the security of plant and equipment.
4. The primary court erred in law, further or alternatively in fact, in finding that expertise was needed to form an honest and reasonable belief that works were urgently necessary for public safety or the safety and security of plan and equipment, further or alternatively in finding that the appellant lacked such expertise.
5. The sentence imposed on the appellant was excessive having regard to all of the circumstances.

14 There are minor differences in the grounds of appeal contained in the appeal notices for each of SJAs 1114 to 1117 of 2011. At the hearing of the appeal counsel for the appellant said that the differences were not material and that the grounds were substantially the same. The appeal was argued on this basis.

15 Two concessions were made on behalf of the appellant. Firstly, it was conceded that in respect of the two appeals relating to charges under the Local Government (Miscellaneous Provisions) Act, which attracted fines of $5,000 each, it could not be maintained that those fines were manifestly excessive and the ground in each case that related to those fines was abandoned.

16 Secondly, insofar as it was asserted that the magistrate had failed to consider whether the work was exempted from an approval requirement under cl 8.2 of the Planning Scheme the appellant abandoned any reliance upon the work being maintenance and repair within the terms of s 8.2(j). In written submissions the appellant had relied upon the work being exempted because it affected only the interior of a building pursuant to cl 8.2(a), was maintenance and repair work pursuant to s 8.2(j) or was work that was urgently necessary for public safety pursuant to s 8.2(l). Only the first and third of these exemptions were sought to be relied upon on the hearing of the appeal. I should note that the references to subclauses (h) and (j) in ground 2 should have been subclauses (j) and (i)

17 Prior to the trial the magistrate raised the issue that his son worked for the City of Fremantle. There was no suggestion that his son was involved in this matter and, indeed, counsel for the City made it clear at the time that he was not. There was no application for the magistrate to disqualify himself. However, it is now suggested that there is a reason to believe that the magistrate's son did have some involvement in the case.

18 The appellant's contention is that it could be inferred from the fact that the magistrate's son was employed as a Senior Planner by the City of Fremantle that he had some involvement in the matter and that this inference would cause a fairminded observer to apprehend that the magistrate would be unable to bring an unbiased mind to determination of the case. It is also contended that a perception of bias could arise from the fact that the magistrate had previously presided over a trial at which another company with a common director to the appellant had been convicted of offences under the Environmental Protection Act 1986 (WA). The director in question gave evidence in both proceedings.

19 In Johnson v Johnson (No 3) [2000] HCA 48; (2000) 201 CLR 488 the High Court said:

It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide [11].

20 There are two steps in the application of the principles relating to apprehension of bias. First, there must be an identification of what it is that might lead a judicial officer to decide a case other than on its legal and factual merits. Secondly, there must be a logical connection between that matter and the risk of a judicial officer deciding the case otherwise than on its merits: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 345.

21 It must be remembered that in applying the test the observer is taken to be reasonable and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial': Vakauta v Kelly (1988) 13 NSWLR 502, 527. This test has been recently affirmed by the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [78] [84], [132], [139].

22 Where there are matters that a party believes raise an issue of apprehension of bias they should be raised at the hearing. That is particularly so where the issue is mentioned by the judicial officer and the parties are legally represented. In Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 Brennan, Deane and Gaudron JJ said:

Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her (572).

23 Whilst that statement was made in the context of comments by a judge during proceedings which were said to give rise to an apprehension of bias, the same considerations apply equally where an apprehension of bias is said to arise from some relationship between the judicial officer and one of the parties.

24 Whilst it is important that justice be seen to be done, a judicial officer should not disqualify himself or herself on the grounds of bias or reasonable apprehension of bias unless substantial grounds are established: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 and Bienstein v Bienstein [2003] HCA 7 [36]. The reasons for this are obvious; if judicial officers were to excuse themselves whenever an application was made then parties would be able to effectively control who sits in judgment of their cases and effective management of the lists would be impossible.

25 As regards concerns arising from a judicial officer having presided in respect of other matters involving the same litigant, the High Court in Livesay v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 said:

It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting (300).

