File No : AR 5710 of 2012, AR 5711 of 2012

Criminal law - Prosecution appeal against acquittal - Breach of planning law - Whether magistrate made errors of law - Whether land used for vehicle wrecking - Whether activity was incidental to a permitted use - Whether the respondent aided another to commit an offence

Planning and Development Act 2005 (WA), s 218, s 223

1 On 24 April 2013 the respondent was acquitted after a trial in the Magistrates Court of two charges of carrying on a vehicle wrecking use on land without approval contrary to the City of Armadale Town Planning Scheme No 4 (the Scheme) and s 218 of the Planning and Development Act 2005 (WA). The City of Armadale (the appellant) now seeks leave to appeal against those acquittals.

2 The respondent was served with the appeal papers but failed to file a notice of intention to be heard. In these circumstances he was not entitled to participate in the appeal: r 67(4) Criminal Procedure Rules 2005 (WA). However, a notice of the hearing date was sent to him by the court. He did not appear at the hearing. In these circumstances I considered it appropriate to proceed with the hearing.

3 The appellant contends that the magistrate made errors of law in his reasons for decision. The appellant contends that on the findings of fact made by the magistrate the respondent should have been found guilty on the basis that he aided or abetted the commission of an offence by another and was therefore liable to be convicted pursuant to s 7(c) of the Criminal Code (WA). The appellant also contends that the magistrate erred in law by finding that the respondent's use of the property for vehicle wrecking was permitted because it was incidental to use of the property as a dwelling house. It is submitted that incidental activities cannot include uses which are otherwise prohibited. Further, the appellant contends that the magistrate erred by taking into account an irrelevant consideration in deciding whether or not to convict the respondent, namely whether vehicles could be seen from the road.

4 For the reasons that follow I have concluded that none of the grounds of appeal has a reasonable prospect of succeeding. Accordingly, leave to appeal is refused and the appeal is dismissed: s 9 Criminal Appeals Act 2004 (WA).

5 The appellant does not dispute the findings of fact made by the magistrate. I will draw upon those findings to give the following summary of the background.

6 The respondent is the registered proprietor of a house in Armadale. He moved into the house in late 2007 or early 2008 with his parents. Some time in 2011 or 2012 the respondent's father died and since that time he has lived at the property with his mother.

7 The property comprises approximately 800 square metres of land. It is rectangular in shape with a street frontage of 20 metres and side boundaries of approximately 40 metres. The front yard is 175 square metres and the rear yard, including a pool and some buildings, occupies approximately 425 square metres. The house is approximately 250 square metres, including a courtyard. The house is situated in a residential area with similar houses on each side.

8 The relevant dates for the purposes of the charges are, for charge 1, 26 May 2011 and, for charge 2, between 14 September 2011 and 25 September 2012. As at 26 May 2011 there were five vehicles at the property. One of the vehicles, a white Audi, was owned by the respondent. Three vehicles were owned by the respondent's father (or if he was then deceased by the respondent's mother who had inherited them), being a green Ford Granada and two Ford Cortinas. The fifth vehicle, a maroon Mitsubishi Magna, was owned by Peter Sulley. At that time Mr Sulley was the partner of the respondent's sister. All of the vehicles, other than the white Audi, were in various states of disrepair.

9 As at 26 May 2011 the white Audi was in a reasonable state of repair and was regularly driven by the respondent. It was not one of the vehicles that were the subject of the first charge. There was no suggestion, and no evidence, that it was being dismantled as at 26 May 2011.

10 As to the Ford Granada and the two Ford Cortinas, these appear to have been registered in the name of the respondent's father. There was no evidence at the hearing as to when the respondent's father had died. If he was still alive as at 26 May 2011 then the vehicles were owned by him. If he was deceased by that date they had been inherited by the respondent's mother.

11 The green Ford Granada was in a state of disrepair under a carport attached to the house. This car appeared to be being restored. The paintwork in parts were in excellent condition. However, the bonnet had been taken off and placed in the courtyard. A large part of the engine was missing and part of it was lying alongside the vehicle in the carport. There was no evidence that the respondent did any work on the vehicle on 26 May 2011. However, at some point either before or after that date he had assisted his father in some repairs or restoration work to the vehicle. The magistrate found that this had occurred on a relatively few number of occasions and that most of the restoration work took place off site. The respondent's involvement in restoring the vehicle occurred on less than ten occasions and may have been as few as one or two.

