Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Planning and development - Use of land for storage purposes - Not a permitted use - Courts and judges - Duty to differentiate between cases - Duty to give reasons - Whether adequate

Town Planning and Development Act 2005 (WA), s 218

1 McKECHNIE J: The appellants were each convicted after trial of an offence, charged separately against each of them as follows:

[B]etween the 9th day of April 2006 and the date of signing this Prosecution Notice [20 December 2006], both dates inclusive within the district of the City of Fremantle used the land (Lot 1 on Strata Plan 46066, House No. 25 Duffield Avenue, Beaconsfield) for the purpose of storage of materials without development consent required by the City of Fremantle Town Planning Scheme No. 3 and hence contravened the Scheme, contrary to Section 218(a) of the Planning & Development Act 2005.

2 Each appellant was fined $18,000. Each appellant lodged a notice of appeal against conviction and sentence.

3 Well before the hearing, the appellant in each case applied to amend the grounds of appeal and the respondent, while not consenting, was content to argue the amended grounds of appeal. I directed that the application for leave to appeal and the appeal be heard together and this is what occurred.

1. The learned magistrate made an error on a question of law by convicting the appellant (accused) of the offence nominated in the prosecution notice, given that the said notice, as particularised, did not disclose an offence known to law.
2. Alternatively, to ground 1 above, on the grounds that the conviction of the appellant occasioned a miscarriage of justice, by reason that the defect in the proceedings was of a fundamental nature.

5 The contention of the appellant in each case is one slightly different to the grounds of appeal. Rather than an assertion that there was no offence known to law in the prosecution notice, counsel's contention was that the prosecution notice, as particularised, required the prosecution to prove that their use of the land was without development consent. The magistrate found:

[I]f this kind of storage is indeed related to a separate business from the residential nature of the property it would be prohibited under the scheme where the premises are residential unless the storage was a use which was ancillary to the proper functioning of the predominant usage of residential. (ts 79)

6 In other words, it is submitted that the magistrate found a different case than that which is particularised. The contention must be rejected and grounds 1 and 2 are dismissed.

7 The City of Fremantle Town Planning Scheme No 3 relevantly provides:

1. Subject to clause 41, a person shall not commence development on land including the erection, alteration or addition to a building or use or change the use of any land, building or part of a building for any purpose -

(a) other than a purpose permitted or consented to by the Council in the zone or reserve in which that development is situated;

...

1. The consent of the Council is required for any development on land within the Scheme Area.

1. In determining any application the Council shall have regard to the purpose for which land is zoned or reserved under the Scheme, to the orderly and proper planning of the locality, to the preservation of the amenities of the locality and to the matters in clause 77 and shall have due regard to any planning policy statement adopted by the Council relating to specific areas, use classes or building types and may refuse its consent, or may grant its consent subject to such conditions, if any, it may deem fit. (See clauses 17, 42).

1. Table One sets out the purposes for which land is zoned, by indicating the uses permitted in the various zones and reserves, such uses being determined by cross reference between the list of use classes on the left hand side of the Table and the list of zones and reserves on the top of the Table and subject to the provisions of the Scheme. The symbols in the Table have the following meanings -

'P' A use that is permitted under this Scheme.

'IP' A use that is not permitted unless such use is incidental to the principal use as determined by the Council.

'AA' A use that is not permitted unless consent is granted by the Council.

'X' A use that is not permitted.

8 Under the land use Table One referred to in cl 28, storage in a residential zone is not permitted. It is marked with an 'X'.

9 Counsel submits that in cl 12 the words 'permitted or consented to' are to be read disjunctively. However, it is a case of the whole encompassing the part. Some land uses may be permitted if the consent of counsel is granted. In those cases, the prosecution would have to prove that the use for such a purpose was permitted but not consented to, and it would be necessary to prove the non-consent. If, as in the present case, a purpose is not permitted, it cannot be consented to. In the findings set out above, the magistrate did not find a case different from that particularised in the complaint because a non-permission under the scheme encompassed a non-consent.