26 In Chin v The Legal Practice Board of Western Australia [2011] WASCA 110 Newnes JA considered the principle applicable where a judicial officer is asked to disqualify him or herself on the ground that because they have made previous decisions adverse to the person. His Honour said:

In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352, Mason J said that there may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties. But Mason J pointed out that this did not mean either that the judge will approach the issues in the case otherwise than with an impartial or unprejudiced mind in the sense in which that expression is used in the authorities, or that the judge's previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that the judge will approach the issues in that way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be firmly established. Those comments were indorsed in Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86, by Brennan, Gaudron and McHugh JJ [4].

27 In this case the magistrate first raised the issue at the first mention of the charges on 31 August 2010. On that occasion the following exchange occurred between the magistrate and counsel who appeared for the respondent:

......, MR: There will be two shire witnesses. Well, in effect, there will be three, but two are - two are current, one is previous, and then the expert.

HIS HONOUR: Is my son involved in this?

......, MR: Not that I'm aware of, sir.

HIS HONOUR: I think he might be. I'll write his name down for you so that you can check.

......, MR: Thank you, sir.

HIS HONOUR: All right. If he is, I'll have to disqualify myself.

...

HIS HONOUR: Can you - I will just get this passed to you. You might be able to tell me at this point of time if I will have to disqualify myself.

......, MR: No, I'm confident, sir, that this person won't be a witness.

HIS HONOUR: No, not a witness. Has he been involved in - - -

...... MR: Not to my knowledge. I've never come across that name before, sir.

HIS HONOUR: Well, he is currently the senior planner there so - - -

...... MR: In dealing with this matter the witness - sorry, the officer that has been dealing with this matter at the City is an officer called Stephen Sullivan and he has the carriage of this matter, and the other officers who are involved are compliance officers and a building surveyor. So they are - and again, I have not had any contact with this person in relation to this matter and I have been involved in this matter for three years.

HIS HONOUR: Okay. Righto. So be it (ts 31/8/10, pages 3 - 5).

28 On that occasion the appellant was represented by one of its directors, Mr Giacomino Fazio. Mr Fazio is not a lawyer, nonetheless he raised no concerns regarding the magistrate hearing the matter. The matter was then mentioned before a number of other magistrates before coming back before the same magistrate again on 21 February 2011. The magistrate raised the issue again with counsel who appeared for the respondent:

HIS HONOUR: And is it a matter that I can deal with?

GILLETT, MR: Yes. We have - in terms of the possible conflict, sir, there is - that employee of the City of Fremantle has had no involvement with this matter whatsoever (ts 21/2/11, page 3)

29 On this occasion the appellant was represented by a legal practitioner. The same lawyer later represented the appellant at the trial before the magistrate. Nothing was said on behalf of the appellant as to any concerns regarding apprehension of bias on the part of the magistrate.

30 The issue was raised again by the magistrate on 17 June 2011. Again the appellant was legally represented:

HIS HONOUR: The matter will proceed on 7 and 8 July unless there are any other issues concerning the health of the director (indistinct). I take it there's no - are there any problems with me dealing with this matter?

OWEN, MR: Not that I'm aware of, sir.

HIS HONOUR: There could be, because the City of Fremantle - who are your witnesses?

OWEN, MR: I think this is City of Cockburn - I think, sir. Hang on, (indistinct).

BUCOLO, MS: City of Fremantle.

HIS HONOUR: City of Fremantle. Have I raised this issue before?

BUCOLO, MS: I believe so.

HIS HONOUR: I think I have.

OWEN, MR: Sorry, sir, I only appear as counsel today, so it is City of Fremantle, of course, but I don't have any instructions which would indicate that I should take the point as whether you should hear it or not.

HIS HONOUR: You don't have a list of witnesses?

OWEN, MR: No. I know there's four witnesses.

HIS HONOUR: You don't know the names of them?

OWEN, MR: No, sir.

HIS HONOUR: Do you know who they are?

BUCOLO, MS: I don't.

HIS HONOUR: We can deal with it another way. It's just that my son might be involved in the City of Fremantle.

OWEN, MR: I'll make inquiries.