12 The two Ford Cortinas, one light blue and one dark blue, were also in a state of disrepair. The dark blue vehicle was missing wheels and its body was in a very poor condition. Both of these vehicles were located to the side of the house on the western boundary behind fences. These vehicles were not visible from the street. There was no evidence that the respondent had done anything with respect to those vehicles other than push them to a more convenient location at the request of his father or mother.

13 Some time prior to 26 May 2011 Mr Sulley asked the respondent if he could leave his vehicle, the maroon Magna, at the property. The respondent agreed and sometime later Mr Sulley commenced work on the vehicle. As at 26 May 2011 the Magna was in a state of disrepair in the front yard. It was missing a door and a bonnet, windscreens and some panels. Seats had also been removed. The respondent was living at the property at this time and the magistrate found that he must have been aware that Mr Sulley had commenced to dismantle the Magna. Whilst his permission to do so had not been sought he did nothing about it, though he did not encourage Mr Sulley. However, sometime after 26 May 2011 the respondent became aware that Mr Sulley had commenced selling parts from the Magna. He then instructed Mr Sulley to remove the vehicle.

14 As regards the 12 month period covered by charge 2, that is from 14 September 2011 to 25 September 2012, the green Ford Granada and the light blue Ford Cortina were both present at the beginning of that period. There had been no change to the condition of those vehicles. Activities in relation to these vehicles were of the same nature as previously. That is to say some restoration work may have been undertaken in respect of the green Ford Granada but, other than being moved, nothing was done in respect of the light blue Cortina. The green Granada was removed at some point after 17 January 2012. The light blue Ford Cortina was removed some time between February 2012 and 6 April 2012.

15 At some time during the period covered by charge 2, the white Audi had become undriveable because of a mechanical issue related to a head gasket. It remained on the property until it was towed away on the respondent's instructions some time between February and April 2012.

16 A white Mitsubishi Magna was also on the property during this period. There was evidence of some body damage of a relatively minor nature to the rear of the vehicle. The respondent was the owner of the vehicle, having acquired it from his sister around about the time of his father's death. The vehicle was not able to be driven and had no licence plates. It remained on the property, in various places, including for a period at the side of the house behind the front gate, until it was removed on a date between February and April 2012.

17 Also present on the property at the commencement of the charge period was a VC Commodore owned by the respondent. It was the respondent's main means of transport until it had a serious mechanical problem some time between September and December 2011. It remained on the property for the remainder of the charge period.

18 Some time around January 2012 the respondent acquired a dark coloured Lancer. The condition of the Lancer was not the subject of detailed evidence. It was present at the property at least from 8 January 2012 for the remainder of the charge period.

19 The magistrate noted that the charges alleged that the respondent had carried out vehicle wrecking on the land and that this was a prohibited use because the land was zoned residential. His Honour noted that the definition of 'vehicle wrecking' in the Scheme was 'any land or buildings used for the breaking up, dismantling or storage of vehicles, and may include the sale of second hand parts and accessories'.

20 The magistrate identified two critical issues. The first was whether the respondent's conduct in relation to the vehicles was incidental to a use permitted in a residential zone. In that regard, his Honour said:

Clause 4.4.4 of the scheme, effectively provides that if the use of those vehicles was incidental to a permitted use, then Mr Hendry must be acquitted. To a similar effect, clause 8.2 subclause (g) permits a domestic recreation or social activity ancillary to a residential use and if Mr Hendry's conduct in relation to the vehicles can be characterised in that way, he must be acquitted. I will say now what my conclusion is at the end of the case in relation to those issues, really to aid the parties to follow my reasons. I have concluded that Mr Henry's conduct with respect to all of the vehicles, except in relation to Peter Sulley's maroon Mitsubishi Magna, falls within the definition of being incidental to a permitted use in a residential zone (ts 24/4/13, page 3 4).