1. The learned magistrate erred in law in failing to consider and direct herself that she was dealing with two separate trials, one against the appellant and one against the appellant's wife in No SJA 1022 of 2008, and in failing to identify the admissible evidence against this appellant and the admissible evidence against his wife, and by treating all the evidence adduced as admissible against this appellant.
2. Alternatively, the errors identified in ground 3 above constituted or caused a miscarriage of justice.

10 Each appellant was charged separately. There was a joint trial, but the magistrate was required to consider the case against each appellant separately.

11 The principal matter at trial and on which issue was joined was whether the part of 25 Duffield Avenue, Beaconsfield, that was separated from the house by an internal fence and on which there was a large shed, had been used for storage during the times specified in the prosecution notices. This issue was common to both appellants and the evidence of the prosecution substantially, though not entirely, as to the use which the prosecution alleged the land had been put during the relevant period was relevant in respect of both appellants.

12 In order to set in context the magistrate's decision in relation to the grounds of appeal, it is necessary to outline the evidence in the trial.

13 The prosecutor did not open the case so I shall set out the basic background. The appellants, Mr and Mrs Callan, are married and are the joint registered proprietors of land and a house at 25 Duffield Avenue, Beaconsfield. A business names extract (exhibit 13a) indicates that a company known as Callan Construction was registered on 13 April 1994 and the registration was cancelled on 22 May 2006. The partners in the business were the two appellants of 52 Jenkin Street, South Fremantle. A further business names extract (exhibit 13b) for Callan Constructions details the appellants as the persons carrying on the business, (date business commenced 5 August 2007).

14 A business names extract (exhibit 12) in the name of Callan Apartments indicates that the appellants are listed as the persons carrying on that business (commencing on 1 July 2005).

15 A certificate of title volume 2578 folio 199 indicates that the appellants were joint tenants of 25 Duffield Avenue, Beaconsfield, registered as such on 24 January 2005.

16 Approval to construct a shed on the property was granted on 7 June 2005 and thereafter the shed was constructed. The prosecution supported its case by the evidence of a number of neighbours and council officers.

17 The prosecution case was that the appellants used a portion of 25 Duffield Avenue for storage purposes that were other than ancillary to the residence.

18 Mr Botica lives at 23 Duffield Avenue and so he is the Callans' neighbour. He gave evidence (ts 2) that the shed construction was finished in the middle of 2006 together with a fence dividing the empty part of the property with the shed and the house. He gave evidence:

Well, after the shed is built he start bringing material in the shed and some material, it was stuck in our side, in the property, and on the side of our dividing fence.

... through 2006?---Well, he was coming with his truck there, sometimes bringing material, sometimes taking out material.

... some days you see him two, three times.

... Some days he come once, some days he didn't come there.

... Well, that was coming nearly every week. (ts 4 - 5)

19 He described a blue truck with a sign on the door Callan Construction. He saw Mr Callan many times. He described the material:

Well, there was a lot of times timber. Flooring, there was some paving bricks, there was some timber, like for construction timber, there was - few times he was unloading a lot of planks for (indistinct), Hardy planks.

...

Well, roughly I reckon there was between four to five cubic metres flooring. (ts 5)

... Many times I see him carrying material from shed. Sometimes got boxes, sometimes got different tools, equipment, like (indistinct) saw, like angle grinders, big one, like wheelbarrows.

... Once was six or seven wheelbarrows on the one cage, cage for carrying material or tools. In the cage. (ts 6)

21 On one occasion, Mr Callan was helped by a young man.

22 The prosecution tendered a number of photographs of 25 Duffield Avenue taken by Mr Botica. Mr Botica denied ever seeing any building materials used in the duplex house.

23 In cross-examination, Mr Botica said the photographs (exhibits 1 and 2) were taken in early June 2006. Photographs (exhibit 2) were taken one after the other and show flooring timber. Photographs (exhibit 5a - c) were taken early in July 2006 and the photographs were then sent to the city council.