HIS HONOUR: I don't think he is, from memory, but it has been going on for 12 months or thereabouts (ts 17/6/11, pages 3 - 4).

31 It is clear from these passages that the information before the court was that the magistrate's son was not to be a witness and had not been involved in the matter. That was not challenged and the lack of objection to the magistrate presiding can only be taken as being an acceptance on the part of the appellant that, in those circumstances, no apprehension of bias arose.

32 Perhaps in recognition of the fact that its position was affected by the failure to object at the time, the appellant has submitted on the appeal that the magistrate did not make full disclosure of the relevant circumstances. In particular, it is said that the magistrate made no disclosure of the extent of any involvement his son had in the matter. It is asserted that information is now available to show that senior planners at the City of Fremantle regularly attend meetings at which planning matters are discussed. It is submitted that the assumption prior to the trial that the magistrate's son had no involvement in the matter was incorrect and that any waiver by the appellant of a right to object to the magistrate on the grounds of apprehension of bias is not binding in those circumstances.

33 The basis for those submissions is an affidavit sworn by Mr Fazio on 24 October 2012. The relevant parts of that affidavit are as follows:

1. After the hearing held in the first instance proceedings on 13 October 2011, I telephoned the City of Fremantle and spoke to an officer in the planning department. The officer said to me words to the effect that regular meetings are held which are attended by the City's senior planners in which all pending planning issues are discussed. I did not catch the name of the officer I spoke to. I had not known this as at 13 October 2011 or any earlier time.
2. On 24 October 2012, I again telephoned the City of Fremantle. The person who answered the telephone identified himself only as Greg. Greg said to me words to the effect that he had spoken to the planning department and meetings attended by the City's senior planners and other planners, in which the senior planners and other planners discussed everything that is 'on the plate', are held once a fortnight.

34 As is evident from those paragraphs the information is not sourced from a clearly identified person. It is not apparent whether either the person spoken to on 13 October 2011 or the person spoken to on 24 October 2012 was in any position of authority at the City or was able to speak of internal procedures from personal knowledge.

35 The information provided is also general and vague in nature. The affidavit does not purport to give a verbatim account of what was said, merely a summary of it. This is, perhaps, surprising given that the second conversation is said to have occurred on the day the affidavit was sworn and a mere five days before the hearing of the appeal. It was obviously a conversation initiated for the purpose of obtaining information to bolster this ground of appeal. In those circumstances the importance of obtaining accurate and reliable information must have been readily apparent.

36 The vagueness of the information deprives it of any cogency. The magistrate's son was not mentioned either by name or as to the position he holds. Mr Fazio apparently did not ask any questions directed specifically at whether the magistrate's son had attended or participated in any meetings at which this matter was discussed. Thus whether he is one of the senior planners referred to is impossible to discern. There is no explanation of what 'all pending planning issues' means or whether it includes matters where breaches of planning laws are alleged and, in particular, this matter. That planners discuss everything that is 'on the plate' is similarly opaque. It is on this very unsatisfactory basis that the appellant asks this court to conclude that the magistrate's son had a greater involvement than was disclosed.

37 The matter does not end there, because the respondent has filed an affidavit from the magistrate's son. In that affidavit Mr Justin Lawrence states as follows:

1. I am aware that the City was involved in prosecution proceedings in 2011 against Able Lott Holdings Pty Ltd in relation to development at the property at 5 Beach Street, Fremantle (Property).
2. I am aware of those proceedings because the City has displayed in its offices a board which sets out all enforcement proceedings being undertaken by the City. The board displays the name of the person against whom enforcement proceedings are being taken, the land to which the enforcement proceedings relate and a brief description of the nature and status of those proceedings. There are currently no proceedings against Able Lott Holding Pty Ltd displayed on that board.
3. I have never given any opinion or made any decision in relation to any legal proceedings or other enforcement action against Able Lott Holdings Pty Ltd or Giacomino Fazio in relation to the property or any other property.
4. I have never attended any meeting at the City or anywhere else where legal proceedings or any other form of enforcement action against Able Lott Holdings Pty Ltd or Giacomino Fazio has been discussed, in relation to the Property or any other property.
5. I have never had any involvement with Able Lott Holdings Pty Ltd or Giacomino 'Jack' Fazio in relation to the Property or any other property.
6. As far as I am aware, the officer employed by the City responsible for dealing with Able Lott Holdings Pty Ltd and Giacomino Fazio and all matters relating to the property is Stephen Sullivan, the City's Coordinator of Planning Mediation.