21 The magistrate said that the second issue was to decide whether the respondent's conduct, if it was not incidental to a permitted use, fell within the definition of 'vehicle wrecking'. In this regard, his Honour considered whether the respondent had been engaged in vehicle wrecking himself or had aided another, namely Mr Sulley, in vehicle wrecking. As to this issue, his Honour said:

On the second issue, I have concluded that Peter Sulley's conduct with respect to charge number 1, falls within the definition of vehicle wrecking as dismantling and storage. However, the prosecution has failed to prove that Mr Hendry aided Mr Sulley in the dismantling or storage and has failed to prove that he did an act for the purpose of aiding Mr Sulley in the dismantling and the storage. The result is that Mr Hendry will not be convicted as an accessory. The result will be at the end of my reasons that Mr Hendry will be acquitted of the charges, both charge 1 and charge 2 (ts 24/4/13, page 4).

22 His Honour's conclusions in respect of each of these issues were supported by detailed reasons. As to the first issue, his Honour said that vehicles owned by the respondent had suffered mechanical failures or been in collisions. This had tended to occur serially. Whilst there were a number of vehicles present at the property during the relevant periods, the trend was downwards. After April 2012 there were only two vehicles present and the respondent was taking steps to remove those vehicles. There were four vehicles present for a relatively brief period from January 2012 to April 2012.

23 In regard to the respondent's conduct in relation to the vehicles, his Honour noted that the respondent's father had undertaken restoration work of the green Granada. This was described as being 'a classic hobby' which was incidental to the domestic use of the property. The respondent's role was to provide occasional assistance to his father. After his father's death the vehicle was retained on the property. His Honour found that use of the property to store vehicles that had been inherited in this way was incidental to the dwelling house use.

24 As regards the maroon Magna, his Honour noted that at some point Mr Sulley had engaged in dismantling of this vehicle and that the parts had been spread over the front yard. His Honour formed the view that this use of the property by Mr Sulley was not incidental to a dwelling house use because there were too many parts over too wide an area. However, there was an issue as to whether the respondent had aided Mr Sulley in the dismantling or storage of that vehicle. There was no evidence of the respondent having done anything on 26 May 2011. However, his Honour assumed that Mr Sulley's conduct before that date in dismantling the vehicle could be said to have been continuing on that date.

25 The magistrate found that the respondent initially granted permission to Mr Sulley to leave an intact vehicle at the front of the property. He did not give permission for the dismantling though it was accepted that he must have been aware that that was occurring. His Honour found that such awareness alone was not sufficient to constitute aiding for the purposes of s 7 of the Criminal Code.

26 As to the other vehicles the subject of both charges 1 and 2, his Honour noted that there was no evidence of dismantling and that the prosecution case relied upon the reference in the definition of 'vehicle wrecking' to storage of vehicles. His Honour said that the reference to storage in the definition must be to the storage of vehicles which are being broken up or dismantled on the land. He noted that there is a separate use in the zoning table of 'storage' which means, 'premises used for the storage of goods, equipment, plant or materials'. The storage use category will cover situations where vehicles are merely stored and not dismantled. His Honour thought it unlikely that there would be overlap between the use categories and this led to a conclusion that storage, when referred to in the definition of 'vehicle wrecking' must be confined to the storage of vehicles that were in the process of being broken up or dismantled. His Honour also noted that vehicle wrecking is a prohibited use in all zones except the 'general industry' zone. His Honour thought it unlikely that the storage of vehicles which were not being dismantled or broken up was intended to be prohibited in all such zones. Thirdly, his Honour said that unless the reference to 'storage' in the definition of 'vehicle wrecking' was interpreted in the way he suggested, there was potential for inconsistency in relation to other aspects of the scheme regarding the regulation of car parking.

27 In summary the magistrate's conclusions were that the only cars which had been subjected to breakingup or dismantling were the green Ford Granada and the maroon Magna. The other vehicles had merely been stored at the premises, but without any associated breaking up or dismantling the presence of those vehicles did not constitute a vehicle wrecking use of the land. As regards the green Ford Granada the activity in respect of it was said to be incidental to residential use of the land, and therefore, not prohibited. As regards the maroon Magna, the activity in respect of it did constitute vehicle wrecking but that activity was engaged by Mr Sulley and had not been aided by the respondent.

1. That His Honour erred at law by finding that Mr Hendry did not aid or abet the vehicle wrecking taking place at the premises in relation to the vehicle owned by Mr Sulley being a maroon Magna (See the definition of vehicle wrecking at page 100 of the City of Armadale Town Planning Scheme No 4 ('The Scheme'));
2. That His Honour erred at law by finding that Mr Hendry's use of the property for vehicle wrecking in respect of the Green Granada and two ford Continas was incidental to the permitted use of Dwelling House and fall [sic] within the use of Domestic Recreation, notwithstanding the prohibition of the use of vehicle wrecking in the Zoning Table for residentially zoned areas.
3. That His Honour erred by taking into account for the purposes of whether to convict or not, whether a vehicle which was alleged to be part of a charge of vehicle wrecking, could be seen from the road.