24 Mr Botica said he had never been inside the house at 25 Duffield Avenue. There was a lot of work being done inside the house in March 2005, continuing through 2005, before the construction of the shed. He agreed there were skip bins outside and he heard working with a sledge hammer (which he presumed was taking tiles from the floor) and saw a man bringing in timber to put flooring in and kitchen cupboards. That was all in March and February 2005. He denied that the work continued in 2006. He said he did not go inside:

[b]ecause it was occupied, the house, with people living there. People was living in there and it was occupied with the short renting. One week or two weeks. People come and go, and you can see different cars, different people there, and they was renting that way. (ts 17)

25 He denied that after the property was rented there was work inside the house.

... January 2007, that was in the room before we went in the court and Mrs Callan said, 'We got a lot of property and we need a shed for storing material for maintaining our property.' This is what she said.

... And lawyer said to her, 'This is commercial usage.' This is what lawyer say to her. (ts 11)

27 The conversation with Mrs Callan outside the court was not the subject of any cross-examination.

28 Mrs Botica is the wife of Luka Botica and also lives next door at 23 Duffield Avenue. She said in mid to late May 2005 the shed was built:

What happened at the property after the shed was built?---They was bringing the materials, building materials.

... Every day, sometimes more than one time a day.

... With a truck. (ts 19)

29 She described the truck in terms similar to her husband, that is, a blue truck with the words Callan Constructions.

What would happen then when the blue truck would come to the property?---Sometimes they load materials, sometimes pick up materials. Sometimes was coming truck inside, sometimes was just from outside that fence. (ts 19)

30 She also gave evidence of the conversation at court:

Perhaps if you can recall January 2007, did you have a conversation or were you involved in a conversation with either of the accused at that time?---Only here in court in the presence of my husband and lawyer and my son was here.

Mrs Callan - - -

... she say that they have a lot of property, they are doing lots of work around Fremantle and they need to store material and tools and everything what they need to do the work, and the lawyer say, 'That is commercial.' (ts 20)

31 She also was not cross-examined about that conversation.

32 Ms Martin lives at 36 Duffield Avenue, on the other side of the road, about three houses down.

33 Ms Martin signed a petition in June 2006 in relation to 25 Duffield Avenue. Her evidence-in-chief did not seem particularly to advance the prosecution. However, in cross-examination, she said that she had the impression that she thought there was a blue truck that she saw at the premises between June and September 2006, perhaps two or three times a week. She did not see any indication of anyone living in the house. She did not see a car or person outside or anything happening. She was not aware of renovation work being undertaken on the property. In re-examination:

What did you base your impression on?---Well, the big shed, the road base, a huge fence, trucks delivering things, a truck, sort of, going in and out of there and it didn't appear to be a domestic. It appeared to be commercial, you know, and it didn't appear as if anyone was living in there and only ever now and again do you see a car there. Only every now and again. (ts 25)

34 At the relevant time, Mr Downes was the planning compliance officer at the City of Fremantle. He produced a download from a website entitled 'Callan Apartments Fremantle' (exhibit 11) describing the Duffield Avenue duplex house available to rent for $100 a night. The download was on 21 June 2006.

35 Mr Downes described an inspection of the property in August 2005 and some variations from the approval. He described a fence:

There had been a fence which had been constructed essentially at the rear of the dwelling and extended across to the side of the dwelling and then ran down to the front of the property. So, in essence, it isolated the shed which was under construction at the time from the residence.

... The fence was 1.8 metres high as I recall.

Was there any way of getting between the shed or getting to the shed from the house?---The only way was to actually exit the property and to go around the side. In addition to that, there had also been a new driveway constructed to that it had a separate driveway entrance to the shed. There had also been some inspection openings or plumbing fittings which had been installed and there was no toilet approved in the shed.

... there was a parapet wall along the back?---Yes.

... The wall had been constructed along the entire length of the shed. They actually did not complete that but the wall was still there, as I understand it and from my recollections, because it did jut out but the wall still remained. (ts 30 - 31)

36 Mr Downes wrote two letters to the appellants, one in August 2005 and one in September 2005, (exhibits 15a and b) advising the property is currently zoned residential and cannot be used for any other purpose. Those letters were addressed to both Mr and Mrs Callan:

On subsequent inspections of the property we identified that there were materials on site that would be associated with a business or a construction type business and that it did not appear to be being used for residential purposes.