38 What the appellant seeks to do on this appeal is to make a case for apprehension of bias that was not made in the Magistrates Court. There was ample opportunity to do so. Appellate courts must be on guard against attempts to raise points on appeal that were not taken at the trial, for whatever reason. Sometimes points are not taken for tactical reasons or oversight. What cannot be permitted is for litigants to hold back matters to be raised on appeal in the event of an adverse outcome. Nor can they be permitted to agitate new issues that could readily have been raised at the trial, other than in exceptional circumstances: Giannarelli v The Queen [1983] HCA 41; (1983) 154 CLR 212, 221 (Gibbs DCJ), Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, 172 173 (Gleeson CJ) and Fingleton v the Queen [2005] HCA 34; (2005) 227 CLR 166, 218 219 (Kirby J).

39 In any event, on the information contained in the affidavits filed on this appeal it is not open to conclude that the magistrate's son had any involvement in this matter. The statements made in the Magistrates Court by counsel representing the respondent that the magistrate's son would not be a witness and had had no involvement in the matter have not been shown to be incorrect, indeed they have been confirmed.

40 Far less is there any proper basis for suggesting that the magistrate failed to disclose relevant information. It is apparent from the transcript that the magistrate was unaware whether his son had any involvement. He raised the possibility in open court and, quite properly, asked prosecuting counsel to make enquiries in that regard. That was done and the information was later supplied. The appellant was made aware of all relevant information and made no application for the magistrate to disqualify himself.

41 The appellant does not contend that the mere fact that the magistrate's son works for the City of Fremantle as a planner was itself sufficient to create an apprehension of bias. No doubt that contention is not made, at least in part, because it was not advanced at the trial. In any event, it could not succeed. Local authorities are large scale operations, employing very many people and no assumption could necessarily arise from such employment that the magistrate's son had any personal interest in the proceedings. Furthermore, the fact that the magistrate raised the question would assist in dispelling any concerns regarding possible bias. A reasonable observer would take that fact, and the fact that the court was told that there was no relevant involvement, into account (and, indeed, the fact that what was said by the prosecution was not challenged) in assessing whether the court was able to bring an independent and unprejudiced mind to the issues.

42 As regards the magistrate's involvement in an earlier case in respect of another company of which Mr Fazio was also a director, this was not a concern that was raised at the trial. Mr Fazio says in his affidavit of 24 October 2012 that this is because he did not recognise the magistrate. He also says that the earlier proceedings related to a company called Goldbar Holdings Pty Ltd which was the subject of a prosecution in 1993 under the Environmental Protection Act. He says that he gave evidence in those proceedings and that the same magistrate presided. That matter was the subject of prerogative writ proceedings on the issue of whether it was open to challenge the validity of a pollution abatement notice: Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549.

43 The appellant has provided no information as to whether the magistrate made adverse findings about Mr Fazio as a witness in the earlier proceedings. Nor is there any evidence to suggest any connection between the appellant and Gold Bar Holdings Pty Ltd (which was deregistered in 1997) other than that they have a common director.

44 The mere fact that a judicial officer has made adverse findings against a person in earlier cases cannot raise a reasonable apprehension of bias. In this case the same entity is not involved in any event. On the very limited information provided it is impossible to say whether the issues in the two cases were in any way similar. There is no information regarding any findings made in the earlier proceedings regarding Mr Fazio. In these circumstances there can be no basis for supposing that the magistrate had prejudged this matter or had an entrenched view of Mr Fazio as a witness. The fact that the earlier proceedings took place some 15 years ago is also a relevant consideration.

45 For these reasons ground 1 is not made out. On the basis of the information that was available to the Magistrates Court this ground is not reasonably arguable. However, because both parties have relied upon additional information, I will grant leave in respect of this ground but the ground fails.