29 The appellant was charged under s 218 of the Planning and Development Act. That section provides as follows:

Planning scheme or condition on development, contravening etc.

A person who -

(a) contravenes the provisions of a planning scheme; or

(b) commences, continues or carries out any development in any part of a region the subject of a region planning scheme or any part of an area the subject of a local planning scheme or improvement scheme otherwise than in accordance with the provisions of the planning scheme; or

(c) commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply with any such condition,

30 Section 223 of the Planning and Development Act provides as follows:

General penalty

Unless otherwise provided, a person who commits an offence under this Act is liable to a fine of $200 000 and, in the case of a continuing offence, a further fine of $25 000 for each day during which the offence continues.

31 The relevant Scheme in this case was The City of Armadale Town Planning Scheme No 4. The Scheme classifies land into various zones. The zoning of land affects what types of use of that land are permitted. The respondent's land was at all relevant times zoned residential.

32 Clause 4.3 of the Scheme provides a zoning table which indicates the uses permitted in the Scheme area in the various zones. Vehicle wrecking is not permitted in a residential zone. Permitted uses include, 'recreation - domestic' and 'single house'. Clause 11.4.1 provides that a person must not use any land otherwise than in accordance with the Scheme.

33 Schedule 1 of the Scheme provides a dictionary of defined words and expressions. The definition of 'vehicle wrecking' is 'any land or buildings used for the breaking up, dismantling or storage of vehicles and may include the sale of second hand parts and accessories'. This definition was modified on 7 February 2012 (Western Australia, Government Gazette, No 17, (7 February 2012) 640). Prior to that date the definition was 'any land or buildings used for the breaking up, dismantling or storage of vehicles and includes the sale of second hand parts and accessories'. That is to say, the word 'may' was inserted immediately before and the 's' removed from the word 'includes'. The amendment appears to have been made to make it clear that the sale of parts was a possible, but not necessary, component of vehicle wrecking. That change occurred after the date of the first charge and during the period covered by the second charge.

34 There was no reference to the amendment in the magistrate's reasons. Whether this was because it was not drawn to his attention or because it was not thought to be material is not apparent. Given that the only allegation of selling parts was by Mr Sulley prior to the amendment there may have been a question as to whether the respondent's activities prior to 7 February 2012 fell within the terms of 'vehicle wrecking' as it then stood. But this issue was not raised at either the trial or the appeal. In the circumstances I will assume, without deciding, that the essential meaning of the definition did not alter. It is unnecessary to decide this question because, in my view, the appellant's grounds cannot succeed in any event.

35 The definition of 'single house' states that it has the same meaning as the Residential Design Codes. The State Planning Policy 3.1 Residential Design Codes defines a single house as 'a dwelling standing wholly on its own green title or survey strata lot, together with any easement over adjoining land for support of a wall or for access or services and excludes dwellings on titles with areas held in common property'. The word 'dwelling' used in that definition is defined to mean 'a building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, single family, or no more than six persons who do not comprise a single family'.

36 Clause 4.4 of the Scheme provides for interpretation of the zoning table. That clause provides as follows:

4.4.1 Where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.

4.4.2 If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the City may -

(a) determine that the use is consistent with the objectives of the particular zone and is therefore permitted;

(b) determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or

(c) determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.

4.4.3 Where a person proposes to carry out more than one use on land, each individual use shall be required to meet the requirements of the Scheme.

4.4.4 Where a use is mentioned in the Zoning Table, it is deemed to include activities incidental to that use.

NOTE: While the use of land, which is incidental to a predominant use is provided for under the scheme, such use may be subject to limitation and/or control under the scheme. For example, incidental car parking may be subject to restrictions on location, design and number in conjunction with a planning approval or otherwise as provided for under the Scheme.