What sort of materials did you see on the property? I take you to the period now particularly between April 2006 and December 2006. What materials did you see on the property during that time?---During that time I conducted a few inspections. On those inspections I have noted construction signs, there was also parts of wood, there was also scaffolding and also bricks.

And did you see any other tools or any materials of those types?---Neither tools - there were some paint tins there as well on occasion. (ts 32 - 33)

37 In due course, application was made for approval of the fence and was refused. In cross-examination he said (ts 39) that he went into the property in October after he had written the letter to the appellants (October 2005) and 'at that time I did not see any gate between the two'. He agreed that if a dwelling is not occupied but owned by a party who is carrying out some work at those premises, the activity of storing some materials in relation to that work would certainly not be an offence. He was asked what information led to the view that a construction business was being operated from the premises. He nominated the presence of construction signs, such as road work signage and a Rottnest Island sign, scaffolding which was only single storey scaffolding (at the time the scaffolding was there the shed had been completed), a pallet of timber of a type that might have been used in floorboards, a pallet of bricks and, at a later inspection, tins of paint, a very large quantity paint.

38 Mr Scott is employed as a compliance officer for the City of Fremantle and had done several inspections of the property between July and December 2006. He was asked what he saw when he carried out his inspections:

I saw building supplies basically, timber, limestone blocks, sheets of metal against the side of the other fence. There was a cement mixer, there were road signs and building signs that looked like Road Blocked, blockage signs, like that, and scaffolding. (ts 46 - 47)

39 He took some photographs on 21 December 2006 which were admitted into evidence. In May 2007, he saw both the owners of the property on site and the blue truck unloading cement bags and timber into the property. Mr Callan was unloading the truck while Mrs Callan was standing in the street having a look up the street.

41 Mr Callan's evidence was that between April and December 2006, he was building a shed and renovating the house at Duffield Avenue:

It was a major renovation. Kitchens, bathrooms, laundries, flooring, painting. Just the whole works. It was a complete regut.

In that period was the property occupied?---No. (ts 50)

42 He said in relation to the photographs the timber was used for the renovation. The blue truck was on Rottnest Island for approximately four months - June, July, August and September 2006 - and that he was on Rottnest at the same period. He came back twice in four months. He said the Rottnest Island sign was obsolete and he brought it home for use on shelving on the roof trusses. He described the presence of the wheelbarrow as a brick barrow to be used on the premises and also to move limestone for the soakwells. He conceded there would have been some paint seen by Mr Scott and Mr Downes because they painted the inside and outside of the house. The renovations did not finish until the middle of January 2007.

43 In cross-examination, he was asked about Callan Apartments which he said his wife ran and has about 14 apartments, most of which are short-stay accommodation. He explained that it had been advertised as refurbished in June 2006, but it was under construction. He said the refurbishment of the house took 18 months and he was doing it in his own time and not in any hurry. He explained the fence between the house and the portion of the property where the shed was stored as to keep it safe from the house, security, for safety reasons. He went on:

... the job took a long time so everything had to be, sort of, locked away and make sure it wasn't going to get stolen, so we fenced it all off. (ts 60)

44 He was asked about a comment when he spoke to somebody from the Fremantle Gazette and they asked about the shed and said:

... 'I'm a carpenter and I store my tools in the shed. I'm not hiding anything'- - -?---Well, I was working on it at the time. (ts 61)

45 He agreed he did not say to the reporter that he was restoring the house next door. He said he was not asked that question by the reporter. The tools he said he stored were the ones used in the house. He did not recall the conversation at the court with Mr Botica. He said he did not need a shed to store materials for the maintenance of the properties. He buys materials as he goes. He said there was a gate from the back of the house to the shed. The accounts were tendered in re-examination indicating that the truck went to Rottnest on 30 June 2006 and returned on 31 October 2006. It did not come back between those dates.