46 The appellant contends that the two offences under the Planning and Development Act contained as a necessary element that the work was undertaken without valid planning approval. These offences assumed that approval was required. However, the appellant claimed it was not required because the work fell within exceptions contained in cl 8.2 of the Planning Scheme, in particular cl 8.2(a) and cl 8.2(l).

47 The City of Fremantle Local Planning Scheme No 4 was tendered at the trial in the Magistrates Court (Exhibit A). There was a suggestion at the hearing of the appeal that the numbering of the subparagraphs has since changed. The relevant version is that which was tendered. The relevant parts are as follows:

Except as otherwise provided in the Scheme, for the purposes of the Scheme the following development does not require the planning approval of the Council -

(a) the carrying out of any building or works which affects only the interior of a building and which does not materially affect the external appearance of the building except where the building is -

(i) located in a place that has been entered in the Register of Places under the Heritage of Western Australia Act 1990,

(ii) the subject of an Order under part 6 of the Heritage of Western Australia Act 1990; or

(iii) included on the Heritage List under clause 7.1 of the Scheme.

...

(l) works urgently necessary for public safety, safety or security of plant or equipment, maintenance of essential services, or protection of the environment,

48 Clause 8.2 relates to the issue of whether planning approval was required. A similar issue arose in respect of the two charges under the Local Government (Miscellaneous Provisions) Act which related to work being done without a building licence and in contravention of a stop work notice. In respect of those alleged offences, s 374B of the Local Government Act contained an exception. That section provides:

Performance of building work in emergency

(1) Where by reason of an emergency endangering any person, building or structure any building work must be performed without approval as required by this Act, it shall, notwithstanding any other provision of this Act, be lawful to perform the building work subject to the condition that as soon as practicable after its commencement written notice of the building work is served upon the local government.

(2) If the condition referred to in subsection (1) is not complied with the owner of the land on which the building work is performed shall be guilty of an offence and liable to a penalty not exceeding $5 000.

49 The appellant submits that whilst the magistrate expressly referred to s 374B in his reasons for decision, he made no reference to cl 8.2 of the Planning Scheme. It is said that there was a failure on the part of the magistrate to consider whether the work fell within either of cl 8.2(a) or cl 8.2(l) and that this represented an error. It was submitted that the error was material in respect of cl 8.2(1) because the wording and effect of that clause is different to s 374B.

50 At the commencement of the trial on 7 July 2011 counsel for the respondent gave an opening address. In that address counsel noted that the appellant had maintained a position that the works were emergency work. This was anticipated as being the issue at the trial and the respondent proposed to call a structural engineer to give evidence that none of the work constituted emergency work for the purposes of the Act or the Scheme. Counsel then referred to both s 374B and cl 8.2(l).

51 As regards cl 8.2(a) the possibility that the work was excused on the grounds that it was only internal work was never raised at the trial. Notwithstanding this the appellant submits that there was evidence available to support a conclusion that the work was internal in nature and, accordingly, the magistrate was obliged to consider the possibility that the work was exempted from approval on that ground. The appellant argues that the purpose of the exemption is to exclude from the necessity of planning approval work that is not visible to the public or neighbours. As that was the case here it is said that the exemption applied.

52 I do not accept the appellant's interpretation of cl 8.2(a). That clause is concerned with whether work is internal to a building. In the present case there were three buildings on the site. The fact that those buildings were tied together to some extent by the existing structure of the warehouse was immaterial to the question of whether the work undertaken was only to the interior of a building.

53 Clause 8.2(a) is clearly intended to cover those circumstances where internal work is undertaken on an existing building. The work here was not of such a nature and whether it could be seen by persons external to the land did not change that fact. In my view, there was no evidence that raised the exception under cl 8.2(a). For that reason this aspect of ground 2 cannot succeed.

54 In any event, as I have noted, the possible relevance of this exception was not raised at the trial. The parties are bound by the way they conduct their case. It is not open to raise as an issue a matter that was not raised at the trial unless exceptional reasons for doing so are established. Giannarelli v The Queen, Crampton v The Queen, Fingleton v The Queen.