37 The Scheme is clearly intended to govern 'uses' of land. Land may be used for more than one purpose. In that case each use must be permitted or approved. However, not all activities on land constitute the use of that land. Some activities may be merely incidental to a permitted use. Whether a use is a distinct and separate use or is merely an incidental part of a permitted use will depend upon the regularity and extent of the activity. As the note to cl 4.4 indicates incidental activities may be the subject of limitation or control under other provisions of the Scheme, but that is not relevant for present purposes. It was not alleged that the activities here were contrary to any provisions other than those dealing with permitted uses.

38 In Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211, 216 217 Gibbs CJ said:

Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree.

39 The principle referred to in Lizzio has been applied in many cases, including in this court: Clay v City of Nedlands [2012] WASC 402.

40 This ground relates to the dismantling of the maroon Magna by Mr Sulley. The prosecution case was that the respondent had aided Mr Sulley in dismantling the Magna by permitting him to leave the vehicle and not requiring him to remove it when it became obvious that dismantling was occurring. His Honour's conclusion was that whilst this activity was not incidental to the residential use of the land, the respondent did not aid Mr Sulley by merely being aware that the dismantling was occurring and doing nothing to stop it.

41 Whilst there is no doubt that s 7 of the Criminal Code has broad application, and in particular applies to offences under the Planning and Development Act, it must be doubtful that Mr Sulley could properly be characterised as a principal offender in this case. The requirement to comply with the Scheme falls principally upon those who own or occupy land. Mr Sulley was not such a person. He was merely an invitee. The real question was not whether the respondent aided Mr Sulley but whether the respondent breached the Scheme by either himself wrecking vehicles or permitting others to do so on land that he owned.

42 This conclusion is reinforced by the fact that there was no suggestion that Mr Sulley had been or would be charged. It is also supported by the fact that the first charge did not relate only to the maroon Magna but to other cars present on 26 May 2011, being the green Granada and the two Ford Cortina's. The prosecution case was that it was the combination of all activities in relation to the vehicles that amounted to a prohibited use. It would be inconsistent to allege that the respondent's liability arose cumulatively from him being both a principal and an aider in respect of different parts of the same conduct.

43 The findings of the magistrate were that the respondent had granted permission for Mr Sulley to leave the Magna on the land. This had not included permission to dismantle the vehicle. However, Mr Sulley proceeded to dismantle the vehicle and parts were spread across the front yard. The respondent was living at the premises at the time and must have been aware that the dismantling was occurring. He did nothing to stop this until becoming aware that Mr Sulley was selling parts. He then instructed Mr Sulley to remove the vehicle. It may be that it is possible to infer from this that the respondent gave implicit, though limited, permission to dismantle the vehicle and thereby allowed his property to be used for the purposes of vehicle wrecking. But that was not the issue argued on the appeal.

44 The ground as framed is misconceived. Properly understood, the liability of the respondent never depended upon him being an aider to Mr Sulley's activities. Accordingly, whether or not his Honour made an error of law in regard to what was necessary for the respondent to be liable as an aider pursuant to s 7 of the Criminal Code was immaterial. Whether or not, if the case had been presented differently by the prosecution, his Honour would have found that the respondent was liable for the vehicle wrecking undertaken by Mr Sulley because he had permitted it to occur cannot be known. It would not be appropriate to allow this appeal on some basis other than that advanced at the hearing and on appeal.

45 This ground is based on the false premise that the respondent could be liable as an aider. The ground is not reasonably arguable and leave in respect of it must be refused.

46 The appellant does not dispute the magistrate's characterisation of most of the respondent's conduct as incidental to residential use of the land. The proposition is not that these activities were not incidental but, rather, that only certain activities are permitted under the incidental exception in cl 4.4.4 of the Scheme.

47 The respondent submits that activities incidental to a permitted use cannot include uses which are specifically prohibited. The effect of this argument is that vehicle wrecking is never permitted even if it is incidental to use of the premises for a residence. The appellant submits that an owner of land therefore can never engage in vehicle wrecking by breaking up, dismantling or storing their own vehicle if their land is zoned residential under the Scheme.

48 I am unable to accept the appellant's argument. The Scheme is concerned with uses of land, not with all human activity. Whether land is used in a particular way must always be a question of fact and degree. Not all human activity however brief, transient or superficial will constitute a use of the land on which it occurs. A clear distinction is drawn between 'activities' and 'uses'. The exception for incidental 'activities' supports this distinction. The exception recognises that the use categories will not always have precise boundaries. Some activities may not obviously be included under a particular use as defined but will be so clearly incidental to that use that it would defy common sense to suggest that it is not within the ambit of the permitted use. The Scheme is prescriptive but it is also intended to be practical.

