Adelaide Cc v Lester & Park Fast

1. Damian R Lester, between about the 12th day of February 2002 and the 6th day of March 2002 undertook development without development approval CONTRARY to Section 44(1) of the Development Act, 1993.

1.1 The offence alleged is a single continuing offence occurring between the days alleged in the complaint.

1.2 Between the said dates the Defendant, without development approval undertook a change in the use of land described in Crown Record Volume 5282 Folio 791 (also known as Allotment 101 in DP 33772) from parklands to land used for parklands and car parking.

2. Damian R Lester, between about the 12th day of February 2002 and the 6th day of March 2002 was a Director of a company which undertook development without development approval and thereby contravened Section 44(1) of the Development Act, 1993 CONTRARY to Section 105(3) of the said Act.

2.1 Between the said dates the Defendant was a director of Park Fast (Aust) Pty Ltd (hereinafter "Park Fast").

2.2 Between the said dates specified in the complaint Park Fast committed a single continuing offence as particularised in paragraph 2.3 of these particulars.

2.3 Between the said dates Park Fast, without development approval, undertook a change in the use of land described in Crown Record Volume 5282 Folio 791(also known as Allotment 101 in DP 33772) from parklands to land used for parklands and car parking.

On the same complaint, Park Fast (Aust) Pty Ltd ("the defendant company") was charged as follows:

3. Park Fast (Aust) Pty Ltd between about the 12th day of February 2002 and the 6th day of March 2002 undertook development without development approval CONTRARY to Section 44(1) of the Development Act 1993.

3.1 The offence alleged is a single continuing offence occurring between the days alleged in the complaint.

3.2 Between the said dates the Defendant, without development approval, undertook a change in the use of land described in Crown Record Volume 5282 Folio 791 (also known as Allotment 101 in DP 33772) from parklands to land used for parklands and car parking.

The trial in the matter proceeded on 21, 22 and 23 August 2002. Eleven witnesses gave evidence in the complainant's case. The defendants placed no evidence before the Court.

Allotments 102 and 104 on DP 33772 have a right of way over that portion of Allotment 101 which is the subject of the complaint in this matter ("the access road"). The Riverside Rowing Club is situated on Lot 102 and the Pulteney Rowing Club is situated on Lot 103. The access track is fenced along its southern boundary, and the rowing clubs abut portion of it to the north.

Prior to about 12 February 2002, the access track functioned primarily as an access track to the rowing clubs. On 13 February 2002, Ms Reanna Worrall, an officer of the Adelaide City Council ("the Council"), saw a sign near the entrance to the access track depicting

the letter P with an arrow pointing to the access track, and

She also saw two signs, some metres apart on the northern side of the fence on the southern boundary of the access track. Both of these signs had on them the words "Public Car Park", and at least one of them also had on it the words "Monthly Parking Available" and "Enquiries 0411 179 222". Ms Worrall also saw two ticket machines in the access track. She saw that cars were parked parallel to the southern fence of the access track for "pretty much the whole fence line". Late in March, Ms Worrall visited a site next door to the access track, and observed that the parking signs associated with the access track were no longer present.

Mr Robert Sporne, a student at the North Terrace campus of the University of South Australia, gave evidence that prior to the appearance of ticket machines in the access track, he had obtained the permission of a representative of Pulteney Grammar enabling him to park in the grounds of the Pulteney Rowing Club without charge. Early in 2002, he noticed that parking ticket machines had been installed near the fence line of the access track. He also noticed that parking signs had been put up. He continued to use the area for car parking, by obtaining a ticket from one of the newly installed machines. Mr Sporne gave evidence that, prior to the installation of the ticket machines and signs, cars were not parked along the fence line of the access track, but only in the areas next to the boat sheds. During the period when the ticket machines and parking signs were present in the access track, he saw cars parked along the whole length of the access track. After the signs and ticket machines were removed, Mr Sporne observed that fewer cars parked in the area, and signs appeared on the fence to the access track prohibiting parking along the southern boundary of the access track. Mr Sporne continues to park in the area next to the Pulteney boat shed.

Mr Louis Palumbo, a Council officer, gave evidence that on 4 March 2002, he went to the access track and saw the parking signs and ticket machines. He said that he searched the Council records to see whether there was any approval for a car park on the access track. There was not. Prior to 4 March 2002, Mr Palumbo had met the defendant, and the defendant had given him a business card which, among other things, under the name Damian R R Lester, said "Mobile:0411 179 222". Mr Palumbo rang that mobile telephone number on 4 March 2002, and had a telephone conversation with the defendant. On 5 March 2002, Mr Palumbo and a number of other Council officers, attended at the access track. The defendant was present at the access track at the time.

Mr Phillip Smith, an officer of Planning SA, gave evidence that he had searched the relevant records to ascertain whether the Development Assessment Commission had given any approval in relation to the use of the access track as a car park, and that he could find no reference to any such approval.