55 There can be no suggestion that the appellant and his legal representatives were unaware of the contents of cl 8.2. Yet no suggestion was made that cl 8.2(a) had any application here. The only reasonable inference that can be drawn from that is that the appellant did not consider that it had any application. Furthermore, cl 8.2 provides a number of exceptions to the general requirement contained in cl 8.1 that all development on land under the Scheme requires prior approval. The offences under s 218 and s 214 of the Planning and Development Act are simple offences. Section 78 of the Criminal Procedure Act 2004 (WA) provides that if a written law creates a simple offence and provides an exception in respect of the offence the exception is taken not to apply unless the accused proves on the balance of probabilities that it does. In my view, it was not necessary for the prosecution in this case to prove beyond reasonable doubt that none of the exceptions in cl 8.2 applied, rather the onus was on the appellant to establish on the balance of probabilities that one of them did apply. In respect of cl 8.2(a) that possibility was not raised, far less was the onus in respect of it discharged.

56 As regards cl 8.2(l) it must be accepted that that clause covers a range of circumstances that are not within the ambit of s 374B of the Local Government Act. Accordingly, there may be circumstances in which cl 8.2(l) would be satisfied but s 374B would not. On that basis a failure to consider cl 8.2(l) has the potential to be material. Whether or not it is material depends upon the particular circumstances of this case.

57 Clause 8.2(l) refers to four circumstances where work that is urgently necessary does not require planning approval. Those circumstances are where the work is necessary for public safety, the safety or security of plant or equipment, the maintenance of essential services or the protection of the environment. Only the first of those circumstances arose on the defence case as presented in the Magistrates Court. This is demonstrated by reference to the evidence of Mr Fazio:

But could you tell his Honour why it is that you did the works that you've done on the site?---I had three major concerns. I had the concerns with my piers cracking. That was my first concern. And with the weight of the building, the piers could give way and the whole building just collapse, like a domino effect basically.

Did you have any concerns about what might happen if that happened?Well, yeah, it would finish up on my neighbours, could finish up on me, and then there would be bigger problems.

When did you have that belief that that was - - -?---It was 2010, after we had the trial, which was about - - -

These proceedings relate to 16 February 2010. Did you have that belief then?---Yes.

Was there anything that happened that made you change your view on that?---I haven't changed my view at all

...

And then you went and carried on and built two four-storey buildings?---yes, to secure properly and put the tin on top and keep the water out.

So you had to build the four-storey buildings so that you could put the tin on top?---To keep the water out and keep it off my walls. You've got the evidence of the collapse - in fact the photo that you just showed me.

So because you were worried about getting water on some existing limestone walls you built two four-storey buildings over the top of them?You don't get it. If those walls collapse they'll kill the people next door. You just don't get it.

...

Okay. But anyway, you went ahead and built. You agree you went ahead and built?---I did what had to be done from an emergency angle and put the buildings up.

And that was really more of a personal emergency for you because you wanted to get the buildings up?---No, because if - you know and I know you can't borrow money on buildings that you haven't got a building licence. I did it out of my own money, with great difficulties, to safeguard and protect my neighbours. We haven't been able to borrow much money.

So your evidence - I just want to be absolutely certain of this. You built two four-storey buildings to protect your neighbours?---Absolutely.

And now you've had to continue building to protect your neighbours?Absolutely.

Right. So the reason you've built this whole structure is to protect your neighbours?---Absolutely. What price do you put on a dead man? (ts 8/7/11, pages 39 - 40, 51, 54).

58 In his reasons delivered orally on 13 October 2011 the magistrate referred to the evidence of Mr Fazio and then said:

His evidence that the work was completed because he believed an emergency situation had been encountered was raised pursuant to section 374B of the Local Government Miscellaneous Provisions Act 1960, which, and I quote, 'Whereby reason of an emergency endangering any person, building or structure, any building work must be performed without approval or required by the act, it shall not withstanding any other provision of this act be lawful to perform the building works subject to the condition that as soon as practicable after the commencement, that the written notice and the building work is served upon the local government authority.'

Mr Fazio agreed that the work was performed as detailed in Mr Sullivan's evidence between the period or during the period in question. However, it was completed because he believed the integrity of the building was endangered and the safety of the others was particularly endangered as a result of the jeopardy that the building was going to be placed in had the work not been completed. There is no doubt on the evidence that the company failed to comply with the second limb of the section 374B. It did not provide any written notice that the building work had been completed or commenced as was required pursuant to that provision.

59 The magistrate then referred to the evidence of two expert engineering witnesses. One, Mr Stephen Burdett, had been called by the respondent. The other, Mr Brett Lucchesi, was called by the appellant. Mr Burdett gave evidence that in his opinion there was no threat of building collapse nor would any person have been endangered if the work had not been undertaken. Mr Lucchesi considered it was preferable that some of the work was completed, but accepted that there were no works that were urgently necessary for public safety. Mr Fazio sought to give evidence relating to the need for the work to be undertaken but the magistrate did not accept that he was an expert whose opinion was admissible. There is no challenge to that finding. In those circumstances the uncontested evidence from both engineers is that the work done by the appellant was not urgently necessary for public safety. There was no evidential basis for the exception in cl 8.2(l) to arise. Thus the failure of the magistrate to specifically refer to that subclause was immaterial.

60 In any event, I am not satisfied that there was any material difference in the circumstances of this case between the facts required to establish the exception in s 374B and that required to establish cl 8.2(l). Whether the work was undertaken by reason of an emergency endangering any person or was urgently necessary for public safety was materially the same question. The fact that the magistrate accepted the evidence of the engineers and concluded that the work here did not fall within the terms of s 374B would have necessarily resulted in the same conclusion had the magistrate specifically considered cl 8.2(l). Accordingly, even if the magistrate was in error in not making specific reference to cl 8.2(l) it was an error that could not have affected the outcome and did not lead to any miscarriage of justice: s 14 Criminal Appeals Act 2004 (WA).

61 For those reasons, whilst I would grant leave in respect of ground 2, that ground fails.

62 At the trial the appellant submitted that Mr Fazio had honestly and reasonably believed that there was a danger to the public if the work was not undertaken. Mr Fazio was said to be the directing mind of the appellant such that any mistake of this nature on his part could be attributed to the company. Thus it was submitted that even if the magistrate accepted the evidence of the engineers and concluded that the work was not urgently necessary to ensure public safety if the prosecution did not exclude the reasonable possibility that Mr Fazio had an honest and reasonable belief that the work was so required, the appellant was entitled to be acquitted.

63 There is no doubt that s 24 of the Criminal Code (WA) applies to offences of this nature. The magistrate addressed this issue in the following terms:

The onus is upon the prosecution to establish and satisfy me beyond a reasonable doubt that Mr Fazio, acting on behalf of the company did not have an honest and reasonable but mistaken belief that the emergency situation had arisen, pursuant to those provisions. I do not accept beyond a reasonable doubt that Mr Fazio could be described as a engineering expert for the purposes of these proceedings. He may have had considerable building experience, but he has no qualifications and his opinion is based purely on the physical concept of building, not the science.

I found him to be vague. He couldn't remember who the builder was at one point. His recollection was most unconvincing and unsatisfactory. He was evasive and often expanded answers which had - or gave expanded answers which had no relevance to the questions put to him and he continually attempted to evade the intent of the questions put to him by responding in non-relevant terms. At one time he responded that he didn't want to answer questions.

I found him to be a most unimpressive and unconvincing witness for those reasons. On the evidence of Mr Burdett, I find that the accused company engaged in structural construction as he has stated. I'm satisfied that Mr Burdett and Mr Lucchesi, being structural engineers, have given evidence which I accept without any hesitation that there was no foundation or basis upon which Mr Fazio could honestly believe that a emergency situation had been caused with respect to any of the construction about which these prosecutions relate.

He merely continued construction to build the building as he wanted to do and it had nothing to do with the emergency situation which he said was created, and I'm satisfied beyond reasonable doubt that he did not hold an honest belief. In any event, even if he did hold such a belief, his belief was unreasonable and I'm satisfied to the required degree to that extent based on that evidence. The question of emergency had not arisen.

It was a mere afterthought as is demonstrated by the failure of the accused company to comply with the second limb of section 374B in which it failed to provide written notice of the so called emergency building work which was carried out without authority, without a building licence and contrary to the stop work notices and the direction notices (ts 13/10/11, pages 39 40).

64 The appellant contends that the magistrate concluded that Mr Fazio did not have an honest and reasonable belief as to an emergency merely because he was not an expert. I do not accept that that is an accurate interpretation of the magistrate's reasons. It is clear from those reasons that the fact that Mr Fazio was not an engineer and had no relevant qualifications was simply a factor that the magistrate took into account in assessing whether the belief claimed was either honestly held or reasonable. Other relevant factors were Mr Fazio's credibility and whether there were factual circumstances which could form a basis for such a belief.

65 The magistrate made a finding that the appellant did not hold the honest belief as claimed. That finding clearly depended to a substantial degree on the credibility of Mr Fazio. The magistrate had the advantage of seeing the witness give evidence under oath and there is nothing to suggest that he has palpably misused that advantage or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railway Commission [1993] HCA 78; (1993) 112 ALR 641. In my view these grounds were not reasonably arguable and leave in respect of them will be refused.

Ground 5 - Were the sentences manifestly excessive

66 The appellant submitted that the fines imposed for the two offences under the Planning and Development Act were excessive both individually and taking into account their combined effect. A complaint in regards to the size of a total sentence is in reality an appeal to the application of that aspect of the totality principle that a total effective sentence should not be disproportionate to the total criminality. In this case nothing much turns on that distinction as the offences all related to the same conduct. Nonetheless, there were four separate charges that had distinct elements and that is a relevant factor.

67 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [126] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J).

68 A claim of manifest excess depends upon establishing implied error in the type or length of sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion.

69 In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).

70 In relation to each of the charges under the Planning and Development Act the maximum penalty for a corporation was a fine of $250,000 and a daily penalty of a maximum of $25,000 a day. Accordingly, the fines of $75,000 on each of these charges represented 30% of the maximum fine and the daily penalties represented 1% of the available maximum daily penalty.

71 Offences of this nature can vary significantly in their circumstances. They can range from minor unapproved works by an owner builder to their own home to significant works at a major commercial development. The size of the maximum penalties reflects the potential seriousness of breaches and the importance placed on compliance by the legislature. The work undertaken here was not extensive, but neither could it be described as minor.

72 In Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 Hasluck J said:

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 [74].

73 Substantial deterrent penalties are appropriate where the development involves a commercial aspect to avoid any possibility that the risk of being prosecuted will be treated as merely a business cost. In the present case, this was a development which carried the potential for commercial benefit. It involved intensive land use to build a number of multistorey units with intended use as short term accommodation. There is a strong need to ensure compliance with planning laws in respect of such developments.

74 The magistrate found that the offending in this case had been deliberate and had shown 'utter contempt' for the approval processes. That was a conclusion that was clearly open to the magistrate. The work had been undertaken in deliberate defiance of planning requirements and the period of offending was significant; 148 days. The magistrate rejected suggestions that the work was urgently required to ensure public safety or that the appellant's director had any honest belief in that regard.

75 The fact that the appellant had been previously prosecuted in respect of the same development was clearly a significant aggravating factor. The previous offences had resulted in a substantial penalty, that penalty had clearly not acted as an effective deterrent.

76 It must be accepted that the work that was undertaken in respect of the present offences was less substantial than in respect of the previous offences. On the other hand, the appellant had pleaded guilty to the previous offences (albeit at a late stage) whereas it had maintained pleas of not guilty in respect of these charges. The pleas of guilty must have attracted some measure of discount on the previous occasion.

77 The total penalty imposed here was a high one but I am not satisfied that it is one that manifests error on the part of the magistrate. A significant penalty that would reflect the deliberate disregard of the planning laws and act as a realistic deterrent was called for.

78 For those reasons I would refuse leave in respect of this ground.

79 For the above reasons leave to appeal will be granted in respect of grounds 1 and 2, leave will be refused in respect of the remaining grounds and the appeals will be dismissed.