49 Counsel for the appellant submitted that incidental activities could only include those activities that would be permitted under some other category of the zoning table and not those that were expressly prohibited. This argument conflates 'activities' and 'uses'. Furthermore, if correct it would raise a question as to the purpose of the incidental exception. Activities that would otherwise fall under a permitted use would obviously be permitted whether they were incidental or not. If the incidental exception has any purpose it must be to permit activities that might, if they were not merely incidental, be prohibited. This is illustrated by looking at other use classes in the zoning table. Amongst the prohibited uses in a residential zone is 'motor vehicle repair'. This term is defined in sch 1 to mean:

(a) electrical and mechanical repairs, or overhauls to vehicles; or

(b) repairs to tyres;

but does not include premises used for recapping or retreading of tyres, panel beating, spray painting or chassis reshaping.

50 The appellant submitted that the owner of residential premises could never lawfully repair their own vehicle as such a use was prohibited and in those circumstances could not fall within an incidental activity. This would include, apparently, changing a flat tyre. The same would apply to car parking and storage, both of which are also prohibited in a residential area. The absurdity of this result weighs strongly against the appellant's argument.

51 The appellant submitted that if incidental activities could include land uses which are specifically prohibited under the zoning table this would be contrary to the purpose and object of the Scheme.

52 Clause 4.2.1 provides that the objective of the residential zone is:

(a) to provide for a range of housing and a choice of residential densities to meet the needs of the variety of household types which make up the community;

(b) to provide for a range of associated compatible activities and development, which will assist in the creation of efficient and sustainable residential neighbourhoods; and

(c) to facilitate and encourage high quality design, built form and streetscapes throughout residential areas.

53 Whether or not an activity would be incompatible with these objectives would largely depend not only upon the nature of that activity but on the size and frequency of it. If a prohibited activity occurred with sufficient frequency and was of sufficient size that it could be properly designated as a use of the land then it would be prohibited under the zoning table. However, if it was an infrequent activity and clearly related to the permitted use of the land as a dwelling then it is difficult to see why that would be inconsistent with the object of the residential zone. If activities are truly incidental to use of the land for residential purposes then they must be 'associated compatible activities'. To suggest that some activities which are properly incidental to residential use are prohibited because if they became a use in their own right they would be prohibited is to read into the Scheme a level of management of human conduct that it does not purport to cover. As I have noted earlier, the Scheme is concerned with uses of land, not with regulating all human activity that could not properly be described as a use.

54 The appellant referred to a number of cases, but accepted that none of them specifically supported the argument that was raised in respect of this ground of appeal. The cases referred to were City of Armadale v Chapman [2012] WASC 423, Popelier v Haeren [2004] WASCA 13 and Foodbarn Pty Ltd v The Solicitor General (1975) 32 LGRA 157.

55 In Foodbarn there was an issue as to whether premises were being used as a 'shop'. The definition of 'shop' in the relevant planning law included reference to a building 'used or intended for use for the purpose of selling, exposing or offering for sale' retail goods or merchandise. This raised a question of whether a building used for the multiple purposes fell within the definition. There was also an issue of whether a prohibited use was the dominant of subservient use. Glass JA (with whom Samuels and Hutley JJA agreed) held that a prohibited activity was not acceptable if it was allied to a permitted activity. His honour said that where premises were used for two or more purposes it was irrelevant to inquire which was dominant; each use which is independent 'and not merely incidental' must comply with the relevant planning law (p 161). Clearly the decision in Foodbarn does not assist the appellant. It deals with multiple uses and specifically excludes incidental activities.

56 In Popelier the issue was whether motor repairs undertaken by the appellant were prohibited as constituting a prohibited use of the land for 'industry - general' purposes or whether the repairs were being engaged in as merely a hobby. In this regard Wheeler J (as she then was) referred to the question of whether an activity is merely incidental as being one of fact and degree and quoted from Lizzio. Her Honour said that the mere fact that something is a hobby rather than a commercial enterprise does not mean that it is for that reason incapable of falling within the definition of 'industry - general'. In that case, there were a very large number of cars on the property as well as car bodies, axles, tyres, car rims, disassembled vehicles, hoists, acetylene bottles, air hoses and the like throughout the yard. The dismantling, servicing and repair of vehicles had continued over a lengthy period and the appellant's evidence in trying to minimise the nature of the activity was described by the magistrate as an attempt to mislead the court.