The prosecution indicated that it wished to adduce evidence of utterances and conduct of the defendant on 4 March 2002 and 5 March 2002 from which, the prosecution indicated that it would argue, it could be inferred that the defendant was involved in the conduct of the car park to the extent that he was undertaking it. The utterances were made in the course of two telephone conversations between the defendant and Mr Palumbo, a Council officer, on 4 March 2002, and in the course of a conversation between Mr Thomas and the defendant on Allotment 101 on 5 March 2002. There were also photographs and accounts by Council officers of actions taken by the defendant on 5 March 2002.

The second telephone conversation on 4 March 2002 came about partly because Mr Palumbo was purporting to exercise his powers under Section 84(3) of the Act. The Act provides, in Section 84(2) and (3):-

"s.84(2) If a relevant authority has reason to believe on reasonable grounds that a person has breached this Act or a repealed Act, the relevant authority may do such of the following as the relevant authority considers necessary or appropriate in the circumstances:

(a) direct a person to refrain, either for a specified period or until further notice, from the act, or course of action, that constitutes the breach;

(b) direct a person to make good any breach in a manner, and within a period, specified by the relevant authority;

(c) take such urgent action as is required because of any situation resulting from the breach.

(3) A direction under subsection (2) must be given by notice in writing unless the relevant authority considers that the direction is urgently required, in which case it may be given orally by an authorised officer.

(4) If a direction is given orally under subsection (3), the authorised officer who gave the direction must confirm the direction by notice in writing by 5 pm on the next business day."

In the course of the telephone conversation, Mr Palumbo directed the defendant to cease operating the car park, and to remove the signs and ticket machines from the land, within 24 hours. It is a prerequisite for the exercise of the power under Section 84(2) that the direction given orally be "urgently required". There was no urgent requirement. In fact, Ms Worrall, a Council officer, saw the signs and ticket machines on 13 February 2002. Approximately two and a half weeks elapsed before the Council officers took any action. This lapse of time was not explained. Mr Palumbo's direction to the defendant by telephone on 4 March 2002 was beyond any power he enjoyed under Section 84 of the Act as an authorised officer.

On 5 March 2002, an encounter between the Council officers and Mr Palumbo on Allotment 101 occurred because the officers attended to serve a notice in writing under Section 84 of the Act. Mr Palumbo served the notice. Puzzlingly, and in contradiction of the purported oral direction of the previous afternoon, the notice gave the defendant 24 hours within which to cease activities which had not been approved, and to remove all signage and ticket machines. Even more puzzlingly, after the service of the notice, Mr Thomas told the defendant to remove the signs and ticket machines "straightaway", and indicated that if he did not do so, Council officers would undertake the work. Again, there was no urgent requirement for this oral direction. No explanation was given for the bewildering array of contradictory requirements. The only potentially valid use of Section 84 of the Act was in the serving of the written notice, which Mr Thomas immediately overrode by his oral direction.

Notes were taken by Mr Palumbo of his telephone conversations with the defendant. They were not verbatim - they seem to have been a note of that portion of the conversation that Mr Palumbo considered important. They were not shown to the defendant for the purpose of obtaining his input as to their accuracy. The defendant was not made aware that notes would be taken. The notes taken by Mr Thomas and Mr Palumbo after the conversations with the defendant on 5 March 2002 were also summaries. Mr Palumbo made his notes two to three hours after the conversations. Mr Thomas made his immediately afterwards, and described them as his "interpretation" of the conversation. Neither set of notes was shown to the defendant for his comment.

There was a suggestion at one stage in the proceedings that Section 19 of the Act may have been being used by Mr Thomas to obtain answers to questions. Mr Thomas is an authorised officer under the Act. I find, however, that he did not require the defendant to answer question under Section 19 of the Act. Mr Thomas was very confused about what powers he possessed as a result of being an authorised officer, and how to go about exercising them.

The law in relation to the judicial discretion to exclude evidence is conveniently set out in the judgment of the Court of Criminal Appeal in R v Lobban [2000] SASC 48; (2000) 77 SASR 24, by Martin J, with whom Doyle CJ and Bleby J agreed.

The Council officers' purported use of "emergency" powers under Section 84(3) in the giving of two oral directions, one on 4 March 2002, and one on 5 March 2002, which were inconsistent with each other and further inconsistent with the notice in writing served on 5 March 2002, created a situation in which the defendant was placed under a great deal of pressure. The direction on 5 March 2002 that he remove the ticket machines and signs forthwith was plainly beyond power. It was coupled with the statement that if he omitted to do so, Council officers would remove them. The defendant was not informed that there may be other proceedings in relation to the car park in the future, nor was he told that notes would be made of what he was saying, and he was given no opportunity to comment on the notes that were, in fact, made. He was given no warning in relation to self-incrimination.

In all of the circumstances, evidence of what the defendant said and did as a response to the situation in which he was placed by the actions of the Adelaide City Council officers on 5 March 2002 falls squarely within the public policy discretion described in R v Lobban, and I exercised my discretion to exclude it. It was unnecessary for me to consider whether that evidence should have been excluded on the other bases put forward by Mr Edwardson.

The Development Act 1993 ("the Act") provides, in Section 44(1):

"s.44(1) A person must not undertake development contrary to this Division."

"This Division" is Division 1 of Part 4 of the Act, which provides in s.32:

"s.32. Subject to this Act, no development may be undertaken unless the development is an approved development."

Subsequent sections in Division 1 of Part 4 of the Act set out the process by which a proposed development may become an approved development.

The Act provides in Section 4:

(including development on or under water) but does not include an act or activity that is excluded by regulation from the ambit of this definition;"

""to undertake development" means to commence or proceed with development or to cause, suffer or permit development to be commenced or to proceed."

The Act further provides, in Section 6(1):

"s.6 (1) For the purpose of determining whether a change in the use of land has occurred, the commencement or revival of a particular use of the land will, subject to subsection (2), be regarded as a change in the use of the land if -

(a) use supersedes a previous use of the land; or

(b) the commencement of the use or the revival of the use follows upon a period of non-use; or

(c) the use is additional to a previously established use of the land which continues despite the commencement of the new use."

In order to succeed in relation to count 1, the prosecution must prove these elements:

1. Development, being a change in the use of Allotment 101 from parklands to parklands and car parking, was undertaken,

2. between about 12 February 2002 and 6th March 2002,

4. that the defendant undertook that development.

The evidence was clear that, prior to about 13 February 2002, car parking rarely occurred in the access track. During the period when the parking signs and ticket machines were present on the land, car parking occurred along the entire length of the southern boundary of the access track. By late March, by which time the parking signs and ticket machines had been removed, car parking was not occurring along the southern boundary of the access track. In fact, new signs prohibiting such parking had been placed along that boundary.

I find that a change of the use of the access track occurred and continued throughout the period alleged, from a use which could conveniently be characterised as parkland access track to parkland access track and commercial car park. The intensification of the car parking and the change in character from informal to commercial car parking make this conclusion inescapable.

The evidence of Mr Palumbo and Mr Smith is sufficient to prove beyond a reasonable doubt that no development approval had been granted for the use of the access track for a car park. There was no evidence that there had been at any time a lawfully existing use of the access track for that purpose.

The first three elements of count 1 are proven beyond a reasonable doubt. The fourth element is more complex. The evidence was that the defendant was linked to the development in this way:

1. The defendant gave Mr Palumbo a business card setting out the defendant's name, the words "Park Fast (Aust) Pty Ltd Trading as Park Fast", some addresses, a fax number and several telephone numbers, among them the mobile number set out above.

2. When Mr Palumbo telephoned the mobile number on 4 March 2002, the defendant answered the telephone.

3. The same mobile number appeared on at least one of the signs on the southern boundary fence of the access track throughout the period of use of the access track as a commercial car park.

4. The defendant was present on the access track on 4 March 2002, when Mr Palumbo and other Council officers visited the access track.

The Act provides, in Section 4(1):-

""to undertake development" means to commence or proceed with development or to cause, suffer or permit development to be commenced or to proceed."

I infer from the facts set out above that the defendant was proceeding with the use of the land for car parking within the period alleged, and was therefore undertaking a change of use of the land. I am satisfied beyond a reasonable doubt that the defendant undertook the change of the use of the access track to car parking within the meaning of Section 44(1) of the Act. In relation to Count 1, I find the defendant guilty.

In order to succeed in relation to Count 3 of the complaint, the complainant must discharge the onus of proof in relation to the same elements as for Count 1, with the difference that it must be proved that the defendant company undertook the development in the requisite sense.

I make the same findings in relation to elements 1 to 3 as in relation to Count 1. As in relation to Count 1, the most difficult question in relation to Count 3 is whether a sufficient nexus has been established between the undertaking of the development and the defendant company.

The evidence that the defendant company was linked to the undertaking of the development is this:

1. A Business Names Extract printed on 4 April 2002 showed that Park Fast (Aust) Pty Ltd ACN 079 791 478 was the proprietor of the business name Park Fast.

2. The words Park Fast in a logo design appear upon the defendant's business card, as do the words "PARK FAST (AUST) PTY LTD TRADING AS PARK FAST".

3. A logo which is similar, and may be identical, to the logo on the defendant's business card appeared on the parking signs on the southern boundary of the access track during the relevant period.

This is not sufficient to show beyond a reasonable doubt that the defendant company undertook the development. There could be many explanations for these facts. There was evidence that the defendant had, on behalf of Park Fast (SA) Pty Ltd ACN 098 130 128, executed an agreement with Riverside Rowing Club Incorporated and Pulteney Grammar School Incorporated in relation to a carpark on Allotments 102 and 103 in DP 33772. Mr Cuthbertson argued that this was a further fact from which an inference could be drawn linking the defendant company with the development. He acknowledged, though, that that evidence breaks both ways - it could be interpreted in the way Mr Cuthbertson argued for, or it could be taken as alerting one to the existence of at least one other company which is associated with the words "Park Fast", thus underlining the need for caution in drawing inferences from the appearance of those words on a sign, without more.

I find the charge against the defendant company not proven, and, therefore, I find the defendant company not guilty.

It necessarily follows from a verdict of not guilty on Count 3 that Count 2 fails.