46 Mrs Callan gave evidence that she is married to Michael Callan and one of the co-owners of the property which was settled in January 2005. She said:

All right. We started the - we put a slab down for the shed about September 2005 and we commenced renovating the house about a month or so before that and we continued the renovations of the house throughout 2005 and 2006. We finished around December and we furnished it in January 2006. It was occupied then after that. (ts 66)

47 She was asked about the advertising and said that it was advertised at the time the renovations were underway:

Yes. No, we do that. We advertise the property straight away. We just block the calendar out for the - well, in this case we blocked it out for six months, and we make it available from January. So we just block the calendar out, make it available from January, so any inquiries that come in come in there. I've got one like that at the moment actually we're renovating and I've just advertised it because it gets you in the people for the peak period. (ts 66 - 67)

48 She described the renovations and said that 'we did the majority of it in 2006'. She was cross-examined about the advertisement and said that 'in June 2006, we knew exactly when we were going to be finished [the renovations]'.

49 She gave no evidence disputing the evidence of Mr and Mrs Botica concerning the conversation she had with them at the court house in January 2007.

50 The magistrate did not differentiate between the two appellants although, as she noted, and must have been well aware, there were two charges. After outlining the evidence and commenting upon it she concluded:

We have here isolation of the storage facility from the residence on the property, the matters I have already referred to, and when I weigh all that up at the end of that process I do not accept the accused's evidence that the materials present on the property at the relevant time - that is, during the period alleged in the complaint - was only there for the construction of the shed and the renovations to the house. I do accept that people had been living in that house prior to June 06, that the shed is a very large shed and I cannot imagine it would be just for the storage of proper materials while those two activities were going on. It is a very large shed and I accept on the evidence before me beyond reasonable doubt that the storage of tools and other building materials unrelated to the renovations and the building of the shed were stored on that property during the relevant time and are not ancillary to the predominant use of the property, which is residential. On those grounds, I find the charges are proved beyond reasonable doubt. (ts 80).

51 There were only two pieces of evidence that were admissible against one appellant but not the other appellant. The admission to a reporter about the storage of tools by Mr Callan was capable of being used in the case against him but not in respect of the case against his wife. The admission by Mrs Callan to the Boticas outside the court was capable of being evidence against her but not against her husband.

52 All the other evidence was common, and I include the evidence of the activities of Mr Callan on the property which is evidence against Mrs Callan if she was aware of it. Her admission to the Boticas in January 2007 is evidence of her knowledge of use of the property for storage.

53 The magistrate ought to have examined the evidence against each appellant and clearly delineated that which was admissible and that which was not admissible. In failing to do so she erred in law.

The effect of the error on Mrs Callan's case

54 I consider, in the circumstances, the error was harmless and occasioned no substantial miscarriage of justice. That is because of the unchallenged admissions by Mrs Callan to the effect that 'they have a lot of property, they are doing lots of work around Fremantle and they need to store material and tools and everything, what they need to do the work'.

55 I consider the error was a harmless error by the magistrate and occasioned no substantial miscarriage of justice. The evidence which the magistrate accepted was that Mr Callan was actively involved in the storage of materials on the property and she rejected the explanation that the materials were simply used for renovation of the adjacent house. The magistrate did not refer to the admission by Mrs Callan in the course of her reasons and the evidence of Mr Callan's involvement, which she did accept, is independent of the admission by Mrs Callan and stands separately.

56 Although I conclude that the magistrate did err in law in failing to direct herself she was dealing with two separate trials, in respect of each appellant, this error occasioned no substantial miscarriage of justice and the appeal on these grounds should be dismissed.

The learned magistrate erred in law in failing to identify as an element of the offence, that the appellant had personally used the property for a particular purpose. Accordingly, 'knowledge' was an element not identified or taken into account by the learned magistrate. The learned magistrate further erred in law by failing to make the necessary factual finding that the appellant had used the property for the purpose of the non-permitted use of 'storage'.

57 While I accept the submission of counsel for the appellants that the Town Planning Scheme does not provide that an owner is criminally responsible if the land is used for a non-permitted purpose, the magistrate did not decide the case on that basis. It was undisputed that the land had been used for storage of building and other materials and that each appellant knew of this. They each gave evidence of it. Their evidence that the materials were used for the renovation of the house at 25 Duffield Street was rejected. The magistrate clearly found, and it was open for her so to do, that the male appellant had been involved in the storage of goods during the time of the prosecution notice. The admission of the female appellant, to which I have referred, clearly establishes her knowledge, and at the least, her acquiescence in the use of property partly owned by her for storage purposes. A rejection of the appellants' cases that the materials stored were used for renovation necessarily is a rejection of the proposition that the use of the property for storage was for an ancillary purpose and therefore a permitted purpose.

The verdict of conviction was unreasonable and cannot be supported by the evidence.

58 This ground of appeal is not in proper form: Criminal Procedure Rules r 64(2)(b). As developed in argument, the ground seemed chiefly to relate to the location of a blue truck. The witnesses, particularly Mr Botica, gave evidence of a blue truck being on the premises from time to time. There was evidence from the appellants that, for a period from July to early October 2006, the blue truck was on Rottnest Island.

59 The magistrate dealt with the issue of the blue truck being on Rottnest for a period between July and the first week of October 2006. She did not reject that evidence but held, notwithstanding:

It does not detract to some extent at least from the other evidence regarding storage of the building materials on the property during that time but, of course, the accused (indistinct) denying that and saying that it primarily, if not exclusively, related to the two jobs he had at that address; the house renovations and still building of the shed, but (indistinct) as I say, the house apparently had been occupied, according to neighbours, and (indistinct) exhibit 11. (ts 79)

60 Although Ms Martin's evidence might be characterised as vague and imprecise, the evidence of Mr and Mrs Botica, the evidence of Mr Downes in respect of the fence and his observation between April and December 2006, and the evidence of Mr Scott during his inspections between July and December 2006 was precise, capable of belief and the magistrate did believe it.

The learned magistrate erred in law in failing to give adequate reasons for convicting the appellant.

62 A magistrate is required to give reasons: Magistrates Court Act 2004 (WA) s 33. Counsel for the appellant submitted that the duty also arose under the Criminal Procedure Act 2004 (WA) s 65(3) which reads:

To the extent that the procedure to be followed by a court of summary jurisdiction in a trial is not in this Part or Part 5, the procedure to be followed is to be the same as that followed in a criminal trial in the Supreme Court without a jury.

63 Part 4 Division 7 deals with trial by judge alone. Section 119 is entitled 'Law and procedure to be applied' and s 120 is entitled 'Judge's verdict and judgment'. It is not necessary to decide whether s 65(3) picks up s 119 only or also includes s 120 which requires by s 120(2) and s 120(3):

(2) The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.

(3) The validity of a trial judge's judgment is not affected by a failure to comply with subsection (2).

64 The reason it is not necessary to decide is that it must be accepted that there is, in any event, a common law duty and the duty under the Magistrates Court Act s 33 to which I have referred to make findings of fact. There is no set formula as to what will be adequate. The answer will vary from case to case.

33.1 did not identify the elements of the offence;

33.2 did not identify what evidence adduced was admissible against this appellant;

33.3 failed to critically examine the prosecution evidence; and

33.4 failed to make any necessary findings in relation to each element based on the reliability of the prosecution witnesses. (Reliability was a critical issue not addressed at all in the learned magistrate's reasoning).

67 The magistrate outlined the charges, summed up the evidence of all the witnesses, including the two appellants, briefly outlined her reasons as to why she accepted the prosecution case and rejected the defence case (ts 80). As the issues were joined, this was not a complex case and the magistrate was not required to do any more. The magistrate's reasons adequately explain her findings.

Conclusion on leave to appeal against convictions

70 I have found that the magistrate did make one error of law in the case of each appellant. Notwithstanding that error of law, in each case I have concluded that the appeals should be dismissed because there is no substantial miscarriage of justice.

71 The maximum penalty in respect of each appellant was a fine of $50,000. The magistrate heard submissions on penalty and then said:

Yes, well, Mr and Mrs Callan, I have to impose a fine because that is the only penalty available here, there is no other penalty, and the maximum fine is $50,000 against each of you. Now, I do not know whether it would have been a lot cheaper for you to go and find somewhere else to store this gear or buy another property for it. It is true that your using this property for storage was outside what is permitted for residential usage and it was done, I have found, to assist you in the storage of your building materials for your other business of building. So there is that commercial element to it.

As I say, I do not know whether it would have been cheaper for you to do that rather than have to pay these fines but having regard to the maximum and all the circumstances that I have heard in the evidence leading to this finding, I am going to impose fines of $18,000 on each of you plus divide the costs of $2000 on each of you. So that is a total of $20,000 in fines and costs imposed against each of you. (ts 83 - 84)

72 She noted that there was a commercial element to the breach.

73 The grounds of appeal in each case in relation to penalty are:

The fine of $18,000 was manifestly excessive being outside the range open in the proper exercise of the sentencing discretion having regard to the applicant's lack of prior convictions and the actual criminality of the conduct involved.

Particulars

(a) The maximum penalty available under s223 of the Planning and Development Act 2005 was $50,000;

(b) The accused was a first offender;

(c) The learned Magistrate purported to impose a penalty reflecting the commercial gain derived by the accused when there was no evidence of such gain or the value thereof;

(d) The applicant's co-owner and co-accused was also fined $18,000 and the net result was to impose a gross monetary penalty of $36,000 between the two accused for the one offence.

74 In the way the trial proceeded and in the factual circumstances, the real question is not whether a fine of $18,000 on each appellant was reasonable but whether a fine of $36,000 levied against the joint owners of the land for breach of the by-laws was manifestly excessive. Stated this way, I am persuaded that it was. A property was used for an extended period in 2006 in a non-permissible way. It is not apparent from the evidence of the prosecution witnesses that there was any special or unusual nuisance, noise or inconvenience associated with the use of the property beyond that which might be expected for a building storage yard in a residential neighbourhood. The appellants, and I advisedly join them together, were each relevantly first offenders. No information whatever was put forward by defence counsel as to their means to pay. The appellant draws attention to Peat Resources of Australia v City of Cockburn [2002] WASCA 342:

In Peat Resources of Australia Pty Ltd v City of Cockburn [2002] WASCA 342 the Appellant conducted a large scale commercial business of storage and stock piling of soils and other materials, including manures and organic material, together with activities involving screening and mixing to form blended soils and manures and the loading of this product onto trucks to be taken from the site. The Appellant traded under the name Soils Aint Soils and involved between 300,000 and 400,000 tonnes of soil on the site with a procession of trucks in and out of the property all day. [55]

75 In that case there had been six previous convictions for unlawful land use at the same site over a seven year period. A fine of $50,000 with a daily penalty of $200 per day for a period of 362 days, which totalled $72,400, was upheld on appeal. It was 20% of the maximum available for a corporate offender. In Kwa v City of Stirling [2001] WASCA 370 the appellant was charged with three offences of using the land contrary to the provisions of the Town Planning Scheme by conducting a backpackers hostel on three lots. There had been previous convictions and a long history of unlawful of the land over several years. A single penalty of $10,000 together with a daily penalty of $100, was upheld on appeal.

76 In Basso-Brusa v City of Wanneroo [2003] WASCA 103, development approval had been given to build a shed for a sawmill machine and to use the site for storage of timber and logs. The appellants used a chainsaw to cut timber in the storage area rather than within the shed where the sawmill operation was approved. This involved 20 to 30 minutes of chainsaw operation in the storage area every day.

77 Individual offenders were fined $10,000 each, and the corporate appellant fined $20,000. The magistrate viewed five charges as one and applied a global penalty.

78 In Popelier v Haeren [2004] WASCA 13, the appellant carried on a motor vehicle assembly and repair business in a residential zone. A fine of $5,000 was upheld. In doing so Wheeler J said:

It seems to me in those circumstances that it was not a crushing burden, as understood in the context of the totality principle, to require the appellant to pay the costs incurred in bringing the prosecution, which was successful, and to pay a fine which represented but one-tenth of the maximum available for the offence. This is particularly so in circumstances where, as I have noted, the offence was one which was not simply a one-off isolated instance but which continued for a period of time after notice was received from the council of its concerns and its intention that the situation be rectified. [41]

79 Even taking into account the period over which the offences occurred against the background of a warning from the Council, the total penalty of $36,000 and therefore of necessity the individual penalties of $18,000 are so far beyond the range of penalties normally imposed for offences of this nature that the penalties in each case manifest error.

80 I will set aside each fine and hear the parties as to an appropriate fine to be imposed.