57 In Popelier Wheeler J referred to a decision from South Australia which she described as useful:

There is a further useful passage to similar effect which originated as part of a decision of the Planning Appeals Tribunal in South Australia but which for present purposes is quoted in City of Noarlunga v Fraser (1986) 42 SASR 450:

There are many uses which, as a matter of fact, are part of such ordinary residential use. Some of these activities involve erection of structures, for example, the television aerial - quite high in some areas - the potter's kiln, the carpenter's shed, trellising, swimming pools and tennis courts, with or without electric lights. Yet no one would suggest that such uses were other than part of the ordinary residential use. As such, some building consent may be necessary, but in normal circumstances, if the use is the type of residential hobby that one associates with ordinary living, no planning consent would be suggested. It is, however, possible that some extreme cases even in that range of 'hobby use' may need planning consent, if for example, the particular use, although of the same nature as the norm, was so out of line with that usually practised as to be considered abnormal and unusual. We have in mind the extraordinarily large kiln for pottery purposes, perhaps the high diving board associated with the swimming pool, something quite out of line with what even the enthusiasts for the hobby would expect. Given that a 'hobby' is part of the ordinary use as a residence, it becomes a question of fact and degree as to whether the particular example under consideration is so far out of line with the manner in which that hobby is normally practised that it should not be considered as being part of the ordinary residential use [24].

58 Her Honour applied that reasoning in Popelier. It confirms that activities may be permitted as incidental even though if not incidental they could fall within a prohibited use class.

59 The only other case of which I am aware in which there has been specific reference to the issue of whether an ancillary or incidental activity can be of a type which, if it was a use, would be prohibited, is Davey v Brightlite Nominees Pty Ltd [1984] VicRp 76; [1984] VR 957. In that case the appellant was convicted of using premises as a shop in circumstances where the 'light industrial' zoning did not permit such a use. The appellant sought to argue that the substantial purpose for which the premises were being used fell within the permitted class of uses. Nicholson J said in this regard that the fact the premises are largely used in a lawful fashion does not operate to make lawful other uses which are prohibited. However, it is clear that in this regard his Honour was referring to properties that had multiple uses. He specifically accepted that incidental activities did not fall within this ambit. In this regard his Honour said:

No doubt when a permit is granted uses which are truly ancillary to the main purpose and which might otherwise be unlawful would be legitimised, such as, for example, the use of portion of shop premises for office purposes connected with and essential to the user as a shop. However, I do not think that this principle can or should be extended to related but separate uses which are in fact unlawful (966).

60 In my view, if an activity is incidental to a permitted use then it is deemed to be included in that permitted use pursuant to cl 4.4.4 of the Scheme. Whether an activity is truly incidental to a permitted use or has itself become a separate and distinct use is a question of fact and degree. The fact that an activity might be prohibited if it was sufficiently significant to constitute a use is immaterial. Accordingly, the magistrate's approach to the question was correct. His findings that the activities of the respondent were not of sufficient duration or significance to constitute a separate use of the land and that they were incidental to the use of the land as a dwelling house were not the subject of challenge. What was the subject of challenge was whether an owner or occupier of land could dismantle or store a car as an activity incidental to use of the land for a dwelling house. This ground of appeal has no reasonable prospect of success and leave in respect of it is refused.

61 The appellant submits that the magistrate erred by taking into account whether vehicles could be seen from the road when considering whether the charge had been proved.

62 Clearly it is not an element of the offence of using the land for a prohibited purpose that the use be capable of being observed from the street. However, there is no reason to think that the magistrate made an error in this regard. In the course of detailing the facts his Honour referred to the fact that some of the vehicles were located behind fences. It is apparent from his reasons that this was merely a reference to the surrounding circumstances. It explained why the exact condition of some of the vehicles at certain times was difficult to determine. His Honour did not dismiss the charges on the basis that some of the vehicles could not be seen. There is no merit in this ground of appeal and leave in respect of it must be refused.

63 For the reasons I have stated leave in respect of each of the grounds must be refused. Where leave is not granted in respect of any ground of appeal the appeal is deemed to be dismissed. The orders will be as follows: